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https://www.courtlistener.com/api/rest/v3/opinions/4130423/ | May 17, 1989
Honorable G. Dwayne Pruitt Opinion No. JM-1046
Terry County Attorney
Terry County Courthouse Re: Whether sheriffs or con-
Brownfield, Texas 79316 stables are entitled to fees
for unsuccessful attempts at
service of civil process
(RQ-1660)
Dear Mr. Pruitt:
You ask whether sheriffs and constables are entitled to
charge a fee for unsuccessful attempts at service of pro-
cess. The resolution of your question turns on the author-
ity of the commissioners court to set such a fee under
section 118.131 of the Local Government Code.
In Attorney General Opinion JM-880 (1988) relevant
provisions of section 118.131 and the history of these pro-
visions were succinctly set forth, as follows:
In 1981, the legislature enacted article
3926a, V.T.C.S. (since codified as section
118.131 of the Local Government Code),
reading:
(a) The commissioners court of each
county may set reasonable fees to be
charged for services by the offices of
sheriffs and constables.
(b) A commissioners court may not set
fees higher than is necessary to pay the
expenses of providing the services.
Acts 1981, 67th Leg., ch. 379, § 1, at 1001.
Subsection 2(a) of the bill that enacted
article 3926a contained the following provi-
sion: 'Fees provided for sheriffs and con-
stables in other laws in conflict with this
Act are repealed to the extent they conflict
P. 5426
Honorable G. Dwayne Pruitt - Page 2 (JM-1046)
.
with this Act.' Id. at 0 2. But the bill
also stated, in section 3(b):
Until a commissioners court prescribes
different fees pursuant to Article 3926a,
Revised Civil Statutes of Texas, 1925, the
fees charged by a sheriff or constable are
those provided by the law in effect on
August 31, 1981. Fees charged by a sher-
iff or constable for services performed
before the effective date of this Act are
governed by the law in effect at the time
the services were performed.
Attorney General Opinion JM-880 (1988), at 1-2.
In Attorney General Opinion JM-880 it was concluded
that the commissioners courts may not set fees for the
execution of criminal warrants by a sheriff or constable and
that the general repealer of conflicting statutes found in
the bill that enacted former article 3926a was not
applicable in criminal cases.1
Focusing on the narrower issue of whether the commis-
sioners court may set a fee for unsuccessful attempts to
serve civil process, you call attention to Attorney General
Opinion H-756 (1975) stating that a sheriff is not entitled
to a fee for an unsuccessful attempt to serve process under
former article 3933a, V.T.C.S. Article 3933a was repealed
by article 3926a, effective September 1, 1981. Acts 1981,
67th Leg., ch. 379, 5 2(b), at 1001.
1. The opinion reasoned that an attempt to set fees in
misdemeanor cases was unconstitutional in that "[a] law
allowing different costs to be assessed in different
counties for the same penal offense would have the affect of
allowing the penalty for state-defined crimes to vary from
county to county and would violate both 'due process' and
'equal protection' constitutional rights." It was stated
that while the same reasoning would apply to felony cases,
it was unnecessary to utilize such analysis since the
provisions of the Code of Criminal Procedure governing fees
in felony cases were repealed by the 69th Legislature in
1985. Acts 1985, 69th Leg., ch. 269, at 1300, 1307. It was
concluded that the.application of section 118.131 to civil
cases was unaffected.
P. 5427
Honorable G. Dwayne Pruitt - Page 3 (JM-1046)
In Attorney General Opinion JM-193 (1984) it was
concluded that commissioners courts may set fees for
services performed by sheriffs and constables in accordance
with article 3926a, even though no fee for the service was
authorized prior to September 1, 1981.
In Attorney General Opinion JM-51 (1983) it was noted
that prior to the repeal of article 3933a, sheriffs and con-
stables were not entitled to receive fees from the Indus-
trial Accident Board for serving subpoenas issued by the
board. However, it was concluded that under article 3926a
(now section 118.131) a charge for serving such subpoenas
was appropriate, provided the charge was authorized by the
commissioners court.
We do not believe that Rule 17 of the Texas Rules of
Civil Procedure prohibits a commissioners court from
authorizing a fee for an unsuccessful attempt to serve civil
process by a sheriff or constable. Rule 17 provides:
Except where otherwise expressly provided
by law or these rules, the officer receiving
any process to be executed shall not be
entitled in any case to demand his fee for
executing the same in advance of such
execution, but his fee shall be taxed and
collected as other costs in the case.
The source for Rule 17 was article 3911, V.T.C.S.,
repealed, Acts 1939, 46th Leg., ch.25, g 1, at 201, and
codified as Rule 17. Prior to the repeal of article 3933a
disallowing a fee until service is performed and return
made, Attorney General Opinion H-756 (1975) construed Rule
17 as prohibiting a county or district clerk from collecting
as court costs a fee for service of process prior to the
actual service and return of process. Section 2(a) of the
bill that enacted article 3926a (now section 118.131)
contained the following provision.
Fees provided for sheriffs and constables
in other laws in conflict with the provisions
of this act are repealed to the extent they
are in conflict with this act.
Acts 1981, 67th Leg., ch. 379, 5 2(a), at 1001.
No reason is perceived why a commissioners court may
not set reasonable fees for services performed by sheriffs
and constables in unsuccessful attempts at service of civil
process under the authority granted the commissioners court
p. 5428
.
Honorable G. Dwayne Pruitt - Page 4 (JM-1046)
to set reasonable fees for services by such officers. How-
ever, until a commissioners court sets a fee pursuant to
section 118.131, a sheriff or constable is not entitled to
any fee for an unsuccessful attempt to serve process.
SUMMARY
Commissioners courts may set reasonable
fees for services performed by sheriffs and
constables in unsuccessful attempts to serve
civil process.
Very truly ~02 ,
J hffiJ&
JIM
L
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
P. 5429 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130426/ | THE ATTORNEY GENERAL
OF TEXAS
May 1, 1989
Honorable Carmen Rivera-Worley Opinion NO. JM-1043
Val Verde County Attorney
207 Losoya Street Re: Whether a commis-
Del Rio, Texas 78840 sioner's court may enter
into a lease with an
option to extend, and re-
lated questions (RQ-1558)
Dear Ms. Rivera-Worley:
You ask:
1. Can [a] Commissioners Court enter into
a lease coupled with an option to extend the
lease?
2. May Commissioners Court grant a lease
where there was no advertisement for competi-
tive bidding?
Your request indicates that these questions arose in
connection with the following factual circumstances. In
1977, an individual was granted a lease on a certain parcel
of county-owned land in Val Verde County, with an option to
extend the lease after the initial lease term. The lease
term ran out in 1980, and the option was exercised. In
1982, the lease extension under the option expired and the
commissioners court authorized the county judge to "adver-
tise for bids" to lease the property. The same individual
who had previously held the lease was granted the new lease,
for a five year term with an option to extend for an addi-
tional five years. In 1987, the lessee announced that he
would exercise his option to extend the lease for another
five years. However, you state that instead of the existing
lease being extended under the option at this time, a new
lease was entered into, again for a five year initial term
with an option to extend for another five years. "There
were no competitive bids announced for this new lease."
The individual leasing the land has used the land for a
gun range and an owner of nearby property has.complained to
the commissioners about the hazards posed by the gun range.
p. 5413
Honorable Carmen Rivera-Worley - Page 2 (JM-1043)
The commissioners agreed to approve the lease, on the
understanding that you would make this opinion request.
We note at the outset that fact questions cannot be
determined in the opinion process. Our recitation of the
facts you present is in no way an affirmation of their
veracity, but is only a statement of the basis on which this
opinion is rendered.
In response to your first question, we conclude that a
commissioners court may lease county-owned property and that
such agreement may include a reasonable option to extend the
lease.
Section 263.001 of the Local Government Code provides
for the sale or lease of real property owned by the county.
Subsection (a) of section 263.001 states:
The commissioners court of a county, by an
order entered in its minutes, may appoint a
commissioner to sell or lease real property
owned by the county. The sale or lease must
be made at a public auction held in accor-
dance with this section unless this chapter
provides otherwise.1
Whether the authorization to lease county property
includes the authorization to include in the lease provi-
sions an option to extend the lease at the end of the
initial lease term was addressed in Attorney General Opinion
H-1025 (1977). The issue in that opinion arose with respect
to the leasing of county school land for a five year period
with an option to extend for an additional five year period.
The opinion concluded that *Ia county may lease [its]
school lands upon terms similar to those made by citizens
generally, including a reasonable option to extend the lease
1. Prior to their codification in the Local Government
Code in 1987, these provisions appeared in article 1577 of
the Civil Statutes. Acts 1987, 70th Leg., ch. 149, at 707,
1035. Until 1973, article 1577 provided only for the 'sale
or disposal' of county-owned real property. Acts 1973, 63rd
Leg., ch. 499, at 1329. Several opinions of this office had
concluded that the authorization in article 1577 prior to
1973, to sell or dispose of property, did not include the
authorization to lease such property. S . a Attorney
General Opinions M-799 (1971) and V-1085 7:95gj.*'
p. 5414
Honorable Carmen Rivera-Worley - Page 3 (JM-1043)
period." In support of its conclusion, the opinion quoted
the following language from E,
h ' 8 S.W.Zd 666
(Tex. 1928), where the court considered the granting by a
county of an oil lease on its school land, which agreement
contained a 'renewal' clause authorizing the lessee to defer
commencement of drilling for twelve months upon payment of a
certain sum:
There is nothing in the constitutional
provision here involved which in the remotest
degree limits the right of the commissioners'
court to make a sale of its mineral estate
upon terms similar to those made by citizens
generally.2
8 S.W.2d 666, at 671.
Accordingly, we conclude that a county may lease county
property pursuant to section 263.001 of the Local Government
Code and that such lease may include a reasonable option to
extend. We do not, however, here pass on the validity of
any particular lease or option provisions.
It might be urged that a commissioners court could not
make an agreement of this sort, which would be binding on
future courts. However, we think such restriction applies
in Texas at best only to governmental functions of a politi-
cal subdivision such as a county, and that disposition of
county-owned real property is not such a governmental
function. See. e.a Attorney General Opinion JM-908
(1988); c Boa d of Contro 404 S.W.2d
810 (Tex. 1966); Gulf Bitulithic Co. v. Nuece; County 11
S.W.2d 305 (Tex. Comm'n App. 1928, judgm't adopted). Wh do
caution, that were a court to find that such a lease had
been entered into for an unreasonably long term, or with an
unreasonablv long extension period under an option provi-
sion, or subject to other unreasonable terms, it might well
conclude that the county had thereby exceeded its authority.
&8 Attorney General Opinion H-1025 (1977).
2. Notably, the provisions authorizing the county to
dispose of school land under consideration in Attorney
General Opinion H-1025 and in Ehlinaer did not explicitly
include the authorization to lease such land: but the
authority to lease had been inferred from those provisions
in eCountv 11 S.W. 492 (Tex. 1889). See
Tex. Const. art. VII, 5 6, and the provisions of what is now
section 17.82 of the Education Code.
p. 5415
Honorable Carmen Rivera-Worley - Page 4 (JM-1043)
II.
In response to your second question, we conclude that a
commissioners court may not grant a lease of this type
without compliance with the public auction requirements of
section 263.001 of the Local Government Code.
We presume that by the reference to "competitive
bidding" in your question you mean the ltpublic auctionl'
requirements of section 263.001, which section provides in
the second sentence of subsection (a) that "[t]he sale or
lease must be made at a public auction held in accordance
with this section unless this chapter provides otherwise."
Subsection (b) provides for the publication of notice of the
auction.
You do not indicate that the property in question is
subject to an exception to the public auction requirement
under chapter 263. (See, e.a., section 263.002, providing
alternatives to the disposition by public auction for
abandoned seawall or highway property.)
We find ample authority for the rule that a disposition
of county property not made in compliance with the public
auction requirements of what is now section 263.001, and not
falling within an exception to these requirements under
chapter 263, is void. See, e.a., rHa di
Mills Co., 112 S.W. 822 (Tex. Civ. App. 1908, no writ):
Jack v. State, 694 S.W.2d 391 (Tex. App. - San Antonio 1985,
writ ref'd n.r.e.).
SUMMARY
The authorization in section 263.001 of
the Local Government Code for a county to
lease county property, includes the authority
to include in the agreement an option to
extend the lease on reasonable terms. Such
lease must be made in compliance with the
public auction requirements of that section,
unless the transaction is subject to an
exception under chapter 263 to the public
auction requirement.
JIM MATTOX
Attorney General of Texas
p. 5416
Honorable Carmen Rivera-Worley - Page 5 (JM-1043)
MARYKELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 5417 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130440/ | THE ATTORNEY GENERAL
OF TEXAS
March 20, 1989
Honorable Fred G. Rodriguez Opinion No. Jr+1029
Criminal District Attorney
Bexar County Courthouse Re: Whether an abstract of
San Antonio, Texas 78205 judgment must meet the re-
quirements of section 12.013
of the Property Code
(RQ-1562)
Dear Mr. Rodriguez.:
Chapter 52 of the Property Code provides for the crea-
tion of a lien against the real property of a defendant who
has. suffered an adverse monetary judgment in court by means
of the recordation of the abstract of such judgment.
You ask:
Regardless of who prepares a[n] . . .
Abstract of Judgment pursuant to Texas
Property Code 5 52.002, must the . . .
Abstract of Judgment meet the requirements of
Texas Property Code 5 12.013?l
Section 52.002 of the Property Code provides:
(a) On application of a person in whose
favor a judgment is rendered in a small
claims court or a justice court or on
1. Your full question was:
Regardless of who prepares a or
Abstract of Judgment pursuant to Texas
Property Code 5 52.002, must the Judcnnent or
Abstract of Judgment meet the requirements
of Texas Property Code 5 12.0131 (Emphasis
added.)
Section 52.002 provides only for preparation of abstracts of
judgment. Accordingly, we will address your question only
with respect to abstracts of judgment.
P* 5318
Honorable Fred G. Rodriguez - Page 2 (JM-1029)
application of that person's agent, attorney,
or assignee, the judge or justice of the
peace who rendered the judgment shall prepare
and deliver to the applicant an abstract of
the judgment.
(b) A person in whose favor a judgment is
rendered in a court other than a small claims
court or a justice court or the person's
agent, attorney, or assignee may prepare the
abstract of judgment. The abstract of
judgment must be verified by the person
preparing the abstract.
(c) If the clerk prepares the abstract,
the applicant for the abstract must pay the
fee allowed by law.
Section 12.013 of the Property Code provides for the
recording of judgments and abstract of judgments as follows:
A judgment or an abstract of a judgment of
a court in this state may be recorded if the
judgment is attested under the signature and
seal of the clerk of the court that rendered
the judgment.
Provisions substantially equivalent to those currently
in section 12.013 have appeared in Texas statutes for over a
hundred years. See. e.a., Tex. Rev. Civ. Stat. art. 4338
(1879).
For the reasons given below, we conclude that the
attestation requirement of section 12.013 does not apply to
abstracts of judgment prepared under section 52.002.
First, section 12.013, on its face, provides only for
the attestation of a iudoment, not the attestation of an
abstract of iudoment. Section 52.002 provides, on the other
hand, only for the preparation of abstracts of iudoment.
Section 52.001 indicates that compliance with the re-
quirements of chapter 52, vis-a-vis an abstract of judgment,
suffices, in itself, to create a lien under that chapter.
Section 52.001 provides:
A first or subsequent abstract of judg-
ment, when it is recorded and indexed in
accordance with this chanter, constitutes a
lien on the real property of the defendant
located in the county in which the abstract
P. 5319
Honorable Fred G. Rodriguez - Page 3 (JM-1029)
recorded and indexed, including real
izoperty acquired after such recording and
indexing. (Emphasis added.)
Chapter 52 indeed appears to provide a comprehensive
scheme for the recording of abstracts so as to create liens.
Section 52.002, quoted above, provides for the preparation
of the abstract. Section 52.003 provides for the contents
of the abstract. Section 52.004 provides for the recording
and indexing of the abstract as follows:
(a) The county clerk shall immediately
record in the county judgment records each
properly authenticated abstract of judgment
that is presented for recording. The clerk
shall note in the records the date and hour
an abstract of judgment is received.
(b) At the same time an abstract is
recorded, the county clerk shall enter the
abstract on the alphabetical index to the
judgment records, showing:
(1) the name of each plaintiff in the
judgment;
(2) the name of each defendant in
judgment: and
(3) the number of the page in the
records in which the abstract is recorded.
(c) The clerk shall leave a space at the
foot of each recorded abstract for the entry
of credits on or satisfaction of the judgment
and shall make those entries when credits are
properly shown.
It might be argued that the requirement in section
52.004, subsection (a), that an abstract of judgment be
"properly authenticated" prior to recordation refers to
the "attestation" under section 12.013. However, we think
that the requirement that the abstract be t*properly
authenticated" can be met by the justice of peace or judge
of a small claims courts authenticating abstracts prepared
by the justice or judge under subsection (a) of section
52.002, or by compliance with the requirement that the
abstract be "verified by the person preparing the abstract"
for abstracts prepared under subsection (b) of section
52.002. (See Black's Law Dictionary 121 (5th ed. 1979),
P. 5320
Honorable Fred G. Rodriguez - Page 4 (JM-1029)
defining "authenticationl' as, inter alia, llverifications of
judgments.")
Thus pursuant to section 52.001, abstracts of judgment
prepared under section 52.002 constitute liens when recorded
and indexed in accordance with chapter 52. The attestation
requirement of section 12.013 is not only, on its face,
inapplicable to abstracts of judgment (as opposed to judg-
ments), but is specifically made inapplicable to chapter 52
abstracts by the provision of section 52.001 that compliance
with chapter 52 alone suffices to create liens under that
chapter. Perhaps the legislature might think it appropriate
to consider the matter of whether chapter 52 abstracts
should be made subject to attestation requirements.
SUMMARY
The requirement of section 12.013 of the
Property Code that a "judgment [be] . . .
attested under the signature and seal of the
clerk of the court that rendered judgment"
prior to recordation does not apply to ab-
stracts of judgment prepared and recorded
under chapter 52 of the Property, Code.
J I M MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 5321 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130646/ | THE ATTORNEY GENERAL
OF TEXAS
Novaher 20, 1987
Honorable Bob Bullock Opinion No. m-823
Comptroller of public Accounts
L.B.J. Building Re: Whether attorneys fees
Austin, Texas 70774 are in certain circum-
stances subject to sales
tax (RQ-1217)
Dear Mr. Bullock:
You ask our opinion about recent amendments to the
Tax Code provisions that govern the limited sales, excise,
and use tax. Tax Code ch. 151. During the second called
session the legislature expanded the definition of
"taxable services" to include "debt collectiont' services.
C
Acts 1987, 70th Leg., 2d C-S., ch. 5, art. 1, pt. 4, 512,
at 17, 25 (amending Tax Code §151.01Dl(a)). The
legislature defined "debt collection service" as follows:
(a) 'Debt collection service' means
activity to collect a debt or claim, to
adjust a debt or claim, or to repossess
property subject to a claim.
(b) 'Debt collection service' does not
include the collection of a judgment by an
attorney or by a partnership or professional
corporation of attorneys if the attorney,
partnership, or corporation represented the
person in the suit from which the judgment
arose.
Acts 1987, 70th Leg., ch. 5, art. 1, pt. 4, 54, at 17, 21
(to be codified as Tax Code 5151.0036).
You ask questions about statutory construction: we
limit this opinion to those questions. Your questions
,!- are:
1. Are attorneys' fees to date of judg-
ment for the collection of open accounts and
-
debts subject to tax?
p. 3914
Honorable Bob Bullock - Page 2 (JM-8Zz3)
2. Are attorneys' fees for filing bank-
ruptcy claims subject to tax?
?
3. Are charges by attorneys and others
in connection with land foreclosures subject
to tax?
4. Are attorneys' fees for enforcing
contracts where there is a money dispute
subject to tax?
5. If an attorney charges for enforcing
a judgment in a case in which he was not the
attorney who obtained the judgment, are his
fees subject to tax?
6. Are attorneys' fees for negotiating
debt and claim adjustments subject to tax?
7. Are attorneys' fees in connection
with enforcing insurance claims subject to
tax?
-,
Before we address the issues raised by those questions, a
review of the legislative history of section 151.0036 may
be helpful.
The extension of the sales tax to debt collection
services was part of House Bill No. 61, the omnibus tax
measure adopted by the second called session of the 70th
Legislature. On July 2, 1987, Representative Paul Colbert
offered an amendment from the floor that would have
extended the sales tax to include legal services. The
amendment was tabled, with 104 voting yea and 14 voting
nay. House Journal, 70th Leg., 2d C.S., at 181 (1987). A
second amendment from the floor on the same subject,
offered by Representative Al Luna, likewise was tabled,
with 116 voting yea and 2% voting nay. H.J., ,70th Leg.,
2d C.S., at 219 (1987).1 The Senate then considered Rouse
Bill No. 61 and added provisions to extend the sales tax
to include services, but not those, such as the practice
1. Another measure, House Bill No. 6, also was
introduced during the second called session, specifically
to extend the sales tax to legal services: it was reported
out of committee, but not considered on the floor.
p. 3915
Honorable Bob Bullock - Page 3 0-823)
of law, denominated as 81professional." See aenerallv Bill
Analysis to H.B. No. 61, prepared for House Ways and Means
Committee, filed in Bill File to H.B. No. 61, Legislative
Reference Library.
The House refused to concur in the Senate version of
the substitute, see H.J., 70th Leg., 2d C-S., at 335
(1987) t and a conference committee of members from the two
houses was appointed to fashion a compromise. Before the
aooointment of the' conference committee, the oresent
section anneared in neither the Senate nor the House
versions of H.B. 61.
The circumstances leading to the adoption by the
legislature of the final version of House Bill No. 61
suggest that the language adding section 151.0036 to the
Tax Code was given brief attention, both in the conference
committee deliberations and on the floors of the House and
Senate. Thus, the legislative history available for
determining legislative intent is scant. See aenerallv
Gov't Code 5311.023.
C The only reference to section 151.0036 in the debates
in either house on the conference committee version of
House Bill No. 61 before final passage came during a
colloquy on the floor of the House of Representatives
between Representative Dan Morales, the House sponsor of
House Bill No. 61 and a member of the conference committee
that produced section 151.0036, and Representative Greg
Luna. We set out the exchange in its entirety below.
Representative Luna: On these debt collec-
tion service: if an attorney sends a letter
for a debt?
Representative Morales: No, that would not
be covered.
Representative Luna: That would not be
covered. If an attorney seeks to have
foreclosure on real property? It says
repossessed property subject to a claim.
Representative Morales: Repeat that again.
Representative Luna: If an attorney proceeds
to represent a client on a foreclosure on
p. 3916
Honorable Bob Bullock - Page 4 (JM-823)
real property -- would that be subject to
fax?
?
Representative Morales: No, Greg, and I
guess that I would refer you to paragraph B
of that, of the debt collection provision,
where it indicates that a debt collection
service does not include collection of a
judgment by an attorney or by a partnership
or professional corporation of attorneys if
that attorney represented the person in the
suit.
Representative Luna: But what bothers
Dan is that a lot of collection is done :;
attorneys that does not result in a
judgment.
Representative Morales: That is right.
Representative Luna: And so,' even if it
does not, it would not be subject. . . .
Representative Morales: Greg, I think, that
if the reason that there is a lawyer
involved in a particular case is to
establish the claim then that would not
satisfy the definitional language and would
not be debt service collection. Because it
would not be focused upon collecting the
debt but would be deemed to be an establish-
ment of the existing claim.
Representative Luna: But, sometimes YOU
know on a debt and on an account - and I
don't do this much, I am trying to clarify
it for a later purpose - attorneys do send
letters on accounts that are due and most of
them are resolved without a judgment.
Representative Morales: Greg, I guess maybe
the easiest way for us to think about that
is that if the lawyer is doing what debt
collectors do and that is all then he would
be treated, that attorney would be treated -.
as a debt collector. However, if that
attorney has been involved in some other
aspect of the case relative to establishing
the claim or ultimately receiving the ---.
p. 3917
Honorable Bob Bullock - Page 5 (JM-823)
judgment he would fall, that individual
would fall, under the exception under para-
graph B.
Representative Luna: Many general practi-
tioners do this as a minor, incidental item
of their practice.
Representative Morales: Well they are debt
collectors, they are debt collectors and
subject to that provision of the bill.
Representative Luna: Will they have to
prescribe to any fee, permit fee, that sort
of thing?
Representative Morales: No, they are
already licensed by the state as an attorney
and I would presume that that would be
sufficient.
Debate on H.B. No. 61 on the floor of the House of
Representatives, 70th Leg., 2d C.S. (July 20, 1987)
(transcript available from House Hearing Reporter).
We think that the legislative intent behind this
hastily-drafted and ambiguous statute is most clearly
reflected in Representative Morales' statements. Repre-
sentative Morales' initial responses to Representative
Luna's questions are all to the effect that the services
of a lawyer would not be subject to the tax. Then
Representative Morales qualifies those statements by
saying that the tax would apply to a lawyer's services if,
the lawyer "is doing what debt collectors do and that is
all." Representative Morales' statements, taken together,
suggest that the legislative intent behind section
151.0036 was that a lawyer would be engaged in a taxable
activity & when engaged in debt-collection activity
that a non-lawyer could also engage in. That interpreta-
tion can be harmonized with the language of section
151.0036. Also, that interpretation is supported by the
fact that the same legislature that enacted section
151.0036 rejected a proposition to apply the sales tax to
legal fees generally.
Although we think it is possible to identify the
legislative intent behind section 151.0036, the legisla-
ture did not provide any guidelines for determining when a
lawyer "is doing what debt collectors do and that is all."
p. 3918
Honorable Bob Bullock - Page 6 (JM-823)
The practical difficulty with applying that standard is
that a lawyer's services to a creditor client may include,
in the same instance, services that only a lawyer can
render as well as services that non-lawyers, such as debt
collectors, can render. See aenerally Note, Collection
Aaen ies and th Unauthorized Pra tice of La 1 J. Legal
ProfC 155 (19;6); Annot., 27 CA.L.R.3d :i52 (1969) ;
Wolfram, Modern Legal Ethics, 5844 (1987). See also
Attorney General Opinion WW-312 (1981) (corporation may
not be represented in county court or county court at law
on action to collect debt by an officer who is not
lawyer). For example, a lawyer might write a demand
letter after counseling a client about different ways to
attempt to collect a debt or to adjust a claim. The
lawyer's advice, based on his legal skills and knowledge;
might be that further attempts to collect the debt or to
adjust the claim might be unfruitful because of various
legal or practical impediments or that additional efforts
might simply be too costly in light of the benefits even a
complete victory in the courts might bring. Although the
paperwork ultimately produced by the lawyer might be
similar to the paperwork produced by a non-lawyer debt
collector, the lawyer certainly would have practiced law
as part of the overall transaction. The question raised
by section 151.0036 is whether any part of a lawyer's
services in such a situation are subject to the sales tax.
If a part of a lawyer's services in situations like
the one described above were to be taxed, the comptroller
would be required to analyze the services provided by a
lawyer in order to identify the aspects that did not
involve the lawyer's legal skill or knowledge in any
way. It would be absurd for the legislature to,put the
comptroller in that position. Further, even if it were
possible to make that distinction, the attorney-client
privilege would make it nearly impossible for the
comptroller to obtain the information necessary to make
such a determination. Therefore, we conclude that the
legislature did not intend for "debt collection servicesl*
to include isolated pieces of transactions engaged in by
lawyers. See Gov't Code.J311.021 (legislature is assumed
not to intend absurd results). Rather, we think that the
legislature intended to tax services provided by a lawyer
only if it is clear that the lawyer is acting in a
transaction as nothina more than a debt collector. Again,
that interpretation is supported by the fact the the
legislature rejected a proposal to tax legal services
generally. Therefore, only in an instance in which your
p. 3919
Honorable Bob Bullock - Page 7 (JM-82%
office can demonstrate that a lawyer is not providing
legal services at all but is, for example, merely using
- his license to shield debt collection services from the
sales tax, would services provided by a lawyer be subject
to the sales tax.
SUMMARY
The services of a lawyer are not taxable
services under chapter 151 of the Tax Code
unless the comptroller determines that the
lawyer is not providing legal services and
is acting solely as a debt collector.
J-b
Very truly yo
.
JIM MATTOX
Attorney General of Texas
MARYKELLER
P Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion and Sarah Woelk
Assistant Attorneys General
p. 3920 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150394/ | IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
TODD A. DAVIS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-4917
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed March 6, 2017.
An appeal from an order of the Circuit Court for Duval County.
Marianne L. Aho, Judge.
Todd A. Davis, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
ROBERTS, C.J., WINOKUR, and M.K. THOMAS, JJ., CONCUR. | 01-03-2023 | 03-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288706/ | Fourth Court of Appeals
San Antonio, Texas
June 22, 2018
No. 04-18-00342-CV
IN RE ALBERT CASANOVA’S CUSTOM HOMES, LLC and Albert Casanova
Original Mandamus Proceeding1
ORDER
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Irene Rios, Justice
On May 23, 2018, relators filed a petition for writ of mandamus. On June 21, 2018,
relators filed a Motion to Dismiss explaining this mandamus proceeding is now moot. We grant
the motion and dismiss the petition as moot. This court’s opinion will follow at a later date.
It is so ORDERED on June 22, 2018.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 22nd day of June, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court
1
This proceeding arises out of Cause No. 11-0809-CV, styled Walter Weidner and Eileen K. Reina-Weidner v.
Albert Casanova's Custom Homes, LLC and albert Casanova, pending in the 25th Judicial District Court,
Guadalupe County, Texas, the Honorable William Old presiding. | 01-03-2023 | 06-26-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4130473/ | P.
December 20, 1988
Honorable James M. Kuboviak Opinion No. JR-996
County Attorney
Brazos County Re: Construction of term
300 E. 26th St., Suite #325 "actual costs" in section
Bryan, Texas 77803 6.27 of the Tax Code, and
related questions
(RQ-1478)
Honorable Janelle Haverkamp
County Attorney
Cooke County
Gainesville, Texas 76240
Dear Mr. Kuboviak and Ms. Haverkamp:
There are three situations in which a county might
assess, collect, or assess and collect taxes for other
taxing units in the county. First, a county might do so if
the qualified voters by petition and election require the
county to do so, pursuant to section 6.26 of the Tax Code.
In that instance, the charge for performing such services is
governed by subsection 6.26(g) of the code, which provides:
"A taxing unit shall pay the actual cost of nerformance of
the functions to the office or entity that performs func-
tions for it pursuant to an election as provided by this
section." (Emphasis added.) Second, a county may assess or
collect taxes for other taxing units in that county if the
governing bodies enter into an Interlocal Cooperation Act
contract, pursuant to section 6.24 of the code. Neither
section 6.24 of the code nor the Interlocal Cooperation Act
itself, article 4413(32c), V.T.C.S., specify that charges
may be made for the performance of such services: they are
both silent on the matter. Third, a county may assess or
collect taxes for another taxing unit in that county if it
is required to do so by law. It is this last situation with
which you are concerned, and it is governed by section 6.27
of the Tax Code.
you ask first about the proper method for determining
the "actual costs" incurred under section 6.27 of the code
when the county tax assessor-collector assesses and collects
p. 5096
Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 2 (JM-996)
ad valorem taxes for another taxing unit, as required by
law. YOU also ask whether the county tax
assessor-collector, the county commissioners court, or the
governing body of the taxing unit for which such services
are performed is empowered to make such a determination.
Specifically, Mr. Kuboviak asks:
Does the phrase "actual costsW@ pursuant to
Section 6.27 of the Texas Property Tax Code
indicate &&& particular cost which is in
addition to existing costs of collecting
taxes for the county?
We conclude that the phrase "actual costs" set forth in
section 6.27 of the Tax Code refers to those costs that the
collecting taxing unit or appraisal district incurs over and
above that cost that it would incur if it were not
collecting for another taxing unit.1
Section 6.27 of the Tax Code governs the compensation
that may be imposed by a county for performing "assessing
and collectinglt services for another taxing unit and
provides the following:
(a) [Repealed]
1. We note that if the county tax assessor-collector
assesses and/or collects pursuant to a section 6.26
consolidation election, the fee that may be charged is set
forth in subsection (g) of section 6.26:
A taxing unit shall pay the actual cost of
performance of the functions of the office or
entity that performs functions for it pursu-
ant to an election as provided by this
section. (Emphasis added.)
We construe the meaning of the phrase *'actual cost" set
forth in section 6.26 of the Tax Code to be identical to
that of the phrase "actual costs" set forth in section 6.27
of the code. &g, e.a., Paddock Siemoneit, 218 S.W.2d
428 (Tex. 1949); .@eenwood v. CitvVof E 1 Paso, 186 S.W.2d
1015 (Tex. Civ. App. - El Paso 1945, no writ). Ww-3e
repeatedly used in statute will be presumed to have same
meaning throughout, unless context shows another meaning is
intended.)
p. 5097
Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 3 (JW-996)
P
(b) The county assessor-collector is
entitled to a reasonable fee. which mav not
exceed the actual costs incurred.2 for
assessina and collectina taxes for a taxinq
unit oursuant to Subdivisions 11) throuah (3)
of Subsection la) of Section 6.23 of this
(c) The assessor or collector for a taxing
unit other than a county is entitled to
reasonable compensation, which may not exceed
the actual costs incurred, for assessing or
collecting taxes for a taxing unit pursuant
to Subsection (b) of Section 6.23 of this
code. (Emphasis added.)
Section 6.23 of the code permits, and in some cases
requires, the county tax assessor-collector to assess and/or
collect taxes for other taxing units:
(a) The county assessor-collector shall
assess andrcollect taxes on property in the
county for the county. He shall aIso assess
and collect taxes on property for another
taxing unit if:
(1) the law creating or authorizing
creation of the unit requires it to use
the county assessor-collector for the
taxes the unit imposes in the county:
2. In spite of the phrase "which may not exceed the
actual costs incurred," we do not construe section 6.27 to
permit a county tax assessor-collector to impose a fee that
is less than the actual costs incurred. &gg, -, San
Antonio Ind eD . ch& Dist. v. Board of Trustees of San
Antonio Elec. & Gas Svstem, 204 S.W.2d 22 (Tex. Civ. App. -
El Paso 1947, writ ref'd n.r.e.); Tex. Const. art. III, §.$
51, 52; Attorney General Opinions H-1018 (1977): V-953
(1949): see also Acts 1987, 70th beg., H.J.R. No. 83, 51, at
4127 (text of proposed constitutional amendment that failed
to receive voter ratification, which would have permitted a
county to, inter alia, use county personnel to perform work
without compensation for another governmental entity under
certain conditions).
p. 5098
Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 4 (JM-996)
(2) the law creating or authorizing
creation of the unit does not mention who
assesses and collects its taxes and the
unit imposes taxes in the county;
(3) the governing body of th;,l;ikE
requires the county to assess and
its taxes as provided by Subsection (c) of
Section 6.22 of this code: or
(4) re ired by an intergovernmental
contract. !P
We understand you to ask whether "actual costs." means
the additional costs a county incurs for performing services
for another taxing unit, over and above the costs that it
would incur were it assessing or collecting only for itself,
or whether it means the cost that the contracting taxing
unit would itself incur if it were performing the functions
for itself. Perhaps an example will clarify your question.
Assume that a county incurs a cost of $3.75 per parcel for
assessing and collecting taxes on property on its own tax
roll, while an independent school district located within
the county incurs a cost of $4.00 per parcel for property on
its own tax roll. Assume further that the county could
assess and collect taxes for the independent school district
for an additional cost of $.25 per parcel for those parcels
on both tax rolls. You want to know whether the county is
limited to a fee equal to the additional costs it would
incur, i.e. $.25 per parcel, or whether it may impose a fee
equal to the cost that the independent school district would
incur if it performed the functions for itself, i.e. $4.00
per parcel. We conclude that the county may charge a fee
equal only to the additional costs that it incurs: in this
example, $.25 per parcel.
3. Section 6.24 of the Tax Code permits a taxing unit
to enter an Interlocal Cooperation Act contract to perform
duties relating to the assessment or collection of taxes.
Section 6.24 itself is silent as to the fee that may be
charged. The Interlocal Cooperation Act, article 4413(32c),
V.T.C.S., also is silent as to any fees that may be charged.
Section 6.27 does not govern such a contract, because it
specifically does not apply when assessing and collecting is
performed pursuant to subdivision (4) of subsection (a) of
section 6.23, i.e. when such services are performed by
virtue of "an intergovernmental contract."
p. 5099
Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 5 (JR-996)
We think that a plain, common sense reading of subsec-
tion 6.27(a) requires such a construction. Subsection (b)
of section 6.27 of the Tax Code provides:
The county assessor-collector is entitled
to a reasonable fee, which mav not exceed the
actual costs incurred, for assessing and
collecting taxes for a taxing unit pursuant
to Subdivisions (1) through (3) of Subsection
(a) of Section 6.23 of this code. (Emphasis
added.)
Subsection (a) of section 311.011 of the Government Code
provides: "Words and phrases shall be read in context and
construed according to the rules of grammar and common
usage." Reading the underscored phrase above in context and
according to rules of common usage, we conclude that the
phrase refers to the costs incurred bv the countv tax
assessor-collector for performing assessment and collection
functions for another taxing unit. If the legislature had
intended that the county tax assessor-collector impose a fee
equal to the cost that would have been‘incurred by the
contracting taxing unit if it had performed the services for
itself, it explicitly would have so provided.
We are required, moreover, to construe a statute or
code provision so as not to ascribe to the legislature
intent to do an unreasonable thing if the provision
reasonably is susceptible of such a construction. State
Hiahwav DeD't v. Gorham, 162 S.W.2d 934 (Tex. 1942):
Anderson v. Penix 161 S.W.2d 455 (Tex. 1942). The
legislature clearly'intended that taxing units in certain
instances assess and collect taxes for other taxing units in
order to promote efficiency and economy in the performance
of governmental functions. It has permitted, or in some
instances, required such consolidation of services. See Tax
Code, 55 6.23, 6.24, 6.26. Because one of the means by
which the legislature effected such a consolidation is by
Interlocal Cooperation Act contract, we think that it is
reasonable to assume that the legislature intended that the
Tax Code provisions promote the same public policy as the
Interlocal Cooperation Act itself promotes. The purpose of
the Interlocal Cooperation Act is set forth in that act's
first section:
It is the purpose of this Act to imorove
the efficiencv and effectiveness of local
aovernments by authorizing the fullest
possible range of intergovernmental
p. 5100
Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 6 (JM-996)
contracting authority at the local level
including contracts between counties and
cities, between and among counties, between
and among cities, between and among school
districts, and between and among counties,
cities, school districts, and other political
subdivisions of the state, and agencies of
the state. (Emphasis added.)
V.T.C.S. art. 4413(32~), 5 1.
Under our construction of "actual costs,80 the county
would be reimbursed only for the additional expenses that it
incurs for assessing and collecting taxes for another taxing
unit, while that taxing unit would save a portion of the
expenses that it would incur were it to perform such
functions for itself. On the other hand, if we were ;to
construe *'actual costs*' in section 6.27 to refer to the
costs incurred by the taxing units when they assess and
collect their own taxes, the county would receive a fee
greater than the cost that it had actually incurred, while
the other taxing unit would incur the same expense that Iit
would have incurred had it performed those functions for
itself. We fail to see how such a construction would
promote public policy. Accordingly, we conclude that the
underscored phrase of subsection (b) of section 6.27 refers
to the additional costs incurred by the county tax
assessor-collector to perform such functions.
you both ask whether the county tax assessor-collector,
the county commissioners court, or the taxing units for
which the county performs assessment and collection
functions is empowered to determine just what are the
"actual costsl' incurred. Specifically, Mr. Kuboviak asks:
Pursuant to Section 6.27 of the Texas
Property Tax Code, & determines the amount
of actual costs and fees to be charged[?]
Ms. Haverkamp asks:
When the responsibility of assessing and
collecting property taxes for taxing units in
the Appraisal District for a County *
transferred from the Appraisal District ::
the County Tax Assessor-Collector office by a
countywide election pursuant to 5 6.26 of the
Property Tax Code, does the County
Commissioners Court or do the individual
taxing units approve that portion of the
p. 5101
Honorable James M. Kuboviak
Honorable Janelle Haverkamn
Page 7 (JM-996)
C
budget of the Tax Assessor-Collector which
relates to the assessing and collecting of
property taxes?
It has been suggested that, based upon Attorney General
Opinion JM-833 (1987), the county
. tax assessor-collector is
empowered by the Texas Constitution to determine the "actual
costs" involved. We disagree.4 In Attorney General Opinion
JM-833, we concluded that section 6.26 of the Tax Code,
which purported to authorize the electorate to divest the
county tax assessor-collector of the duties of assessing and
collecting taxes for the county, was unconstitutional. We
so concluded because article VIII, section 14, of the Texas
Constitution placed in the county tax assessor-collector
"all the duties with respect to assessing property for the
purpose of taxation and of collecting taxes [for the
county], as mav b or scribed bv the Leaislature."
(Emphasis added.) TEe op&ion held that the language of
4. It also has been suggested that section 6.24 of
the code confers joint authority on the commissioners court
and the county tax assessor-collector to determine what are
"actual costs. " The purportedly relevant language of
section 6.24 provides:
(b) The commissioners court with the
anoroval of the countv assessor-collectoy may
contract as provided by the Interlocal coop-
eration Act with the governing body of
another taxing unit in the county or with the
board of directors of the appraisal district
for the other unit or the district to perform
duties relating to the assessment or collec-
tion of taxes for the county. (Emphasis
added.)
We noted in the third footnote that the reach of
section 6.27 specifically does not extend to a section 6.24
contract, because section 6.27, by its terms, does not
apply when assessing and collecting is performed pursuant to
subdivision (4) of subsection (a) of section 6.23, i.e. when
such services are performed pursuant to "an intergovern-
mental contract." Therefore, reliance upon section 6.24 of
the code in support of the proposition that a county tax
assessor-collector may determine, whether jointly
independently, what are "actual coststl as set forth Tz
section 6.27 of the code is misplaced.
p. 5102
Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 8 (JM-996)
section 14 quoted above should be COnStNed to mean "'all
duties with respect to assessing property for purposes of
taxation and of collecting taxes* that the leaislature
prescribes are to be performed by that officer." Attorney
General Opinion JM-833 (1987) at 4.
We do not construe "all duties" to encompass the duty
to determine the llactual costs" of performing such services,
because the legislature has not imposed such a duty upon
county tax assessor-collectors. No provision of either
chapter 26 of the Tax Code, which sets forth the duties
comprising assessment, or chapter 31 of the Tax Code, which
sets forth the duties comprising collection, confers any
such authority on the county tax assessor-collector. There
are, however, statutory provisions that we think implicitly
confer such authority on the county commissioners court.
Article V, section 18, of the Texas Constitution
provides in relevant part:
The County Commissioners so chosen, with the
County Judge as presiding officer, shall
compose the County Commissioners Court, which
shall exercise such powers and jurisdiction
over all county business, as is conferred by
this Constitution and the laws of the State,
or as may be hereafter prescribed.
Among those powers conferred by the laws of this state
is the power to determine and adopt the county#s budget.
The determination and adoption of the county budget is
governed by chapter 111 of the Local Government Code.
Subchapters A, B, and C of chapter 111 govern counties of
different population levels. Each subchapter requires the
counties to prepare itemized budgets. See Local Gov't Code,
55 111.003, 111.004, 111.033, 111.034, 111.062, 111.063.
Each empowers the county commissioners court to require of
the various other county officers any information necessary
for the proper preparation of the county budget. m Local
Gov't Code 55 111.005, 111.036, 111.065. Each subchapter
rests authority to adopt the budget with the commissioners
court of each respective county. See Local Gov't Code,
55 111.008, 111.039, 111.068.
Pursuant to his responsibility to submit to the
commissioners court information necessary for the proper
preparation of the county budget, the tax assessor-collector
has the authority to make the initial determination
regarding what are llactual costs" under subsection 6.27 (b)
of the Tax Code. Because the authority to prepare and adopt
p. 5103
‘
Honorable James M. Kuboviak
Honorable Janelle Haverkamp
; Page 9 (JM-996)
the budget necessarily includes the authority to determine
and budget the expenditures for the various counties'
offices, we conclude that the county commissioners court is
empowered to determine as a final matter, in conjunction
with its authority regarding the budget, what are "actual
coststl incurred by the county pursuant to section 6.27 of
the code.
SUMMARY
The phrase "actual costs" set forth in
section 6.27 of the Tax Code refers to those
costs that the collecting taxing unit or
appraisal district incurs over and above the
cost that it would incur if it were not
collecting for another taxing unit. The
county commissioners court has implicit
authority, derived from explicit authority
regarding the preparation and adoption of a
county's budget conferred by chapter 111 of
the Local Government Code, to determine as a
final matter what are the "actual costs"
incurred by the county pursuant to section
6.27 of the Tax Code.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCRKARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 5104 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125056/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 9, 2015
The Honorable Doug Miller Opinion No. KP-0008
Chair, Special Purpose Districts Committee
Texas House of Representatives Re: Whether the Edwards Aquifer Authority
Post Office Box 2910 may provide funding to the U.S. Fish &
Austin, Texas 78768-2910 Wildlife Service for the implementation of a
refugia program (RQ-1220-GA)
Dear Representative Miller:
You ask three questions related to whether the Edwards Aquifer Authority ("EAA") may
provide funding to the U.S. Fish & Wildlife Service ("USFWS") for the implementation of a
refugia program under certain terms and conditions proposed by USFWS. 1
EAA is "a special regional management district" created by the Legislature through the
Edwards Aquifer Authority Act ("EAA Act"). 2 The stated purposes of EAA are "to protect
terrestrial and aquatic life, domestic and municipal water supplies, the operation of existing
industries, and the economic development of the state." EAA Act§ 1.01. Among other duties,
EAA is responsible for the regulation of withdrawals of groundwater from the aquifer by well
owners. Id. § 1.15. EAA has recognized that performing its statutory duties could result in the
"taking" of endangered species, which is prohibited by federal law under the Endangered Species
1
Letter from Honorable Doug Miller, Co-Chair, Edwards Aquifer Legislative Oversight Comm. to Honorable
Greg Abbott, Tex. Att'y Gen. at 2-3 (Sept. 3, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-
opinion-rqs ("Request Letter").
2
EAA Act§ 1.0 I, http://www.edwardsaquifer.org (Legislation and Rules). The EAA Act remains uncodified.
Citations are to the EAA Act's current sections, without separate reference to amending sections. Official citations
are included in the session laws. See Act of May 30, 1993, 73d Leg., R.S., ch. 626, 1993 Tex. Gen. Laws 2350,
amended by Act of May 16, 1995, 74th Leg., R.S., ch. 524, 1995 Tex. Gen Laws 3280; Act of May 29, 1995, 74th
Leg., R.S., ch. 261, 1995 Tex. Gen. Laws 2505; Act of May 6, 1999, 76th Leg., R.S., ch. 163, 1999 Tex. Gen. Laws
634; Act of May 25, 2001, 17th Leg., R.S., ch. 1192, 2001 Tex. Gen. Laws 2696; Act of May 27, 2001, 17th Leg.,
R.S., ch. 966, §§ 2.60-.62, 6.01-.05, 2001 Tex. Gen. Laws 1991, 2021-22, 2075-76; Act of May 25, 2001, 17th Leg.,
R.S., ch. 1192, 2001 Tex. Gen. Laws 2696; Act of June I, 2003, 78th Leg., R.S., ch. 1112, § 6.01(4), 2003 Tex. Gen.
Laws 3188, 3193; Act of May 23, 2007, 80th Leg., R.S., ch. 510, 2007 Tex. Gen. Laws 900; Act of May 28, 2007,
80th Leg., R.S., ch. 1351, §§ 2.01-2.12, 2007 Tex. Gen. Laws 4612, 4627-34; Act of May 28, 2007, 80th Leg., R.S.,
ch. 1430, §§ 12.01-12.12, 2007 Tex. Gen. Laws 5848, 5901-09; Act of May 21, 2009, 8lst Leg., R.S., ch. 1080, 2009
Tex. Gen. Laws 2818.
The Honorable Doug Miller - Page 2 (KP-0008)
Act ("ESA"). 16 U.S.C.A. § 1538(a)(l)(B) (West 2010). 3 Therefore, EAA, joined by several
other entities, sought and obtained from USFWS an incidental take permit. 4 The Permit precludes
liability under the ESA for any taking that is "incidental to, and not the purpose of, the carrying
out of an otherwise lawful activity." Id. § 1539(a)(l)(B).
To obtain the Permit, the ESA required EAA and other stakeholders to submit a plan that
specified the steps they would take to "minimize and mitigate" the impact of any taking. Id.
§ 1539(a)(2)(A)(i-ii). Accordingly, EAA and a number of other entities prepared a habitat
conservation plan outlining specific measures that the applicants would undertake to protect the
covered species. 5 USFWS approved the Plan and issued the Permit in February 2013. Permit at
1. "The authorization granted by [the Permit is] subject to full and complete compliance with, and
implementation of, the" Plan. Id.
As part of the Plan, EAA is required to "support and coordinate with the USFWS on the
work relating to the ... operation and maintenance of a series of off-site refugia at USFWS' s San
Marcos, Uvalde, and Inks Dam facilities." See Plan,§ 5.1.1. You describe arefugia in this context
as "an off-site facility designed and dedicated to the care, housing, and maintenance of individuals
or populations of Covered Species in an artificial habitat to protect them from and to avoid the
negative effects of drought disturbance, disease outbreaks, and water quality impairment in the
Comal and San Marcos Springs and Rivers ecosystems." Request Letter at 7. You explain that
USFWS has proposed "a management contract that would contain the terms and conditions under
which it would be willing to contract with the EAA to implement the refugia program." Id. at 8.
Under the terms of that proposed contract, USFWS would acquire or construct buildings, facilities,
equipment and supplies, which would be owned by USFWS and located on federal land. Id.
You first ask whether EAA may provide funding to USFWS to implement the refugia
program if the "buildings, works, facilities, and equipment must be owned solely by [USFWS] and
be physically located on real property owned by" USFWS. Id. at 4. You are specifically concerned
that EAA's provision of funding to USFWS may implicate the prohibition against gratuitous grants
of public credit and funds under article III, section 52(a) of the Texas Constitution. Id. at 13.
Article III, section 52 prohibits the Legislature from authorizing a political subdivision "to
lend its credit or to grant public money or thing of value in aid of, or to any individual, association
3
Under the ESA, to "take" is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct." 16 U.S.C.A. § 1532(19) (West 2010). Section 1538(a)(l)(B)
provides, with certain exceptions, that "with respect to any endangered species of fish or wildlife listed pursuant to
section 1533 of this title, it is unlawful for any person subject to the jurisdiction of the United States to ... take any
such species within the United States or the territorial sea of the United States." Id.§ 1538(a)(l)(B).
4
See EAA Act§ l .1 l(d)(9) (expressly authorizing the EAA to hold permits under the ESA); USFWS Permit
TE63663A-O,http://www.eahcp.org/files/admin-records/NEPA-and-HCP/USFWS_Permit_ 03-18-2013_rcvd_ 1030_
a.m._Final.pdf ("Permit").
5
See Edwards Aquifer Authority Recovery Implementation Program, Habitat Conservation Plan (Nov. 2012)
("Plan"), http://www.eahcp.org/ ("Documents and Publications," "Habitat Conservation Plans and Appendices").
The Honorable Doug Miller - Page 3 (KP-0008)
or corporation." TEX. CONST. art. III, § 52(a). Answering your question first requires a
determination as to whether a court would consider USFWS, a federal agency, an "individual,
association or corporation" for purposes of article III, section 52. Id. Courts have considered some
local governmental entities, such as school districts, to be corporations for purposes of article III,
section 52. See, e.g., San Antonio Indep. Sch. Dist. v. Bd. ofTrs. ofSan Antonio Elec. & Gas Sys.,
204 S.W.2d 22, 25 (Tex. Civ. App.-El Paso 1947, writ refd n.r.e.) (concluding that article III,
section 52 prohibits a city from donating "its funds to an independent municipal corporation such
as an independent school district"). The Texas Supreme Court, however, has concluded that a
state agency does not "qualify as an individual, association or corporation under section 52(a)"
and that the provision therefore "does not prohibit transfers to a state agency." Tex. Mun. League
lntergov 'l Risk Pool v. Tex. Workers' Comp. Comm 'n, 74 S.W.3d 377, 384 (Tex. 2002); see also
Harris Cnty. Flood Control Dist. v. Mann, 140 S.W.2d 1098, 1103 (Tex. 1940) (orig. proceeding)
(concluding that statutes authorizing a district to cooperate with the federal government in carrying
out the purposes of the district did not violate article III, section 52). Although we find no case
expressly stating that a federal agency is not an "individual, association or corporation" for
purposes of section 52, the same rationale that applies to a state agency would likely apply to a
federal agency. Thus, a court is likely to conclude that a federal agency like USFWS is not an
"individual, association or corporation" under article III, section 52 and that the constitutional
provision would not prohibit EAA from providing funds to USFWS to implement the refugia
program consistent with EAA's purposes.
In your second question, you ask whether EAA has the statutory authority to enter into a
non-joint refugia project contract with USFWS. Request Letter at 2. The Legislature has granted
EAA broad authority to "enter into contracts." EAA Act§ l.ll(d)(2); Tex. Att'y Gen. Op. No.
GA-0708 (2009) at 3. Furthermore, the EAA has "all of the powers, rights, and privileges
necessary to manage, conserve, preserve, and protect the aquifer," expressly including the
authority granted by chapters 36, 49, and 51 of the Water Code. 6 EAA Act§ 1.08. Thus, ifEAA
determines that entering into the refugia project contract with USFWS under the terms USFWS
proposes is necessary to manage, conserve, preserve and protect the aquifer, a court would likely
conclude that the EAA has statutory authority to do so. 7
You suggest that two provisions in chapter 49 of the Water Code may prohibit the EAA
from contracting with USFWS "unless and only if the project is, in fact, jointly constructed,
financed, owned, and operated." Request Letter at 20. The two provisions you raise are sections
6
Subsection l .08(a) of the EAA Act provides that the EAA's authority includes that granted by chapters 50,
51 and 52 of the Water Code. Chapters 50 and 52 were repealed by the Legislature in 1995 and replaced with chapters
49 and 36, respectively. Courts have since held that the recodified chapters apply to the EAA. See, e.g., In re Edwards
Aquifer Auth., 217 S.W.3d 581, 587-88 (Tex. App.-San Antonio 2006, orig. proceeding).
7
You also ask in relation to this question whether EAA may provide advance funding to USFWS for
construction, equipment and supplies "without contravening the gratuitous grant prohibition of Article III, Section
52(a)." Request Letter at 17. Because we have already concluded that a court is unlikely to consider USFWS an
"individual, association or corporation" under article III, section 52, we do not address this question further.
The Honorable Doug Miller - Page 4 (KP-0008)
49.213(a) and 49.227, which authorize special law districts to contract for joint projects with other
entities. Subsection 49.213(a) provides:
A district may contract with a person or any private or public entity
for the joint construction, financing, ownership, and operation of
any works, improvements, facilities, plants, equipment, and
appliances necessary to accomplish any purpose or function
permitted by a district, or a district may purchase an interest in any
project used for any purpose or function permitted by a district.
TEX. WATER CODE ANN. § 49.213(a) (West 2008). Section 49.227 states:
A district or water supply corporation may act jointly with any other
person or entity, private or public, whether within the State of Texas
or the United States in the performance of any of the powers and
duties permitted by this code or any other laws.
Id. § 49.227. The language of sections 49.213(a) and 49.227 provides affirmative grants of
authority for districts to act jointly with other entities; however, nothing in either provision
suggests that those statutes are intended to limit the EAA's broad contracting authority granted in
the EAA Act.
Your final question asks whether chapter 49, subchapter I of the Water Code will apply to
the refugia contract between EAA and USFWS. Request Letter at 2-3. Chapter 49, subchapter I
is titled "Construction, Equipment, Materials and Machinery Contracts," and it outlines a number
of procurement requirements for "[a]ny contract made by the board for construction work." TEX.
WATER CODE ANN. § 49.271(a) (West Supp. 2014); see generally id. §§ 49.271-.279 (West 2008
& Supp. 2014). In particular, you question whether section 49.276 of the Water Code prohibits
EAA from making advance payments to USFWS for the construction of the additional
improvements necessary to operate the refugia program. 8 As you describe it, although the
proposed management contract between EAA and USFWS will require USFWS to either acquire
or construct facilities and improvements, EAA will be contracting for USFWS 's services to
operate the refugia program. You explain that USFWS will have "[ c]ontrol over the design,
construction and equipment plans and specifications," which suggests that the contract between
EAA and USFWS itself may not be a contract for construction work, making subchapter I
inapplicable. Request Letter at 8. Even if a court were to conclude that the contract between EAA
and USFWS were a contract for construction work, section 49.278 excepts certain contracts from
the application of subchapter I, including contracts for "professional services" and "contracts for
8
Subsection 49.276(b) of the Water Code provides that "[t]he district will make progress payments under
construction projects monthly as the work proceeds, or at more frequent intervals as determined by the board or its
designee, on estimates approved by the board or its designee." TEX. WATER CODE ANN. § 49.276(b) (West 2008).
The Honorable Doug Miller - Page 5 (KP-0008)
services or property for which there is only one source or for which it is otherwise impracticable
to obtain competition." TEX. WATER CODE ANN.§ 49.278(a)(2), (4)(West 2008). Under the terms
of the contract, USFWS is the only source that may provide and operate a refugia program. For
these reasons, a court would likely conclude that chapter 49, subchapter I does not apply to a
contract between EAA and USFWS for the operation of a refugia program. 9 You do not ask, and
we do not address, the propriety of USFWS requiring as a condition of an incidental take permit
that the applicant fund structures on USFWS property or fund USFWS employees.
9
y ou do not ask, and we do not address, the constitutional authority of the federal government to regulate
the taking of the endangered species that are part of the Plan. See GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622,
640--41 (5th Cir. 2003) (holding that application of the ESA's take provision to intrastate species is a constitutional
exercise of the Commerce Clause power); but see People for the Ethical Treatment of Prop. Owners v. U.S. Fish &
Wildlife Serv., No. 2: 13-cv-00278-08, 2014 WL 5743294, at *8 (D. Utah Nov. 5, 2014) (holding that the Commerce
Clause "does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on
interstate commerce").
The Honorable Doug Miller - Page 6 (KP-0008)
SUMMARY
Article III, section 52 of the Texas Constitution prohibits the
Legislature from authorizing a political subdivision "to lend its
credit or to grant public money or thing of value in aid of, or to any
individual, association or corporation." Based on Texas Supreme
Court precedent, a court is likely to conclude that the United States
Fish and Wildlife Service is not an "individual, association or
corporation" under article III, section 52, and that the constitutional
provision therefore would not prohibit the Edwards Aquifer
Authority from providing funds to the United States Fish and
Wildlife Service to implement a refugia program.
If the Edwards Aquifer Authority determines that entering
into the refugia project contract with the United States Fish and
Wildlife Service under the terms the Service proposes is necessary
to manage, conserve, preserve and protect the aquifer, a court would
likely conclude that the Edwards Aquifer Authority Act provides
statutory authority to do so.
A court would likely conclude that chapter 49, subchapter I
of the Water Code does not apply to a contract between the Edwards
Aquifer Authority and the United States Fish and Wildlife Service
for the operation of a refugia program.
Very truly yours,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289112/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00116-CV
MJR OIL & GAS 2001 LLC, Appellant
V.
ARIESONE, LP, GFP TEXAS, INC., MIKEN OIL, INC.,
AND SND ENERGY COMPANY, INC., Appellees
On Appeal from the County Court at Law No. 2
Gregg County, Texas
Trial Court No. 2016-1054-CCL2
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Moseley
OPINION
This dispute is about a right of first refusal (ROFR) in certain oil and gas leases on various
properties located in Gregg and Rusk Counties. It is undisputed that a ROFR in favor of MJR Oil
& Gas 2001 LLC (MJR) is contained in a May 2002, unrecorded Settlement and Release
Agreement (the Settlement Agreement) between two groups of owners of an oil company,
including MJR and Energy 2000, Inc. (Energy). At issue in this case is whether MJR’s ROFR is
a covenant running with the land, and therefore enforceable against the assignees and successors
in interest to Energy: AriesOne, LP (AriesOne), GFP Texas, Inc. (GFP), Miken Oil, Inc. (Miken),
and SND Energy Company, Inc. (SND) (collectively, Appellees). The trial court held that it was
not a covenant running with the land and entered summary judgments in favor Appellees on that
basis.1 The trial court also denied MJR’s motion for partial summary judgment against AriesOne,
which asked for summary judgment against AriesOne on liability and contended that the ROFR
was a covenant running with the land. After the parties agreed to non-suit all other claims and
counterclaims, the trial court entered a final judgment in favor of Appellees.
On appeal, MJR contends that the trial court erred in holding that the ROFR was not a
covenant running with the land and asks us to reverse the trial court’s rulings. We agree that the
trial court erred in granting the motion for summary judgment in favor of Appellees.
1
The trial court’s summary judgment in favor of GFP, Miken, and SND specifically stated that it was granted on the
basis that the ROFR was not a covenant running with the land. The trial court did not state the basis of its traditional
summary judgment in favor of AriesOne.
2
I. Standard of Review
“We review the trial court’s summary judgment de novo.” Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) (citing FM Props. Operating Co. v. City of Austin,
22 S.W.3d 868, 872 (Tex. 2000)). In our review, all evidence favorable to the non-movant is
deemed true, and every reasonable inference and any doubts are resolved in the non-movant’s
favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To be entitled to
traditional summary judgment, a movant must establish that there is no genuine issue of material
fact so that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Once the
movant produces evidence entitling it to summary judgment, the burden shifts to the non-movant
to present evidence raising a genuine issue of material fact. Walker v. Harris, 924 S.W.2d 375,
377 (Tex. 1996). A defendant is entitled to summary judgment on a claim only when it
conclusively negates a single essential element of a cause of action or conclusively establishes an
affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010).
When, as in the case of AriesOne, both sides file motions for summary judgment and the
trial court grants one motion and denies the other, we consider both sides’ summary judgment
evidence and determine all questions presented, and if the trial court erred, we render the judgment
the trial court should have rendered. Mann Frankfort, 289 S.W.3d at 848 (citing Comm’rs Court
of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)).
3
II. The Summary Judgment Evidence
MJR’s ROFR appears in the Settlement Agreement, which was executed May 5, 2002. The
Settlement Agreement arose out of a lawsuit filed in the County Court at Law No. 3 of Dallas
County between MJR and others (referred to collectively in the Settlement Agreement as the Ryan
Parties), Energy and others (referred to collectively in the Settlement Agreement as the Dickerson
Parties), and Ascend Oil & Gas, L.L.C. (Ascend), over the ownership and operation of Ascend and
certain oil and gas properties. Under the Settlement Agreement, the various parties agreed to
convey all of their interest in the oil and gas properties to Energy, and Energy agreed to convey
varying overriding royalty interests (ORRI) in certain oil and gas properties to MJR. The
Settlement Agreement also contained a section that set forth the continuing obligations of Energy
to MJR.2 These obligations included the actions Energy would take to insure the proper and
prompt payment of the overriding royalties for any production from the oil and gas properties to
MJR, and also included a ROFR that provided:
[Energy] shall advise MJR within ten business (10) days of any assignment,
farmout, sale or transfer of any property, lease, or well in which MJR has any
interest and shall give MJR a [ROFR] to purchase such interest upon the same terms
as offered to [Energy] by a bona fide third party. If MJR does not agree to purchase
such interest within ten (10) days, [Energy] shall advise the new operator and/or
transferee of MJR’s overriding royalty interest. As a condition precedent to the
transfer, any transferee shall be required to agree to be bound by the obligations to
MJR contained in this agreement as it pertains to any interest transferred and give
MJR evidence of same.
2
Although the section refers to the continuing obligations of the Dickerson Parties to the Ryan Parties, the only member
of the Dickerson Parties relevant to this case is Energy, and the only member of the Ryan Parties relevant to this case
is MJR.
4
The Settlement Agreement also provided, “This Agreement shall be binding upon and inure to the
benefit of the parties, and all of their respective assigns, successors, agents, servants, employees,
insurers, and legal representatives.”
On the same day, Energy executed an Assignment of Overriding Royalty Interest, effective
as of May 1, 2002 (the ORRI Assignment) to MJR that conveyed varying ORRI in certain oil and
gas properties, including some, but not all,3 of the oil and gas leases in dispute in this case.4 After
setting forth the varying ORRI and their definition, the ORRI Assignment stated:
ASSIGNOR (Energy) further hereby irrevocably consents to, allows and directs
any and all current and future purchasers of production from these properties and
leases to issue Division Orders to ASSIGNEE (MJR) or ASSIGNEE’s designee
covering this overriding royalty interest and to pay ASSIGNEE or ASSIGNEE’s
designee directly for its royalty interest. ASSIGNOR agrees that this obligation is
a covenant running with the land and any transfer by ASSIGNOR, its successors or
assigns must include this right of direct payment as well as all the accounting
obligations set out in the Settlement and Release Agreement executed this date by
ASSIGNEE and ASSIGNOR and any assignee or successor in interest must agree
to be bound by the terms of the Settlement and Release Agreement as a condition
precedent to the transfer of any of the Properties.
The ORRI Assignment also provided, “The terms of this Assignment will be binding upon the
parties, and upon their respective successors and assigns.”5
3
For instance, in its Schedule of Leases (MJR’s Schedule of Leases) attached to its Second Amended Complaint, MJR
listed a Della Crim Lease, RRC No. 07947, in Rusk County. However, this lease does not appear in the attachments
to the ORRI Assignment. MJR’s Schedule of Leases also listed the Finney Lease, RRC No. 08192, and the J.M.
Finney Lease, RRC No. 07437, both in Rusk County. However, it appears that although listed twice, only one Finney
lease, from a Julia Finney as lessor, is described in the attachments to the ORRI Assignment. Nothing in the summary
judgment evidence explains this discrepancy.
4
A fully executed copy of the ORRI Assignment was attached to the Settlement Agreement as Exhibit 2.
5
It is undisputed that the ORRI Assignment, and all assignments referenced hereafter, were recorded in both Gregg
County and Rusk County.
5
Within a few months, Energy conveyed its interests in the various oil and gas properties,
including some of the leases in dispute in this case,6 to Gaywood Oil & Gas, L.L.C. (Gaywood),
in an Assignment of Lease and Bill of Sale (the Energy Assignment) on October 1, 2002. 7 The
Energy Assignment does not contain any direct or indirect reference to the ORRI Assignment or
the Settlement Agreement.
By Assignment and Bill of Sale effective December 10, 2010, Gaywood conveyed its
interests in certain oil and gas properties in Gregg and Rusk Counties to GFP (the Gaywood
Assignment). The Gaywood Assignment included all of the oil and gas leases in dispute in this
case, except the Tuttle-A- Lease, RRC 06167.8 Although it did not directly refer to the ORRI
Assignment or the Settlement Agreement, the Gaywood Assignment provided that it was made by
Gaywood and accepted by GFP
subject to the following terms, representations, agreements, and provisions:
....
(b) [GFP] shall at the Effective Date assume and be responsible for and
comply with all duties and obligations of [Gaywood], express or implied, with
respect to the Assets, including without limitation, those arising under or by virtue
of any lease, contract, agreement, document . . . .
6
In addition to not containing the Della Crim Lease, and the inconsistencies with the Finney and J.M. Finney Leases
noted in footnote 3, the Exhibit A to the Energy Assignment does not appear to contain the B Brooks Lease, RRC
08585, the JT Brown-A- Lease, RRC 06856, and the Geo. Thompson-A- Lease, RRC 07998, listed in MJR’s Schedule
of Leases.
7
The Energy Assignment was pursuant to a Deed in Lieu of Foreclosure Agreement dated October 1, 2002, between
Energy, American Realty Investors, Inc., its lender, and Richard A Dickerson, guarantor.
8
Exhibit A to the Gaywood Assignment also contained the inconsistencies regarding the Finney and J.M. Finney
Leases noted in footnote 3.
6
It also provided that “[t]he provisions of this Assignment shall be binding on and inure to the
benefit of [Gaywood] and [GFP] and their respective . . . . successors and assigns and shall
constitute covenants running with the Lands and the Assets.”
By an Assignment, Conveyance, and Bill of Sale executed March 14, 2013, GFP conveyed
its interest in certain oil and gas properties in Gregg and Rusk Counties to AriesOne (the GFP
Assignment). Prior to its assignment to AriesOne, GFP notified MJR of the pending transfer by
letter dated March 11, 2013. In pertinent part, the letter provided:
GFP . . . hereby notifies MJR . . . of the receipt of an offer to purchase all of its oil
and gas interests and assets in Gregg & Rusk counties (the “Assets”). The Assets
and the transaction are described in a letter of intent and assignment and bill of sale
(the “LOI & Assignment”) signed with AriesOne [] . . . , the relevant pages of which
are attached hereto, to close a transaction on or about March 13, 2013[,] but no later
than March 31, 2013.
....
To the extent that MRJ has a right of refusal to purchase the [sic] some of these
properties on the same terms as [AriesOne], please let us know if you intend to
exercise any such rights at your earliest convenience. If it is not your intention,
kindly sign below and return to us by fax.
At the bottom of the page, Michael J. Ryan, Managing Member of MJR, affirmed that “MJR . . .
[would] not exercise any [ROFRs] the [sic] purchase the Assets per the terms of the LOI and
Assignment signed with [AriesOne] if such transaction would close prior to March 31, 2013.”
7
The GFP Assignment conveyed all of GFP’s interest in certain oil and gas properties,
including some of the leases in dispute in this case.9 It does not contain any direct or indirect
reference to the ORRI Assignment or the Settlement Agreement.
In their motions for summary judgment, SND acknowledged that it was assigned an interest
in five of the leases in dispute that were formerly owned by Energy, and Miken acknowledged that
it received an assignment of two of the leases in dispute.
III. Procedural Background
MJR filed a motion for partial summary judgment on liability against AriesOne only and
argued that AriesOne was bound by MJR’s ROFR because it was a covenant running with the
land. AriesOne responded, arguing that it was not bound because MJR’s ROFR was not a covenant
running with the land, that it was an unreasonable restraint on alienation, and that it violated the
statute of frauds. AriesOne also filed traditional and no-evidence motions for summary judgment
in which it adopted the arguments and evidence set forth in its response to MJR’s motion for partial
summary judgment in support of its traditional motion. The trial court granted AriesOne’s
traditional motion for summary judgment, denied its no-evidence motion, and denied MJR’s
motion for partial summary judgment on liability.
SND, GFP, and Miken then filed traditional and no-evidence motions for summary
judgment in which they incorporated the evidence filed by AriesOne and asserted the same
arguments made by AriesOne in support of their motions for traditional summary judgment. After
9
In addition to the inconsistencies regarding the Finney and J.M. Finney Leases noted in footnote 3, Exhibit A to the
GFP Assignment does not contain the Pine Hill School Lease, RRC 07592, the Tuttle-A- Lease, RRC06167, the J.B.
Watson Lease, RRC 08407, the Daisie Bradford Lease, RRC 08027, the L.B. Morse Lease, RRC 08068, or the
Plowman Lease, RRC 08652, listed in MJR’s Schedule of Leases.
8
MJR filed responses to these motions, the parties entered a Rule 11 Agreement in which AriesOne,
SND, GFP, and Miken agreed to withdraw their motions for summary judgment, insofar as they
asserted grounds other than that MJR’s ROFR was not a covenant running with the land, and
agreed to non-suit any counterclaims previously asserted. In the Rule 11 Agreement, MJR
stipulated, without prejudice to challenge the trial court’s ruling, that all defendants were entitled
to summary judgment on that ground, based on the trial court’s summary judgment in favor of
AriesOne, and agreed to release all defendants from its unpaid royalty claims. The parties then
filed a joint motion for final judgment reaffirming the agreements contained in the Rule 11
Agreement and requesting the trial court to enter summary judgment in favor of SND, GFP, and
Miken and to enter a final judgment.
The trial court then granted SND’s, GFP’s, and Miken’s motions for traditional summary
judgment, based solely on the ground that the ROFR was not a covenant running with the land.
The summary judgment also provided, “All other grounds for summary judgment asserted in
Defendants’ Motions have been withdrawn or are denied without prejudice.” That same day, the
trial court signed a final judgment ordering that MJR take nothing on its claims.
IV. Analysis
A. Whether the ROFR Was a Covenant Running with the Land
“In Texas, a real property covenant runs with the land when it touches and concerns the
land, it relates to a thing in existence or specifically binds the parties and their assigns, it is intended
by the parties to run with the land, and the successor to the burden has notice.” MPH Prod. Co.,
v. Smith, No. 06-11-00085-CV, 2012 WL 1813467, at *2 (Tex. App.—Texarkana May 18, 2012,
9
no pet.) (mem. op.) (citing Inwood N. Homeowners’ Ass’n v. Harris, 736 S.W.2d 632, 635 (Tex.
1987); Rolling Lands Invs., L.C. v. Nw. Airport Mgmt., L.P., 111 S.W.3d 187 (Tex. App.—
Texarkana 2003, pet. denied)). In addition, there must be privity of estate, which “means there
must be a mutual or successive relationship to the same rights of property.” Westland Oil Dev.
Corp. v. Gulf Oil Corp., 637 S.W.3d 903, 910–11(Tex. 1982); MPH Prod. Co., 2012 WL 1813467,
at *2.
“[F]or a covenant to run with the land, the parties creating the covenant must intend for it
to do so.” MPH Prod. Co., 2012 WL 1813467, at *3 (citing Rolling Lands Invs., L.C., 111 S.W.3d
187). When we look at the instrument granting the ROFR, we interpret it in favor of the grantee.
Id. (citing Humble Oil & Ref. v. Harrison, 205 S.W.2d 355 (Tex. 1947)). When the instrument is
unambiguous, “the instrument alone will be deemed to express the intention of the parties for it is
objective, not subjective, intent that controls. Generally the parties to an instrument intend every
clause to have some effect and in some measure to evidence their agreement.” City of Pinehurst
v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968) (citations omitted). “A contract
is not ambiguous simply because the parties disagree over its meaning.”10 Dynegy Midstream
Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). Further, when construing
an instrument, a court is “to take the wording of the instrument, consider the same in the light of
the surrounding circumstances, and apply the pertinent rules of construction thereto and thus settle
the meaning of the contract.” City of Pinehurst, 432 S.W.2d at 519.
10
The parties in this case do not contend that the Settlement Agreement or the ORRI Assignment are ambiguous.
10
As seen above, MJR’s ROFR was created in the Settlement Agreement between Energy
and MJR. The Settlement Agreement initially provides for certain conveyances of oil and gas
leases and other property between the parties, including the conveyance by Energy of certain ORRI
to MJR. The Settlement Agreement then addresses certain continuing obligations of Energy,
including its obligation to give MJR a ROFR as to any planned assignment, farmout, sale, or
transfer of any lease in which MJR has an interest. If MJR did not exercise its option to purchase
the lease, the ROFR provides that “[a]s a condition precedent to the transfer, and transferee shall
be required to agree to be bound by the obligations to MJR contained in [the Settlement
Agreement] as it pertains to any interest transferred.” The Settlement Agreement went on to
provide that it “shall be binding upon and inure to the benefit of the parties, and all of their
respective assigns [and] successors.”
Appellees argue that the absence of any mention in the provision granting the ROFR that
it runs with the land, or that it applies to Energy’s assigns and successors, indicates that the parties
did not intend for the covenant to run with the land.11 However, we have previously held that
while the use of such terminology “is helpful in determining intent,” it is not dispositive, “and an
obligation intended to run with the land can be created without such language.” MPH Prod. Co.,
2012 WL 1813467, at *5 (citing Musgrave v. Brookhaven Lake Prop. Owners Ass’n, 990 S.W.2d
386, 395 (Tex. App.—Texarkana 1999, pet. denied)). Nevertheless, the Settlement Agreement
11
SND also believes that it is significant that the ROFR appears only in the Settlement Agreement and not in a
“granting document,” but it does not explain what effect this should have on our decision. To the extent it is arguing
that a covenant running with the land must be contained in a deed or assignment, Texas law is to the contrary. See
Westland Oil Dev. Corp., 637 S.W.3d at 910 (holding that a contract to convey interests in oil and gas leases contained
in an unrecorded letter agreement was a covenant running with the land).
11
contains language that indicates the parties intended the ROFR to be a continuing obligation of
both Energy and its assigns. First, the paragraph granting the ROFR provides that any transferee
of any of the leases must agree to be bound by all the obligations in the Settlement Agreement.
Since this refers to transferees of the leases, which were owned by Energy, this refers to the assigns
and successors of Energy and evidences the intent of the parties that the ROFR would be a
continuing obligation of these assigns and successors. This conclusion is strengthened by the
placement of this clause within the paragraph granting MJR its ROFR. In addition, the Settlement
Agreement specifically provides that it is binding on the parties and their assigns and successors.
While not dispositive, this is yet another indication that the parties to the grant of the ROFR
intended that it would be a covenant running with the land. See id. at *3.
Our conclusion that the parties intended the ROFR to be a covenant running with the land
is also evidenced in the ORRI Assignment, executed simultaneously with the Settlement
Agreement. In accord with Energy’s continuing obligations under the Settlement Agreement, the
ORRI Assignment directs any purchaser of production from the leases to issue division orders to
MJR covering the ORRI and to pay MJR directly for its royalty interest. Immediately following
this direction, the ORRI Assignment provides:
ASSIGNOR [Energy] agrees that this obligation is a covenant running with the
land and any transfer by ASSIGNOR, its successors or assigns must include this
right of direct payment as well as all the accounting obligations set out in the
Settlement and Release Agreement executed this date by ASSIGNEE and
ASSIGNOR and any assignee or successor in interest must agree to be bound by
the terms of the Settlement and Release Agreement as a condition precedent to the
transfer of any of the Properties.
12
(Emphasis added). The ORRI Assignment also provides that its terms “will be binding upon the
parties, and upon their respective successors and assigns.” Again, this language indicates that the
parties intended the continuing obligations of the Settlement Agreement to be covenants running
with the land and the continuing obligation of Energy, its successors and assigns. 12 These
obligations would include the ROFR.13
For these reasons, we conclude that the parties to the grant of the ROFR intended that it be
a covenant running with the land.
To be a covenant running with the land, “[t]here must also be privity of estate between the
parties when the covenant was established.” Id. at *2 (citing Wayne Harwell Props. v. Pan Am.
Logistics Ctr., Inc., 945 S.W.2d 216, 218 (Tex. App.—San Antonio 1997, writ denied)). In
addition, several courts have held that the covenant “must be contained in a grant of land or in a
grant of some property interest in the land.” Wasson Interests, Ltd. v. Adams, 405 S.W.3d 971,
973 (Tex. App.—Tyler 2013, no pet.) (citing Wayne Harwell Props., 945 S.W.2d at 218 (citing
Panhandle & S.F. Ry. v. Wiggins, 161 S.W.2d 501 (Tex. Civ. App.—Amarillo 1942, writ ref’d
w.o.m.))). We have held that “[a]n option to purchase land creates an interest in land.” Madera
Prod. Co. v. Atl. Richfield Co., 107 S.W.3d 652, 660 (Tex. App.—Texarkana 2003, pet. denied in
part & dism’d in part) (citing Hitchcock Props. v. Levering, 776 S.W.2d 236, 238–39 (Tex. App.—
Houston [1st Dist.] 1976, writ denied)). The granting of a ROFR is an option to purchase an
12
Appellees argue that “running with the land” only refers to the right of direct royalty payments to MJR, referenced
in the preceding sentence. While it undoubtedly refers to the direct payments, the sentence goes on to provide that
any transfer must also include the accounting obligations and other obligations set forth in the Settlement Agreement.
13
To be clear, here we are only addressing the parties intent, and not whether each of the obligations set forth in the
Settlement Agreement meet the other requirements necessary to qualify as a covenant running with the land.
13
interest in land. See MPH Prod. Co., 2012 WL 1813467, at *2. Therefore, there is privity of estate
between Energy and MJR.
There must also be privity of estate between the parties to the grant of the covenant and
those against whom the covenant is sought to be enforced. Wasson Interests, Ltd., 405 S.W.3d at
973. Thus, “there must be a mutual or successive relationship to the same rights of property”
between Energy and the Appellees of the disputed leases burdened with the ROFR. Westland Oil
Dev. Corp., 637 S.W.3d at 910–11; see MPH Prod. Co., 2012 WL 1813467, at *2. In this case,
the summary judgment evidence shows that the Settlement Agreement and the ORRI Assignment
were executed May 5, 2002, and made effective as of May 1, 2002. The ORRI Assignment was
filed of record in Gregg County and Rusk County June 3, 2002, and May 31, 2002, respectively.
Energy assigned some of the leases burdened by the ROFR to Gaylord October 1, 2002. As seen
above, at least some of these leases were ultimately assigned to Appellees. Thus, there is a
successive relationship to the same rights in some of the leases burdened by the ROFR between
Energy and the Appellees. Accordingly, to the extent an unbroken chain of title has been
established between Energy and the Appellees, there is privity of estate between these parties.
A covenant touches and concerns the land when it affects the nature, quality, or value of
what is conveyed, or if it either renders the grantor’s interest in the land less valuable or renders
the grantee’s interest more valuable. Westland Oil Dev. Corp., 637 S.W.3d at 911. In this case,
Energy conveyed various ORRI in the leases to MJR and granted it a ROFR in the event Energy
or its assigns and successors sought to transfer their interest in the leases. The option to purchase
14
all of Energy’s interest in the leases undoubtedly increased the value of MJR’s ORRI. We find
that the ROFR touches and concerns the land.
Further, the covenant must relate to a thing in existence to be a covenant running with the
land. MPH Prod. Co., 2012 WL 1813467, at *2. The ROFR burdened Energy’s interest in the oil
and gas leases that were subject to MJR’s ORRI. Energy’s interest in the oil and gas leases existed
at the time of the grant of the ROFR. Therefore, the covenant related to a thing in existence.14
Finally, the successor in interest must have notice of the covenant running with the land.
Id. The Texas Supreme Court has held that the rule in Texas is that “a purchaser is bound by every
recital, reference and reservation contained in or fairly disclosed by any instrument which forms
an essential link in the chain of title under which he claims.” Westland Oil Dev. Corp., 637 S.W.3d
at 908 (quoting Wessels v. Rio Bravo Oil Co., 250 S.W.2d 668 (Tex. Civ. App.—Eastland 1952,
writ ref’d)). Consequently, a reference to other documents contained in a document in the
purchaser’s chain of title puts it on inquiry, and it “is bound to follow up this inquiry, step by step,
from one discovery to another and from one instrument to another, until the whole series of title
deeds is exhausted and a complete knowledge of all the matters referred to and affecting the estate
is obtained.” Id. (quoting Loomis v. Cobb, 159 S.W. 305 (Tex. Civ. App.—El Paso 1913, writ
ref’d)).
In this case, since the ORRI Assignment affects the interest in the leases owned by Energy,
it is essential in determining what interest in the leases a purchaser from Energy or its assigns
14
AriesOne argues that MJR’s ORRI was not in existence at the time of the grant of the ROFR. However, as previously
noted, a fully executed copy of the ORRI Assignment was attached to the Settlement Agreement. This shows that the
ORRI Assignment was executed before, or simultaneously with, the execution of the Settlement Agreement. In either
instance, MJR’s ORRI was in existence at the time of the grant of its ROFR.
15
receives in the transfer. Thus, the ORRI Assignment is an essential link in the chain of title of
Energy’s assigns. The ORRI Assignment references the Settlement Agreement and recites that
any transferee of Energy’s interest in the oil and gas leases must agree to be bound by the terms of
the Settlement Agreement as a condition precedent to the transfer. In addition, the Gaylord
Assignment provided: “(b) [GFP] shall at the Effective Date assume and be responsible for and
comply with all duties and obligations of [Gaywood], express or implied, with respect to the
Assets, including without limitation, those arising under or by virtue of any lease, contract,
agreement, document . . . .” (emphasis added). Thus, it was the duty of GFP, AriesOne, and their
assigns to investigate the terms of the Settlement Agreement, and they are charged with notice of
its contents. See id. An investigation of the Settlement Agreement would have revealed the
existence of a ROFR and that it was binding on the assigns and successors of Energy. Therefore,
to the extent that an unbroken chain of title has been shown from Energy to the Appellees,
Appellees are charged with notice of the ROFR.15
Since MJR’s ROFR satisfies all of the elements, we hold that it is a covenant running with
the land. Consequently, we hold that the trial court erred in granting summary judgment to GFP,
Miken, and SND.16 We also hold that AriesOne’s argument that the ROFR was not a covenant
running with the land does not support the trial court’s summary judgment in its favor.
15
As noted earlier, GFP honored MJR’s ROFR before the transfer of any interest in the leases to AriesOne. Therefore,
GFP also had actual notice of the covenant. No summary judgment evidence shows that any other Appellee had actual
notice of the covenant.
16
Although GFP, Miken, and SND assert other grounds to support their summary judgment, the trial court’s summary
judgment specified that it was based only on the ground that the ROFR was not a covenant running with the land.
When a summary judgment ”specifies the ground relied on for the trial court’s ruling, the summary judgment can be
affirmed only if the specified ground is meritorious, otherwise the case must be remanded. ” Matter of Marriage of
16
B. AriesOne’s Other Grounds Do Not Support Its Summary Judgment
AriesOne also asserted that MJR’s ROFR is void because (1) it is an unreasonable restraint
on alienation and (2) it violates the statute of frauds. AriesOne argues that the unlimited duration
of the ROFR is a major consideration in determining whether it is an unreasonable restraint on
alienation. AriesOne also argues that since it makes no provision for the allocation of the purchase
price between leases burdened by the ROFR, and those that are not, in a package sale of leases that
contains both, it would hinder the commercial development of the leases. Further, it argues that
the possibility of MJR’s ORRI, to which the ROFR is tied, being divided among numerous
assignees of MJR would present insurmountable difficulties in locating and notifying each
assignee of any potential transfer of the leases.
Regarding its last argument, we are not presented with that situation. Under the facts of
this case, we need only consider whether the ROFR is an unreasonable restraint on alienation when
MJR seeks to enforce it. A different case might be presented if MJR had assigned its ORRI to
multiple assignees, and those assignees were seeking to enforce the ROFR. We need not entertain
a hypothetical case that may never happen.
In addition, although the ROFR does not address the allocation of leases burdened by the
ROFR, and those that are not, in a package sale of leases, this does not render the restraint
unreasonable as a matter of law. Although in a package sale of leases, issues may arise regarding
what constitutes a proper presentment of the bona fide offer made by a third party purchaser to the
Banks, 887 S.W.2d 160, 162 (Tex. App.—Texarkana 1994, no writ) (citing State Farm Fire & Cas. Co. v. S.S., 858
S.W.2d 374, 380–81 (Tex. 1993)).
17
ROFR owner, and what leases the ROFR owner may elect to purchase under the ROFR, AriesOne
has cited no cases, and we have found none, that hold that the ROFR is an unreasonable restraint
on alienation because it does not address this possibility. Further, Texas courts have demonstrated
that they are well-equipped to resolve these issues, even though the ROFR is silent regarding
package deals. See McMillan v. Dooley, 144 S.W.3d 159, 177–81 (Tex. App.—Eastland 2004,
pet. denied).
Finally, we agree that the duration of a ROFR is an important consideration in determining
whether it is an unreasonable restraint on alienation. See Mattern v. Herzog, 367 S.W.2d 312,
314–16 (Tex. 1963); Randolph v. Terrell, 768 S.W.2d 736, 739 (Tex. App.—Tyler 1987, writ
denied). The Restatement (Second) of Property17 provides that a ROFR is not a restraint on
alienation if its terms are reasonable as to both (1) the price the owner of the ROFR must pay and
(2) the duration of the time allowed for the exercise of the ROFR.18 RESTATEMENT (SECOND) OF
PROPERTY § 4.4 (1983). Although AriesOne argues that the ROFR is of unlimited duration, since
it is tied to MJR’s ORRI in the leases, it is necessarily limited to the duration of the individual
leases in which MJR owns an ORRI. To determine whether this is unreasonable, we must consider
all the circumstances of the creation of the ROFR and the purposes which it was intended to serve.
See Mattern, 367 S.W.2d at 313–15. However, there is no evidence of the circumstances of the
17
In determining whether a covenant is an unreasonable restraint on alienation, Texas courts look to the Restatement
for guidance. Meduna v. Holder, No. 03-02-00781-CV, 2003 WL 22964270, at *3 n.5 (Tex. App.—Austin Dec. 18,
2003, pet. denied) (mem. op.).
18
The second prong refers to the duration of the ROFR itself, not, as argued by MJR, the amount of time the owner of
the ROFR has to exercise its option to purchase after it is notified of a bona fide offer. See Randolph, 768 S.W.2d at
739.
18
ROFR’s creation or the purposes intended, except the recitals contained in the Settlement
Agreement. These recitations are insufficient to establish that the duration of the ROFR is
unreasonable as a matter of law. Therefore, we find that this ground does not support the summary
judgment in favor of AriesOne.
AriesOne also asserted that the ROFR violates the statute of frauds. On appeal, as in the
trial court, AriesOne argues that the absence of an allocation between burdened and non-burdened
leases in a package sale violates the statute of frauds. AriesOne cites no case authority, 19 and we
have found no Texas cases that support this argument. On this record, we cannot say that AriesOne
established as a matter of law that the ROFR violates the statute of frauds. Therefore, this ground
will not support the summary judgment in its favor.
Since none of the grounds asserted in AriesOne’s motion for summary judgment will
support its summary judgment, we find that the trial court erred in granting summary judgment in
favor of AriesOne.
C. MJR’s Motion for Partial Summary Judgment
MJR’s motion for partial summary judgment against AriesOne was denied by the trial
court. The sole ground stated in its motion was that the ROFR was a covenant running with the
land. Since we have held that the ROFR was a covenant running with the land, we must determine
19
AriesOne merely includes the following quote from a law review article: “[S]ound draftsmanship requires that the
manner of its application to a package oil and gas transaction be specifically articulated in the preferential purchase
right.” Harry M. Reasoner, Preferential Purchase Rights in Oil and Gas Instruments, 46 TEX. L. REV. 57, 60 (1967).
The complete sentence states, “Whether required by the Statute of Frauds or not, sound draftsmanship requires that
the manner of its application to a package oil and gas transaction be specifically articulated in the preferential purchase
right.” Id.
19
whether MJR has established that there is no genuine issue of material fact so that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort, 289 S.W.3d at 848.
In its motion, MJR asserts that it acquired ORRI in the following leases from Energy in the
ORRI Assignment:
(1) Boyd (RRC No. 06068), Gregg County
(2) Cheesebrough (RRC No. 06271), Gregg County
(3) Elder (RRC No. 08029), Gregg County
(4) Hays-Martin (RRC No. 07542), Gregg County
(5) Tooke-A- (RRC No. 06164), Gregg County
(6) Bean (RRC No. 08351), Rusk County
(7) Brett (RRC No. 07306), Rusk County
(8) Brightwell-A- (RRC No. 06070), Rusk County
(9) Brooks (RRC No. 08585), Rusk County
(10) Brown, JT-A- (RRC No. 06856), Rusk County
(11) Crim (RRC No. 07947), Rusk County
(12) Finney (RRC No. 08192), Rusk County
(13) Finney, J.M. (RRC No. 07437), Rusk County
(14) Giles-A- (RRC No. 06107), Rusk County
(15) Holland (RRC No. 06115), Rusk County
20
(16) Moore, W.P. Est. (RRC No. 08390), Rusk County
(17) Thompson, Geo-A- (RRC No. 07998), Rusk County
(18) Wooley (RRC No. 07070), Rusk County
However, as we previously noted, the ORRI Assignment did not include at least one of these
leases. For the leases not included in the ORRI Assignment, MJR has not established that the
ROFR applies to them.
In addition, although AriesOne admitted owning these leases for a period of time, as we
noted above, the Energy Assignment does not include several of these leases. Hence, for these
leases, MJR has not established an unbroken chain of title from Energy to AriesOne. Since an
unbroken chain of title has not been shown, MJR has not established that there is privity of estate
between Energy and AriesOne, or that AriesOne is charged with notice of its ROFR. In addition,
MJR has not produced any summary judgment evidence showing that AriesOne had actual notice
of its ROFR. Therefore, genuine issues of material fact remain on these issues.
We find that MJR did not establish that it is entitled to partial summary judgment against
AriesOne. Therefore, we find that the trial court did not err in denying MJR’s motion for partial
summary judgment.
21
For the reasons stated, we reverse the trial court’s judgment and remand this cause for
further proceedings consistent with this opinion.
Bailey C. Moseley
Justice
Date Submitted: June 4, 2018
Date Decided: June 22, 2018
22 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4130458/ | THE ATTORNEY GENERAL
OF TEXAS
January 25, 1989
Honorable Terra1 Smith Opinion No. JM-1011
Chairman
Natural Resources Committee Re: Computation of the out-
Texas House of Representatives standing obligations of a
P. 0. Box 2910 metropolitan transit autho-
Austin, Texas 78769 rity when an election unit
withdraws from the author-
ity , and related matters
(RQ-1559)
Dear Representative Smith:
You have requested our opinion concerning a dispute
between the City of Westlake Hills and the Capital Metro-
politan Transit Authority (Capitol Metro), an authority
created under article 1118x, ~V.T.C.S. Until early in 1988,
the City of Westlake Hills constituted a "unit of election"
that, together with others (the principal one of which was
the City of Austin), comprised the authority. See V.T.C.S.
art. 1118x, 9 5(f). One January 16, 1988, pursuant to
statutory leave, Westlake Hills withdrew from the authority.
When a unit of election withdraws from an article 1118x
metropolitan transit authority, the statute requires a
determination of the outstanding obligations of the authori-
ty as of the time of withdrawal. $8~ V.T.C.S. art. 1118x,
5s 6F, 6G. Specifically, you ask:
Should the liquid assets of a Metropolitan
Transit Authority be deducted from the amount
of bonded indebtedness to determine the
amount of debt as required by HB 943[?]
Article 1118x is a complex statute that governs the
creation and dissolution of metropolitan rapid transit
authorities. It has been judicially construed on very few
occasions. m Brvant v. MetrODOlitan Transit Auth., 722
S.W.2d 738 (Tex. App. - Houston
. [14th Dist.] 1986, no writ):
Citv of Humble . MetrODOlltan Transit Auth, 636 S.W.2d 484
(Tex. App. - Azstin 1982, writ ref*d n.r.L.). S also
Garcia v. San Antonio Metro. Transit Auth., 469 U.s':!528,
p. 5207
Honorable Terra1 Smith - Page 2 (JM-1011)
U.S. 1049 (1985): &&&rue2 v. VIA Metro.
802 F.2d 126 (5th Cir. 1986).
The answer to your question is complicated because the
statute has two different sections, 6F and 66, that purport
to control the withdrawal of units of election from metro-
politan transit authorities and the determination of an
authority's obligations at the time. Both the sections were
added to article 1118x during the regular session of the
70th Legislature.1 Acts 1987, 70th Deg., ch. 790, at 2774:
Acts 1987, 70th Deg., ch. 804, at 2796. The operative part
of section 6G, for our purposes, is composed of subsections
6G(g) and 6G(h). The comparable parts of section 6F are
subsections 6F(;L)and 6F(m).
A study of the parallel subsections reveals that two of
them are exactly alike, word for word. Both subsection
6F(1) and subsection 6G(g) read:
The withdrawal of a unit of election under
f;hissecti n is ,subiect to the reou' ren&
of the fed&al and state constitutions oro-
hibitina the mrment of contracti. Taxes
shall continue to be collected in the unit of
election until an amount of taxes equal to
1. Another.provision of article 1118x purporting to
deal with withdrawals, section 6D, is obsolete because it
authorizes withdrawals only pursuant to elections held "on
any date from April 1, 1980, to September 1, 1980." Both
sections 6F and 6G were added to article 1118x during the
regular session of the 70th Legislature in 1987, but by
different acts, neither of which expressly referred to the
other. Section 6F was added as part of a bill (H.B. 943)
finally passed on May 22, 1987,~ that was expressly made
effective September 1, 1987. a Acts 1987, 70th Deg., ch.
790, at 2774. The bill (H.B. 2008) containing the other
withdrawal provision, section 66, was finally passed on June
1, 1987. It was passed later than the other bill but became
effective August 31, 1987, one day before the other one took
effect. &.g Acts 1987, 70th Deg., ch. 804, at 2796. Both
statutory provisions generally speak of wobligationsw rather
than "debt" and, thus, include obligations not classified as
"debt" for purposes of constitutional restrictions regarding
the assumption of debt. % Tex. Const. art. III, 5 49:
art. XI, 58 5, 7; McNeil1 v. Citv of Waco, 33 S.W. 322 (Tex.
1895).
p. 5208
Honorable Terra1 Smith - Page 3 (JM-1011)
of election to the authority has been col-
lected. To determine the amount of the total
financial obligations of the unit of elec-
tion, the board shall compute, as of the date
of withdrawal, the total of:
(1) the current obligations of the
authority authorized in the current budget
and contracted for by the authority:
(2) the amount of contractual obligations
outstanding at that time for capital or other
expenditures in the current or subsequent
years, the payment of which has not been made
or provided for from the proceeds of notes,
bonds, or other obligations;
(3) all amounts due and to become due in
the current and subsequent years on all
notes, bonds, or other securities or obliga-
tions for debt issued by the authority and
outstanding:
- : (4)~ the amount reguired by the authority
to be reserved for all years to comply with
financial covenants made with lenders, bond
or note holders, or other creditors or con-
tractors:
(5) any additional amount, which. may
include an amount for contingent liabilities,
determined by the board to be the amount
necessary for the full and timely payment of
the current and continuing obligations of the
authority, to avoid a default or impairment
of those obligations; and
(6) any additional amount determined by
the board to be Bcessarv and aooropriate to
allocate to the unit of election because of
current and continuing financial obligations
of the authority that relate specifically to
the unit of election. (Emphasis added.)
It is important to realize that the six items of
computation are used to determine the obligation of the
withdrawing unit of election fo the authority, and not the
continuing obligation of the withdrawing unit to the credi-
tors of the authority imposed by constitutional "contract1
p. 5209
Honorable Terra1 Smith - Page 4 (JM-1011)
clauses. The first five items of computation may be of aid
in illuminating the continuing financ,ial exposure of both
the authority and the withdrawing unit to creditors of the
authority,,but statutory provisions cannot control constitu-
tional requirements.
That is why the distinction is important. The statu-
tory provisions control the division of primary responsibi-
lity between the withdrawing city and the continuing transit
authority for the discharge of transit authority obligations
existing at the time of the withdrawal, but those provisions
do not purport to (and do not) control the actual liability
of either the city or the authority for the discharge of
such obligations. The liability of all components of the
authority is fixed by the contractual terms under which the
indebtedness was undertaken at the time, and subsequent
internal arrangements by component units for payment do not
affect their common obligation to pay constitutionally
protected third-parties in full if the transit authority
does not do so. Constitutionally-imposed liability pro-
tecting the obligation of contracts exists entirely apart
from statutory formulas attempting to define it. U.S.
Const. art. I, § 10, cl. 1; Tex. Const. art. I, 5 16. See
Morris & Cumminas v. State ex rel. Gussett, 62 Tex. 728, 743
(1884);~Burns v. Dillev CoufitvLine'IndeD. School Dist., 295
S.W. 1091 (Tex. Comm'n App. 1927, judgmt. adopted): Attorney
General Opinions JM-605, JM-453 (1986). Cf. Cardenas v.
State, 683 S.W.2d 128 (Tex. App. - San Antonio 1984, no
writ).2
2. Neither subsection 6F(m) ~nor subsection 6G (h)
expressly relieve a withdrawing unit of any part of the
unretired contractual obligations of the transit authority
in the **obligationof contract" sense. The withdrawing unit
will remain liable to authority creditors if the authority
defaults -- even after "an amount of taxes equal to the
[statutorily defined] total financial obligations of the
[withdrawing] unit" has been previously collected from the
withdrawn unit. &8 Citv of Austin v. Cahill, 88 S.W. 542,
reh'a denied, 89.S.W. .552 (Tex. 1905). That is particularly
the case regarding obligations incurred before sections 6F
and 6G were added to the statute. It could be argued that
contractual obligations undertaken by the transit authority
after sections 6F and 6G were added to the statute
incorporated the new statutory provisions so as to limit the
claims of those creditors against withdrawing units
(Footnote Continued)
p. 5210
Honorable Terra1 Smith - Page 5 (JM-1011)
The sixth item of computation is clearly of a different
sort than the first five. The first five measure obliga-
tions shared alike by all the units of election composing
the authority. The sixth concerns an amount to be "allocat-
ed" to the withdrawing unit alone.
Although the legislature cannot constitutionally with-
draw from creditors of the transit authority their contrac-
tual remedies for default (or curtail their security) with-
out substituting something of equal efficacy and value, see
Citv of Aransas Pass v. Keelb 247 S.W. 818 (Tex. 1923),
the legislature can require, as between the public obligors,
a balancing of equities and an adjustment of primary respon-
sibility for the discharge of their joint obligations. a
bexar Countv HOSD. Dist. v. Crosby, 327 S.W.2d 445 (Tex.
1959).
Just as private'joint debtors may agree among them-
selves that one will individually pay their joint obliga-
tion for the benefit of both -- without such an agreement
affecting the right and opportunity of the creditor to
'proceed against both debtors if the debt is not satisfied --
the legislature, in adjusting the relationship between the
authority and the withdrawing unit, can require that the
transit authority will .be primarily responsible-for satis-
tying the joint outstanding obligations once the withdrawing
unit has contributed a certain amount toward that end. In
arriving at the amount which the withdrawing unit must
contribute, the legislature may consider both the obliga-
tions of the authority that relate specifically to the
withdrawing unit and the unencumbered assets available to
the authority for use in discharging obligations. a.
Board of Manaaers v. Pension Bd., 449 S.W.2d 33 (Tex. 1969);
Wheeler v. Citv of Brownsville, 220 S.W.2d 457 (Tex. 1949)
(obligation to pay tax by reason of legislative adjustment
of equities). Such an internal adjustment between joint
debtors ~does not affect the rights of creditors. They may
still pursue -- against both debtors -- all remedies they
had before, so no impairment of the obligation of contract
occurs.
(Footnote Continued)
accordingly. &S Cochran Co tv v. Mann 172 S.W.2d 689
(Tex. 1943). However, the ZEatute itself makes such
distinction between "ob1igations.w We need not decigz this
question here.
p. 5211
Honorable Terra1 Smith - Page 6 (JM-1011)
None of the six items mentions "liquid assets," al-
though the second item speaks of outstanding contractual
obligations "the payment of which has not been made or
provided for from the proceeds of notes, bonds, or other
obligations." This provision requires only that the compu-
tation of outstanding contractual obligations be reduced by
those funds Mitted to the payment of those obligations
('I& or provided &r from the proceeds"). It does not
require that unencumbered liquid assets possessed by the
authority be deducted from the liability of the withdrawing
unit to the authority.3
However, the six provisions of subsections 6F(l) and
6G(g) set out above establish only the items to be consid-
ered in computing the Votal financial obligations of the
unit of election" to the authority. The manner in which the
computations are to be employed is controlled by subsections
6F(m) and 6G(h). Unlike the 6F(l) and 6G(g) subsections,
3. "Liquid assets" consist of cash, or assets _
immediately convertible to cash. Black’s Law Dictionary, at
83~8 (5th ed. 1979). Prior to the withdrawal of a unit of
election from an authority, creditors of the authority have
a call upon the assets of the authority and sources of
revenue contractually committed to satisfy their claims.
The existence of other assets I& so encumbered does not
seme to release encumbered assets from any part of the
claims against them. The later-discussed provision at
issue in section 6G(h) would be constitutionally objection-
able if read as an attempt to limit the liability of a
withdrawing unit -- so far as authority creditors are
concerned -- to an amount -less than the total outstanding
amount of the financial obligations of the authority. The
.prohibition against impairing the obligation of contracts is
not absolute, but, to avoid constitutional invalidity, a
statute that withdraws or substantially diminishes the con-
tractual security of holders of bonds or other obligations
issued by public bodies must substantially substitute an
equally effective remedy for that taken away. Citv of
Aransas Pass v. Keelinq suora. The statute makes no
attempt to substitute a n;w source of payment for the value
of "unencumbered" liquid assets that might be deducted from
the share of nobligationsBOto be assumed by a withdrawing
unit of election. a -as Countv Levee I nrovement Dist.
PO. 6 v Rua 1 36 S.W.2d 188 (Tex. Comm:n. App. 1931,
judgmt. Adoptzdi.
p. 5212
Honorable Terra1 Smith - Page 7 (JM-1011)
subsections 6F(m) and 6G(h) are not identical, although the
match is very good.
Subsections 6F(m) and 66(h), are each composed of five
sentences. The final three sentences of each subsection are
exactly the same, and the only difference in the first
sentence of each one is the alphabetical designation of the
preceding subsection to which it refers. The important
difference is in the second sentence. The second sentence
of subsection 6F(m) reads:
The unit of election's total financial
obligation is the sum of the first five
computations required by Subsection (1) of
this section plus the amount allocated
directly to the unit of election under the
last computation required by Subsection (1)
of this section.4
Comparison shows that subsection (h) of section 6G is
word-for-word the same as subsection (m) of section 6F
except in the passages underscored below -- most notably in
the second sentence. Subsection 6G(h) reads:
The unit of election's share of the financial
obligations~of the authority under the first
five computations required by Subsection (9)
of this section shall be in the same ratio
that the population of the unit of election
has to the total population of the authority,
according to the most recent and available
population data of an agency of the federal
government, as determined by the board. The
unit of election*s total financial obligation
is i.ts share the first five computations
required by Subsection (g) of this section
plus the amount allocated directly to the
unit of election under the last computation
required by Subsection (g) of this section
4. Although the form is somewhat different, the
language of subsections 6F(&) and 6F(m) of article 1118x,
V.T.C.S., is the same as that found in subsection 9A(j) of
article 1118y, V.T.C.S., which controls the withdrawal of a
unit of election from a regional transportation authority.
The provision was added to article 1118~ in 1985. Acts
1985, 69th beg., ch. 101, at 541.
p. 5213
Honorable Terra1 Smith - Page 8 (JM-1011)
gnd less the unit of election's share of the
otal amount of the unencumbered assets of,
stocks,
unit of election's share of those assets i
determined accordina to DODU~ tion in thz
g
sm e te ' * the
unit of electson#s share of the first five
.cmn tation r ouired bv Subsection la). The
bzari shallsce%ify to the governing body of
the unit of election and to the comptroller
of public accounts the amount of the total
financial obligation of the unit of election.
The comptroller of public accounts shall
continue to collect taxes in the unit of
election until an aggregate amount equal to
the total financial obligation of the unit of
election has been collected and actually paid
to the authority. After that amount has been
collected, the comptroller of public accounts
shall discontinue collecting in the unit of
election the taxes imposed under this Act,
(Emphasis added.)
It is readily apparent that subsection 6G(h) expressly
requires that certain unencumbered liquid assets be consid-
ered in applying the preceding calculations while subsection
6F(m) does not. On the surface, the language of subsection
6G(h) appears to be substantially more generous to withdraw-
ing units than the language of subsection 6F(m), but we have
concluded that the express provisions of section 6G(h) are
implicitly contained in subsection 6F(m), and that your
question should be answered in the subsection 6G(h) context.
That conclusion is important to the resolution of your
question because Capital.Metro falls under section 6F, not
section 6G. Subsection 6G(a) declares that section 6~
applies "only" to an authority created before January 1,
1980, with a principal city having a population less than
1,200,000. Austin has a population of less than 1,200,000,
but the rapid transit authority at issue was not created
before January 1, 1980. &=.g City of Austin Ordinance
83-1013U, October 13, 1983; Capital Metropolitan Transit
Authority Resolution No. CMTA-85-0126-10, January 28, 1985.
Section 6F(a) states, on the other hand, that section 6F
applies "only" to authorities in which the principal city
has a population of less than 750,000 and in which the rate
of sales and use tax is one percent. Capital Metro meets
each such criterion. a Capital Metropolitan Transit
p. 5214
Honorable Terra1 Smith - Page 9 (JM-1011)
Authority Resolution No. CNTA-84-1119-04, November 19,
1984.5
Sections 6F and 6G are parts of the same statute, added
at the same session of the legislature. When different
sections of a statute are added during the same session by
different acts, they are to be read together as if embodied
in a singlets
act
v. mdix v. Kendrj,&, 430 S.W.2d 461 (Tex.
1968): Shul . ate 696 S.W.2d 126 (Tex. App. - Dallas
1985, writ ref'd n.r.ej. The subsection 6F(m) language must
be read in context with subsection 6G(h), and if its literal
meaning, when read alone, does not comport with the evident
underlying purpose of the complete statute, it will not be
construed literally. &S Short v. W.T. Carter 8 Brother,
5. Because we have concluded that other passages
clearly indicate that the legislature intended no difference
in the manner in which the obligations of a withdraw,ingunit
are determined, we need not explore all the implications of
subsection 6F(c), which reads:
A unit of election may withdraw from an
authori-ty~
created under this Act only in
accordance with &his section. An attempt to
withdraw from an authority in a manner other
than that provided by this section is void.
(Emphasis added.)
Section 6F(c) introduces ambiguity because in referring to
nan authority created under as Act," it obviously refers
to article 1118x in its entirety. (The legislation that
amended article 1118x to add section 6F did not itself
create or authorize the creation of any rapid transit
authorities.) See Acts 1987, 70th Deg., ch. 790, at 2774;
2A N.J. Singer, Sutherland Statutory Construction 5 22.35 at
296 (C. Sands 4th ed. 1985) (phrase "this act" in amended
section generally refers to whole act). It is equally
obvious that transit authorities governed by the section 6~
withdrawal provisions were created "under this Act" (i.e.,
article 1118x, V.T.C.S.). Under the literal language of
section 6F(c), units of election comprising section 6G
authorities may withdraw only in accordance with section 6F.
According to that section, an attempt to do so in any other
manner is void. It may be argued, of course, that
subsection 6G(a), enacted later than 6F(c), impliedly
repealed the indicated portion of 6F(c). $88 note 1, sunra.
The conclusion we reach remedies the matter, in any event.
P. 5215
Honorable Terra1 Smith - Page 10 (JM-1011)
126 S.W.Zd 953 (Tex. 1938). See a.&2 State v. Estate of
Loomis, 553 S.W.Zd 166 (Tex. Civ. App. - Tyler 1977, writ
ref'd).
The primary objective in the interpretation of statutes
is to ascertain the intent of the legislature and, to do
that, courts look to an act as a whole and not to its
isolated provisions. Morrison v. Cm 699 S.W.2d 205 (Tex.
1985). Once legislative intent is de&mined from a general
view of the enactment as a whole, the statute should be
construed so as to give effect to the purpose of the legis-
lature. Citizen Ba k of Brvan v. First State Bank, 580
S.W.Zd 344 (Tex. 5979;. The statute is to be construed with
reference to its manifest object, and if it is susceptible
to one of two constructions -- one of which will carry out
and the other defeat the manifest object -- it should
receive the construction that carries out the legislative
intent. a at 345. With those principles in mind, we
examine the statutory provisions.
Notwithstanding the additional words in the 6G(h)
subsection, the purposes of both subsection 6F(m) and
subsection 6G(h) are apparently identical, b, to deter-
mine (using an identical population-ratio formula) "the
total amount of the financial obligations of the [with-
drawing] unit" as a percentage of the total financial ob-
ligations of the authority of which it has been a part --
;~i;;",'y adjusting the financial responsibility of one to
. There are no grounds for supposing, so far as we
can ascertain, that the legislature meant to impose an
inecuitablg adjustment of financial responsibilities upon
any participant, or any group of participants, composing any
metropolitan transit authority.6
6. Section 6F(b) of article 1118x, V.T.C.S., allows
the withdrawal of any "unit of election," including a
"principal city." Section 6G(c), on the other hand, states:
"In addition to any other manner provided by law, a unit of
election other than a nrincinal citv may withdraw from an
authority as provided by this section." (Emphasis added.)
We do not believe this difference is intended to justify
different treatment of withdrawing units. Some units of
election, &, those participating in authorities created
before January 1, 1980, with a principal city of.less than
750,000 people 8& with a one percent sales and use tax
rate, could fall under the terms of &&h section 6~ and
section 6G.
p. 5216
Honorable Terra1 Smith - Page 11 '(JM-10111
When the second sentence of subsection 6F(m) is read
alone, without the advantage of the subsection 6G(h) text
for comparison, something is obviously missing: it obviously
does not correctly state the true legi,slative intention
because it states that the withdrawing unit's "total finan-
cial obligation" is Vhe ~~j2of [not its share of] the first
five computations . . . plus the amount allocated directly
to the unit . . . under the last computation.Q1 If the
second sentence of subsection 6F(m) were applied literally,
the withdrawing unit would be responsible to the authority
for the entire indebtedness of the authority Dlus a double
liability for any indebtedness relating specifically to the
unit.
It seems plain that the legislature intended the "total
financial obligations" of a subsection 6F(m) unit of elec-
tion, for the purpose of adjusting equities, to be its share
nf the first five computations, as clarified by subsection
=(h), rather than the total amount owed by the entire
authority, as subsection literally reads. Cf.
Sweenv HOSD. Di2" . v
"Y'FL~ 378 S.W.Zd 40 (Tex. 1964). It
also seems plain to us that when subsection 6F(m) speaks
only of "the amount allocated directly to the unit of
election under the last [sixth] computation,V*its literal
language must Abe expanded if ~the -underlying legislative
purpose is to be fully expressed -- a purpose clarified by
subsection 6G(h). Additional words are needed. Texas
courts will add words or phrases to statutes when it is
necessary to effect the legislative intent. m Sweeny
HO D. Dist. Gary, S~BIB; e, ' 'e 296 S.W.
lo;0 (Tex. lz27).
In Trimmier v. Carlton, suora, the Texas Supreme Court
considered two statutes that were enacted as parts of one
act dealing with the creation of conservation and reclama-
tion districts. One statute expressly authorized the
-consideration of certain factors by a commissioners court
authorizing the creation of such a district, but the other,
which involved districts authorized by a state agency, did
not. The court said:
The language used with reference to the
duties of the commissioners8 court in the
creation of a one county district, and that
with reference to the duties of the board of
water engineers where the district lies in
more than one county, is not precisely the
same, but we think the meaning is the same in
each instance. Clearly the purpose of each
method of organization is the same -- that
p. 5217
Honorable Terra1 Smith - Rage 12 (JR-1011)
is, to authorize the creation of a public
corporation, each of which is to have and
exercise precisely the same'power and perform
the same functions.
. . . .
These articles of the statute are not only
in pari materia, but they are part of one and
the same act, having the same purpose, and
must, of course, be construed together in the
light of the general object of the law. , . -.
Where the Legislature has provided a system
for the government of any subject, it is the
duty of the court to effectuate that inten-
tion by such a construction as will make the
system consistent in all its parts and
uniform in its operation. 'When the Legisla-
ture has clearly laid down the rule for one
class of cases it is not readily to be
supposed that in its choice of words and
phrases, or in the enactment of various
provisions in the same act, it has prescribed
a different rule for another class of cases
within the same reason. as the- first.' 25
R.C.L. p. 1024, S 259.
Applying the above rule, it is clear that
we ought to say, as we do say, that the
general, but comprehensive, language of
article 5107--80 (Vernon's Supplement 1922)
has the same purpose and meaning as articles
5107--2, 5107--3 (Vernon's 1918 Supplement),
and since the latter expressly authorizes the
commissioners' courts to determine whether or
-not the creation of a one county district
would be \a benefit to the lands included in
the district,# the former in the use of the
statutory words intended to and did authorize
the board of water engineers to determine
whether or not the creation of a district
through them 'would be a benefit to the lands
included in the district.'
296 S.W. at 1078.
Here, the sixth item in the computation of the Wotal
financial obligations of the unit of election" is
p. 5218
Honorable Terra1 Smith - Page 13 (JM-1011)
any additional amount determined by the board
to be necessary and anoroarti to allocate
to the unit of election because of current
and continuing financial obligations of the
authority that relate specifically to the
unit of election. (Emphasis added.)
The statutory requirement that the amount detern$;drb,y
the board be fuaoronriate,as well as necessary,
guirement that any amount allocated to the withdrawing unit
be reasonable. See Frost v. Frost 695 S.W.2d 279 (Tex.
APP. - San Antonio 1985, no writ) ("Appropriate" synonymous
with Hreasonable"). The explicit terms of subsection 6G@)
are implicit in subsection 6F(m) because the sixth item of
computation is designed to adjust the equities of the
situation on an appropriate basis -- an adjustment which, to
be reasonable and appropriate, must also take into account,
as subsection 6G(h) does, assets of the authority alreadv
contributed by the unit of election that are available to
retire the joint obligations of the two entities. Cf.
hirshfield D is 155, 161 (1875); Cass v. State,
61 S.W.2d &0,az041 tie?Crirn. App. 1933) ("reasonable,"
"fair," "honest," "impartial," and @'eguitableBN
equated).
In our opinion, the. express reguirement.of ,.subsectjon
6G(h) that there be subtracted from the computation of the
"amount of the total financial obligations" of the authority
the total amount of the unencumbered assets
of the authority that consist of cash, cash
deposits, certificates of deposit, and bonds,
stocks, and other negotiable securities
for purposes of determining the financial obligations for
which the withdrawing unit will remain responsible to the
authority, merely clarifies, but does not enlarge, the
subsection 6F(m) provision. Trimmier v. Carlton, suora.
Inasmuch as the situations of withdrawing units of
election under both section 6F and section 66, and of the
authorities, are the same whether the authority is one
created before January 1, 1980, or later, and inasmuch as
their joint outstanding contractual obligations are based
upon identical items of computation without regard to when
the authority was created, the equitable considerations in
one case are the same asin the other. In our opinion, the
explicit language of subsection 6G(h) is implicit in sub-
section 6F(m).
P. 5219
Honorable Terra1 Smith - Page 14 (JM-1011)
In keeping with our understanding of the intent of the
legislature, we therefore advise that the City of Westlake
Hills, upon its withdrawal from the Capitol Metro transit
authority, was entitled to a proportional credit for cash
and other unencumbered liquid assets (specified by statute)
that remained in the hands of Capitol Metro, the credit to
be applied against the amount of taxes.to be thereafter
collected from Westlake Hills for payment to Capitol Metro.
Statutory responsibility for the retirement of Capitol Metro
obligations existing at the time of the Westlake Hills
withdrawal rests with Capitol Metro, but Westlake Hills (in
common with all constituent units of the transit authority)
remains liable for the total amount of any then-existin.g,
constitutionally protected contractual obligations.
Because of the construction we give the statute, we
need not engage in the discussion of equal protection
issues, equal and uniform taxation issues, or local or spe-
cial law issues that a different construction would require.
a U.S. Const. amend. ;T"Cit 1; Tex. Const. art. I, 5 3;
art. III, 5 56; Wheeler v f Brownsville, pmra; *
of Humble v . MetroDolitan Transit Auth., suDrq.
SUMMARY
Upon its withdrawal from the Capitol
Metro transit authority, the City of Westlake
Hills became entitled to a credit for unen-
cumbered liquid assets held by Capitol Metro,
the credit to be applied against the taxes to
be collected from the city thereafter for
payment to Capitol Metro. In common with the
other constitituent units of the transit
authority, Westlake Hills remains liable for
certain (then-existing) Capitol Metro con-
tractual obligations if Capitol Metro fails
to properly discharge them. Constitutional
protection of contractual obligations
prevents the statute from operating to
relieve the withdrawing city of obligations
to bondholders.
JIM MATTOX
Attorney General of Texas
p. 5220
Honorable Terra1 Smith - Page 15 (JM-1011)
MARYKELLER
First Assistant Attorney General
LOU MCCRJ2ARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by BNce Youngblood
Assistant Attorney General
p. .5221 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124975/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 18, 2016
Mr. Ronald Kubecka Opinion No. KP-0089
President and Chair
Lavaca-Navidad River Authority Re: Whether river authorities may adopt
Post Office Box 429 regulations that prohibit the possession of
Edna, Texas 77957 firearms on river authority parklands
(RQ-0077'"KP)
Dear Mr. Kubecka:
You ask whether a river authority may prohibit persons from openly carrying handguns on
parklands of the river authority. 1 You ten us that the Lavaca-Navidad River Authority
("Authority") is "considering adopting a rule that would prevent persons from openly carrying
handguns on the Authority's park premises unless specifically authorized for permitted hunting
purposes." Request Letter at 1. You assert that such a rule would relate to the "use, operation,
management, administration, and policing" of the Authority's water-related park areas and "is
authorized by Texas Parks & Wildlife Code section 25.004." Id.
Section 25.004 of the Parks and Wildlife Code provides that "a district may adopt and
enforce reasonable rules relating to the use, operation, management, administration, and policing
of its water-related park areas as it considers appropriate." TEX. PARKS & WILD. CODE
§ 25.004(1); see also id. § 25.002 (defining "district" to mean a "district or authority created under
Article XVI, Section 59, of the Constitution of Texas"); see also Act of May 30, 2003, 78th Leg.,
R.S., ch. 1224, § 1, 2003 Tex. Gen. Laws 3470, 3470-74 (providing, as one of the many acts
compiled as article 8280-131 of Vernon's Texas Annotated Civil Statutes, that the Lavaca-Navidad
River Authority is created as a conservat~on and reclamation district under the authority of article
XVI, section 59). Chapter 25 also provides that "[a] district may exercise the powers granted by
this chapter without regard to any provision, restriction, or limitation of arty general or special law
or specific act." TEX. PARKS & WILD. CODE§ 25.006(b). You aver that sections 25.004 and 25.006
authorize a river authority to adopt a rule prohibiting openly carried handguns despite the recent
amendments to the Penal Code and Government Code limiting the restrictions that can be placed
on a licensed person's right to openly carry a handgun. See Request Letter at 2 (referring to Penal
Code sections 30.05, 30.06, and 30.07, and Government Code section 411.209).
1
See Letter from Mr. Ronald Kubecka, President & Chair, Lavaca-Navidad River Auth., to Honorable Ken
Paxton, Tex. Att'y Gen. at I (Nov. 18, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter").
Mr. Ronald Kubecka - Page 2 (KP-0089)
Section 30.07 of the Penal Code creates the offense of trespass by a license holder with an
openly carried handgun. See TEX. PENAL CODE § 30.07(a). It prohibits a license holder from
openly carrying a handgun on property of another without consent after receiving notice that entry
onto the property with the handgun was forbidden. See id § 30.07(a)(l)-(2). An exception to the
application of section 30.07 is "that the property ... is owned or leased by a governmental entity
and is not a premises or other place on which the license holder is prohibited from carrying the
handgun under Section 46.03 or 46.035" of the Penal Code. Id § 30.07(e). Thus, a governmental
entity such as a river authority may prohibit openly carried·handguns from only its premises that
are locations specified in sections 46.03 and 46.035. And park premises of a river authority are
not listed in sections 46.03 and 46.035 as premises from which a governmental entity may prohibit
openly carried handguns. See generally id §§ 46.03, .035. Accordingly, we must determine
whether the broad authority granted by Parks and Wildlife Code sections 25.004 and 25.006
permits a river authority to prohibit openly carried handguns when a river authority is precluded
from enacting such a prohibition by Penal Code subsection 30.07(e).
By its plain language, subsection 25.006(b) refers to "powers granted by this chapter."
TEX. PARKS & WILD. CODE § 25.006(b). Chapter 25 grants limited express powers. See id
§§ 25.003-.006. Chapter 25 contains no provision specifically authorizing a district to regulate
handguns. See id §§ 25.001-.006. As you point out, section 25.004 authorizes a district to adopt
and enforce rules "relating to the use, operation, management, administration, and policing of its
water-related park areas as it considers appropriate." Id § 25.004. You argue that a rule
prohibiting the open carrying of handguns relates to "the use, operation, management,
administration, and policing of the [District's] water-related park areas." Request Letter at 1. Yet,
such a rule would be contrary to Penal Code subsection 30.07(e). See TEX. PENAL CODE
§ 30.07(e). When subsection 25.006(b) is read in context, the additional language-"and may
exercise the powers granted by this chapter as an alternative to the powers of all other laws relating
to the same subject"-indicates that the scope of subsection 25.006(b) is limited to only other laws
that grant powers to a district related to the specific subjects addressed in chapter 25, such as
governing the conservation and development of water resources and water-related land resources.
See TEX. PARKS & WILD. CODE§ 25.001 ("The policy of the legislature and the intent of this
chapter are to encourage the conservation and development of water in the state and water-related
land areas for public recreation."). Penal Code subsection 30.07(e) is not an alternative grant of
power to a district that relates to the same subject in the same vein as other provisions granting
power to districts. Cf TEX. WATER CODE§§ 51.122, .127 (providing for a water control and
improvement district's authority to adopt rules), 55.242 (authorizing water improvement district
to adopt rules). A court would likely determine that section 25.004 does not authorize an article
XVI, section 59 district to disregard the general limitations on a governmental entity imposed by
the Legislature related to a subject matter not addressed in chapter 25.
Moreover, a conclusion that section 25.004 authorizes a river authority to prohibit openly
carried handguns despite Penal Code subsection 30.07(e) appears contrary to the clear intent of the
Legislature. See TEX. Gov'T CODE § 311.023(5) (authorizing, in the construction of statutes,
consideration of the "consequences of a particular construction"). Chapter 25 applies to all
districts created under article XVI, section 59. See TEX. PARKS & WILD. CODE§ 25.002 (defining
"district" to mean a "district or authority created under Article XVI, Section 59, of the Constitution
Mr. Ronald Kubecka - Page 3 (KP-0089)
of Texas"). In addition to those created by special law, 2 districts created under article XVI, section
59 are numerous and can include: noxious weed control districts, 3 water control and improvement
districts, 4 fresh water supply districts, 5 navigation districts, 6 municipal utility districts,7 water
improvement districts, 8 drainage districts, 9 levee improvement districts, 10 irrigation districts, 11 and
stormwater control districts. 12 A conclusion that all such special districts are not bound by the
prohibition in Penal Code subsection 30.07(e) taken to its logical conclusion means that all such
districts may deal with their parklands unbound by any other provision of the Penal Code. In Penal
Code subsection 30.07(e), the Legislature expressed its intent that any governmental entity is
precluded from prohibiting the open carry of handguns where such handguns are lawfully
permitted. See Tex. Att'y Gen. Op. No. KP-0049 (2015) at 3--4 (discussing Legislature's intent in
enacting similar statute, Penal Code 30.06(e)). Penal Code subsection 30.07(e) contains no
exemptions for article XVI, section 59 districts. If the Legislature had intended all article XVI,
section 59 districts to be excluded from subsection 30.07(e), it would have used language more
limited than "governmental entity." Accordingly, a court would likely not give section 25.004 such
a broad construction in derogation of the Legislature's intent.
For these reasons, chapter 25 of the Parks and Wildlife Code does not authorize a river
authority to adopt regulations that prohibit the open carry of handguns on river authority parklands.
2
See, e.g., Act of May 30, 1993, 73d Leg., R.S., ch. 626, 1993 Tex. Gen. Laws 2350, 2350-72; as amended
by Act of May 16, 1995, 74th Leg., R.S., ch. 524, 1995 Tex. Gen. Laws 3280, 3280; Act of May 29, 1995, 74th Leg.,
R.S., ch. 261, 1995 Tex. Gen. Laws 2505, 2505-17; Act of May 6, 1999, 76th Leg., R.S., ch. 163, 1999 Tex. Gen.
Laws 634, 634-35; Act of May 25, 2001, 77th Leg., R.S., ch. 1192, 2001 Tex. Gen. Laws 2696, 2696-97; Act of May
27, 2001, 17th Leg., R.S., ch. 966, §§ 2.60-.62, 6.01-.05, 2001 Tex. Gen. Laws 1991, 2021-22, 2075-76; Act of June
1, 2003, 78th Leg., R.S., ch. 1112, § 6.01(4), 2003 Tex. Gen. Laws 3188, 3193; Act of May 23, 2007, 80th Leg., R.S.,
ch. 510, 2007 Tex. Gen. Laws 900, 900; Act of May 28, 2007, 80th Leg., R.S., ch. 1351, §§ 2.01-.12, 2007 Tex. Gen.
Laws 4612, 4627-34; Act of May 28, 2007, 80th Leg., R.S., ch. 1430, §§ 12.01-.12, 2007 Tex. Gen. Laws 5848,
5901-09 (the Edwards Aquifer Authority).
3
See generally TEX. AGRIC. CODE§§ 78.001-.071.
4
See generally TEX. WATER CODE§§ 51.001-.875.
5
See generally id.§§ 53.001-.190.
6
See generally id. §§ 60.001-.564, 62.001-.318 (Article XVI, Section 59, Navigation Districts), 63.001-.379.
(self-liquidating navigation districts).
7
See generally id. §§ 54.001-.813.
8
See generally id.§§ 55.001-.805.
9
See generally id.§§ 56.001-.810.
10
See generally id. §§ 57.001-.346.
11
See generally id.§§ 58.001-.836.
12
See generally id. §§ 66.001-.404.
Mr. Ronald Kubecka - Page 4 (KP-0089)
SUMMARY
Chapter 25 of the Parks and Wildlife Code does not authorize
a river authority to adopt regulations that prohibit the open carry of
handguns on river authority parklands.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147440/ | J. S67013/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
THE PHILLIES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
REGIONAL RESOURCES, :
MANAGEMENT, INC., AND :
JOSEPH S. SIMONE, : No. 445 EDA 2016
:
Appellants :
Appeal from the Order, January 27, 2016,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 001991
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2017
Regional Resources Management, Inc. and Joseph S. Simone, Jr.
(“Simone”), appeal the order of the Court of Common Pleas of Philadelphia
County that denied their petition to strike or open default judgment.
The facts, as recounted by the trial court, are as follows:
On February 16, 2015, Appellee, the Phillies,
sued Appellants for an aggregate unpaid contract
balance of $152,339.00 for a partial suite license,
Diamond Club seating, season tickets, and other
amenities. The Complaint raised counts of Breach of
Contract, Breach of Promise, and Unjust Enrichment.
The Complaint included contracts for a suite license
agreement signed by Regional Resources
Management, Inc. through its representative, Joseph
Simone at the address “PO Box 597, Voorhees, NJ
08043;” and a standard season ticket agreement
* Former Justice specially assigned to the Superior Court.
J. S67013/16
signed by Joseph S. Simone Jr. at the address
“Regional Resources Inc. PO Box 597, Voorhees, NJ
08043.” See Complaint, “Exhibit A” and “Exhibit B.”
On February 27, 2015, Appellee filed an
Affidavit of Service stating that Regional Resources
Management, Inc. a/k/a Regional Resources, Inc.,
had been served by personal service and that the
Complaint had been served upon Angela Decker, an
authorized agent, at 1307 White Horse Road,
Bldg. D., Voorhees, NJ, 08043, on February 20,
2015, at 10:20 a.m.
On February 27, 2015, Appellee filed an
Affidavit of Service stating that Joseph S. Simone,
Jr., had been served by personal service and that the
Complaint had been served upon Angela Decker, an
authorized agent, at 1307 White Horse Road,
Bldg. D., Voorhees, NJ, 08043, on February 20,
2015, at 10:20 a.m.
On April 10, 2015, Appellee filed a Praecipe for
Entry of Default Judgment against Appellants in the
amount of $157,202.43.[1]
On October 13, 2015, Appellee filed a Praecipe
to Issue a Writ of Attachment.
On November 19, 2015, Appellants filed a
Petition to Open Judgment. Appellants argued that
the Suite License agreement was between Appellee
and Regional Resources Management, only, and that
this entry of judgment “constituted a fatal defect in
the record” which required that judgment be stricken
as against Regional Resources Energy Group,
Regional Resources, Inc., and Joseph S. Simone, Jr.
Additionally, Appellants argued that the entities were
not parties to the contract and that this constituted
grounds to open the default judgment, as it was a
meritorious defense. The Petition also included an
affidavit from Joseph S. Simone, Jr., which stated
the following: Regional Resources, Inc., does not
1
This amount included interest and costs for the Sheriff.
-2-
J. S67013/16
exist; Regional Resources Energy Group is a limited
liability company separate and apart from Regional
Resources Management, Inc.; that Regional
Resources Management, Inc., entered into a suite
license agreement, had a Diamond Club Ticket
Purchase Agreement, and purchased season tickets;
that at the time judgment was entered, Simone was
“unable to afford counsel to represent [him] or any
other entity . . . and instead contacted plaintiff to
discuss a potential resolution of the matter. . . .”
On December 9, 2015, Appellee filed an
Answer in Opposition to Appellants’ Petition to Open
Judgment, Appellee argued that all Appellants had
known about the lawsuit since February of 2015;
that they were notified on April 10, 2015 that a
default judgment was taken against them; and that
Appellants had not provided a reasonable
explanation [for their failure] to respond to the
Complaint in a timely fashion. The Answer noted
that the Agreement was entered into with Regional
Resources Management, Inc., a/k/a Regional
Resources Energy Group, a/k/a Regional Resources,
Inc., and that the purchase agreement was entered
into by Joseph Simone, and that the signature box
was signed in an individual capacity by Joseph
Simone. Appellee noted that it sued Regional under
the Suite Licensing Agreement, Simone under the
Ticket Purchase Agreement, Simone for season
tickets and parking, Regional for breach of promise
and guaranty, and all Appellants for unjust
enrichment in the amount of the balance due.
Appellee argued that it was not improper, under
Pennsylvania law, to sue Appellants under fictitious
names, that all Appellants used and benefited from
the suite, tickets, etc., and that all Appellants were
sued under the unjust enrichment claim.
On January 27, 2016, this court denied
Appellants’ Petition.
On January 28, 2016, Appellants filed a timely
Notice of Appeal to the Superior Court of
Pennsylvania.
-3-
J. S67013/16
Trial court opinion, 4/5/16 at 1-3.
On appeal, appellants raise the following issues for this court’s review:
1. Did the trial court err in refusing to strike a
default judgment when the judgment was
defective on its face because the [appellants]
were not a party to the agreement on which
the judgment rests?
2. Did the trial court err in refusing to open a
default judgment when the [appellants]
presented a meritorious defense at the opening
of the execution proceedings and immediately
upon being able to afford representation, and
the facts in question are sufficient to present to
a jury?
3. Is a court required under Pa.R.C.P. 206.6,
when adopted through the local rules of civil
procedure of that county, to abide by the
language of the rule and issue a rule to show
cause as of course upon the filing of a petition?
Appellants’ brief at 2.
Initially, appellants contend that the trial court erred when it refused
to strike the default judgment because the appellants were not party to the
agreement upon which the judgment rested, which rendered the record
fatally defective. Appellants argue that the default judgment exists solely as
a result of an improperly pleaded complaint because the Suite License
Agreement in question was executed between Regional Resources
Management, Inc., and appellee and not the other entities. Appellants also
argue that the trial court erred when it found that because Simone signed
the Suite License Agreement, Simone was de facto personally liable even if
-4-
J. S67013/16
he did not sign in his personal capacity. According to appellants, Regional
Resources Management, Inc. was the only party to execute the Suite License
Agreement with appellee so that this court should reverse the trial court’s
order because of a plainly defective record and strike the judgment as to
Regional Resources Energy Group and Simone.
With regard to a motion to strike a
default judgment, [a] court may only
look at the facts of record at the time
judgment was entered to decide if the
record supports the judgment. A petition
to strike does not involve the discretion
of the court. A petition to strike a
judgment will not be granted unless a
fatal defect in the judgment appears on
the face of the record. Matters outside
of the record will not be considered, and
if the record is self-sustaining, the
judgment will not be stricken.
Aquilino v. Phila. Catholic Archdiocese, 884 A.2d
1269, 1280 (Pa.Super. 2005). “A petition to strike a
judgment is a common law proceeding which
operates as a demurrer to the record.” U.S. Bank,
N.A. v. Mallory, 982 A.2d 986, 991
(Pa.Super.2009) (quoting Cintas Corp. v. Lee’s
Cleaning Servs., 549 Pa. 84, 89-90, 700 A.2d 915,
917 (1997)). “Where a fatal defect or irregularity is
apparent from the face of the record, the
prothonotary will be held to have lacked the
authority to enter [a] default judgment and the
default judgment will be considered void.” Id.
Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 920-921 (Pa.Super. 2010).
Where a complaint contains averments sufficient to sustain an action,
a petition to strike a judgment must be denied. Kazanjian v. Cohen, 103
A.2d 491, 493 (Pa.Super. 1954). If the truth of the factual averments
-5-
J. S67013/16
contained in the record is disputed, then the recourse is a petition to open
the judgment not to strike. Resolution Trust Corp. v. Copley Qu-Wayne
Assocs., 683 A.2d 269 (Pa. 1996).
Here, averments were contained in the complaint that Regional
Resources Management, Inc., was also known as Regional Resources Energy
Group and that Simone was a party to the contract and enjoyed the benefits
of the contract. Further, the complaint contained averments that all of the
named defendants were unjustly enriched as they all used and enjoyed the
services without paying appellee the amount owed of $152,339. This
challenge to the factual averments of the complaint is not properly raised in
a motion to strike as it does not challenge a defect on the face of the record.
See Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261,
1271 (Pa.Super. 2015).
Similarly, appellants’ claim that it is improper for appellee to obtain a
judgment against Regional Resources Management, Inc., and the additional
“also known as” names attacks the factual averments made in the
complaint. As appellants failed to answer the complaint and challenge these
averments, they are now taken as true. Id. Once again, appellants failed to
allege a defect on the face of the record. The trial court did not err when it
denied the motion to strike.
Appellants next contend that the trial court erred when it denied the
petition to open the default because appellants presented their argument at
-6-
J. S67013/16
the opening of the execution proceedings and as soon as they were able to
afford representation, they presented a meritorious defense of lack of
contractual privity, and the facts in question were sufficient to present to a
jury.
A petition to open judgment is an appeal to the equitable powers of
the court. First Seneca Bank & Trust Co. v. Laurel Mountain Dev.
Corp., 485 A.2d 1086, 1088 (Pa. 1984):
[The grant or denial of a motion to open
judgment] is committed to the sound discretion of
the hearing court and will not be disturbed absent a
manifest abuse of that discretion. Ordinarily, if a
petition to open a judgment is to be successful, it
must meet the following test: (1) the petition to
open must be promptly filed; (2) the failure to
appear or file a timely answer must be excused; and
(3) the party seeking to open the judgment must
show a meritorious defense. However, where the
party seeking to open a judgment asserts that
service was improper, a court must address this
issue first before considering any other factors. If
valid service has not been made, then the judgment
should be opened because the court has no
jurisdiction over the defendant and is without power
to enter a judgment against him or her. In making
this determination, a court can consider facts not
before it at the time the judgment was entered.
Thus, if a party seeks to challenge the truth of
factual averments in the record at the time judgment
was entered, then the party should pursue a petition
to open the judgment, not a petition to strike the
judgment.
Cintas Corp., 700 A.2d at 919 (citations omitted).
-7-
J. S67013/16
The timeliness of the petition is “measured from the date that the
notice of the entry of default judgment is received.” Castings
Condominium Assoc. v. Klein, 663 A.2d 220, 223 (Pa.Super. 1995).
Here, default judgment was entered on April 10, 2015. Appellants
filed the petition to open on November 19, 2015, over seven months after
the entry of judgment. While there is no bright line as to what constitutes a
“promptly filed petition,” the trial court noted that prompt and timely filings
are generally less than a month. The trial court did not err when it ruled
that the petition to open, filed more than seven months after entry of the
default judgment, was not promptly filed.2
Appellants next contend that the trial court abused its discretion when
it failed to issue a rule to show cause under Rule 206.6 of the Pennsylvania
Rules of Civil Procedure as adopted by the Court of Common Pleas of
Philadelphia County. Specifically, appellants assert that the trial court
abused its discretion by not holding a hearing or at least ordering
depositions.
Pennsylvania Rule of Civil Procedure 206.4(a)(1) provides, “[e]xcept
as provided by subparagraph (2), a petition shall proceed upon a rule to
show cause, the issuance of which shall be discretionary with the court as
provided by Rule 206.5 unless the court by local rule adopts the procedure
2
Because the petition was not timely filed, this court need not address the
remaining two prongs of the test for granting a petition to open a default
judgment.
-8-
J. S67013/16
of Rule 206.6 providing for issuance as of course.” Pa.R.C.P. 206.4(a)(1).
The Court of Common Pleas of Philadelphia County adopted Local Rule 206.4
which adopted the procedure of Pennsylvania Rule of Civil Procedure 206.63
for all petitions filed pursuant to Pa.R.C.P. 206.1 et seq., such that upon the
filing of a petition, the motion court clerk shall issue a rule to show cause on
behalf of the court.
Here, no rule to show cause was issued, but appellee was directed to
file an answer and did so. Although appellants argue that they were entitled
to discovery to determine whether there was the unjust enrichment claimed
by appellee and were entitled to discovery on the “a/k/a” allegation that,
they claim, was the heart of appellee’s case, this court does not agree. The
trial court could and did determine that the petition to open was untimely
without the benefit of a hearing or discovery. It would make no sense for
the trial court to prolong the proceedings by granting a discovery request
when the underlying petition is untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
3
This rule states that a rule to show cause should be issued as of course and
shall direct that an answer be filed to the petition within twenty days.
-9- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124952/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
September 6, 2016
The Honorable Jim Murphy Opinion No. KP-0112
Chair, Committee on Corrections
Texas House of Representatives Re: Whether the State is required to assume
Post Office Box 2910 liability when a local retirement system
Austin, Texas 78768-2910 created pursuant to title 109 of the Texas Civil
Statutes is unable to meet its financial
obligations (RQ-0101-KP)
Dear Representative Murphy:
You ask whether the State of Texas must assume liability in the event that a specific group
of municipal retirement systems created pursuant to title 109 of the Texas Civil Statutes cannot
meet its financial obligations. 1 You explain that "[r]ising pension and health care costs,
unpredictable revenues, aging infrastructure, high debt load, and increasing costs for the delivery
of city services threaten municipalities' ability to balance budgets and maintain strong credit
ratings." Request Letter at 1. Citing the potential for municipal default, you ask whether "the
oversight role played by the State Legislature in these specific municipal retirement systems
cause[s] the State to assume some or all of the liability[.]" Id
Article XVI, section 67(a) of the Texas Constitution authorizes the Legislature to "enact
general laws establishing systems and programs of retirement and related disability and deatli
benefits for public employees and officers." TEX. CONST. art. XVI, § 67(a). With regard to
municipalities, the constitution requires the Legislature to provide "by law for ... the creation by
any city ... of a system of benefits for its officers and employees." 2 Id art. XVI,§ 67(c)(l)(A).
Pursuant to this authority, the Legislatur~ enacted multiple articles in title 109 of the Texas Civil
1
See Letter and Attachment from Honorable Jim Murphy, Chair, Comm. on Corrections, Tex. House of
Representatives, to Honorable Ken Paxton, Tex. Att'y Gen. at I (Mar. 8, 2016), https://www.texasattomeygeneral.
gov/opinion/requests-for-opinion-rqs ("Request Letter" & "Attachment" respectively) (Attachment on file with the
Op. Comm.).
2
Article XVI, section 67(c)(l)(C) also requires the Legislature to provide for a statewide system "in which
cities may voluntarily participate." TEX. CONST. art. XVI§ 67(c)(l)(C). Based on the information you provide, we
assume that none of the cities at issue have elected to participate in the statewide system, the Texas Municipal
Retirement System ("TMRS"). See generally TEX. Gov'T CODE §§ 851.001-855.608 (subtitle G", establishing
TMRS).
The Honorable Jim Murphy - Page 2 (KP-0112)
Statutes to establish the specific municipal retirement systems you ask about. 3 Through each
system's enabling statute, the Legislature provided the governance provisions applicable to each
system, including board composition, plan structure, retirement eligibility requirements, benefits,
and pension fund contributions. The Legislature also made public retirement systems generally
subject to Chapter 802 of the Government Code, which sets forth administrative requirements in
subchapter C regarding, among other things, the administration of assets. 4 See generally TEX.
Gov'T CODE§§ 802.201-.207. In accordance with the constitution and chapter 802, the trustees
of the municipal retirement systems at issue must "hold the assets of the system or program for the
exclusive purposes of providing benefits to participants and their beneficiaries and defraying
reasonable expenses of administering the system or program." TEX. CONST. art. XVI,
§ 67(f)(2) (applicable to retirement systems not belonging to a statewide system); TEX. Gov'T
CODE§ 802.201 (similarly providing that a public retirement system's assets are held in trust "for
the benefit of the members and retirees of the system and their beneficiaries").
In addition, the Legislature provided general oversight of municipal retirement systems
created pursuant to title 109 through the State Pension Review Board (the "Board"). See generally
TEX. Gov'T CODE §§ 801.001-.211. The Board must "conduct a continuing review of public
retirement systems, compiling and comparing information about benefits, creditable service,
financing, and administration of systems," including "intensive studies of potential or existing
problems that threaten the actuarial soundness of or inhibit an equitable distribution of benefits."
Id § 801.202(1)-(2). The Board recommends "policies, practices, and legislation" and, if
requested by a public retirement system, provides "information and technical assistance on pension
planning." Id § 801.202(3)-(4 ). Thus, through title 109 of the Civil Statutes and chapters 801
and 802 of the Government Code, the Legislature provided an overall operating framework for
each municipal retirement system about which you ask.
Within this framework, the Legislature specifically addressed the financial health of the
municipal retirement systems. For example, the Legislature required the Board to "conduct a study
of the financial health of public retirement systems in this state, including each system's ability to
meet its long-term obligations." Act of May 13, 2013, 83d Leg., R.S., ch. 140, § 7(b), 2013 Tex.
Gen. Laws 566, 568. If at any time an actuarial valuation indicates "that the system's actual
contributions are not sufficient to amortize the unfunded actuarial accrued liability within 40
years," a public retirement system must generally notify the associated governmental entity in
writing. TEX. Gov'T CODE § 802.2015(c). If the valuation shows that the amortization period
3
You identify the municipal retirement systems specifically enacted by title 109. See Attachment at 13-15,
17, 19-21, 23-26, 28-29 (pagination as indicated therein) (identifying Austin Employees' Retirement System, Austin
Fire Fighters Relief & Retirement Fund, Austin Police Retirement System, Dallas Police & Fire Pension System,
El Paso Firemen Pension Fund, El Paso Police Pension Fund, Fort Worth Employees' Retirement Fund, Galveston
Employees' Retirement Plan for Police, Houston Firefighters' Relief & Retirement Fund, Houston Municipal
Employees Pension System, Houston Police Officers Pension System, San Antonio Fire & Police Pension Fund, and
Texas Local Fire Fighters Retirement Act); see also TEX. REV. CIV. STAT. arts. 6243a-1, 6243b, 6243e, 6243e.1,
6243e.2(1), 6243g-4, 6243h, 6243i, 6243n, 6243n-1, 62430, 6243p.
4
Subchapter C of chapter 802, Government Code, does not apply to the Texas Local Fire Fighters Retirement
Act except for sections 802.202 (Investment of Surplus), 802.205 (Investment Custody Account), and 802.207
(Custody and Use of Funds). TEX. REV. CIV. STAT. art. 6243e, § 28(h).
The Honorable Jim Murphy - Page 3 (KP-0112)
"has exceeded 40 years" for a certain number of consecutive valuations, the retirement system and
the associated governmental entity must generally "formulate a funding soundness restoration
plan" meeting certain requirements in accordance with the system's governing statute and report
the progress toward improved actuarial soundness to the Board. Id. § 802.2015(c), (e), (f).
With regard to specific enabling statutes of the municipal retirement systems at issue, the
Legislature in some instances authorized or directed specific action by local entities under certain
financial circumstances. See, e.g., TEX. REV. C1v. STAT. art. 6243h, § 21(a), (c) (Houston
Municipal Employees Pension System) (authorizing the pension board to temporarily reduce
benefits if it "determines that the pension fund is seriously depleted," and authorizing the
governing body of the city by ordinance to dissolve and liquidate the pension system "[i]f the
reserve and surplus in the pension fund become exhausted and the payouts of the pension fund
exceed the income to the pension fund"). 5 In the event that a change by a municipal retirement
system results in the reduction of benefits, article XVI, section 66( d)-( e) of the constitution
generally protects the benefits of vested employees existing on the date of the change, putting the
joint responsibility on "the political subdivision ... and the retirement system that finance benefits
under the retirement system" to ensure that such benefits "are not reduced or otherwise impaired." 6
TEX. CONST. art. XVI, § 66(d)-(f); see also Tex. Att'y Gen. Op. No. GA-0615 (2008) at 7
(indicating that the legislative intent of section 66 was to give affected retirement systems the
"flexibility ... to respond to changing economic times" while protecting the benefits of vested
employees (quotation marks omitted)).
In no instance does the constitution or the Legislature make the State liable for any
shortfalls of a municipal retirement system regarding the system's financial obligations under title
109. The Texas Constitution would in fact prohibit the State from assuming such liability without
express authorization. Article III, section 49(a) prohibits the creation of State debt except in
5See also id.. arts. 6243e.l, § 9.08 (Austin Fire Fighters Relief and Retirement Fund) (requiring a temporary
pro rata reduction of benefits ifthe fund is insufficient to make regular payments); 6243n-l, § 6.0l(d)(4) (Austin
Police Retirement System) (giving the board "the authority and the duty" to decrease cost of living adjustments "as
much as is necessary" to protect the continuity of the retirement system if "the ability of the system to continue"
regular payments is compromised by an "economic situation"); 6243i, § 5.08(a) (Fort Worth Employees' Retirement
Fund) (authorizing the city's governing body to amend its administrative rules governing municipal contributions
under certain circumstances to address "a fiscal emergency"); 62430, § 4.06 (making the City of San Antonio
responsible for paying "the deficiency, if any" between the amount available to pay benefits and the amount owed by
statute).
6 By its terms, article XVI, section 66 does not apply "to a public retirement system that provides service and
disability retirement benefits and death benefits to firefighters and police officers employed by the City of
San Antonio" and to a public retirement system and its financing political subdivision ifthe voters so elect pursuant
to section 66(h). TEX. CONST. art. XVI,§ 66(b), (h). You inform us that voters of the following cities opted out of
this provision: the City of Galveston (for the Galveston Employees' Retirement Plan for Police); the City of Houston
(for the Houston Firefighters' Relief & Retirement Fund, the Houston Municipal Employees Pension System, and the
Houston Police Officers Pension System); and the City of San Antonio (for the San Antonio Fire and Police Pension
Fund). See Attachment at 22-26, 28 (pagination as indicated therein).
The Honorable Jim Murphy - Page 4 (KP-0112)
limited circumstances not present here. 7 See TEX. CONST. art. III, § 49(a). A related provision,
Article III, section 50, prohibits the State from lending its credit, stating that the Legislature has
no power to give or to lend ... the credit of the State in aid of, or to
any person, association or corporation, whether municipal or other,
or to pledge the credit of the State in any manner whatsoever, for the
payment of the liabilities, present or prospective, of any individual,
association of individuals, municipal or other corporation
whatsoever.
Id. art. III, § 50. Thus, a court would likely conclude that the State is not required to assume
liability when a municipal retirement system created under title 109 is unable to meet its financial
obligations.
7
See TEX. CONST. art. III, § 49(a) (prohibiting the creation of State debt "except (1) to supply casual
deficiencies of revenue, not to exceed in the aggregate at any one time two hundred thousand dollars; (2) to repel
invasion, suppress insurrection, or defend the State in war; (3) as otherwise authorized by this constitution; or (4)" as
approved by the voters through an election).
The Honorable Jim Murphy - Page 5 (KP-0112)
SUMMARY
A court would likely conclude that the State is not required
to assume liability when a municipal retirement system created
under title 109 of the Texas Civil Statutes is unable to meet its
financial obligations.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130482/ | November 30, 1988
Mr. Perry L. Adkisson OpiIliOIl No. JM-987
Chancellor
The Texas A&M University System Re: Applicability of
College Station, Texas 77843 the limited sales and
use tax to public
Honorable Bob Bullock entities (RQ-1363 and
Comptroller of Public Accounts RQ-1415)
L.B.J. State Office Building
Austin, Texas 78774
Gentlemen:
This office has received two requests for opinions
P
which ask a series of related questions concerning the
q&cability of certain provisions of the Texas Limited
, Excise, and Use Tax Act to public entities which
engage in transactions subject to the taxes levied under the
act. See aenerally Tax Code 55 151.001-151.801.
The Comptroller of Public Accounts requests our opinion
on the following issues:
(1) Whether state agencies, cities,
counties, independent school districts, state
colleges and universities or their auxiliary
enterprises, and special purpose districts
engaged in making retail sales of tangible
personal property and services subject to
taxation under the Texas Sales Tax Act must
collect sales tax on those sales?
(2) If [such entities must collect taxes
of retail sales,] then must they be issued
a sales tax permit [specified in section
151.204 of the Tax Code]?
(3) If so, are they subject to the same
rules as other taxpayers with regard to:
a) purchase of tax permits:
b) filing of returns:
Mr. Perry L. Adkisson
Honorable Bob Bullock
Page 2 (JM-987) .
c) penalty and interest on late filings;
and
d) enforcement procedures and other
matters.
Additionally, Chancellor Adkisson asks whether public
institutions of higher education are entitled to withhold a
percentage of gross sales and use tax receipts as reimburse-
ment for the cost of collecting the taxes. The statute
permits those who collect the tax on behalf of the state to
withhold one-half of one percent of the tax due. Tax Code 5
151.423.
I.
It is important to note at the outset that these
questions do not concern the taxation of any public body.
See, e.u Attorney General Opinion WW-1502 (1962). Rather,
the issu;; under review concern the applicability of certain
provisions of the Tax Code to public bodies that "sell@1 or
"retail" tangible personal property subject to the sales and
use tax. See, e.a., Tax Code 5 151.052: Part III, below.
Nor do the questions under examination pertain to
exemptions from the imposition of the sales and use tax for
governmental entities on purchases of tangible personal
property for their use. &g Tax Code § 151.309.
Of course, the application of the provisions of any tax
law, including enforcement provisions~with interest charges
and monetary penalties, to public bodies ma in fact promote
something like what one court has identified as the
"senseless process" of the sovereign taxing itself
[t]he net result of which would be but to
take its own money out of one pocket for the
purpose of putting it into another -- less
the cost of assessing and collecting the tax.
. . . accomplish[ing nothing] but the idle
expenditure of public funds.
Lower Colorado River Authoritv v. Chemical Bank and Trust
Co., 190 S.W.Zd 48, 51 (Tex. 1945) (citation omitted). See
also Attorney General Opinion WW-1502 (1962).
II.
Section 151.051 of the Tax Code specifies that a "tax
is imposed on each sale of a taxable item in this state."
P. 5042
Mr. Perry L. Adkisson
Honorable Bob Bullock
Page 3 (JM-987)
The tax is collected by those making sales of things subject
to the tax:
(a) A seller who makes a sale subject to
the sales tax imposed by this chapter shall
add the amount of the tax to the sales price,
and when the amount of the tax is added:
(1) it becomes a part of the sales price;
(2) it is a debt of the purchaser to the
seller until paid: and
(3) if unpaid, it is recoverable at law in
the same manner as the original sales
price.
Tax Code 8 151.052. Additionally, the Tax Code defines a
lVsellerllor "retailer I0 in relevant part as a
(a) . . . person engaged in the business of
making sales of taxable items of a kind the
receipts from the sale of wh~ich are included
in the measure of the sales or use tax
imposed by this chapter.
Tax Code 9 151.008. 11Business11 is defined as "an activity
of or caused by a person for the purpose of a direct or
indirect gain, benefit, or advantage." Tax Code 9 151.003.
It is important to note that the Code Construction Act
mandates the inclusion of llgovernment,l' "governmental
agency," and "governmental subdivision" within the general
definition of U1personl'as that word is used in the relevant
provisions of the Tax Code. Gov't Code 5 311.005(2).1
When the legislature intends for governmental entities
to be treated differently from other persons in the Tax
Code, it specifically provides for distinctive treatment for
1. The first act imposing the limited sales and use tax
contained a definition of "person" which included the
VState, or any agency hereof, or any city, county, special
district, or other political subdivision of this State to
the extent engaged in the selling of tangible personal
property . . . .*I Acts 1961, 57th Leg., 1st C.S., ch. 24,
9 1, at 71.
p. 5043
.
Wr. Perry L. Adkisson
Honorable Bob Bullock
Page 4 (JM-987)
public entities whose activities otherwise fit within the
reach of the statute. See. e.a., Tax Code § 151.3101 (the
sales of amusements "exclusively provided: by this state,
municipality, county, school district, special district, or
other political subdivision of this state . . .I* are
exempted from the sales and use tax); and Tax Code 5 151.309
(exemption from payment of the tax by governmental
entities).
This office has noted, for example, that the sales tax
is applied to sales made by the Department of Highways
operating as a retailer selling tangible personal property
to purchasers in the general public. Attorney General
Opinion H-303 (1974). No general principle in the
Constitution or the Tax Code limits the application of the
sales and use tax simply because transactions subject to the
tax are entered into by public entities, or because the
public body must extract the tax from those purchasers who
owe it as a part of the purchase price of tangible personal
property.
Thus, when a governmental entity acts as a "retailer"
or "seller," section 151.052 of the Tax Code makes clear
that the l*sellerlqor "retailer*' is not initially liable for
the tax: rather, the purchaser is liable to the seller for
the tax as '*a part of the sales price." Accordingly, the
key operational definitions in the sales tax law apply to
public bodies that otherwise fit within their terms. The
provisions of the law are clear and unambiguous, and call
for no examination beyond the plain meaning of the words
used in the statute. Brazos River Authoritv v. Graham, 354
S.W.2d 99 (Tex. 1961).
III.
The collection of the sales and use tax and the deposit
of the tax receipts with the state depends on the specific
efforts of sellers and retailers mandated by the Tax Code.
Retailers must register with the comptroller, and all
sellers must obtain sales tax permits. Tax Code 55 151.106,
151.201.
Subchapter I, chapter 151 of the Tax Code specifies the
methods which must be used by retailers and sellers to
report the amount of the taxes they collect. The subchapter
also specifies the deadlines for making such reports and for
transmitting tax receipts to the comptroller. See Tax Code
gg 151.401, 151.409. Additionally, the code permits the
seller or retailer collecting the tax to deduct one-half of
one percent of the amount due for the cost of collecting the
P. 5044
Mr. Perry L. Adkisson
Honorable Bob Bullock
Page 5 (JM-987)
F .
tax and to qualify for certain discounts for some prepayment
of the taxes collected. Tax Code 00 151.423, 151.424.
Subchapters K and L, chapter 151 of the Tax Code
specify the procedures used to collect delinquent sales
taxes, mandate penalties to be levied for certain violations
of the sales tax law, and prohibit certain practices with
regard to the collection and payment of the tax.
The provisions of the Tax Code which place the burden
of collecting the sales tax on sellers and retailers do not
distinguish retailers and sellers in the public sector from
private retailers and sellers. Again, it appears that when
the legislature meant for different rules to apply to
governmental entities, it provided so in other definitional
provisions of the Tax Code. Sea the discussion at page 5,
above.
Thus, absent specific language creating an exception
for governmental entities, all of the provisions of the
limited sales, use, and excise tax law apply to governmental
entities entering into transactions subject to the provi-
sions of the Tax Code, with the exception discussed in Part
F--
IV, and subject to the general qualifications set out in
Part V.
Specifically, public institutions of higher education
when they act as l*sellersE' or "retailers** by conducting
transactions subject to the sales tax, should be treated by
the comptroller as any other "seller" or "retailer" engaged
in the kinds of transactions subject to the tax. They are
entitled to all of the benefits extended to "sellers" and
"retailers" in the Tax Code, and subject to all of the
burdens of the law. Accordingly, they are entitled to
withhold the statutorily prescribed amount permitted to
sellers and retailers who collect taxes, to reimburse them
for the costs of collecting the tax on behalf of the state,
and to qialify for any bounties provided for the prepayment
of taxes. Tax Code 55 151.423, 151.424.
Additionally, the comptroller asks specifically whether
governmental entities must purchase sales tax permits.
Section 151.202 of the Tax Code provides that a "person
desiring to be a seller in this state shall file with the
comptroller an application for a permit for each place of
business." See also Tax Code 95 151.201, 151.2021 (governs
fees to be charged for issuance and renewal of sales tax
permits). There is no language in any of the provisions of
the sales and use tax law concerning permits to indicate
that the legislature intended for governmental entities
13. 5045
or. Perry L. Adkisson
Honorable Bob Bullock
Page 6 (JM-987)
conducting business as sellers to be exempt from either the
permit requirement or the fees to be charged for new and
renewed permits. Attorney General Opinion JR-973 (1988).
IV.
Subsequent to the enactment of the Tax Code, the
legislature adopted the State Funds Reform Act. Gov't Code
3s 404.091 - 404.094. The State Funds Reform Act applies to
state agencies, defined as:
an office, institution, or other agency that
is in the executive branch of state govern-
ment, has authority that is not limited to a
geographical portion of the state, and was
created by the constitution or a statute of
this state, but does not include an institu-
tion of higher education as defined by Section
61.003, Education Code.
Gov't Code § 404.092. The act applies to state agencies
only "to the extent that they are not otherwise required to
deposit funds in the treasury." The act does not apply to
funds. specified in section 404.093 (b) of the Government
Code, none of which are relevant to this inquiry.
In essential part, the state Funds Reform Act requires
that:
(a) Fees, fines, penalties, taxes, charges,
gifts, donations, and other funds collected or
received by a state agency under law shall be
deposited in the treasury . . . . A deposit
shall be made at the earliest possible time
that the treasury can accept those funds, &&
not later than the seventh dav after the date
of receint.
(b) Money that is required by this sub-
chapter or by another law to be deposited in
the treasury shall be deposited to the credit
of the general revenue fund unless the money
is expressly required to be deposited to
another fund, trust fund, or special account
not in the general revenue fund. This sub-
section does not affect the authority of the
comptroller or the treasurer to establish and
use accounts necessary to manage and account
for state revenues and expenditures. (Emphasis
added.)
p. 5046
Mr. Perry L. Adkisson
Honorable Bob Bullock
Page 7 (JM-987)
P
Gov't Code 5 404.094. Sales tax receipts collected by
sellers and retailers "shall be delivered to the office of
the comptroller.n Tax Code S 151.409. At present, the
comptroller's rules require taxes collected by state
agencies to be deposited in the treasury within seven days.
Comptroller of Public Accounts, Revenue Accounting Rule 12.
This practice of the comptroller is consistent with the
State Funds Reform Act. Although the Tax Code specifies
that sellers and retailers must send sales tax receipts to
the comptroller on either a monthly or a quarterly basis,
the comptroller may require that receipts be submitted on a
different basis, if he deems that to be necessary "to
facilitate the collection of taxes due." Tax Code
55 151.401, 151.405. Thus, the present practice which
requires taxes collected by the state and its agencies to be
deoosited in the treasury within seven days is authorized by
the Tax Code. This practice is also consistent with the
provisions of the Government Code requiring that taxes
collected or received by state agencies must be in the
treasury within seven days of receipt.
V.
The comptroller also asks whether the enforcement
provisions in subchapters K and L, chapter 151 of the Tax
Code apply to governmental entities, including the state,
its agencies, counties, cities, and independent school
districts. In particular, the comptroller inquires about
the application of provisions levying penalties and interest
for the late filing of required reports and the late payment
of taxes to such taxpayers.
The enforcement provisions of the Tax Code make no
distinction between public and private entities subject to
the code in any of the sections touching on the enforcement
of the sales and use tax, including the provisions
concerning the levying of penalties and interest.
The Constitution forbids payments to be made from the
public treasury except pursuant to a specific appropriation.
Tex. Const. art. VIII, 5 6. Additionally, appropriations
may be made only under the authority of previously adopted
legislation. Tex. Const. art. III, § 44. The state is not
liable for interest on claims made against it, unless a
statute authorizes the interest. See, e.a., State v. El,
Paso Natural Gas Comoany, 300 S.W.Zd 170 (Tex. Civ. App. -
Austin 1957, no writ).
D. 5047
Mr. Perry L. Adkisson
Honorable Bob Bullock
Page 0 (JM-987)
The Tax Code requires all of the entities subject to
its provisions to pay interest on certain tax returns filed
late: the state is such an entity. The Tax Code also does
not discriminate between public and private entities in the
provisions governing the imposition of penalties. There-
fore, the code authorizes the state to pay both the interest
and penalties which may be levied against it under the
enforcement provisions of the sales and use tax law. This
means that the comptroller may impose penalties and interest
in the appropriate circumstances specified by the Tax Code.
Satisfaction of a levy must await action by the legislature
to aooronriate funds to pay any levies against the state or
one of its arms. Again, while the imposition of such a
penalty by the state against itself may be a pointless
process, it is not forbidden by any provision in the law.
Lower Colorado River Authoritv v. Chemical Bank and Trust
Co., 190 S.W.2d 48 (Tex. 1945).
Counties must adopt annual budgets which provide
details of planned expenditures for the county. See aener-
u Local Gov't Code, ch. 111. Expenditures may be made
only "in strict compliance with the budget." See Local
Gov’t Code 55 111.010, 111.041, and 111.070. This means
that all payments, including fines and interest due because
of violations of the Tax Code, must be provided for specif-
ically in the budget adopted by the county commissioners.
A similar pattern applies both to municipalities and
school districts. See Local Gov't Code § 102.009; Educ.
Code OS 17.29, 17.56, 23.42, and 23.47.
SUMMARY
The Limited Sales and Use Tax Law applies
fully to the state, including its agencies
and political subdivisions, to munici-
palities, and to independent school districts
entering into transactions which fit within
the terms of the Tax Code. All entities
subject to the provisions of the sales tax
law are entitled to any benefits extended .by
the statute, including the provision which
allows sellers and retailers who collect the
tax to withhold a specified percentage of the
taxes collected as reimbursement for the
costs of collection. The State Funds Reform
Act, sections 404.091 through 404.094 of the
Government Code, apply to the handling of -.
sales tax receipts collected by the entities
subject to the act. Penalties and interest
p. 5048
Mr. Perry L. Adkisson
Honorable Bob Bullock
Page 9 (JM-987)
levied against public entities pursuant to
the Tax Code may be paid by the entities only
pursuant to law.
Very
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
h
Prepared by D. R. Bustion, II
Assistant Attorney General
P. 5049 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130527/ | August 19, 1988
Honorable John Vance Opinion No. J'w942
Criminal District Attorney
Dallas County Re: Whether a county may
Services Building guarantee loans made to low
Dallas, Texas 75202 and moderate income families
for housing purposes and re-
lated questions (RQ-1337)
Dear Mr. Vance:
You inquire about the powers of a county to provide
financial assistance to low and moderate income families for
housing purposes. You first ask whether the provision of
financial assistance to low and moderate income families
for housing purposes constitutes a "public purpose" for a
county.
This question involves two issues: whether the county
has express or implied statutory authority to provide such
financial assistance to low and moderate income families,
and, if so, whether such statutory authority is consistent
with the Texas Constitutional provisions which require that
public funds be spent for public purposes. m Tex. Const.
art. III, Of 50, 51, 52; art. VIII, 5 3.
Attorney General Opinion JR-805 (1987) concluded that
the provision of housing assistance by a home rule city to
low and moderate income families would not necessarily
violate the public purpose requirements of the constitution.
The courts have accorded great weight to legislative
determinations of the public purpose to be served by the
provision of housing assistance. In Jiousina Authoritv 9
Citv of Dallas v. Hissinbotham, 143 S.W.Zd 79 (Tex. 19407,
the Texas Supreme Court upheld the Housing Authorities Law,
which authorized the construction of low rent housing
projects for persons of low income. Local Gov't Code ch.
392. The law defines "persons of low income" to mean
families or persons who lack the amount of
income that an authority considers necessary
to live, without financial assistance, in
p. 4736
Honorable John Vance - Page 2 (J&942)
,
decent, safe, and sanitary housing without
overcrowding.
Local Gov't Code 5 392.002(g). The Supreme Court determined
that the use to which the housing projects would be devoted
was a public use. 143 S.W.2d at 85 (Tex. 1940). The terms
"low income" and "moderate income" do not, in the abstract,
stand for precise amounts of income or a particular standard
of living. They are defined by evaluating income against
expenditures for necessities, taking into consideration
factors such as the costs of holding a job, family size, and
local cost of living. If an individual's earnings do not
increase in proportion to inflation, his income may decline
from l*moderatel'to "low" over a period of time without any
decrease in the amount of dollars earned. It is possible
that persons and families who have a moderate income by some
standards will meet the quoted test for 'low incomenq persons
and families because of local housing shortages or
inflation in housing.
We will not address the constitutionality of
housing assistance program available for low and rnod~~~~
income persons in the state. These must be evaluated
individually, taking into consideration the legislature's
statement of purpose, the means of effectuating that
purpose, and the definitions of low and moderate income. We
simply wish to make it clear that attaching the label
"moderate income" to a person does not automatically remove
him from the class of persons who may receive housing
assistance consistently with consitutional provisions that
protect public funds from expenditure for private purposes.
&=G Attorney General Opinion O-2474 (1940) (A person need
not be reduced to pauperism in the starkest meaning of the
word before assistance may be extended to him under former
section 11 of article 2351, V.T.C.S.).
We next consider whether the county has statutory
authority to provide the kind of housing assistance you
inquire about. you ask whether a county may guarantee loans
made to low and moderate income families for housing
purposes, either by directly guaranteeing the loans or
indirectly, by guaranteeing the payment of debt service on
bonds issued by a housing finance corporation.
Housing projects for low income persons, slum
clearance, urban redevelopment, and similar programs are
within the general police power to provide for the public
health, safety, and welfare. 7 McQuillan, Municipal
Corporations ff 24.563, 24.563b (3d rev. ed. 1981). The
p. 4737
Honorable John Vance - Page 3 m-942)
legislative findings in the Housing Authorities Law state a
need for the exercise of the police power:
[Hlousing conditions are responsible for an
increase in and spread of disease and crime,
are a menace to the health, safety, morals,
and welfare of the residents of the state,
impair economic values, and necessitate
excessive and disproportionate expenditures
of public funds for Crimea prevention and
punishment, public health and safety, fire
and accident protection, and other public
services and facilities . . . .
Local Gov't Code 9 392.003(2). &9 &&DD v. Citv of Dallas,
235 S.W. 513 (Tex. 1921) (providing that police power
authorizes government to protect the health, safety,
comfort, and welfare of the public). The Texas Housing
Finance Corporations Act also includes a finding that it
will promote the public health, safety, morals, and welfare.
Local Gov*t Code 9 394.002(b)(l).
The commissioners courts may exercise only~such powers
as the constitution or the statutes have conferred upon
them. mles v. Lauchlin 214 S.W.Zd 451, 453 (Tex. 1948).
Although the commissioners'courts have broad discretion in
exercising powers expressly conferred on them, the legal
basis for any action by a commissioners court must be found
in the constitution or the statutes. Q& Unlike home rule
cities, counties have no general police power. Commis-
si ners Court of Harris Countv v. Kaiser, 23 S.W.Zd 840
(kx. Civ. APP. - Galveston 1929, writ ref'd); Attorney
General Opinion JM-863 (1988); M Local Gov*t Code 9 54.004
(general police power of home-rule cities).
An examination of the relevant statutes persuades us
that a commissioners court lacks authority to guarantee
loans for housing purposes either directly or indirectly
through guaranteeing the payment of debt service on bonds
issued by a housing finance corporation.
The Texas Housing Finance Corporations Act provides a
means of using tax-exempt financing to generate mortgage
funds. Etter & Fraser, Housing Finanace Corporations: The
Texas Experience (A & M Real Estate Research Center,
September 1986); g.9~ Local Gov*t Code S 394.002(a). It
authorizes the governing body of any city or county to
approve the incorporation of public, nonprofit corporations
which may issue bonds to defray costs of residential
p. 4738
Honorable John Vance - Page 4 m-942)
development or the costs of purchasing or funding home
mortgages for persons of low or moderate income. Local
Gov't Code 55 394.003(8)(11); 394.011; 394.037(a). The
corporation may pledge all or a part of its revenues,
receipts, or resources, including revenues or receipts
received from residential development or home mortgages, to
the payment of principle and interest on its bonds. Local
Gov*t Code § 394.037(b). Section 394.055 of the Local
Government Code provides that bonds issued by a housing
finance corporation are limited obligations of the
corporation, payable solely from the revenue, receipts, and
other resources pledged to their payment. The local govern-
ment and the state are "not liable in any way regarding
bonds issued by the housing finance corporation." Local
Gov't Code &? 394.055(b). Section 394.055 of the Local
Government Code further states that:
The bonds do not constitute, within the
meaning of a statutory or constitutional
provision, an indebtedness, an obligation, or
a loan of credit of the state, the local
government, or any other municipality,
county, or other municipal or political
corporation or subdivision of the state. The ^
bonds do not create a moral obligation on
the part of any of those governmental
entities with respect to the payment of the
bonds. nose covernmental entities mav not
1.
(Em;haEis adied:)
Local Gov't Code 8 394.055(c). The underlined sentence
prohibits cities and counties from paying debt service on
bonds issued by a housing finance corporation. Accordingly,
a county lacks authority to guarantee the payment of debt
service on such bonds.
Nor does a county have statutory authority to guarantee
mortgage loans made by a housing finance corporation to a
low or moderate income person or family. The Texas Housing
Finance Corporations Act defines "home mortgage" in part as
an interest-bearing loan to a mortgagor, or a
participation in such a loan, that is:
. . . .
(D) except as provided by Section 394.906,
guaranteed or insured by the United States, an
p. 4739
Honorable John Vance - Page 5 (JM-942)
instrumentality of the United States, or a
private mortgage insurance or surety company
to the extent the loan amount exceeds 80
percent of the lesser of the appraised value
of the home at the time the loan is made or
the sale price of the home.
Local Gov't Code § 394.003(7). Under section 394.906 of the
Local Government Code, a federal guarantee or home mortgage
insurance is not required if the the housing finance
corporation's bonds are guaranteed or insured by an agency,
department, or instrumentality of the United States or by an
insurance or surety company authorized to issue municipal
bond insurance.
The Texas Housing Finance Corporations Act does not
authorize a county to guarantee mortgage loans financed by a
corporation established under that act. The legislature
intended that such guarantees be provided by federal or
private entities, and not by the city or county that
established the housing finance corporation.
It is suggested that section 394.036 of the Local
P.
Government Code authorizes counties to guarantee mortgage
loans made by housing finance corporations, but this
provision merely authorizes such corporations to accept
financial assistance from any source:
A housina finance corporation may amle
f r a d ac it its own behalf or on
bihal: of z:other'ierson, advances, loans,
grants, contributions, guarantees, rent
supplements, mortgage assistance, and other
forms of financial assistance from the
federal government, the state, a county, a
municipality, or any other public or guasi-
public body, corporation, or foundation, or
from any other public or private source, for
any of the purposes of this chapter.
(Emphasis added.)
Local Gov*t Code 5 394.036(a). This provision gives such
corporations broad authority to accept financial assistance,
but it does not authorize the enumerated public and private
entities to grant financial assistance.
In Attorney General Opinion JM-604 (1986), we held
that a city could not designate a credit union as its
P. depository, even though credit unions had express authority
p. 4740
Honorable John Vance - Page 6 m-942)
to serve as depositories of the United States, its agencies
or instrumentalities, any state, or any city, county, school
district, municipal corporation, political subdivision, or
other taxing authority of Texas or any other state. The
statutes authorizing the city to place funds in a depository
governed the kind of financial institution which the city
could use. m w Attorney General Opinions JW-832
(1987); MW-534 (1982); MW-224 (1980); H-723 (1975).
State agencies must have legislative authorization to
receive gifts and grants, since the conditions attached to
gifts may be inconsistent with the powers and duties given
that agency. Attorney General Opinions H-1180 (1978);
O-4681 (1942). Section 394.036 of the Local Government Code
makes it clear that a housing finance corporation may accept
gifts from any source and may include 'reasonable and
appropriate terms, not inconsistent with the purposes of
this chapter" in a contract for financial assistance. Local
Gov't Code 5 394.036(b).
We conclude that a county does not have express or
implied authority under chapter 394 of the Local Government
Code to guarantee mortgage loans made to low and moderate
income people and families.
Nor may the county, in our opinion, guarantee mortgage
loans under its authority to "[plrovide for the support of
paupers." V.T.C.S. art. 2351(6). The program authorized by
chapter 394 represents an exercise of the state's police
power far broader than the authority delegated to counties
by paragraph 6 of article 2351, V.T.C.S. The legislature
has provided in chapter 394 of the Local Government Code a
means whereby a county may increase the availability of
mortgage loan funds to low and moderate income persons in
the county, subject to strict controls protecting its tax
revenues. The county may not use the purpose clause in
chapter 394 as authority for a different method of providing
mortgage funds which ignores the controls imposed by that
chapter. Cf. Letter Advisory No. 119 (1977) (Texas
Opportunity Plan Fund established by article III, section
50(b), may not be used as ~a reserve fund for insuring
student loans).
Since we conclude that a county does not have statutory
authority to guarantee bonds issued by a housing finance
corporation or mortgage loans made to low or moderate income
people, we need not consider whether the provision of such
guarantees would be a loan of the county's credit in viola-
tion of article III, section 52, of the Texas Constitution.
p. 4741
Honorable John Vance - Page 7 m-942)
But see Attorney General Opinion H-120 (1973); Letters
Advisory Nos. 119 (1977); 9 (1973) (providing that article
III, section 52 does not bar lending of credit for a public
purpose).
SUMMARY
A county lacks authority to guarantee the
payment of bonds issued by a housing finance
corporation under chapter 394 of the Local
Government Code or to guarantee loans
provided to low and moderate income persons
for housing purposes.
JIM MATTOX
Attorney General of Texas
MARYEELLER
h
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 4742 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130529/ | THE ATTORNEY GENERAL
OF TEXAS
Auqust 17, 1988
Honorable Andy J. McMullen Opinion Ro. Jr+940
District Attorney
Hamilton County Re: whether a contract for
P. 0. Box 706 services of a construction
Hamilton, Texas 76531 management consultant '
excepted from competiti.::
bidding requirements of
section 21.901 of the Texas
Education Code (RQ-1335)
Dear Mr. McMullen:
You inform us that a school district undergoing rapid
growth seeks to employ a construction management consultant
to advise the district on numerous construction projects.
You add that the consultant is also a general contractor
that has performed or is performing work for the district in
its capac~ity as general contractor. You ask whether a
contract for the services of a construction management
consultant is excepted from the competitive bidding require-
ments of section 21.901 of the Texas Education Code as a
contract for ggprofessional services." We conclude that it
is exempted from the competitive bidding requirement.
Section 21.901 of the Education Code provides the
following in pertinent part:
(b) Except as provided in Subsection (e)
of this section, all contracts proposed to be
made by any Texas public school board for the
construction, maintenance, repair or renova-
tion of any building or for materials used in
said construction, maintenance, repair or
renovation, shall be submitted to competitive
bidding when said contracts are valued at
$5,000 or more.
(c) Nothing in this section shall apply to
fees received for professional services
rendered, including but not limited to
p. 4725
Honorable Andy J. McMullen - Page 2 (JM-940)
architect#s fees, attorney's fees, and fees
for fiscal agents.
. . . .
(e) If a school building or school equip-
ment is destroyed or severely damaged, and
the school board determines that the time
delay posed by the competitive bidding
process would prevent or substantially impair
the conduct of classes or other essential
school activities, then contracts for the
replacement or repair of such building or
equipment may be made without resort to
competitive bidding as otherwise required by
this section.
Subchapter B of chapter 271 of the Local Government Code
provides competitive bidding procedures for contracts
awarded by common or independent school districts for the
construction, repair, or renovation of structures requiring
an expenditure of more than $10,000 from the funds of the
district. Local Gov't Code § 271.024. Contracts that must
be awarded under the terms of the Professional Services
Procurement Act, V.T.C.S. art. 664-4, are exempted from
these procedures. ra. 5 271.022. Article 664-4 requires
contracts for the professional services of licensed physi-
cians, optometrists, surgeons, architects, certified public
acountants, or registered engineers to be awarded primarily
on the basis of demonstrated competence and qualifications.
You describe the duties of the construction management
consultant as follows:
The overall function of a construction
management consultant is to control time and
cost on behalf of the owner/school district
during the construction process. In this
regard his duties include without limitation:
(1) establishing a project budget; (2) pre-
qualifying and interviewing architectural and
engineering firms and advising the owner/
school district on the final architect/
engineer selection: (3) organizing the
design phase of the project: (4) establish-
ing a project schedule from design through to
completion of the construction: (5) advising
and consulting with the owner/school district
on materials, construction methods, and the
arrangement of the construction contract
p. 4726
Honorable Andy J. McMullen - Page 3 (Jw940)
package; (6) managing the bidding and
negotiation process: (7) handling contract
awards: (8) providing coordination among the
various specialty contractors: (9) supervis-
ing the work; and (10) establishing the
project's accounting system. In essence the
construction management consultant accepts
managing responsibility of the entire con-
struction process from desi through to the
completion of construction. 9"
You do not indicate whether it is intended that the con-
struction management consultant will serve as the prime
contractor or subcontractor on any project covered by the
consulting contract.
Section 21.907 does not define the phrase *profes-
sional services." The courts have not adopted a universal
definition of the term: however, several cases suggest that
it comprehends labor and skill,that is "predominantly mental
or intellectual, rather than physical or manual." FI rvland
C ualtv Co. v. Crazv Water Co. I 160 S.W.Zd 102 (Tex? Civ.
A;;. - Eastland 1942, no writ). It no longer includes only
the services of lawyers, physicians, or theologians, but
also those members of disciplines requiring special
knowledge or attainment and a high order of learning, skill,
and intelligence. &S Attorney General Opinion MB-344
(1981); Black's Law Dictionary 1089-90 (5th ed. 1979) (defi-
nition of l'professionn).
Section 21.901(c) is a narrow exception to the strong
public policy favoring competitive bidding on contracts
involving the expenditure of public funds. Its purpose is
to permit a school district to obtain the professional
services of the most competent and experienced individuals
available. & Attorney General Opinion MB-342 (1981) and
cases cited therein. This purpose would be thwarted if the
district was required to award contracts for professional
services to the lowest, and possibly least qualified,
bidders. & Another reason for dispensing with competi-
tive bidding is that professional services, unlike con-
struction work and materials, can seldom be measured with
objective criteria. Since construction. work and materials
1. We assume that the school district does not intend
to delegate the power to make final decisions to a con-
sultant. $&g.9Attorney General Opinion JM-932 (1988).
p. 4727
Honorable Andy J. McMullen - Page 4 (JM-940)
must conform to specifications of the school district's
choosing, it is reasonable to award contracts for such work
or materials on the basis of the lowest responsible bid.
However, with work involving specialized, technical, or
aesthetic judgment, considerations of cost yield to conside-
rations of quality and competence. The legislature has
determined that these concerns warrant a departure from the
strict rule of free competition for public contracts.
Attorney General Opinions JM-881 (1988); JM-712 (19%
(providing that the legislature may vary policy of strict
competition by providing exceptions to competitive bidding
statute).
We believe that the duties of a construction management
consultant as described in your letter qualify as "profes-
sional services" for the purposes of section 21.901(c).
These duties require a high level of knowledge, experience,
and skill consistent with the standards of professionalism
described above. &,q J. Canterbury, Texas Construction Law
Manual 5 6.10 (1981); MB
)'
v. Metrooolitan Councrl 2:9 N.W.2d 426 441-44: (Minn:
1979) (characterizing &nstruction manaqe;ent services as
professional services). && aeneru G. Hardie, Construc-
tion Contracts and Specifications 34-;5 (1981); R. Meyers,
The New Cont ctual Arranm in'construction Contracts
in the 80ts ::3-118 (1980). We klso note the trend in many
states to except contracts for the services of construction
managers from competitive bidding requirements as either
personal or professional services. Sns: State v. Brown 422
N.E.Zd 1254 (Ind. Ct. App. 1981); M naiovi v. Doerner: 546
P.2d 1110 (Or. Ct. App. 1976); Ohio iev. Code Ann. 0 307.86
(Baldwin 1985).
In Attorney General Opinion NW-530 (1982) this office
concluded that a contract for the services of a construction
manager were within the l'personal services" exception to the
competitive bidding requirement of article 2368a, V.T.C.S.
That statute, now chapter 252 of the Local Government Code,
excepted contracts for **personal or professional services"
from competitive bidding requirements imposed by the
statute. The duties of the construction manager were to
include representing, advising, and consulting with the
county procuring his services, ,coordinatinq and overseeing
the work of contractors, and making recommendations con-
cerning the payment of contractors. The attorney general
determined that because these services involved the
personal, intellectual or manual labor of an individual,
they constituted "personal services" within the meaning of
the statute. It was therefore unnecessary to consider
whether such services also constituted "professional
p, 4728
Honorable Andy J. McMullen - Page 5 m-940)
h
servicesH for the purposes of the exception to competitive
bidding. However, the opinion quoted a passage from hunter
v Whiteaker & Wa hinat= 230 S.W. 1096 (Tex. Civ. App. -
San Antonio 1921.,swrit rek'd) stating reasons for exempting
certain contracts from the co;petitive bidding process. The
same passage was quoted in Attorney General Opinion MW-342
(1981) as the rationale behind the wprofessional services"
exception to section 21.901. Thus, it appears that through
identical reasoning construction man;r;;i:sservices may be
characterized either as "personal n under chapter
252 of the Local Government Code or "professional servicesnt
under section 21.901 of the Education Code. See a&g 64 Am.
Jur. 2d e f 43 (equating profes-
sional services with personal services).
Earlier in this opinion, we observed that your descrip-
tion of the duties of a construction management consultant
did not indicate whether the consultant would also serve as
the prime contractor or subcontractor on any construction
project covered by the consulting contract. We will now
discuss the significance of that issue.
Attorney General Opinion JM-282 (1984) concerned the
use of construction management contracts by state universi-
ties. The facts provided to us stipulated that general
contracting firms were invited to submit bids for the
construction of a project based on only a general descrip-
tion of the project and were asked to include hourly rates
for consulting services, in their bids. The consulting
services consisted of preliminary work with the designers of
the construction project, the preparation of cost estimates
for the project, the designation of work to be performed by
subcontractors, and the invitation and acceptance of sub-
contract bids. The construction manager/contractor was
allowed to designate the work it would perform, or the
university could require it to perform preliminary construc-
tion work. At the close of the design phase and preliminary
construction phase of the project, the contractor would
submit a guaranteed maximum price for the remainder of the
project. The university could reject the guaranteed maximum
price and pay the contractor only for the consulting
services, or it could accept the price and authorize the
contractor to proceed with construction.
Section 51.907 of the Education Code provides that
contracts for the construction or erection
improvements at institutions of higher educat% %manent
void
unless they are made pursuant to the competitive bidding
procedures authorized therein. After drawing a distinction
between contracts for construction and contracts for the
p. 4729
Honorable Andy J. McMullen - Page 6 m-940)
planning or design of a construction project, we concluded
that work done prior to the time a decision is made about
who will perform actual construction consists of profes-
sional or consultant services not governed by section
51.907. Contracts for such pre-construction services are
governed by either article 664-4, V.T.C.S., or article
6252-llc, V.T.C.S., which concerns the employment of private
consultants by state agencies. Neither statute authorizes
competitive bidding; the latter, however, requires an agency
to publicly invite offers for consulting services if the
consulting contract may be valued in excess of $10,006.
The opinion went on to address the issue of authorizing
the construction manager to perform construction work on the
same project for which it provided pre-construction services
without resort to competitive bidding. We answered in the
negative, taking note that section 51.907 voids contracts
for construction work not let in response to sealed competi-
tive bids. We also sounded the following caution:
Beyond that, in our opinion, a contractor
who has acted as a consultant for a uni-
versity in the design of a facility, the
estimation of its costs, or the preparation
of the specifications therefor, is dis-
qualified from bidding on the resulting
construction contract. The Texas Supreme
Court, in Texas Hiahwav Commission v. Texas
Association of Steel INporters. Inc [372
S.W.Zd 525 (Tex. 1963)], adopted the &lana-
tion of Texas competitive bidding statutes
given in Sterrett v. Bell [240 S.W.2d 516
(Tex. Civ. App. - Dallas'1951, no writ)],
saying the purpose and intent of such
statutes were well stated there. In part,
the Sterrett court said competitive bidding
'requires that all bidders be placed upon the
same plane of equality.' 240 S.W.2d at 520.
It also said the purpose of such a statute,
among other things, was to 'prevent
favoritism,' and '[t]hat there can be no
competitive bidding in a legal sense where
the terms of the letting of the contract
prevent or restrict competition, [or] favor a
contractor or materialman . . . .' &
A potential bidder is undoubtedly put in a
favored position over other potential bidders
if he drafts the specifications of the job to
be let or participates in the design and
p. 4730
Honorable Andy J. McMullen - Page 7 (JN-940)
cost-estimating decisions of the owner. All
bidders are not placed on the same plane of
equality. In our opinion, such dual activi-
ties create a conflict of intersts as well.
Attorney General Opinion JM-282 (1984) at 8. We closed the
opinion by observing that a construction management consul-
tant was at least within the spirit, if not the letter, of
article 6252-9b, V.T.C.S., which announces a policy forbid-
ding state officers or employees to hold any interest,
financial or otherwise, direct or indirect, that is in
substantial conflict with the proper discharge of their
duties.
Me believe similar words of caution are warranted here.
Because the construction management consultant will be
responsible for the preparation or coordination of informa-
tion necessary to formulate bid specifications, h, pro-
ject costs and design requirements, it will enjoy an over-
whelming advantage over all other potential bidders for the
general contract. Furthermore, since the consultant will
manage the bidding and negotiation process, it will know
what its competitors* bids are, thereby permitting it to
submit a lower bid. Me therefore conclude that the con-
struction management consultant described in your letter
would be disqualified from bidding on any contract for the
construction of a project for which it serves as consultant
to the school district.
SUMMARY
A contract for the services of a construc-
tion management consultant is excepted from
competitive bidding by section 21.907(c) of
the Texas Education Code as a contract for
llprofessional seNices." Contracts for the
construction of projects subject to the con-
sulting contract must be submitted to com-
petitive bidding in accordance with section
21.907. A contractor is disqualified from
bidding on a contract for the construction of
a project for which it serves as construction
management consultant to a school district.
p. 4731
Honorable Andy J. McMullen - Page 8 (JM-940)
JIM MATTOX
Attorney General of Texas
MARYXRUER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RICX GILPIN
Chairman, Opinion Committee
Prepared by Steve Araqon
Assistant Attorney General
p. 4732 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4118540/ | Denied and Opinion Filed January 23, 2017
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01468-CV
No. 05-16-01470-CV
IN RE ALEX RAMIRO PRADO, Relator
Original Proceeding from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F14-421005 and F14-421015
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Lang-Miers
Before the Court is relator’s December 15, 2016 petition for writ of mandamus in which
relator complains that the district court has not ruled on his motion for speedy trial or other
motions, including a motion to dismiss, a request that the court release the warrant, and a writ of
habeas corpus.
To be entitled to mandamus relief, a relator must show that he has no adequate remedy at
law to redress his alleged harm, and what he seeks to compel is a ministerial act, not involving a
discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). A defendant
seeking to compel the dismissal of an indictment or complaint on speedy trial grounds has an
adequate remedy at law, and therefore, is not entitled to mandamus. Smith v. Gohmert, 962
S.W.2d 590, 593 (Tex. Crim. App. 1998). Consideration of a motion that is properly filed and
before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.
Crim. App. 1987) (orig. proceeding). A relator must establish the trial court (1) had a legal duty
to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so. In re Keeter,
134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding); In re Villarreal, 96 S.W.3d
708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). It is relator’s burden to provide the
court with a record sufficient to establish his right to relief. Walker v. Packer, 827 S.W.2d 833,
837 (Tex.1992); TEX. R. APP. P. 52.3(k), 52.7(a).
Relator is not entitled to mandamus relief as to his request for a speedy trial because he
has an adequate remedy on appeal. See Gohmert, 962 S.W.2d at 593. As for his request that this
Court order the trial court to rule on his other motions, the record is insufficient to establish that
the motions were properly filed, that the trial court was requested to rule on the motions, and that
the trial court refused to rule. The petition for writ of mandamus is not certified as required by
rule 52.3(j) and does not include an appendix or record that establishes what motions relator filed
in the trial court or when they were filed. The petition also does not establish the manner in
which relator has called these motions to the attention of the trial court. Absent proof that the
motions were properly filed, and that the trial court has been requested to rule on the motions but
refused to so, relator has not established his entitlement to the extraordinary relief of a writ of
mandamus. See In re Florence, 14-11-00096-CR, 2011 WL 553241, at *1 (Tex. App.—Houston
[14th Dist.] Feb. 17, 2011, no pet.). Accordingly, we deny relator’s petition for writ of
mandamus.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
161468F.P05
–2– | 01-03-2023 | 01-25-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150366/ | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral FILED
estoppel, or the law of the case. Mar 06 2017, 8:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Joseph M. Johnson, II Kelly N. Bryan
Joseph M Johnson, P.C. Muncie, Indiana
Decatur, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angela Locker, March 6, 2017
Appellant-Petitioner, Court of Appeals Case No.
01A05-1610-DR-2315
v. Appeal from the Adams Circuit
Court
Roger Locker, The Honorable Kenton W.
Appellee-Respondent. Kiracofe, Special Judge
Trial Court Cause No.
01C01-1407-DR-56
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 1 of 18
Case Summary
[1] Appellant-Petitioner Angela Locker (“Wife”) married Appellee-Respondent
Roger Locker (“Husband”) on September 30, 2011. Wife filed a petition
seeking the dissolution of the parties’ marriage (the “Dissolution Petition”) on
July 11, 2014. Following an evidentiary hearing on Wife’s petition, the trial
court entered an order dissolving the parties’ marriage and dividing the parties’
property (the “Dissolution Order”). On appeal, Wife contends that the trial
court abused its discretion by failing to enter judgment against Husband for (1)
the sum of health insurances premiums which Wife paid on Husband’s behalf,
(2) one-half of the parties’ joint tax returns, and (3) Husband’s failure to
maintain a savings account to assist in the payment of the parties’ living
expenses. Finding no error by the trial court, we affirm.
Facts and Procedural History
[2] Husband and Wife were married on September 30, 2011. At the time of their
marriage, Wife was a French teacher at North Adams Community Schools and
owned a four-bedroom home. Husband owned and operated a retail sales
business located in Jay County known as “Locker’s Touch of Country Gifts.”
Tr. p. 105. Husband had owned and operated this business for more than forty
years. He lived in a home on a forty-acre farm that he owned near Portland,
Indiana.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 2 of 18
A. The Parties’ Prenuptial Agreement
[3] On September 29, 2011, the day prior to their marriage, the parties entered into
a prenuptial agreement (“the Agreement”). The Agreement disclosed that
Husband’s net worth was $534,020.00 and Wife’s was $359,500.00. Pursuant
to the terms of the Agreement, the parties agreed that “neither one shall have or
acquire any right, title or claim in and to the real or personal estate of the
other[.]” Petitioner’s Ex. 1, p. 3 (emphasis added).
B. The Parties’ Living Arrangements and Expenses
[4] Following their marriage, the parties agreed that they would reside in Wife’s
home. Wife continued to pay the monthly mortgage payments as well as real
estate taxes, insurance, and other household expenses. Wife asserts that all
told, she paid $75,306.65 in utility, mortgage, food, and household expenses
during the parties’ marriage. Husband asserts that, while he did not keep track
of the exact amount, he also paid for a portion of the parties’ living expenses.
C. Payment of Health Insurance Premiums
[5] Also following the parties’ marriage, Wife obtained health insurance coverage
for Husband through her employer. Wife added Husband to her insurance
policy beginning January 1, 2012. Wife maintains that Husband agreed to pay
the difference between the cost for her coverage and the cost of adding him to
the plan. Wife further maintains that Husband reimbursed Wife for the first
three months of coverage, but failed to do so thereafter, claiming that his
business was doing poorly and he would pay it later when he had the money.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 3 of 18
[6] Wife was forced to retire during the summer of 2013, due to an unforeseen
illness. Consequently, Wife’s employer no longer paid any portion of the
health insurance premiums. Thus, in order to maintain health insurance
coverage, Wife was required to pay the full premium amount. Wife continued
to pay Husband’s premiums throughout the parties’ marriage until December
31, 2014.
D. Income Tax Returns
[7] The parties filed a joint federal income tax return for the 2011 tax year. During
that year, a total of $8418.00 was withheld from Wife’s salary. The parties
received a tax refund of $6014.06, which was direct-deposited into the parties’
joint checking account at the First Bank of Berne. Wife asserts, however, that
she was unaware that the parties had received a refund. In making this
assertion, Wife claims that Husband told her that they were not going to receive
any refund because the funds that would have constituted their refund had been
taken by the IRS to satisfy his back taxes.
[8] The parties again filed a joint federal income tax return for the 2012 tax year.
During that year, a total of $7423.00 was withheld from Wife’s salary.
Husband reported financial losses and had no taxable income for this year. The
parties received a refund of $6922.02, which was direct-deposited into the
parties’ joint checking account at the First Bank of Berne. After receiving the
refund, Husband obtained two cashier’s checks, each in the sum of $3400.00.
Husband gave one of these checks to Wife.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 4 of 18
[9] The parties again filed a joint federal income tax return for the 2013 tax year.
During that year, a total of $9963.00 was withheld from Wife’s income. The
parties received a refund of $9475.00, which was direct-deposited into the
parties’ joint checking account at the First Bank of Berne. After receiving the
refund, Husband withdrew a total of $8600.00 of the refund.
[10] At all times during the parties’ marriage, Wife had access to the parties’ joint
checking account1 and did, in fact, at least occasionally use the funds in the
account to make purchases. Wife acknowledged that during the years in
question, Husband’s business losses allowed the parties to receive a larger tax
refund than they otherwise would have. The parties did not present any
evidence relating to what Wife’s tax liability or refund would have been had she
filed a separate tax return.
E. Husband’s Farm
[11] The farm was property covered by the parties’ Agreement, meaning that Wife
did not have any interest in the property. The section of the parties’ Agreement
entitled “Wife’s Release of Rights in Husband’s Property” indicated that Wife
“further agrees, in the event of a dissolution of the parties’ marriage … that she
will make no claim for support, maintenance, alimony, attorney fees, costs or
division of property as to any property, either real or personal, held in the name
of [Husband].” Petitioner’s Ex. 1, p. 3. The Agreement further stated that “[i]t
1
This access included both checks and a debit card.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 5 of 18
is mutually declared that it is the intent of both parties that by virtue of said
marriage neither one shall have or acquire any right, title or claim in and to the
real or personal estate of the other[.]” Petitioner’s Ex. 1, p. 3 (emphasis added).
[12] At some point during April of 2013, Husband sold the 40-acre farm. As a result
of the sale of the farm, Husband received semi-annual cash payments. At the
time of the sale of the farm, Husband opened a Crossroads Credit Union
Account (“Crossroads Account”), into which he placed at least one of the
payments received in relation to the sale of the farm. Husband used the funds
in the Crossroads Account to pay for expenses incurred by him and Wife, such
as dinners out and a trip to Dayton. In April of 2014, at Wife’s insistence,
Husband added Wife’s name to the Crossroads Account. Husband testified
that to his knowledge, the only money ever deposited into the Crossroads
Account were the funds received in connection to the sale of the farm.
F. Dissolution Proceedings
[13] On July 11, 2014, Wife filed the Dissolution Petition. In this petition, Wife
requested that the trial court enter an order dissolving the parties’ marriage,
“that the marital estate be divided consistent with the parties Pre-Nuptial
Agreement dated September 29, 2011 and for all other relief just and proper in
the premises.” Appellant’s App. Vol. II, p. 27. The trial court subsequently
conducted an evidentiary hearing during which the parties presented evidence
and argument.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 6 of 18
[14] Following the evidentiary hearing, the trial court issued the Dissolution Order.
In this order, the trial court found as follows:
22. Wife seeks a total judgment against Husband and in favor
of Wife in the amount of $71,690.22.
23. Wife’s request is made up of a complete return of
$22,404.00 from the tax refunds during the marriage; a complete
repayment of the health insurance premiums, $22,796.84; and,
one-half of the proceeds from the sale of Husband’s real estate,
$26,759.38.
24. Regarding the tax returns, the Court notes that [the] refund
was higher because of Husband’s business losses. Presumably,
Wife reviewed and signed the tax return each year and had the
opportunity to see for herself whether or not the parties would in
fact receive a tax refund. Further, the tax refund was deposited
into a jointly held bank account, where Wife had the ability to
review and make withdraws. The Court denies Wife’s request to
return the entire tax refund to her.
25. Regarding the proceeds from the sale of Husband’s real
estate, the Court finds that as of the date of filing the joint bank
account holding the asset was overdrawn, therefore, there is no
asset to divide. Rather there is a debt to divide. The Court
orders that Husband be responsible for the liability created by the
overdrawn account in the amount of $1,124.15.
26. Finally regarding reimbursement for health insurance
premiums. Wife testified that she only provided health insurance
for Husband because he represented he would repay her.
However, Husband only repaid her for the first three (3) months.
Therefore, Wife continued to provide insurance for nearly three
(3) years, despite not being repaid. Presumably, Wife could have
canceled the family insurance plan at the next renewal date at the
latest or immediately once Husband failed to pay her back. The
Court finds that Wife failed to meet her burden to establish
equitable estoppel.
27. The Court does find that Wife continued to provide health
insurance for several months after the dissolution action was
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 7 of 18
filed. The Court therefore finds that Husband shall reimburse
Wife the sum of $5,412.06 within thirty (30) days of this Order.
28. Wife makes a claim for $9,484.80 in attorney fees from
Husband; however, the parties’ Prenuptial Agreement states as
follows: “The Prospective Wife further agrees, in the event of a
dissolution of the parties’ marriage … that she will make no
claim for … attorney fees …” Therefore the Court denies Wife’s
request for attorney fees.
29. Husband is ordered to remove all of his personal property
from Wife’s premises. Husband shall contact Wife’s attorney
within thirty (30) days of [t]his order to determine appropriate
time and dates. All property shall be removed within sixty (60)
days of this order. Any property remaining on Wife’s premises
after the expiration of sixty (60) days may be disposed of as Wife
pleases. Husband shall be responsible for any costs incurred by
Wife in disposing of said property.
IT IS THEREFORE ORDRED, ADJUDGED AND
DECREED, as follows:
1. The marriage of the parties, being irretrievably broken, is
dissolved and Wife’s former name of Angela Johnson is restored
to her.
2. All property owned by the parties prior to their marriage,
as described in their Prenuptial Agreement together with all
property acquired with the proceeds of the sale of any such
property during the marriage, shall be and remain their sole and
separate property, respectfully.
3. Judgment in the sum of $5,412.06 is awarded in favor of
Wife, Angela (Locker) Johnson, and against Husband, Roger
Locker, which shall accrue interest as provided by law until paid
in full. Said judgement shall be paid in full within thirty (30)
days from the date hereof.
4. Husband shall make payment of $1,124.15 to the First
Bank of Berne to satisfy the overdrawn joint checking account
within thirty (30) days from the date hereof.
5. Each party shall execute and deliver any document and/or
take any and all action necessary to carry out the terms of this
decree.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 8 of 18
Appellant’s App. Vol. II, pp. 13-14. This appeal follows.
Discussion and Decision
[15] Wife contends that the trial court erred in failing to enter judgment against
Husband for (1) the sum of health insurance premiums which Wife paid on
Husband’s behalf, (2) one-half of the parties’ joint tax returns, and (3)
Husband’s failure to maintain a savings account to assist in the payment of the
parties’ living expenses. We will discuss each contention in turn.
I. Standard of Review
[16] The trial court entered factual findings and conclusions thereon sua sponte in
the Dissolution Order.
In such a situation, the specific factual findings control only the
issues that they cover, while a general judgment standard applies
to issues upon which there are no findings. C.B. v. B.W., 985
N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied. It is not
necessary that each and every finding be correct, and even if one
or more findings are clearly erroneous, we may affirm the
judgment if it is supported by other findings or is otherwise
supported by the record. Id. We may affirm a general judgment
with sua sponte findings upon any legal theory supported by the
evidence introduced at trial. Id. Although sua sponte findings
control as to the issues upon which the court has found, they do
not otherwise affect our general judgment standard of review,
and we may look both to other findings and beyond the findings
to the evidence of record to determine if the result is against the
facts and circumstances before the court. Id.
As for review of the accuracy of findings that have been entered,
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 9 of 18
we first consider whether the evidence supports them. Id.
Second, we consider whether the findings support the judgment.
Id. We will disregard a finding only if it is clearly erroneous,
which means the record contains no facts to support it either
directly or by inference. Id. A judgment also is clearly erroneous
if it relies on an incorrect legal standard, and we do not defer to a
trial court’s legal conclusions. Id. However, we must give due
regard to the trial court’s ability to assess the credibility of
witnesses and will not reweigh the evidence, and must consider
only the evidence most favorable to the judgment along with all
reasonable inferences drawn in favor of the judgment. Id.
We also note that we “give considerable deference to the findings
of the trial court in family law matters....” MacLafferty v.
MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). Whether
reviewing a case for “clear error” or “abuse of discretion,” this
appellate deference is, first and foremost, a reflection that the trial
court is in the best position to judge the facts, ascertain family
dynamics, and judge witness credibility and the like. Id. at 940-
41. “Secondly, appeals that change the results below are
especially disruptive in the family law setting.” Id. at 940. “But
to the extent a ruling is based on an error of law or is not
supported by the evidence, it is reversible, and the trial court has
no discretion to reach the wrong result.” Id. at 941.
Stone v. Stone, 991 N.E.2d 992, 998-99 (Ind. Ct. App. 2013).
II. Analysis
A. Estoppel
[17] “Estoppel is a judicial doctrine sounding in equity.” Brown v. Branch, 758
N.E.2d 48, 51 (Ind. 2001). “There are a variety of estoppel doctrines including:
estoppel by record, estoppel by deed, collateral estoppel, equitable estoppel—
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 10 of 18
also referred to as estoppel in pais, promissory estoppel, and judicial estoppel.”
Id. at 52 (citing 28 Am. Jur. 2d ESTOPPEL and WAIVER § 2 (2000)) (emphasis in
original). Although each species of estoppel is related, each represents a
separate legal theory which may be asserted by a party.2
[18] Initially we note that at trial, Wife argued that she was entitled to recover from
Husband under a theory of equitable estoppel. On appeal, however, Wife
claims that she is entitled to recover from Husband under a theory of
promissory estoppel. While Wife acknowledges that she did not argue
promissory estoppel below, she claims on appeal that promissory estoppel
better fits the situation. As such, she argues that we should apply the doctrine
of promissory estoppel to our review of the trial court’s order.
[19] To the extent that Wife argues that the trial court erred by failing to apply the
principles of promissory estoppel rather than the argued principles of equitable
estoppel, we cannot say that the trial court erred by failing to apply legal
principles which were not argued before the court by the parties. Further, to the
extent that Wife claims that she is entitled to relief under the principles of
2
For instance, equitable estoppel is available only as a defense and “‘[t]he party claiming equitable estoppel
must show its (1) lack of knowledge and of the means of knowledge as to the facts in question, (2) reliance
upon the conduct of the party estopped, and (3) action based thereon of such a character as to change his
position prejudicially.’” Lockett v. Planned Parenthood of Ind., Inc., 42 N.E.3d 119, 136 (Ind. Ct. App. 2015)
(quoting Money Store Inv. Corp. v. Summers, 849 N.E.2d 544, 547 (Ind. 2006)). The doctrine of promissory
estoppel, on the other hand, “encompasses the following elements: (1) a promise by the promissor (2) made
with the expectation that the promissee will rely thereon (3) which induces reasonable reliance by the
promise (4) of a definite and substantial nature and (5) injustice can be avoided only by enforcement of the
promise.” 1st Nat. Bank of Logansport v. Logan Mfg. Co., 577 N.E.2d 949, 954 (Ind. 1991). “Promissory
estoppel is an exception to the general rule that estoppel is not available upon promises to be performed in the
future.” Id.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 11 of 18
promissory estoppel on appeal, such claims are waived as they were not raised
before the trial court. See In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App.
2001) (providing that an issue is waived if raised for the first time on appeal).
B. Health Insurance Premiums
[20] Wife contends that the trial court erred by failing to enter judgment against
Husband for the $22,796.84 that she paid in health insurance premiums on his
behalf. In support, Wife claims that Husband had agreed to reimburse her for
these costs, but that he only did so for the first three months of coverage.
Review of the record reveals that Wife argued before the trial court that she was
entitled to recover the $22,796.84 in health insurance premiums under the
argued theory of equitable estoppel. The trial court considered this argument
but found that Wife had failed to prove that she was entitled to repayment of
the requested funds under this theory.
[21] The basis for a claim of equitable estoppel “is fraud, either actual or
constructive, on the part of the person estopped. Lockett, 42 N.E.3d at 136
(citing Paramo v. Edwards, 563 N.E.2d 595, 598 (Ind. 1990)). A claim of
equitable estoppel is available only as a defense. Id. at 135. Wife, as the party
claiming equitable estoppel had the burden to prove “all facts necessary to
establish it.” Id.
The facts necessary to establish equitable estopped were defined
in Emmco Insurance v. Pashas (1967), 140 Ind. App. 544, 224
N.E.2d 314 as follows:
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 12 of 18
(1) A representation or concealment of material facts;
(2) The representation must have been made with
knowledge of the facts;
(3) The party to whom it was made must have been
ignorant of the matter;
(4) It must have been made with the intention that
the other party should act upon it;
(5) The other party must have been induced to act
upon it.
140 Ind. App. at 551, 224 N.E.2d at 318.
Reeve v. Georgia-Pac. Corp., 510 N.E.2d 1378, 1382 (Ind. Ct. App. 1987) (internal
quotation marks omitted). Generally, a claim of equitable estoppel “arises
upon the misrepresentation of past or existing facts and not upon promises to be
performed in the future, expressions of opinion, or misrepresentations as to the
state of the law.” Id.
[22] While Wife might have relied on Husband’s alleged assertion that he would
repay her for the health insurance premiums in question, Wife did not point to
any evidence indicating fraud or a lack of knowledge as to the facts in question.
The record reveals that Wife was aware that Husband’s business was struggling
and that Husband, as a result, was unable to repay her for the health insurance
premiums. Wife’s claimed reliance did not arise from a misrepresentation of
past or existing facts, but rather upon alleged promises to be performed in the
future. Further, the record is devoid of any evidence suggesting that given her
knowledge of Husband’s financial situation, Wife could not have canceled
Husband’s health insurance once it became clear that he was not able to repay
her for the premiums. Based on these facts, we cannot say that the trial court’s
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 13 of 18
determination that Wife failed to prove that she was entitled to recover the
requested health insurance premiums under a theory of equitable estoppel was
clearly erroneous.
[23] Wife argues that this court should consider her payment of the health insurance
premiums in question to be a loan to Husband. Wife’s argument on appeal is
based on a theory of promissory estoppel. Again, because Wife did not raise
this theory of recovery below, she is precluded from successfully asserting this
theory of recovery on appeal. See In re K.S., 750 N.E.2d at 834 n.1.
C. Tax Refunds
[24] Wife also contends that the trial court erred by failing to enter judgment against
Husband for $7744.53, i.e., half of the tax refunds received by the parties in
relation to the 2011 and 2013 tax years. In support, Wife claims that she and
Husband had agreed to split the returns but that Husband had used the full
amount for his own personal benefit.
[25] With respect to the parties’ tax refund for the 2011 tax year, the evidence
indicates that the parties filed a joint federal income tax return. During that
year, a total of $8418.00 was withheld from Wife’s salary. The record is silent
as to whether any money was withheld from Husband’s earnings, or whether
Husband even received any calculated earnings during this year. The parties
received a tax refund of $6014.06, which was direct-deposited into the parties’
joint checking account at the First Bank of Berne.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 14 of 18
[26] With respect to the parties’ tax refund for the 2013 tax year, the evidence
indicates that the parties again filed a joint federal income tax return for the
2013 tax year. During that year, a total of $9963.00 was withheld from Wife’s
income. Husband did not receive any calculated earnings during this year as
his business operated a loss. The parties received a refund of $9475.00, which
was direct-deposited into the parties’ joint checking account at the First Bank of
Berne. After receiving the refund, Husband withdrew a total of $8600.00 of the
refund. It is of note, however, that Wife has failed to point to any evidence
suggesting that these funds were not used for a marital purpose. 3
[27] On appeal, Wife asserts that she did not receive any of the tax refunds received
for the 2011 or 2013 tax years. In fact, Wife asserts that she was not even aware
that the parties had received a tax refund for the 2011 tax year. This claim is
difficult to believe, however, given that it seems that Wife would have had to
have signed the parties’ joint return before it was filed. Further, at all times
during the parties’ marriage, Wife had access to the parties’ joint checking
account and did, in fact, at least occasionally use the funds in the account to
make purchases. In addition, Wife acknowledged that during the years in
question, Husband’s business losses allowed the parties to receive a larger tax
refund than they otherwise would have as it reduced their tax liability. The
3
Wife makes the assertion on appeal that the parties had not intended to use their tax refunds for any
marital purpose. Wife, however, does not cite to any evidence which would tend to support this assertion.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 15 of 18
record is devoid of any evidence relating to what Wife’s tax liability or refund
would have been had she filed a separate tax return.
[28] With respect to the parties’ tax returns, the trial court found as follows:
24. Regarding the tax returns, the Court notes that [the] refund
was higher because of Husband’s business losses. Presumably,
Wife reviewed and signed the tax return each year and had the
opportunity to see for herself whether or not the parties would in
fact receive a tax refund. Further, the tax refund was deposited
into a jointly held bank account, where Wife had the ability to
review and make withdraws. The Court denies Wife’s request to
return the entire tax refund to her.
Appellant’s App. Vol. II, p. 13. In light of the evidence presented by the
parties, we cannot say that this finding is clearly erroneous.
[29] Wife argues on appeal that she is entitled to recover the requested $7744.53 for
the parties’ tax refunds under a theory of promissory estoppel. Again, because
Wife did not raise this theory of recovery below, she is precluded from
successfully asserting this theory of recovery on appeal. See In re K.S., 750
N.E.2d at 834 n.1.
D. Parties’ Joint-Savings Account
[30] Wife last contends that the trial court erred by failing to enter judgment against
Husband for $26,759.38, i.e., half of the funds from the sale of Husband’s farm
which were placed in the Crossroads Account. In support, Wife claims that
Husband had agreed to maintain a retirement savings account for the parties’
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 16 of 18
shared enjoyment. Wife also claims that because Husband had added her name
to the account, she was entitled to half of the funds therein.
[31] Review of the record clearly indicates that Husband’s farm was property
covered by the parties’ Agreement, meaning that Wife did not have and would
not acquire any interest in the property. Specifically, the parties’ Agreement
stated that “[i]t is mutually declared that it is the intent of both parties that by
virtue of said marriage neither one shall have or acquire any right, title or claim in
and to the real or personal estate of the other[.]” Petitioner’s Ex. 1, p. 3
(emphasis added).
[32] Husband sold the farm in April of 2013. As a result of the sale of the farm,
Husband was to receive semi-annual cash payments. After completing the sale,
Husband opened the Crossroads Account. He placed at least one of the
payments received in relation to the sale of the farm into this account. Husband
used the funds in the Crossroads Account to pay for expenses incurred by him
and Wife, such as dinners out and a trip to Dayton. In April of 2014, at Wife’s
insistence, Husband added Wife’s name to the Crossroads Account. Husband
testified that to his knowledge, the only money ever deposited into the
Crossroads Account were the funds received in connection to the sale of the
farm.
[33] At some point prior to the evidentiary hearing, the Crossroads Account was
overdrawn. The trial court recognized that Husband was responsible for the
overdraft fees. Given the clear language of the parties’ Agreement stating that
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 17 of 18
Wife shall not acquire any interest in Husband’s property, i.e., the farm, we
cannot say that the trial court erred in denying Wife’s request for half of the
proceeds from the sale of the farm that were placed in the Crossroads Account.
Wife’s name was only added to the account at her insistence and she did not
contribute any funds to the account. The trial court, seemingly recognizing that
the funds deposited into this account were solely generated by the sale of the
farm, and thus remained Husband’s separate property, properly determined that
Wife should not be held responsible for the overdraft of the account opened by
Husband to hold these funds.
[34] As was the case above, Wife argues on appeal that she is entitled to recover the
requested $26,759.38 from the proceeds of the sale of Husband’s farm that were
placed in the Crossroads Account under a theory of promissory estoppel.
Again, because Wife did not raise this theory of recovery below, she is
precluded from successfully asserting this theory of recovery on appeal. See In
re K.S., 750 N.E.2d at 834 n.1.
Conclusion
[35] Because we disagree with Wife’s contention that the trial court committed
reversible error in denying her request that the trial court enter a $71,690.22
judgment against Husband, we affirm.
[36] The judgment of the trial court is affirmed.
Vaidik, C.J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 01A05-1610-DR-2315 | March 6, 2017 Page 18 of 18 | 01-03-2023 | 03-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289114/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00008-CR
JUAN CARLOS GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th District Court
Camp County, Texas
Trial Court No. CF-16-01679
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Chief Justice Morriss
OPINION
Juan Carlos Garcia was convicted by a jury of aggravated sexual assault of Sally Smith,1 a
disabled individual, sentenced to sixty years’ imprisonment, and ordered to pay a $10,000.00 fine.
On appeal, Garcia argues that the trial court erred in allowing Smith’s mother to remain in the
courtroom during Smith’s testimony. Finding no error in the trial court’s ruling, we affirm its
judgment.
“At a party’s request, the court must order witnesses excluded so that they cannot hear
other witnesses’ testimony.” TEX. R. EVID. 614. Before hearing any evidence, Rule 614 was
invoked, and the trial court excluded potential witnesses, including Smith’s mother, Ronnie Smith.
However, after Ronnie testified, the State asked that she be allowed to remain in the courtroom
during Smith’s testimony. Garcia objected, pointed out that Ronnie was not allowed in the room
during Smith’s Children’s Advocacy Center2 interview “so that there’s no suggestibility by an
outside source,” and argued that “the mother being in the room is making it suggestible to [Smith].”
After questioning Smith, the trial court overruled Garcia’s objection and allowed Ronnie to remain
in the courtroom.
The trial court specifically based its ruling on Article 38.074 of the Texas Code of Criminal
Procedure. Under that Article, a trial court may allow “any person whose presence would
1
We will use a pseudonym for the victim and her mother to protect the victim’s identity in this case. See TEX. R. APP.
P. 9.8.
2
Garcia’s brief mistakenly described Ronnie as the outcry witness. Although Ronnie references a general allegation
of abuse by Smith, “to be a proper outcry statement, the child’s statement to the witness must describe the alleged
offense in some discernible manner and must be more than a general allusion to sexual abuse.” Eldred v. State, 431
S.W.3d 177, 184 (Tex. App.—Texarkana 2014, pet. ref’d). Here, Jenni Harwood conducted Smith’s forensic
interview and was designated by the State as the proper outcry witness in this case. See id.
2
contribute to the welfare and well-being of a child,” TEX. CODE CRIM. PROC. ANN. art. 38.074,
§ 1(2) (West Supp. 2017), to remain in the courtroom during the child victim’s testimony if the
trial court finds, by a preponderance of the evidence, that: “(1) the child cannot reliably testify
without the possession of the item or presence of the support person, as applicable; and (2) granting
the motion is not likely to prejudice the trier of fact in evaluating the child’s testimony.” TEX.
CODE CRIM. PROC. ANN. art. 38.074, § 3(b) (West Supp. 2017).
Garcia argues that the trial court misapplied Article 38.074 because Smith, though having
the mental capacity of a child, was twenty years old at the time of trial. The State concedes Article
38.074’s inapplicability. However, it argues that Article 36.03 permitted Ronnie’s presence in the
courtroom. We agree.
Article 36.03 was enacted as a part of 2001 legislation strengthening the ability of crime
victims and particular witnesses to participate in certain criminal justice proceedings. See Act of
May 14, 2001, 77th Leg., R.S., ch. 1034, § 1, 2001 Tex. Gen. Laws 2290, 2290. The current
version of Article 36.03 states:
(a) Notwithstanding Rule 614, Texas Rules of Evidence, a court at the
request of a party may order the exclusion of a witness who for the purposes of the
prosecution is a victim, close relative of a deceased victim, or guardian of a victim
only if the witness is to testify and the court determines that the testimony of the
witness would be materially affected if the witness hears other testimony at the trial.
(b) On the objection of the opposing party, the court may require the
party requesting exclusion of a witness under Subsection (a) to make an offer of
proof to justify the exclusion.
3
TEX. CODE CRIM. PROC. ANN. art. 36.03 (West 2007).3 A trial court is “without authority to
exclude [a qualifying witness] unless the court determine[s] her testimony would be materially
affected if she heard the other testimony at trial.” Wilson v. State, 179 S.W.3d 240, 248 (Tex.
App.—Texarkana 2005, no pet.). In the absence of such a showing, a trial court does not err in
allowing the witness to remain in the courtroom. See id. Additionally, unlike Rule 614, Article
36.03 places the burden on the party seeking exclusion of a witness to make an offer of proof to
justify the exclusion.4 Thus, “legal guardians of crime victims should generally be permitted to
stay in the courtroom.” Parks v. State, 463 S.W.3d 166, 174 n.6 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 36.03(a)).
Here, the evidence at trial established that, as a result of a guardianship proceeding, Ronnie
was appointed as Smith’s permanent legal guardian of Smith’s person and estate. Ronnie was
initially excluded from the courtroom as many of the State’s witnesses testified. When the State
asked that she be allowed to remain during Smith’s testimony, Garcia failed to argue or make any
showing that Ronnie’s testimony would be materially affected if she heard Smith’s testimony,
presumably because Ronnie testified before Smith and was not recalled. Additionally, the record
also shows that Garcia failed to make an offer of proof justifying Ronnie’s exclusion. As a result,
3
Article 56.02(b) also provides, “A victim, guardian of a victim, or close relative of a deceased victim is entitled to
the right to be present at all public court proceedings related to the offense, subject to the approval of the judge in the
case.” TEX. CODE CRIM. PROC. ANN. art. 56.02(b) (West 2018).
4
See Harris v. State, No. AP-76,810, 2014 WL 2155395, at *15 (Tex. Crim. App. May 21, 2014) (not designated for
publication); Batiste v. State, No. AP-76600, 2013 WL 2424134, at *7 (Tex. Crim. App. Jun. 5, 2013) (not designated
for publication). “Although unpublished cases have no precedential value, we may take guidance from them ‘as an
aid in developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana
2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
4
we find no error in the trial court’s decision to allow Ronnie to remain in the courtroom and
overrule Garcia’s point of error.5
By a separate point, Garcia also argues that Ronnie’s presence in the courtroom during
Smith’s testimony violated the Confrontation Clause and his due process rights. “As a prerequisite
to presenting a complaint for appellate review, the record must show that: (1) the complaint was
made to the trial court by a timely request, objection, or motion.” TEX. R. APP. P. 33.1(a)(1).
Additionally, a “point of error on appeal must comport with the objection made at trial.” Clark v.
State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). “Therefore, if a party fails to properly object
to constitutional errors at trial, these errors can be forfeited.” Id. Here, the record establishes that
Garcia failed to raise any Confrontation Clause or due process complaint. Because Garcia did not
preserve his last point of error for review, we overrule it.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: June 14, 2018
Date Decided: June 22, 2018
Publish
5
Moreover, “[t]he purpose of placing witnesses under the rule is to prevent the testimony of one witness from
influencing the testimony of another, consciously or not.” Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App.
2005). “The question in assessing the harm of allowing [a witness] to remain in the courtroom is whether [s]he was
influenced in h[er] testimony by the testimony [s]he heard.” Id. at 181.
5 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4130623/ | r Jsnuary19, 1988
&M MATTOX
ATTORNEY CIENERAC
Honorable Tom Maness opinion No. JM-846
Criminal District Attorney
P. 0. Box 2553 Re: Whether a provision of
Beaumont, Texas 77704 the city charter of the city
of Groves is consistent with
article 988b, V.T.C.S.
(RQ-1168)
Dear Mr. Maness:
you ask the following three questions in regard to
local conflict of interest situations.
1. Is the provision concerning conflict
of interest in the city charter of Groves
inconsistent with article 988b, V.T.C.S.?
2. May a council member, who has a
substantial interest in a business entity
which was awarded a contract with the city
on a bid basis and who did not participate
in the vote to award the contract, there-
after vote upon the payment of periodic
bills submitted under the contract?
3. May a member of the council, who has
a substantial interest in a business entity,
which is the only business entity that
provides a needed service or product, parti-
cipate in a vote for the purchase of such
services or materials?
Your first question relates to the possible incon-
sistency between the provisions of the charter of the city
of Groves and the provisions of article 988b, V.T.C.S. As
a matter of policy, this office does not interpret city
charter provisions, and we decline to do so. We note,
however, that chapter 362, Acts 1987, 70th Leg., at 3569,
/-
in amending article 90833, states that the article is
cumulative of city charter provisions.
Before we address your next two questions, it is
necessary to examine the statute, which was codified and
p. 4091
Honorable Tom Maness - Page 2 W-846)
,
amended by the 70th Legislature. The act governing local
public officials* conflicts of interest, originally
designated as article 98033, V.T.C.S., is now codified in
chapter 171 of the,Local Government Code. The reenactment
of the law in the code was a nonsubstantive codification
as indicated by the language in chapter I71 and the
statement of intent found in the co'difyingact. Acts
1987, 70th Leg., ch. 149, 551, at 2540.
Section 1.002 of the Local Government Code requires
that the Code Construction Act, now found at chapter 311
of the Government Code, be used to interpret its pro-
visions. Section 311.031, subsections (c) and (d) of the
Government Code, govern the interpretation of statutes
that were codified and amended by the same legislature.
Those subsections read as follows:
(c) The repeal of a statute by a code
does not affect an amendment, revision, or
reenactment of the statute by the same
legislature that enacted the code. The
amendment, revision, reenactment *
preserved and given eff% as part of tkZ
code provision that revised the statute so
amended, revised, or reenacted.
(d) If any provision of a code conflicts
with a statute enacted by the same legisla-
ture that enacted the code, the statute
controls.
The substantive amendments to the statute enacted by the
70th Legislature must "be given effect as part of the code
provision that revised the statute." The amendments to
article 988b passed by the 70th Legislature are found in
chapters 323, 362, and 659. Acts 1987, 70th Leg. Section
311.025 of the Government Code aids in the interpretation
of multiple amendments to the same statute during a single
legislative session. That section reads as follows:
(a) Except as provided by Section
311.031(d), if statutes enacted at the same
or different sessions of the legislature are
irreconcilable, the statute latest in date
of enactment prevails.
(b) Except as provided by Section
311.031(d), if amendments to the same
statute are enacted at the same session of
the legislature, one amendment without
p. 4092
Honorable Tom Manes6 - Page 3 UM-846)
reference to another, the amendments shall
be harmonized, if possible, so that effect
may be given to each. If the amendments are
irreconcilable, the latest in date of
enactment prevails.
The amendment to section 3, chapter 659 only adds to the
definition of "local public official" found in section
l(l) I article 988b, and' is readily harmonized with the
other amendments. The amendment represented by chapter
362 was finally adopted by the legislature on May 29,
1987, by the concurrence of the house in senate amend-
ments. That amendment represented by chapter 323 was
finally adopted by the legislature on June 1, 1987, by
both the house and the senate adopting a conference
committee report. $&= Acts 1987, 70th Leg., ch. 323, at
3431, and ch. 362, at 3566. For the most part there is no
conflict between the two acts: most of the changes
effected by chapter 323 were included in chapter 362. For
the purposes of this opinion, we will state the law in
terms of the sections of article 988b, because that is the
form in which we find it.
In responding to your second and third questions,
section l(1) defines "local public official" as 'Iamember
of the governing body . . . of any . . . city . . . who
exercises responsibilities beyond those that are advisory
in nature. . . .'I Local Gov't Code 5171.001(l). Sections
51.001 and 54.001 of the Local Government Code define some
of the responsibilities of the city council, w, adopt,
amend, repeal and enforce ordinances. A member of the
city council is unquestionably one of those individuals
that this act was intended to include.
You stated the council member's substantial interest
a business entity as a matter of fact in both
zestions, and we are in no position to question it.
We are assuming that the city council member about
whom you inquire has *'asubstantial interest in a business
entity" within the meaning of section 2(a). Chapter 362
amended that section to read as follows:
Sec. 2. SUBSTANTIAL INTEREST. (a) A
person has a substantial interest in a
business entity if:
(1) the person owns 10 percent or more
of the voting stock or shares or of the fair
market value of the business entity or owns
p. 4093
Honorable Tom Maness - Page 4 O-846)
$5,000 or more of the fair market value of
the business entity: or
(2) funds received by the person from
the business entity exceed 10 percent of the
person's gross income for the previous year.
Your second question asks whether a city council
member, who has a substantial interest in a business
entity, may vote on the question of the payment of bills
to that business entity.
Section 4, as last amended by chapter 323, Acts 1987,
70th Leg., reads in part as follows:
Sec. 4. AFFIDAVIT (a) If a local public
official or a person related to that official
in the first or second degree by either
affinity or consanguinity has a substantial
interest in a business entity that would be
pecuniarily affected by any official action
taken by the governing body, the local public
official, before a vote or decision on the
matter, shall file an affidavit stating the
nature and extent of the interest and shall
abstain from further participation in the
matter. The affidavit must be filed with the
official recordkeeper of the governmental
entity.
(b) If a local public official is re-
quired to file and does file an affidavit of
interest under Subsection (a) of this
section, that official shall not be required
to abstain from further participation in the
matter or matters requiring such an affidavit
if a majority of the members of the govern-
mental entity of which the official is a
member is composed of persons who are
likewise required to file and who do file
affidavits of similar interests on the same
official action.
This section requires that the public official file an
affidavit describing his interest in the business entity
and abstain from further participation in the matter if
the business entity would be pecuniarily affected by the
official action. In our opinion a city council member is
prohibited from voting on the payment of bills submitted
p. 4094
,
._
Honorable Tom Haness - Page 5 (m-846)
P
by a business entity in which he holds a substantial
interest. &S Attorney General Opinion JR-424 (1986).
- In your third question you ask if a city council
member may participate in a vote on the purchase of a
needed product or service that is available only from a
business entity in which he holds a substantial interest.
The only exception to the general prohibition of parti-
cipation in the matter in the amended law, is found in
section 4(c), which allows local public officials, after
filing affidavits, to participate in the decision-making
in spite of their holding a substantial interest, if 'Ia
majority of the membership of the governmental entity of
which the official is a member is composed of persons who
are likewise required to file and who do file affidavits
of similar interest. . . .*I
The member with a substantial interest * the
business entity must file an affidavit declari:: his
interest and abstain from voting on the matter unless a
majority of members of the governmental entity are
similarly required to file affidavits.
SUMMARY
r- A member of the city council is a "local
public official11wi,thinthe meaning of section
171.001(1) of the Local Government Code
[former article 988b. V.T.C.S.]. A council
member violates section 171.004 by voting on
the payment of bills submitted by an entity in
which he holds a substantial interest. A city
council member also violates section 171.004
of the Local Government Code by voting on the
purchase of goods or services provided by a
sole source business entity in which he has a
substan~tialinterest, unless a majority of
members of the city council are required
to file and do file affidavits of similar
interests on the same official action.
J
Very truly y
A
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
p. 4095
Honorable Tom Maness - Page 6 UM-846)
IOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
p. 4096 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130629/ | THE ATTORNEY GENERAL
OF TEXAS
lanyard a, 1988
Mr. Robert 0. Viterna opinion No. m-840
Executive Director
Commission on Jail Standards Re: "Certified agenda" re-
P. 0. Box 12985 quirements imposed by
Austin, Texas 78711 recent amendments to the
open Meetings Act, art.
6252-17, V.T.C.S. (RQ-1244)
Dear Mr. Viterna:
The Texas Open Meetings Act, article 6252-17,
V.T.C.S., requires governmental bodies, as defined in the
act, to deliberate and take all final actions on govern-
ment policy and business in meetings that are open to the
public. See 52(a). The act authorizes governmental
bodies to deliberate under certain limited circumstances
closed or executive sessions. See art. 6252-17,
ii:2 (e) (f), ($0, (W, (j), Cm), (n), Co), (p). Because
the public has been excluded from executive sessions, the
public has been unable to determine whether the
governmental body met the requirements for the executive
session. During the recent legislative session, the Texas
Legislature responded to this problem by enacting Senate
Bill No. 168 (Acts 1987, 70th Leg., ch. 549, 51). See
Bill Analvsis to Senate Bill No. 168 70th Leg. (1987), on
file in Legislative Reference Library. Senate Bill No.
168 added section 2A to the act, a section requiring
governmental bodies to keep a "certified agenda" or a tape
recording for each of its meetings that is closed to the
public.
YOU ask what constitutes a "certified agenda."
Section 2A provides:
(a) For each of its meetings that is
closed to the public, except for consulta-
tions in accordance with Subsection (e) of
Section 2 of this Act, a governmental body
shall keep a certified aaenda of the
proceedings.
p. 4051
Mr. Robert 0. Viterna - Page 2 04-a40)
(b) The presiding officer must certify
that the agenda kept under Subsection (a).of
this section is a true and correct record of
the oroceedinas.
(c) The certified agenda shall include an
announcement made by the presiding officer
at the beginning and end of the meeting
indicating the date and time. The certified
agenda shall state the subject matter of
each deliberation and shall include a record
of any further action taken. The certified
agenda of closed or executive sessions shall
be made available for public inspection and
copying only upon court order in an action
brought under this Act.
(d) In lieu of the requirements for main-
taining a certified agenda as provided in
Subsections (a), lb), and (c) of this
section, a governmental body may make a tape
recording of the proceedings which shall
include an announcement made by the
presiding officer at the beginning and end
-.
.of the meeting indicating the date and time.
(e).The certified agenda or tape shall be
available for in camera inspection by the
judge of a district court if litigation has
been initiated involving an alleged viola-
tion of this Act. The court upon entry of a
final judgment may admit the certified
agenda or tape into evidence in whole or in
part. The court may grants equitable or
legal relief it considers appropriate,
including an order that the governmental
body make available to the public the
certified agenda or tape of any part of a
meeting that was not authorized to be closed
under this Act.
(f) The governmental body shall preserve
the certified agenda or tape for at least
two years after the date of the meeting. If
an action involving the meeting is commenced
during the required preservation period, the
certified agenda or tape shall be preserved
pending the outcome of the action.
p. 4052
Mr. Robert 0. Viterna - Page 3 (JM-840)
,-
(g) No member of a governmental body
shall participate in a meeting of the
governmental body closed to the public
knowing that a certified agenda of the
meeting is not being kept or tape recording
is not being made. A person who violates
this subsection commits a Class C
misdemeanor.
(h) No individual, corporation, or part-
nership shall, without lawful authority,
knowingly make public the certified agenda
or tape recording of a meeting or that por-
tion of a meeting that was closed under
authority of this Act. A. person who
violates this subsection shall be liable to
any 'person injured or damaged thereby
. . . . (Emphasis added.)
YOU ask, in general, what constitutes a "certified
agenda." You ask specifically whether an announcement of
the. date and time accompanied by a statement that
unspecified W1litigation" was discussed with your attorney
meets the requirements of section 2A.
Subsection (a) of Section 2A resolves your specific
question about a "certified agenda" for executive sessions
to discuss unspecified litigation with your attorney.
Subsections (a) requires a governmental body to keep a
"certified agenda" Il[f]or each of its meetings that is
closed to the public, excevt for consultations
accordance with subsection (e) of section 2 of this act:
(emphasis added). Subsection (e) of section 2 provides:
Private consultations between a govern-
mental body and its attorney are not
permitted except in those instances in which
the body seeks the attorney's advice with
respect to pending or contemplated litiga-
tion, settlement offers, and matters where
the duty of a public body's counsel to his
client, pursuant to the Code of Professional
Responsibility of the State Bar of Texas,
clearly conflicts with this Act.
Consequently, section 2A does not require a "certified
agenda" for executive sessions in which only subsection
(e) matters are discussed.
p. 4053
Ml-. Robert 0. Viterna - Page 4 (m-840)
You should note, however, that executive sessions
under subsection (e) of section 2 are limited to
situations in which governmental bodies seek legal advice
from their attorneys with regard to specific anticipated
or pending litigation. Attorney General Opinion JM-100
(1983). Moreover, the "certified agenda" requirements of
section 2A are distinct from the notice provisions of the
Open Meetings Act. V.T.C.S. art. 6252-17. Notice of an
executive sessicn that addresses unspecified l'litigationL'
may not satisfy the act's notice requirements. Sea cox
Lntervrises v. Board ofTrustees of the Austin Indevendst
S&hoc1 District, 706 S.W.2d 956 (Tex. 1986).
Your concern also focuses on the detail necessary to
comply with the "certified .agenda" requirement for 0tAer
closed or executive sessions. You suggest that subsection
(c) of section 2A indicates that the only two requirements
of a "certified agenda" are 1) an announcement of the date
and time of the executive session at the beginning and end
of each session and 2) a statement of the subject matter
and of further action taken on each deliberation.1 The
question is the detail the statement must contain.
Section 2A does not provide much guidance. Subsection (b)
of section ?A provides that the agenda is to be "a true
and correct record of the proceedingsl' of the execut iv2
session.
The primary concern in interpreting a statute is to
ascertain and give effec,t to legislative intent as
expressed in the language of the statute. State VL
Terrell, 588 S.W.Zd 784 (Tex. 1979). The language chosen
by the legislature in this case is somewhat ambiguous.
Two extremes in interpreting "certified agenda" are
possible. At the least, the agenda must include a one or
two word statement of every subject actually discussed.
At the most, the agenda must be a verbatim transcript of
the executive session.
Interpreting legislative intent also requires
consideration of the old law, the evil to be remedied, and
the remedy provided by the amendment. Prior to amendment,
because the public was excluded from executive sessions,
the public had no way to determine whether the
1. You should note that this reference to "further
action" does not mean final action. As indicated, final
action may only be taken-open meetings.
p. 4054
Mr. Robert 0. Viterna - Page 5 (34-840)
governmental body met the requirements for holding the
executive session.. The legislature intended the amendment
to provide a method of verifying in court proceedings that
executive sessions comply with the Open Meetings Act.
The other provisions contained in Senate Bill No. 168
provide only indirect guidance on the meaning of
"certified agenda." Senate Bill No. 168 also amended the
provisions governing meetings that are open to the public
by requiring governmental bodies to prepare and retain
minutes or a tape of each of their meetings. Acts 1987,
70th Leg., ch. 549, 54 (adding section 3B to article
6252-17). "Minutes" is defined as a memoranda or notes of
a transaction or proceeding, see Black's Law Dictionary
(5th Ed.), or as the official record of the proceedings of
a meeting; See Webster's Ninth New Colleaiate Dictionarv.
To "minute" somethins is to make notes or a brief summary
of the thing. Id. The common usage of "minutes" is more
likely to connote something like a verbatim transcript
than the common usage of "agenda." On the other hand, the
legislature amended the act to require that minutes of
open meetings be kept and that the "minutes shall state
the subject matter of each deliberation" and each action
taken by the gov.ernmental body. A verbatim transcript is
not required by this language. As indicated, the
"certified agenda" must also "state the subject matter of
each deliberation." The phrase l'agenda'lmeans a memoranda
of things to be done, as items of business or discussion
to be brought up at a meeting, see Black's Law Dictionary
(5th Ed.), or a list, outline or plan of things to be
considered or done at a meeting. See Webster's Ninth New
Colleaiate Dictionarv. If the legislature had meant the
"minutes" or "certified agenda" to be a verbatim
transcript, the legislature would have so indicated. Two
things are apparent from the language of the amendment.
First, the legislature intended that l'minutes'l be less
than a verbatim transcript. Second, despite the use of
the same general description for ltminutesl'and "certified
agenda," the legislature intended that the "agenda" be
something less detailed than tlminutes.UV
The history of the passage of Senate Bill No. 168
through the Texas Legislature reinforces this conclusion.
As originally introduced, the bill would have required
governmental bodies to keep "minutesVq of executive
sessions to "state the substance of each deliberation."
The requirement for a "certified agenda" was, however,
substituted for "minutes." Additionally, subsection (c)
was modified from "minutesl' stating "the substance of each
deliberation" to an "agenda" stating "the subject matter
p. 4055
Mr. Robert 0. Viterna - Page 6 (JM-840)
of each deliberation." The committee hearing tapes reveal
two thing.s: 1) that opponents of the bill feared that
80minutes*1 meant a verbatim transcript or something
similar, and 2) that the bill as originally introduced was
not intended to require a verbatim transcript. It is
clear, however that a one-word description such as
"personnel" will p& suffice.
The fact that the legislature provided governmental
bodies with the option of making a tape of the executive
session as an alternative to the "certified agenda" is
significant. Because the amendment uses the two as
alternate methods of effecting one legislative purpose,
the two must be intended to serve as substantial equival-
ents. The requirement that the agenda be certified, how-
ever, may have been intended as an alternative safeguard
when a tape or full transcript is & prepared. The tapes
of the committee hearings reinforce this conclusion. The
tapes suggest that the "certified agenda" is to serve
primarily as an affirmation that the governmental body did
not discuss matters it is not authorized to discuss in
executive session. For example, if the governmental body
holds an executive session under section 2(g) to discuss
the employment of a specific employee, the governmental
body must certify that it discussed only this topic. On
the other hand, if the governmental body discussed a topic
such as a pay cut or pay hike for all employees, a topic
for which executive sessions are not authorized, the
certified agenda must also state that this topic was
discussed. See Attorney General Opinion H-496 (1975).
Ultimately, the question of whether a particular
"certified agenda" complies with the statute will be a
fact question for the courts. a §2A(e). Because the
question involves an ambiguous provision, the courts may
apply a substantial compliance standard. In the area of
Open Meetings, however, the courts have been moving
towards requiring stricter compliance. See, e.a smith
Countv v. Thornton, 726 S.W.2d 2 (Tex. 1986); Co;' Enter-
prises v. Board of Trustees of the Austin Indevendent
School District, 706 S.W.Zd 956 (Tex. 1986). In m, the
Texas Supreme Court decided that the notice provisions of
the act require more than broad, general, one-word state-
ments of subjects such as "real estate," "personnel," and
"litigation.8' In light of this decision, it would be
unlikely if similar statements would be upheld as
sufficient for the "certified agenda" requirements of
section 2A. Moreover, even if such statements were deemed
sufficient under section 2A, this would not negate the
requirements that notice be more specific.
p. 4056
Mr. Robert 0. Viterna - Page 7 (JM-840)
This office cannot, however, set forth iron-clad
guidelines for complying with the statutory requirement in
every situation. It is clear that the agenda must contain
at least a brief summary of every specific subject
actually discussed, not just those originally intended for
discussion. So long as discussion is restricted to
matters contained in the notice for the executive session
and matters for which an executive session is authorized,
a "certified agenda" need not contain a detailed summary
or paraphrase of each question or idea presented on the
general subject of the executive session. Keeping a
more detailed record of discussions will, however, serve
to protect the governmental body from violating section
2A. If a discussion addresses something that does not
appear in the notice or should not be discussed in
executive session, greater detail is necessary. Enough
detail should be included to enable a district judge to
determine whether the act has been violated. If
discussion strays into topics for which executive sessions
are not authorized, the certified agenda must state that
those topics were discussed but may also state that the
governmental body remedied the error by repeating the
discuss~ion in open meeting. The greater the likelihood of
violation, the greater the detail necessary. Governmental
bodies can avoid problems in this area of ambiguity ~by
opting to keep a tape of executive sessions rather than a
"certified agenda."
SUMMARY
The Texas Open Meetings Act, article
6252-17, V.T.C.S., requires governmental
bodies, as defined in the act, to deliberate
and take all final actions on governmental
policy and business inT;zetagzs that .are
open to the public. authorizes
governmental bodies to deliberate under
certain limited circumstances in closed or
executive sessions. In Senate Bill No. 168,
Acts 1987, 70th beg., ch. 549, 51, the
legislature added section 2A to the act to
require governmental bodies to keep
"certified agenda" or a tape recording foZ
each of their meetings that is closed to the
public. Section 2A expressly does not apply
to consultations between a governmental body
and its attorney when those consultations
comply with subsectidn (e) of section 2 of
the act, i.e., when only subsection (e)
matters are discussed. For other executive
p. 4057
Mr. Robert 0. Viterna - Page 8 m-840)
sessions, a tape or "certified agenda" must
be kept. The agenda must be 'Iatrue and
correct record of the proceedings" of the
executive session. Although the agenda need
not be a verbatim transcript of the
executive session, section 2A requires more
than a one or two word list of the subjects
actually discussed. Ultimately, the
question of whether a particular "certified
agenda" complies with the act is a fact
question for the courts, but in general, the
greater the likelihood of violation, the
greater the detail necessary.
J /vLtGx
Ver truly rs,
k
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 4058 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130632/ | Decenher 2$, 1987
Honorable Charles D. Penick Opinion No. .Jk-837
Criminal District Attorney
Bastrop County Courthouse Re: Whether artificial or
Bastrop, Texas 78602 tube feeding constitutes a
life-sustaining procedure
for purposes of article
4590h, V.T.C.S. (RQ-1036)
Dear Mr. Penick:
In your inquiry you ask the following question:
If a patient cf a nursing home who meets
the definitions of a Declarant and qualified
patient of article ~4590h, V.T.C.S., the
Natural Death Act, is unable to,feed him or
herself and it becomes necessary to tube
feed or artificially feed that person, must
the hospital feed that patient artificially
or does the procedure for artificially
feeding 'or tube feeding fall under the
definition of a life sustaining procedure as
defined in section 2, subsection 4, of
article 4590h?
Article 4590h, V.T.C.S., makes it possible for any
competent adult person, at any time, to execute a
directive for the withholding or withdrawal of
life-sustaining procedures in the event of a terminal
condition. Provisions of the act relating to the
execution of such a document provide as follows:
Sec. 2. In this Act:
.(I) 'Attending physician' means the
physician who has primary responsibility for
the treatment and care of the patient.
(2) 'Declarant' means a oerson who has
executed or issued a directive under this
&&. *
p. 4026
Honorable Charles D. Penick - Page 2 LTI+837)
(3) 'Directive' means:
(A) a document voluntarily executed by
the declarant as prescribed by Section 3(a)
of this Act:
(B) a nonwritten directive issued by the
declarant as prescribed by Section 3(b) of
this Act: or
(c) a document executed as prescribed by
Section 4D of this Act.
(4) 'Life-sustaining procedure' means a
medical procedure or intervention which
utilizes mechanical or other artificial
means to sustain, restore, or supplant a
vital function, which, when applied to a
qualified patient, would serve only to
artificially prolong the moment of death and
where, in the judgment of the attending
physician, noted in the qualified patient's
medical records, death is imminent whether
or not such procedures are utilized. ?
'Life-sustaining procedure' shall not
include the administration of medication or
the performance of any medical procedure
deemed necessary to provide comfort or care
or alleviate pain.
(5) 'Physician' means a physician and
surgeon licensed by the Texas State Board of
Medical Examiners or a properly credentialed
physician holding a commission in the
uniformed services of the United States who
is serving on active duty in this state.
(6) 'Oualified oatient' means a natient
diaanosed and certified in writina to be
afflicted with a terminal condition bv two
phvsicians, one of whom shall be the
attending physician, who have personally
examined the patient.
(7) 'Terminal condition' means an ?
incurable condition caused by injury,
disease, or illness, which, regardless of
the application of life-sustaining
procedures, would, within reasonable medical
'judgment, produce death, and where the ?
p. 4027
Honorable Charles D. Penick - Page 3 UM-837)
application of life-sustaining procedures
serves only to postpone the moment of death
of the patient.
Directive for withholding or withdrawal
of life-sustaining procedures in
event of terminal condition
Sec. 3. (a) Any competent adult person
may, at any time, execute a directive for
the withholding or withdrawal of life-
sustaining procedures in the event of a
terminal condition. The directive shall be
signed by the declarant in the presence of
two witnesses not related to the declarant
by blood or marriage and who would not be
entitled to any portion of the estate of the
declarant on his decease under any will of
the declarant or codicil thereto or by
operation of law. In addition, a witness to
a directive shall not be the attending
physician, an employee of the attending
physician or a health facility in which the
declarant is a patient, a patient in a
health care facility in which the declarant
is a patient, or any person who has a claim
against any portion of the estate of the
declarant upon his decease at the time of
the execution of the directive. The two
witnesses to the declarant's signature shall
sign the directive.
(b) A competent qualified patient who is
an adult may issue a directive by a
nonwritten means of communication. The
declarant must issue the directive in the
presence of the attending physician and two
witnesses. The witnesses must possess the
same qualifications as are required by
Subsection (a) of this section. The
physician shall make the fact of the
existence of the directive a part of the
declarant's'medical record and the witnesses
shall sign said entry in the declarant's
medical record.
(0) A declarant shall notify the
attending physician of the existence of a
written directive. If the declarant is
comatose, incompetent, or otherwise mentally
p. 4028
Honorable Charles D. Penick - Page 4 UM-837)
or physically incapable of communication,
another person may notify the physician of
the existence of a written directive. The
physician shall make the directive a part of
the declarant's medical record.
[subsection (d) sets forth a form that w
be used by a declarant]
(e) The directive may include other
directions, including a designation of
another person to make a treatment decisiorl
in accordance with Section 4A of this Act
for the declarant if the declarant is
comatose, incompe=ent, or otherwise mentally
or physically incapable of communication.
(Emphasis added.)
A sommon thread running throughout the act is the
expression of the legislature's intent that the desire o_f
a aualified declarant shall b~follow~. The followiho
oraJisions of the act reflect the paramount importancs Oi
the declarcnt's wishes and provide for penal sanctions for
any person who takes any action to defeat the desire cf
the dcclarant. The following sections oi the act reflect ?
su.2h legislative intent, as .follows:
Sec. 4. (a) A directive mav be rev-
at anv time bv the d~eclarant. without reaard
-mental state or comvetengy .~ . . .
. . . .
Sec. 4A. The desireof
patient who is comvetent s.1
at all times
m directive. If an
adult qualified patient is comatose, in;,om-
petent, or otherwise mentally or physically
incapable of communication and has issued a
directive under this Act without designating
a person to make a treatment decision, tile
attending physician shall comply with the
directive unless the Dhvsician believes that
the direct=does not reflect the wresent
desire of the natient.
. . . .
Sec. 4C. (a) If an adult qualified
patient is comatose, incompetent, or
p. 4029
Honorable Charles D. Penick - Page 5 UM-837)
otherwise mentally or physically incapable
of communication, and the person has not
issued a directive under this Act, the
attending physician and the legal guardian
of the patient may make a treatment decision
that may, based on knowledae of what the
patient would desire, if known, include a
decision to withhold or withdraw life-
sustaining procedures from the patient.
(b) If the patient does not have a legal
guardian, the attending physician and at
least two, if available, of the following
categories of persons, in the following
priority, may make a treatment decision that
may, based on knowledae of what the oatient
would desire, if known . . . .
. . . .
Sec. 4D. (a) The following persons may
execute a directive on behalf of a qualified
patient who is under 18 years of age:
,P,
(1) the patient's spouse, if the spouse
is an adult:
(2) the patient's parents; or
(3) the patient's legal guardian.
(b) The desire of a oualified natient who
is under 18 vears of aae and who *
comnetent shall at all times suversede tit:
effect of a directive executed in accordance
with this section.
. . . .
Sec. 7. (a) .Before withholding or
withdrawing life-sustaining procedures from
a qualified patient under this Act, the
attending physician shall determine that all
steps proposed to be undertaken are in
r accord with the provisions
the existina desires of
of this Act
the
and
aualified
patient.
. . . .
p. 4030
Honorable Charles D. Penick - Page 6 (JM-837)
Sec. 8. (c) No nhvsician. health
facilitv. or other health nrovider, and no
health care service vlan. or insurer issuina
a- .
insurance, mav reoulre anv nerson to execute
a directive as a condition for being insured
for, or receiving, health care services nor
may the execution or failure to execute a
directive be considered in any way in
establishing the premiums for insurance.~
Sec. 9. A person who willfully conceals,
cancels, defaces, obliterates, or damages
the directive of another without such
declarant's consent shall be guilty of a s
Class A misdemeanor. A person who falsifies
or forges the directive of another, or
willfully conceals or withholds personal
knowledge of a revocation as provided in
Section 4 of this Act, with the intent to
cause a withdrawal of life-sustaining
procedures contrar v to the wishes of the
declarant, and thereby,.because of any such
act, directly causes~ life-sustaining
procedures to be withheld or withdrawn and
death' to thereby be hastened, shall be
subject to prosecution for criminal homicide
under the provisions of the Penal Code.
(Emphasis added.)
The question you pose is limited to the issue of
whether artificially feeding or tube feeding is a life-
sustaining procedure as~those items are defined in the
act. You assume that the patient is a "declarant@' and a
"aualified watient" as those terms are defined in section
2 of article 4590h. Senator Ray ,Farabee, sponsor in the
Texas Senate of the "Natural Death Act" (Acts 1977, 65th
Leg., ch. 398, at 1085), writing in 41 Texas Bar J. 241
(1978), noted that it was impossible to establish criteria
in determining when a person is in a "terminal condition"
or what will constitute a "life-sustaining procedure." We
believe the following observations by Senator Farabee to
be pertinent to your inquiry.
The law does not attempt to establish
criteria to determine when a person is to be
deemed 'terminal' for the purposes of
implementing such a directive. It does
outline a general statement of the
circumstances in which it will be legally
effective. Restrictive criteria would
p. 4031
, Honorable Charles D. Penick - Page 7 UM-837)
P
render the law almost immediately obsolete
in the face of emerging medical advances.
Only the medical profession can determine
when a patient's prognosis is hopeless and
the death process irreversible.
Similarlv. the statute does not itemize
what Drocedures are to be reaarded as
'life-sustainins' and senarate from standard
medical treatment which mav be aiven
reaardless of a natient's condition. Such
distinctions must be made bv medical nracti-
tioners accordins to accewted medical
standards. For instance, many physicians
maintain that therapy, such as the use of
antibiotics, qualifies as 'extraordinary'
when the patient is a cancerous, comatose
go-year old. On the other hand, adminis-
tration of pain-killing drugs falls in a
separate category. (Emphasis supplied).
Turning to other jurisdictions, in Corbett
D'Alessandro, 487 So.Zd 368, 371 (Fla. Dist. Ct. Ap;:
1986), the matter of what constitutes a "life-sustaining
procedure11 was addressed as follows:
Judge Hersey, in his opinion for the
fourth district in Kennedv v. Bludworth, 432
So. 2d at 619, in a statement not commented
upon but apparently approved by our supreme
court in Kennedv v. Bludworth, 452 So. 2d
291, wrote: 'Life sustaining procedures are
medical procedures which utilize mechanical
or other artificial means to sustain,
restore or supplant a vital function, which
serve only or primarily to prolong the
moment of death, and where, in the judgment.
of the attending and consulting physicians,
as reflected in the patient's medical
records, death is imminent if such
procedures are not utilized.'
Although artificial or tube feeding may constitute a
life-maintaining procedure within the meaning of article
4590h, V.T.C.S., whether it will serve to artificially
prolong the moment of death is a question which depends
upon the expertise of the medical profession for its
resolution in each individual case. While the resolution
of this question is for the medical profession, the
legislature has made it plain that care should be taken
p. 4032
Honorable Charles D. Penick - Page 8 (JM-837)
,
that a oualified declarant's wishes be observed in
withdrawing life-sustaining procedures when there is a
terminal condition.
SUMMARY
Although artificial or tube feeding may
constitute a life-maintaining procedure
within the meaning of article 459013,
V.T.C.S., whether it will serve to
artificially prolong the moment of death is
a question which depends upon the expertise
of the medical profession for its resolution
in each individual case. The article 4399,
V.T.C.S., opinion process was not intended
to resolve factual disputes.
Jzh
MATTOX
Attorney General of Texas
MARYKKLLKR
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4033 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124981/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 9, 2016
Ms. Jean L. Olinger, D.M. Opinion No. KP-0083
Presiding Officer
Texas Funeral Service Commission Re: Whether a county is responsible for costs
Post Office Box 12217 associated with transporting a body from an
Austin, Texas 78711 autopsy to its final destination (RQ-0069-KP)
Dear Ms. Olinger:
Your question concerns the transportation of a body following an autopsy performed by
order of a justice of the peace. 1 If a person dies under certain circumstances, such as when the
cause is unknown or there are indications that the death may have been caused by unlawful means,
a justice of the peace in the county must conduct an inquest into the death. See TEX. CODE CRIM.
PROC. art. 49.04(a)(l)-(8) (listing various circumstances triggering the duty of a justice of the
peace to conduct an inquest). During an inquest, a justice of the peace may decide that an autopsy
is necessary to determine or confirm the nature and cause of death, in which case he or she must
order an autopsy. See id. art. 49 .10( e)(1). 2 In such an instance, the commissioners court "shall
pay a reasonable fee for the transportation of a body to a place where an autopsy can be performed."
Id. art. 49.lO(h). You inquire as to "who is responsible for transporting the body to the final
destination" after the autopsy has been completed. Request Letter at 1. "If the funeral home must
retrieve the body,'; you ask, "who.is responsible for the transportation costs - the county or the
deceased's agent?" Id. ·
1
See Letter from Ms. Jean L. Olinger, D.M., Presiding Officer, Tex. Funeral Serv. Comm'n, and attached
brief, to Honorable Ken Paxton, Tex. Att'y Gen. (Nov. 9, 2015), https://www.texasattorneygeneral.gov/opinion
/requests-for-opinion-rqs ("Request Letter" and "Brief," respectively). Because your letter references an autopsy
ordered by a justice of the peace, we presume your question relates to a county that has not established the office of
medical examiner. See. TEX. CODE CRIM. PROC. art. 49.25, § 12 ("When the commissioners court of any county shall
establish the office of medical examiner, all powers and duties of justices of the peace in such county relating to the
investigation of deaths and inquests shall vest in the office of the medical examiner."). We limit our analysis
accordingly.
2
A justice of the peace must also order an autopsy in the case of a child under age six whose death was
unexpected or the result of abuse or neglect, or if directed to do so by the district attorney, criminal district attorney,
or, in some cases, the county attorney. Id. art. 49.1 O(e)(2)-(3).
Ms. Jean L. Olinger, D.M. - Page 2 (KP-0083)
A county commissioners court generally has only those powers expressly delegated to it
by the Texas Constitution or the Legislature. City of San Antonio v. City of Boerne, 111 S.W.3d
22, 28 (Tex. 2003). The commissioners court may also exercise those powers that are necessarily
implied for the accomplishment of its assigned duties. Id. With regard to the disposition of a
body, the Legislature has given the commissioners court the limited responsibility of providing
"for the disposition ... of a deceased pauper" and has authorized the county to "create a fund ...
to pay the costs incurred" in the disposition, which could conceivably include transporting the
body to its final destination. TEX. HEALTH & SAFETY CODE § 694.002(a), (e). Similarly, the
Legislature has directed a political subdivision with "charge or control of a body not claimed for
burial or a body required to be buried at public expense" to notify the Anatomical Board of the
State of Texas (the "Board"), 3 if requested, of the existence of the body and allow the Board "to
remove the body." Id. § 691.023(a)(l), (3); see also id. §§ 691.021 (clarifying that "political
subdivision" as used in subchapter B of chapter 691 includes a county), 71 l.002(a) (listing in
priority order the persons with the right to control the disposition of a decedent's remains). If the
Board does not require the body, the political subdivision must "pay all costs" of preparing the
body for burial. Id. § 691.023(b); see also id. § 71 l.002(e) (giving the person conducting an
inquest the duty to inter the remains when no person with the legal duty to inter has assumed the
responsibility). Thus, if a body is not claimed for burial or is to be buried at public expense, and
if the Board does not require the body, the commissioners court is required to pay for the body's
preparation for burial, which could include the cost of transporting the body to its final destination.
We find no other provision authorizing a commissioners court to transport a body following
an autopsy or to pay for the cost of such transportation. You suggest that transporting a body
following an autopsy should be considered part of the costs related to obtaining the autopsy. See
Brief at 1. In your view, "[i]f this were not so, the cost would have to be borne by the Funeral
Establishment, and would certainly be passed on to the family or person responsible for the final
disposition of the deceased." Id. However, placing the ultimate financial responsibility for the
disposition of a body on the person with the legal duty to inter the deceased appears to be precisely
what the Legislature intended and would be the case had no autopsy been ordered. See HEALTH
& SAFETY CODE § 71 l.002(a), (a-3) (making such a person liable for the reasonable cost of
interment). Furthermore, statutes governing the involvement of a funeral establishment to carry
out the interment contemplate that the transportation of a body generally falls within the scope of
the services provided by the establishment. See id. § 711.001(13) (providing that a "funeral
establishment" is "a place of business used in the care and preparation for interment or
transportation ofhumanremains" (emphasis added)).
When a funeral director is engaged to take charge of a deceased's body and prepare it for
burial or other disposition, the funeral director begins a relationship with the consumer known in
the industry as "first call," which gives the director the legal duty to assume responsibility for the
body. See TEX. Occ. CODE§ 651.401; see also id. § 651.405 (requiring a funeral establishment to
provide a written retail price list including the price of "transferring a deceased person to the
funeral establishment"). In providing certain parameters governing the provision of services "on
3
The Board is statutorily authorized to facilitate the distribution of deceased human remains for the purpose
of teaching and research. See generally TEX. HEALTH & SAFETY CODE§§ 691.001-.035.
Ms. Jean L. Olinger, D.M. - Page 3 (KP-0083)
first call," section 651.401 of the Occupations Code generally requires a funeral director to "direct
and personally supervise the pickup of a dead human body." Id. § 651.401(a). The Legislature
anticipated that there would be circumstances under which the personal supervision of the funeral
director would be unnecessary and could be delegated to an employee, including when transferring
a body "from a funeral establishment to and from a morgue in which an autopsy is performed."
Id. § 651.401 (b)(2). But such a transfer is still the responsibility of the funeral director. See id.
§ 651.401 (d) (providing that "[a] funeral director ... who directs the removal or transfer of a dead
human body without personally supervising the transfer is strictly accountable for compliance with
the requirements" of section 651.401). The Funeral Service Commission's own rules appear to
acknowledge that only the transportation of a body to a morgue for an autopsy, and not from the
morgue afterward, falls outside of the scope of a funeral director's responsibility. See 22 TEX.
ADMIN. CODE § 203.21(b) (2015) (Tex. Funeral Serv. Comm'n, First Call Definition)
("Transportation of a body sent to a morgue ... for ... autopsy at the request of a Justice of the
Peace ... does not constitute a First Call. Any expenses ... for the transportation of a body under
this subsection are not items of choice for the consumer ... and therefore are not th.e responsibility
of the consumer to pay." (emphasis added)).
This view is consistent with the objective of an autopsy. The purpose of exercising a justice
of the peace's statutory authority to order an autopsy is to determine the cause of death. See TEX.
CODE CRIM. PROC. art. 49.IO(e) (listing the circumstances requiring an autopsy). Transporting a
body to its final destination after the autopsy does not further this purpose. In addition, the
Legislature has authorized a commissioners court to pay for autopsy-related expenses only for the
autopsy itself and events leading up to its undertaking, not for events afterward. See, e.g., id. arts.
49 .1 O(b) (for a consultation with a county health officer or physician as to the necessity of ordering
an autopsy), 49.1 O(g) (if assessed, to a physician for performing the autopsy), 49. IO(h) (for
transportation of a body to a place where an autopsy can be performed), 49.1 l(c) (for chemical
analysis), 49.23(a) (for the assistance of a death investigator during an inquest). The fact that the
Legislature knows how to provide for autopsy-related costs but has not provided for post-autopsy
transportation of a body is an indication that such a cost is the responsibility of the person with the
legal duty to inter the deceased, or that person's agent, and not a commissioners court. See FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (noting that the
Legislature knows how to enact a law effectuating its intent).
Ms. Jean L. Olinger, D.M. - Page 4 (KP-0083)
SUMMARY
A commissioners court is authorized to pay the cost of
transporting a body to its final destination following an autopsy
ordered by a justice of the peace only if a body is not claimed for
burial or is to be buried at public expense and if the Anatomical
Board of the State of Texas does not require the body. Otherwise,
the cost of transporting the body to its final destination is the
responsibility of the person with the legal duty to inter the deceased,
or that person's agent.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125024/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
September 28, 2015
The Texas Constitution and sections 402.042 and 402.043 of the Government Code grant the
attorney general authority to issue attorney general opinions. An attorney general opinion is a
written interpretation of existing law. The development of an attorney general opinion is an
involved and thorough process involving many layers of comprehensive review. Attorney general
opinions do not necessarily reflect the attorney general's personal views, nor does the attorney
general in any way "rule" on what the law should say. As have those that have come before it,
thi.s administration strives to craft opinions with the greatest level of legal accuracy and without
any hint of impropriety.
By its very nature, the. attorney general opinion process invites a variety of legal issues to be
brought before our office for analysis and review. The questions asked are outside the scope of
this office's control, and some of the questions to be addressed may raise actual or perceived
conflicts of interest' for the Attorney General and his staff. Consistent with applicable statutes and
rules, staff members involved in the opinion process must recuse themselves from matters in which
there may exist an actual or perceived conflict of interest. Accordingly, pursuant to section
402.001 of the Government Code, I delegate my signature authority in the attorney general opinion
process to the First Assistant Attorney General, Charles E. Roy, for those opinions in which I may
have an actual or perceived conflict of interest or in which my involvement gives even the
appearance of impropriety. Any such opinion signed by the First Assistant under this delegation
carries the full force of an attorney gen1:1ral opinion.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
October 19, 2015
The Honorable Jim Murphy
Chair, Committee on Corrections
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910
Dear Representative Murphy:
In the process of reviewing this matter, this office concludes there could be an actual or
perceived conflict of interest such that the Attorney General has recused himself fr October 19, 2015
The Honorable Jim Murphy Opinion No. KP-0040
Chair, Committee on Corrections
Texas House of Representatives Re: Whether a community college system may
Post Office Box 2910 expend funds for attorney's fees incurred by a
Austin, Texas 78768-2910 member of its board of trustees in a challenge to
the member's qualification to serve as trustee
(RQ-0022-KP)
Dear Representative Murphy:
On behalf of the Houston Community College System (the "College"), you ask whether
"an institute of higher education may expend public funds to reimburse or pay the personal
attorney's fees incurred by a board member defending a quo warranto action or removal.
proceeding, challenging the board member's election as trustee." 1 You explain that in 2013, a
candidate who prevailed in the November election for the District II seat was the subject of a quo
warranto proceeding filed by the State of Texas challenging the candidate's eligibility to serve due
to improper residency. See id. at 1-2. You state that "[n]otwithstanding a temporary restraining
order issued by the County Attorney and the quo warranto petition, [the candidate] took the oath
of office" in January 2014 and is currently serving as trustee for the College. Id. You inform us
that the trustee prevailed in the quo warranto suit and has now requested reimbursement for his
personal expenses related to the legal representation in the matter. See id.
You indicate that the College is generally aware of attorney general opinions that have
determined it is inappropriate to reimburse officers of governing bodies for the successful defense
of election contests. See id. at 1-2, 4; see also Tex. Att'y Gen. Op. Nos. GA-0104 (2003), DM-
431 (1997), JM-685 (1987). You ask us to "confirm that the College is not precluded from
considering [the Trustee's request] simply because it arises in the context of an election contest,
which the College argues is a private suit involving only the trustee's personal interest in seeking
office." Request Letter at 2. You state that the "College wants to [e]nsure that where the issue is
brought to the board, if a majority of the disinterested trustees ... make a good faith determination
that reimbursement of the action is in the public interest, such reimbursement is not otherwise
precluded as a matter oflaw because the action arose in the context of an election contest." Id. at
3. We consider whether a governmental body has discretion under the common law to reimburse
an officer's personal legal expenses incurred to defend against a challenge to the officer's
qualifications to hold office.
1
See Letter from Honorable Jim Murphy, Chair, House Comm. on Corrs., to Honorable Ken Paxton, Tex. Att'y
Gen. at 1 (Apr. 21, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Jim Murphy - Page 2 (KP-0040)
We begin with the fundamental principle that public funds cannot be spent to defend
private interests. See TEX. CONST. art. III,§ 52(a). Yet, because litigation involving an individual
officer or employee is often designed to impact the governmental entity's work, the common law
allows the expenditure of public funds to reimburse an officer's or employee's legal expenses in
certain instances, such that the constitutional prohibition is not implicated where the governmental
entity can make two findings. See Tex. Att'y Gen. Op. Nos. GA-0104 (2003) at 3 (noting that
"suits may be only nominally against individuals when they are really designed to obstruct or
control the legitimate performance of official duties"), JC-0047 (1999) at 3 (enumerating test).
First, the governmental entity "must determine that the suit involved a public interest requiring a
vigorous defense, or, conversely that paying the legal fees serves a public, not merely the officer's
or employee's private, interest." Tex. Att'y Gen. Op. No. JC-0047 (1999) at 3; see also Tex. Att'y
Gen. Op. No. DM-488 (1998) at 2. Second, the entity "must determine that the officer or employee
committed the alleged act or omission that was the basis of the lawsuit while acting in good faith
and within the scope of official duties." Tex. Att'y Gen. Op. No. JC-0047 (1999) at 3; see also
Tex. Att'y Gen. Op. No. GA-0104 (2003) at 4.
With respect to the first required finding, Attorney General Opinions GA-0104, DM-431,
and JM-685 each determined that the interest involved in an election contest was only that of the
candidate and not of the governmental entity. In Opinion JM-685, this office considered a school
board's "defense of the individual candidate out of concern that it might lack a quorum to do
business." Tex. Att'y Gen. Op. No. JM-685 (1987) at 2. The board additionally claimed that the
contested election was close and that the school district had a legitimate interest in the accuracy of
the vote count. Id. at 4. This office determined that both justifications were insufficient
considering that the election contest was the "last step ,of the process by which an individual
establishes that he has been elected trustee." Id. at 4. The opinion stated that "[i]t is difficult to
justify on any grounds a school district's financial support of one contender in an election contest"
and concluded that "no school district interest is served by paying for the individual trustee's
defense in the election contest at issue." Id. at 4-5.
In Opinion DM-431, a sheriff sought reimbursement of his legal costs in an election
contest. Tex. Att'y Gen. Op. No. DM-431 (1997) at 1. He suggested that the public interest was
that he "as an incumbent who had been 'reelected' by the voters in a runoff, was 'obliged' to
defend his position." Id. at 2. The opinion noted that the "sheriff was no more legally obliged to
defend the election contest than he was to run for election or reelection, and the election contest
did not involve interests of a sheriff as a county official but rather as a candidate for office." Id.
The sheriff had also suggested that this successful defense saved the county the expense of holding
a new runoff election. Id. at 3. This office responded that "[i]n any election contest, it is in the
interest of the authority holding the election that justice be served, not that one candidate prevail
over another" and that holding a new election, if required, would have served the electorate's
interest. Id.
In Opinion GA-0104, this office reiterated the principle that a school district "has no
legitimate interest in spending public funds to pay a school board member's legal expenses in an
election contest, because the lawsuit involves only the trustee's personal interest in seeking office."
Tex. Att'y Gen. Op. No. GA-0104 (2003) at 4. The authority to cover such expenses is limited to
"situations where the district's interests ... require assertion or defense in court." Id.
The Honorable Jim Murphy - Page 3 (KP-0040)
Unlike these three previous opinions, however, your inquiry involves not an election
contest brought under the Election Code but a quo warranto proceeding brought under chapter 66
of the Civil Practice and Remedies Code. One purpose of a quo warranto action is to determine
whether a "person usurps, intrudes into, or unlawfully holds ... an office." TEX. CIV. PRAC. &
REM. CODE ANN.§ 66.001(1) (West 2008). In testing a candidate's authority to hold an office, a
quo warranto action is similar to an election contest in that it determines the proper person entitled
to a public office. An individual's interest in his or her own eligibility to hold office is exclusive
to the individual. A governmental entity does not have a legitimate interest in any particular person
holding office. 2
Moreover, with respect to the second required finding, the acts and omissions involved in
a quo warranto proceeding that tests a candidate's eligibility to hold office are likely outside the
scope of the office's official duties. See Tex. Att'y Gen. Op. No. JC-0047 (1999) at 3; see also
Tex. Att'y Gen. Op. No. GA-0104 (2003) at 4. For these reasons, we question whether a
governmental entity could, in good faith, make either finding regarding an officer's legal expenses
incurred in defending against the state's challenge to his or her right to hold office.
In sum, the College has discretion to reimburse a trustee for the expense of defending a
quo warranto action only if it determines that the expenditure concerns a legitimate public interest
of the College and not merely the trustee's personal interest and that the quo warranto action
involves acts that were undertaken by the trustee in good faith within the scope of an official duty.
Tex. Att'y Gen. Op. No. GA-0104 (2003) at 4. Any determination by the College to reimburse a
trustee's expenses in the circumstances you describe would likely be subject to an abuse of
discretion standard by a reviewing court. See Tex. Att'y Gen. Op. No. DM-450 (1997) at 9 (stating
that a "decision by an institution of higher education will be set aside if it is arbitrary or
umeasonable, or if it violates the law"). Thus, while it is for the College to make the initial
determination, given the precedent involving election contests, a court is unlikely to conclude that
the College has a public interest in paying the legal expenses associated with a challenge to a
trustee's qualifications for office. 3
2Briefing we received argues that there is a public interest in the integrity of the election process. See Brief
from Keith A. Gross, Att'y at Law, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (May 14, 2015) (on file with Op.
Comm.) ("Brief'). This is similar to the argument in Opinion JM-685 about the vote count accuracy that this office
rejected as sufficient justification for the governmental entity to bear the legal expenses of one particular candidate
over another. See Tex. Att'y Gen. Op. No. JM-685 (1987) at 4. It is also argued that because the voters of District
II chose the trustee to be their voice at the College, the question whether the trustee remains in office is a matter of
public concern. Brief at 2. Similar to the situation in Opinion DM-431, the College's interest in having a trustee
from District II to represent the people of the district does not extend to having this particular individual represent
the district. See Tex. Att'y Gen. Op. No. DM-431 (1997) at 2.
3W e cannot conclude that there could never be circumstances under which it is appropriate for a
governmental entity to reimburse an official for costs he or she incurred in the defense of a quo warranto proceeding.
Cf Chandler v. Saenz, 315 S.W.2d 87 (Tex. Civ. App.-San Antonio 1958, writ ref'd n.r.e.) (considering a challenge
to municipality's incorporation and to authority of governing body and an injunction against payment of attorney's
fees).
The Honorable Jim Murphy - Page 4 (KP-0040)
SUMMARY
While it is unlikely that a court would conclude that the
Houston Community College System has a public interest in paying
the legal expenses associated with a challenge to a trustee's
qualifications for office, the College must determine, in good faith
and subject to review for abuse of discretion, whether the
reimbursement is primarily for a College purpose and not merely for
the trustee's personal interest and that the quo warranto proceeding
involved actions of the trustee that were taken in good faith within
the scope of his official duties.
Very truly yours,
Cl(R<
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125036/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
July 13, 2015
The Honorable Bob Wortham Opinion No. KP-0028
Jefferson County Criminal District Attorney
1085 Pearl Street, 3rd floor Re: Whether a Type C municipality may
Beaumont, Texas 77701 levy an ad valorem property tax
(RQ-0006-KP)
Dear Mr. Wortham:
On behalf of the mayor of the City of Taylor Landing, Texas (the "City"), you ask whether
a Type C general-law municipality may levy an ad valorem property tax. 1 In a letter attached to
your request, the mayor states that the City has a population of 272 and provides various municipal
services. Durkay Letter at 1.2 The mayor asks whether the City may impose "a traditional
ad valorem tax," but he is uncertain whether the City has that authority under the principles
discussed in Attorney General Opinion JC-0291. Id. at 1-2. That opinion advises that the power
to tax, which belongs to the state, can be exercised by a political subdivision only when the
constitution or the Legislature has expressly granted taxing authority to the political subdivision.
Tex. Att'y Gen. Op. No. JC-0291 (2000) at 4 (determining that a political subdivision may levy
an ad valorem tax only if the constitution or the Legislature has "plainly and unmistakably
conferred" such authority). While that opinion concerned a county development district, the same
principles govern the taxing authority of a Type C general-law municipality. See Tex. City v. JL..
Martin Inv. Co., 222 S.W.2d 139, 141 (Tex. Civ. App.-Galveston 1949, writ refd) (stating that
"municipalities are strictly limited in the exercising of their taxing power to the powers expressly
granted them by the constitution or by statute, either expressly or by necessary implication");
Vance v. Town of Pleasanton, 261 S.W. 457, 458 (Tex. Civ. App.-San Antonio 1924) (stating
that general-law municipalities "have no ·power to levy or collect taxes upon property within their
1
See Letter from Honorable Bob Wortham, Jefferson Cnty. Crim. Dist. Att'y, to Office of the Tex. Att'y Gen.
at I (Jan. 20, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter");
Letter from Honorable John J. Durkay, Mayor, City of Taylor Landing, to Honorable Bob Wortham (Jan. 13, 2015)
("Durkay Letter") (attached to Request Letter).
2
The 2010 decennial census lists the population of the City of Taylor Landing, Texas as 228. See U.S. Census
Bureau, U.S. Dep't of Commerce, 2010 Census of Population, http://factfinder.census.gov.
The Honorable Bob Wortham - Page 2 (KP-0028)
territorial limits, except such power as may be expressly delegated to them by the Constitution or
statutes"), aff'd, 277 S.W. 89 (Tex. Comm. App. 1925).
Under article XI, section 4 of the Texas Constitution, the Legislature may authorize
municipalities with a population of 5,000 or less to levy an ad valorem tax. TEX. CONST. art. XI,
§ 4. Section 302.001 of the Tax Code grants ad valorem taxing authority to home-rule
municipalities and Type A and Type B general-law municipalities without addressing the authority
of Type C municipalities. TEX. TAX CODE ANN.§ 302.001 (West 2015). But section 51.051 of
the Local Government Code gives Type C municipalities the same authority as a Type A or Type
B municipality, depending on population. TEX. Loe. Gov'T CODE ANN. § 51.051 (West 2008). 3
Subsection 51.051(b) of the Local Government Code provides: "The governing body of a Type C
general-law municipality with 201 to 500 inhabitants has the same authority as a Type B general-
law municipality unless the authority conflicts with a provision of [the Local Government Code]
relating specifically to a Type C general-law municipality." Id.§ 51.05l(b). No provision of the
Local Government Code that relates specifically to a Type C general-law municipality conflicts
with the taxing authority that a Type C municipality may possess under section 302.001 of the Tax
Code. As a revisor's note to section 302.001 of the Tax Code explains, it is not necessary for that
section to specify the taxing powers of Type C municipalities because of the authority granted in
the borrowing provision of Local Government Code section 51.051. See TEX. TAX CODE ANN.
§ 302.001 revisor's note (West 2015). Accordingly, section 302.001 of the Tax Code and section
51.051 of the Local Government Code expressly authorize a Type C general-law municipality to
levy an ad valorem tax on property within its city limits.
3 See also TEX. Loe. Gov'r CODE ANN. § 51.052 (West 2008) (authorizing certain Type C municipalities to
adopt the power of a Type A municipality based in part on assessed valuation).
The Honorable Bob Wortham - Page 3 (KP-0028)
SUMMARY
Section 302.001 of the Tax Code and section 51.051 of the
Local Government Code expressly authorize a Type C general-law
municipality to levy an ad valorem tax on property within its city
limits.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147442/ | J-A20013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ESTATE OF IN THE SUPERIOR COURT OF
FRANK W. ALBERT, LATE OF THE PENNSYLVANIA
VILLAGE OF MORRISDALE, MORRIS
TOWNSHIP, CLEARFIELD COUNTY,
PENNSYLVANIA DECEASED
APPEAL OF: ANNA MAE PEZZULLA,
EXECUTRIX OF THE ESTATE OF FRANK
W. ALBERT
No. 1550 WDA 2015
Appeal from the Order August 6, 2015
In the Court of Common Pleas of Clearfield County
Orphans' Court at No(s): 72-238
BEFORE: BOWES, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 22, 2017
Anna Mae Pezzulla, in her capacity as executrix of the Estate of Frank
W. Albert, has appealed from an orphans’ court order that interpreted a
clause in a will. We affirm.
Frank W. Albert died testate on June 24, 1972. His last will and
testament dated November 23, 1968, was admitted to probate and letters
testamentary were issued to Appellant and Mr. Albert’s wife Alta Frances
Albert, as co-executrixes. The decedent was survived by his wife and three
daughters, Appellant, Doris Eileen Early, and Cheryl Ann Albert. The
J-A20013-15
decedent devised his residuary estate one-third to his wife Alta and two-
thirds to be divided equally among his three daughters. The provision of the
will at issue in this appeal was included after Mr. Albert’s directions as to the
distribution of his residuary estate. It stated, “In as much as I am the
owner of several farms, it is my wish that my daughters and my wife
operate said farms if it can be profitably done. If, however, the same cannot
be profitably operated, it is my desire that said farms be sold and the
proceeds divided as provided in this, my last will and testament.” Last Will
and Testament of Frank W. Albert, 11/23/68, at 1-2.
The inventory for the estate established that Mr. Albert owned the
following realty: eight separate parcels of land in Morris Township with an
overall acreage of 528.07, one plot of real estate in Decatur Township that
consisted of 10.16 acres, and five different tracts of realty in Graham
Township with an overall acreage of 258.81. Doris Eileen Early, one of Mr.
Albert's daughters, died intestate in a vehicle accident in 1975, leaving
behind her husband Stanley Myers as her sole heir. Mr. Myers succeeded to
his wife's 2/9 interest in Mr. Albert's residuary estate. Alta Frances Albert
also died, and she bequeathed her interest in her husband’s estate, in equal
shares, to her two grandchildren and two great-grandchildren. Appellant
and Cheryl are the only beneficiaries under Mr. Albert’s will who are still
living. There are now five living beneficiaries who became entitled to
distribution of the residuary estate following Mr. Albert’s death.
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From 1972 to the present day, over four decades, Appellant managed
and controlled the fourteen parcels of land listed in the inventory. She did
so under the language providing that decedent’s wife and daughters were
authorized to operate Mr. Albert’s farms as long as they could do so
profitably. During this period, three first and partial accounts were filed.
After the filing of the third and partial account, Mr. Myers filed exceptions.
Mr. Myers sought an end to Appellant’s stewardship over the land in
question and asked that the assets being managed by Appellant as executrix
be distributed to the beneficiaries under the residuary clause in the will.
The accounts established the following. When Mr. Albert died, all of
the land in question was farm land. Some parcels contained buildings being
rented to other people, one tract contained an airplane landing strip and
hangar, and some of the lots were wooded, untilled acreage. In 1972,
Appellant sold all the decedent’s farm equipment. The third and partial
account covered thirty-seven years, 1975-2012, during which time Appellant
operated and managed all of her father’s real estate.
During the course of those years, Appellant received rental income,
royalties from the extraction of natural gas, coal was mined, timber was
sold, rental was received from the residential real estate, and some of the
property was leased to farmers. Appellant derived income from the
properties that was sufficient to pay for upkeep, taxes, and various expenses
-3-
J-A20013-15
associated with the estate's properties with the exception of one year, when
Appellant had to sell a piece of land to maintain the other properties.
The orphans’ court reviewed the third and partial account and
conducted a hearing. Appellant conceded at the hearing that she was not
conducting any farming operations on any of the parcels of realty. During
ten of thirty-seven years covered by the third and partial account, no profits
were realized from the operation of the various pieces of land, and the
beneficiaries of Mr. Albert’s estate received no distributions. During 2006-
2007, Appellant had to sell a piece of land to cover upkeep and expenses.
Mr. Myers filed exceptions to the third and partial account. He
contended that Appellant was no longer permitted to operate the land owned
by Mr. Albert. He asserted various theories of relief: 1) Appellant was
entrusted with stewardship only over Mr. Albert’s farms, not all of his real
estate; 2) the clause required that the farms be operated as farms, which
was not occurring; 3) Appellant was not profitably operating the land; and 4)
the will provided that Appellant was not permitted to control the land alone
without any input from her two sisters and mother. Appellant countered
that Mr. Albert’s intent was that the estate remain open and that she
continue to manage and oversee all of the land owned by Mr. Albert when he
died, as long as she generated revenue from that real estate. She asserted
that, even though the clause only mentioned decedent’s farms, Mr. Albert,
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J-A20013-15
when he used the term farm meant all of his real estate and not just the
tracts of land that he was farming when he died.
After a hearing, the orphans’ court rejected Appellant’s positions. It
noted that the record established that decedent owned farms as well as real
estate that was not used to farm and that the language in the clause at issue
provided that his daughters and wife could continue to operate his farms.
The orphans’ court found that this language covered only the decedent’s
farms and that the clause in question also required that the farms be
operated as such. It also concluded that the land in question was not being
operated profitably. The court granted Mr. Myers’ exceptions and ordered
that the administration of the estate be concluded and the estate assets
distributed in accordance with the terms of the residuary clause.
This appeal followed.1 On appeal, Appellant raises this contention:
“Did the orphans[’] court commit an abuse of discretion or a clear error of
law in directing the termination of the business of the decedent's estate,
contrary to the terms of the last will of decedent?” Appellant’s brief at 4.
Our standard of review of an orphans’ court decree is deferential. In re
Fiedler, 132 A.3d 1010, 1018 (Pa.Super. 2016). When we review such a
____________________________________________
1
The order was appealable as of right under Pa.R.A.P. 342(a)(3) (“An
appeal may be taken as of right from the following orders of the Orphans'
Court Division . . . [a]n order interpreting a will or a document that forms
the basis of a claim against an estate or trust[.]”).
-5-
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decree, this Court “must determine whether the record is free from legal
error and the court's factual findings are supported by the evidence.” Id.
Of significance herein is that the orphans’ court operates as the finder of fact
and thus “determines the credibility of the witnesses and, on review, we will
not reverse its credibility determinations absent an abuse of that discretion.”
Id. An orphans’ court’s “decision will not be reversed unless there has been
an abuse of discretion or a fundamental error in applying the correct
principles of law.” Id.
Appellant’s attack on the orphans’ court decision is two-fold. First,
Appellant maintains there is nothing in the will requiring that the real estate
be operated as a farm, and the court’s decision to the contrary is erroneous.
Appellant’s brief at 12. As a subsidiary to this position, Appellant suggests
that the only reason proffered by Mr. Myers to obtain closure of the estate is
that enough time has passed and the estate should be concluded. Second,
Appellant argues that she has profitably managed the property in question
during the past forty-five years.
Initially, we examine the pertinent language of the will. It states, “In
as much as I am the owner of several farms, it is my wish that my
daughters and my wife operate said farms if it can be profitable done. If,
however, the same cannot be profitably operated, it is my desire that said
farms be sold and the proceeds divided as provided in this, my last will and
testament.” Last Will and Testament of Frank W. Albert, 11/23/68, at 1-2
-6-
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(emphases added). The inventory of the estate established that the
decedent owned fourteen separate pieces of real estate of varying acreage.
The accounts proved that many of those pieces of land were not farms; they
included property with buildings that were rented, including a parcel with an
airstrip and hanger, and wooded, untillable land.
The law is clear that a testator’s intent is the “the polestar in the
construction of his will[.]” Estate of Smertz, 701 A.2d 268, 270 (Pa.Super.
1997). “To ascertain that intent,” the Superior Court “must focus first on
the precise wording of the will; we may only resort to general rules of
construction if the testator's intent still remains uncertain.” Id. In this
case, the orphans’ court observed, and we concur, that the term farm is
clear and unambiguous and that only the land that Mr. Albert was farming
was subject to the clause in question. Cf. Estate of Getz, 618 A.2d 456,
457 (Pa.Super. 1992) (emphasis added) (wherein the testator allowed the
“executors, if they shall so elect, to continue and operate during the
administration of our estate, any farming operation, business or other
enterprises in which we are interested at the time of our death”).
The orphans’ court opined that the term at issue, farm, is completely
free of any ambiguity. It further noted that, “Nothing in the will suggests
that Mr. Albert intended the word ‘farm’ to mean anything other than the
common usage of the word namely ‘an area of land and its buildings used
for growing crops and rearing animals.’” Trial Court Opinion, 8/7/15, at 4.
-7-
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(quoting Compact Oxford English Dictionary, 361 (Oxford University Press
2005). The record irrefutably establishes that some of the fourteen parcels
of land owned by Mr. Albert when he died were farms while other tracts
were not used as farms. Under the clear and unambiguous language of the
will, Appellant, her sisters, and her mother, were entitled to operate only the
farms that Mr. Albert owned and not all of his real property, regardless of
whether it was a farm.
In an attempt to overcome the clear import of the language in
question, Appellant testified at the hearing that, by the term “farm,” Mr.
Albert actually meant all of his real estate. The orphans’ court
acknowledged that Appellant’s assertion was that the testator used the term
farm to encompass all of his realty, regardless of whether it actually was a
farm. It rejected that position because it required the review of extrinsic
evidence that “the Court cannot properly consider when discerning the
testator's intent from an unambiguous will.” Id. at 5.
The orphans’ court nevertheless did weigh Appellant’s testimony. It
stated that, “assuming arguendo, that the Court were to consider
[Appellant’s] contention that the testator intended farm to mean ‘the whole
conglomeration of what he owned,’ the Court remains unconvinced.” Id.
The orphans’ court observed that, in the residuary clause of the will, the
testator devised “‘[a]ll the rest, residue and remainder of my estate whether
the same be real, personal or mixed’ to his wife and daughters[.]” Id. Then,
-8-
J-A20013-15
in the clause under construction herein, Mr. Albert decided to “distinguish
the farms separately.” Id.
In addition, the orphans’ court rejected Appellant’s testimony that her
father used the term farm to encompass all of his real estate. It stated that
it found “no credible reason to believe that the Testator defined the word”
farm other than in accord with its common and ordinary meaning. Id.
(emphasis added). By stating that there was no credible reason to believe
that Mr. Albert meant to use the term “farm” to mean anything other than a
farm, the orphans’ court was discrediting Appellant’s proposition that her
father gave a tortured interpretation to the word “farm” by using it to mean
any real estate that he owned. As the sole arbiter of credibility in this
action, the orphans’ court was free to reject Appellant’s position that Mr.
Albert meant all of his real estate rather than just his farms when he used
the word “farm” in the clause in question. In accordance with our above-
elucidated standard of review, we are bound by that credibility
determination.
In light of our affirmance of the determination that Mr. Albert meant
his farms, we necessarily affirm the orphans’ court’s concomitant conclusion
that Appellant was not operating the land in accordance with the terms of
will because she was not farming the tracts under her control. The will
expressly states that, “it is my wish that my daughters and my wife operate
said farms if it can be profitably done.” Last Will and Testament of Frank W.
-9-
J-A20013-15
Albert, 11/23/68, at 1 (emphasis added). This wording evidences Mr.
Albert’s intent that his wife and daughters and wife operate the farms as
such.
The record establishes that none of the land is now being operated by
Appellant as a farm.2 She admittedly sold all the farm equipment in 1972,
as established by the second and partial account herein. At the hearing,
Appellant also acknowledged that she does not personally engage in any
farming activity. Only one piece of Mr. Albert’s land is being used as a farm,
but it is being rented to people who do the actual farming. We concur that
Mr. Albert’s intent was “that his daughters and his now deceased wife
operate the farms themselves, not rent the land out to others to farm.” Trial
Court Opinion, 8/7/15, at 6. Thus, the court’s decision rested firmly upon a
valid interpretation of the language of the will. Appellant was permitted
under the clause at issue to operate only what were decedent’s farms and
had to operate the farms as such.
The orphans’ court did observe that under Appellant’s position, the
estate could remain open indefinitely, to the detriment of the living
residuary-clause beneficiaries. Id. (“under [Appellant’s] interpretation of
the will the Estate may never close. The Estate may drag on in perpetuity
____________________________________________
2
We also observe that Appellant never attempted to establish which of the
fourteen pieces of real estate in her father’s estate were being operated as
farms when Mr. Albert died.
- 10 -
J-A20013-15
as long as the totality of the Decedent’s properties have an income that
exceeds its expenses”). However, this statement in the opinion was merely
an observation that was made after the orphans’ court conducted a cogent
analysis of the terms of the will at issue and after it properly applied the
pertinent law. Contrary to Appellant’s position, the statement in question
was not a basis for the court’s ruling that Appellant must wind up her
administration of the estate and distribute it to the present beneficiaries
under the residuary clause.
We likewise reject Appellant’s second position, which is that the “lands
have been managed effectively, profitably, and responsibly” since 1972.
Appellant’s brief at 12. The third and partial account established that in ten
of the thirty-seven years from 1975 to 2012, there were no distributions and
thus no profit from what constitutes a significant amount of real estate.
Although the third and partial account listed a $1,000 distribution in 2006
and 2007, it also established that a parcel of land was sold that year for
approximately $30,000. Hence, in 2006-2007, Appellant operated the land
at a loss, having to sell a tract in order to meet her operating expenses. An
asset cannot be considered profitable when it generates no income over
twenty-five percent of the time, and operates at a significant loss during one
year. We thus affirm the orphans’ court alternative basis for its conclusion
that Appellant is no longer entitled to operate the land and must end her
administration of the estate and distribute its assets to the beneficiaries of
- 11 -
J-A20013-15
the residuary clause. That basis was that the land was not being operated
profitably.
Mr. Myers makes another valid point in his brief. The will clearly
states that the farms were to be operated by the decedent’s wife and his
three daughters. This language obviously was intended to permit Appellant,
her mother, and her two sisters, acting in concert, to continue to farm the
land that Mr. Albert was farming when he died. Appellant’s mother and one
of her sisters are now deceased, and Appellant is managing all of the
estate’s assets by herself in her capacity as executrix. The language in the
will was not intended to create a fiat by which Appellant could retain control
of all of her father’s estate assets for over four decades to the exclusion of
any input from five of the people who are now beneficiaries of Mr. Albert’s
estate. For all of the foregoing reasons, we find that the orphans’ court did
not abuse its discretion and that it properly applied the controlling law.
Order affirmed.
Judge Musmanno joins the memorandum.
Judge Stabile concurs in the result.
- 12 -
J-A20013-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
- 13 - | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147444/ | J-S03044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: N.T., NATURAL MOTHER : No. 1466 WDA 2016
Appeal from the Order entered September 14, 2016
in the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-082-2016
BEFORE: OLSON, SOLANO, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 22, 2017
N.T. (Mother) appeals from the order entered September 14, 2016, in
the Court of Common Pleas of Allegheny County, which terminated
involuntarily her parental rights to her minor son, J.T. (Child), born in
August 2010.1 We affirm.
The orphans’ court summarized the relevant factual and procedural
history of this matter as follows.
Although dependency proceedings regarding Child have
only been before the [orphans’ c]ourt since 2014, the Allegheny
County Office Children, Youth and Families [(CYF)] has been
involved with Mother and Child since Child’s birth in 2010. CYF
became involved with Mother and Child due to concerns about
Mother’s substance abuse and mental health issues. CYF first
removed Child from Mother’s care by Emergency Care
Authorization (ECA) on December 19, 2014, when Child was four
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The order also terminated the parental rights of Child’s father, R.A. R.A.
has not filed a brief in connection with this appeal, nor has he filed his own
separate appeal.
J-S03044-17
years old. The [orphans’ c]ourt returned Child to Mother’s care
in a residential drug and alcohol treatment facility on January
13, 2015. The [orphans’ c]ourt adjudicated Child dependent on
January 28, 2015. On February 2, 2015, CYF again removed
Child from Mother’s care pursuant to a second ECA. The
[orphans’ c]ourt again returned Child to Mother on March 27,
2015. CYF removed Child for a third and final time on April 17,
2015. CYF placed Child in a kinship foster placement. CYF
moved Child to his current foster care placement on July 13,
2015. Child has remained in that placement since then. CYF
filed a petition to terminate Mother’s parental rights on May 2,
2016.
Orphans’ Court Opinion, 11/2/2016, at 1-2.
The orphans’ court conducted a termination hearing on September 2,
2016. Following the hearing, on September 14, 2016, the court entered an
order terminating Mother’s parental rights. Mother timely filed a notice of
appeal, along with a concise statement of errors complained of on appeal.
Mother now raises the following issue for our review. “Did the
[orphans’] court abuse its discretion and/or err as a matter of law in
concluding that termination of [Mother’s] parental rights would serve the
needs and welfare of the Child pursuant 23 Pa.C.S. §[]2511(b)?” Mother’s
Brief at 5.
We consider Mother’s claim mindful of our well-settled standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
2
J-S03044-17
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to Section 2511(a)(2), (8), and (b), which provides as follows.
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
3
J-S03044-17
to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
***
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed
from the date of removal or placement, the
conditions which led to the removal or placement of
the child continue to exist and termination of
parental rights would best serve the needs and
welfare of the child.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(2), (8), and (b).
On appeal, Mother concedes that CYF presented clear and convincing
evidence that her parental rights should be terminated pursuant to
subsection 2511(a). Mother’s Brief at 9 (“CYF, the petitioner, did clearly and
convincingly establish threshold grounds for termination pursuant to 23
Pa.C.S. §[]2511(a)(2).”). Thus, we need only consider whether the orphans’
4
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court abused its discretion by terminating Mother’s parental rights pursuant
to subsection 2511(b). The requisite analysis is as follows.
[Subs]ection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [subs]ection 2511(b) does not explicitly require a
bonding analysis and the term bond is not defined in the
Adoption Act. Case law, however, provides that analysis of the
emotional bond, if any, between parent and child is a factor to
be considered as part of our analysis. While a parent’s
emotional bond with his or her child is a major aspect of the
subsection 2511(b) best-interest analysis, it is nonetheless only
one of many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
Here, the orphans’ court found that Child has a bond with Mother, but
that this bond is detrimental to Child’s needs and welfare. Orphans’ Court
Opinion, 11/2/2016, at 4. The court further concluded that “any potential
damage that may result from prolonging this relationship substantially
outweighs the pain that may be caused by severing any remaining bond.”
5
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Id. at 4-5. The court emphasized the testimony of psychologist, Patricia
Pepe, Ph.D., who opined that Child’s contact with Mother should be
significantly decreased. Id. at 4.
Mother argues that the conclusion of the orphans’ court that Child does
not share an appropriate bond with her was not supported by clear and
convincing evidence. Mother’s Brief at 12-13. Mother contends that Child
loves her, and that terminating her parental rights will have a negative
impact on him. Id. at 12.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion by terminating Mother’s
parental rights to Child involuntarily. During the termination hearing, Dr.
Pepe testified that she conducted an individual evaluation of Mother on April
30, 2015, as well as an individual evaluation of Child on November 10, 2015.
N.T., 9/2/2016, at 6-7. Dr. Pepe also conducted an interactional evaluation
of Child and Mother on September 2, 2015, and interactional evaluations of
Child and his foster mother on December 29, 2015, and June 16, 2016. Id.
at 7-8.
Concerning Child’s relationship with Mother, Dr. Pepe testified that
Child clearly loves Mother and exhibited bonding toward her during their
interactional evaluation. Id. at 14, 17. However, Dr. Pepe expressed
concern that maintaining Child’s relationship with Mother appears to be
causing him significant confusion and distress. Dr. Pepe recalled that Child
was “having considerable conflict” around the time of the June 16, 2016
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interactional evaluation of Child and his foster mother, and was exhibiting
severe behavioral issues. Id. at 23. Dr. Pepe received collateral information
indicating that Mother was offered two visits with Child per week, but was
only exercising about one visit per month. Id. While Mother had the ability
to call Child on the phone, she had only made one phone call since January
or February 2016. Id. Mother also was making numerous “negative
comments” to Child around this time, which included telling Child that “he
was coming home and he had many new toys and new clothing[.]” Id.
When Dr. Pepe met with Child, Child reported that he “feels very sad
because he misses [Mother] and he worries about her, about whether she’s
going to show up for visits. And he said that he has to take care of
[Mother].” Id. Child further stated “that [Mother] tells him things on visits
that make him feel sad and confused and that, in his words he said he feels
sad and, quote, upside down.” Id. at 24.
Concerning the impact that terminating Mother’s parental rights would
have on Child, Dr. Pepe expressed concern that Child’s foster mother is not
currently a pre-adoptive resource, and that ending Child’s relationship with
Mother may not result in Child being placed in a permanent home. Id. at
31. Dr. Pepe also acknowledged that terminating Mother’s parental rights
would likely make Child “very sad.” Id. at 32. Nonetheless, Dr. Pepe
emphasized that Child is already very sad as a result of his continuing
relationship with Mother, and that Child “can’t continue like this because he’s
7
J-S03044-17
acting out behaviorally, and psychologically, he’s having a difficult time.”
Id. at 30-32. Dr. Pepe explained,
You know, I have difficulty with children becoming legal
orphans, but at the same time, [Child] has been too
disappointed. He is so reactionary to what [Mother] says and
does and doesn’t do and, ... it’s too overwhelming for him. I
mean, as he said, he just blanked out and he doesn’t know what
end is up, and that’s not fair to him because as long as there is
that confusing -- you know, that stance of anxiety and not
knowing what’s going to occur, that’s going to take away his
ability to develop stability and develop positive functioning.
So, you know, on one hand, it’s difficult, but I think at this
point, [Mother] having such a negative influence on him by not
coming to visit, by saying things to him, by confusing him, …
that’s also a concern.
Id. at 28.
Thus, the record supports the finding of the orphans’ court that
terminating Mother’s parental rights will best serve Child’s needs and
welfare. While Child loves Mother, it is clear that Child’s relationship with
Mother is not healthy, and causes him considerable emotional distress. It
was well within the court’s discretion to accept the testimony of Dr. Pepe,
and to conclude that Child simply “can’t continue like this,” and that the
benefits of ending Child’s relationship with Mother will outweigh any harm
that Child may experience. See T.S.M., 71 A.3d 251 at 271 (finding the
trial court erred in denying termination when, although there was a strong
parent-child bond, the trial court “failed to recognize the substantial,
possibly permanent, damage done to th[e] children by the prolonged,
unhealthy, pathological bond” they had with their mother.).
8
J-S03044-17
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by terminating Mother’s parental rights to Child
involuntarily, we affirm the court’s September 14, 2016 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
9 | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124965/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
June 27, 2016
Mr. Mike Morath Opinion No. KP-0099
Commissioner of Education
Texas Education Agency Re: Whether a school district board of trustees
1701 North Congress Avenue may enter into a contract for legal services
Austin, Texas 78701-1494 under a flat fee arrangement (RQ-0088-KP)
Dear Commissioner Morath:
Your predecessor asked for "guidance about whether an independent school district Board
of Trustees ... may lawfully enter into a contract for legal services that provides that the district
will pay a minimum flat fee for legal services regardless [of] how many hours are worked by the
law firm." 1 Your predecessor explained that a lawsuit was filed by the district and three individual
members of the Board of Trustees to challenge the closure of the district and future placement of
a board of managers after the district's accreditation had been revoked due to failed accountability
ratings. See Request Letter at 1; see also TEX. EDUC. CODE§ 39.102(a)(9), (b) (providing for the
appointment of a board of managers). According to your predecessor, the contract at issue is
reportedly for a flat fee of $300,000 which, at the law firm's alleged hourly rate of $400, would
cover up to 750 hours oflegal services, beyond which the district would be billed. Request Letter
at 1. But, as stated in the request letter, "the Board of Managers assumed control over the district-
and the Board of Trustees lost control of the district-subsequent to execution of the contract and
payment of the fee." Id. Your predecessor thus asked "whether this agreement may amount to an
unconstitutional gift of public funds" under article III, section 52(a) of the Texas Constitution. Id.
We have not been provided a copy of the agreement in question, nor does this office construe or
approve specific contracts. Tex. Att'y Gen. Op. No. KP-0041 (2015) at 4 (stating that
"construction of a contract is beyond the ·scope of an attorney general opinion"). While we cannot
provide a definitive answer regarding the legality of the contract in question, we can provide
general guidance about the questions your predecessor asked.
School district trustees generally "have the exclusive power and duty to govern and
oversee the management of the public schools of the district," including the authority to "sue and
be sued." TEX. EDUC. CODE§ 1 l.151(a)-(b); see also id. § l l.151l(c)(4) (authorizing a school
board to "enter into contracts"); Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 242 (Tex.
'Letter from Mr. Michael Williams, Comm'r of Educ., to Honorable Ken Paxton, Tex. Att'y Gen. at I
(Dec. 31, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"); see also
Letter from Mr. Mike Morath, Comm 'r of Educ., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 8, 2016) (on
file with the Op. Comm.) (confirming intention to proceed with the opinion request after succeeding Mr. Williams as
Commissioner of Education).
Mr. Mike Morath - Page 2 (KP-0099)
App.-Dallas 2000, pet. denied) (noting that "[s]chool board trustees have broad authority to
expend funds to ... initiate lawsuits in matters relating to their office and to district management").
In the exercise of this duty, a school board must stay within the bounds of article III, section 52(a)
of the Texas Constitution. This provision prohibits the Legislature from authorizing a political
subdivision, including a school district, to grant public money or anything of value to an
"individual, association or corporation." TEX. CONST. art. III, § 52(a). The purpose of article III,
section 52(a) is to prevent the gratuitous grant of public funds for private purposes. See Edgewood
Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995). The Texas Supreme Court has
recognized that an expenditure of public funds that is for a public purpose and that provides a clear
public benefit in return, however, is not an unconstitutional grant of public funds. See Texas Mun.
League Intergov 'tl Risk Pool v. Texas Workers' Comp. Comm 'n, 74 S.W.3d. 377, 383 (Tex. 2002).
The court articulated a three-part test to determine whether an expenditure of public funds
accomplishes a public purpose as contemplated by article III, section 52(a). Id. at 384. Based on
that test, the school board's expenditure for legal services would accomplish a public purpose
under article III, section 52(a) if (1) the expenditure's predominant purpose is to accomplish a
public purpose, not to benefit private parties; (2) sufficient control over the expenditure is retained
to ensure that the public purpose is accomplished; and (3) the school district receives a return
benefit. See id.; see also Tex. Att'y Gen. Op. No. GA-0076 (2003) at 6-7 (applying the three-part
test to a school district expenditure).
Regarding the first prong of the test, whether a public purpose is served by a particular
expenditure as contemplated under article III, section 52(a) raises fact questions that cannot be
answered in an attorney general opinion and would be a decision for the governmental body of the
school district to determine in the first instance, subject to judicial review. See Tex. Att'y Gen.
Op. Nos. GA-0076 (2003) at 7, KP-0056 (2016) at 2. However, an expenditure which incidentally
benefits another party is not invalidated under the constitution if it is made for the direct
accomplishment of a legitimate public purpose. Barrington v. Cokinos, 338 S.W.2d 133, 140 (Tex.
1960). Thus, an incidental benefit to individual trustees does not raise article III, section 52(a)
concerns if the contract is predominantly for the direct accomplishment of a legitimate public
purpose of the school district.
Regarding the second prong, your predecessor contended that "because
the ... Trustees ... no longer have authority to control litigation on behalf of the district, they
consequently have no means to ensure that the services provided are sufficient to accomplish a
public purpose for the district." Request Letter at 2. When a board of managers is appointed to
govern a school district, "the powers of the board of trustees of the district are suspended for the
period of the appointment," during which time the managers "exercise all of the powers and duties
assigned to a board of trustees ... by law, rule, or regulation." TEX. EDUC. CODE§ 39.l 12(a)-(b).
In some respects, this transfer of authority is effectively no different than when outgoing trustees
whose terms have ended are replaced by incoming trustees. See id. § 11.059 (b)-(c) (providing
for staggered terms of either three or four years). The principal constitutional concern regarding
control measures is not who is implementing them but whether such controls ensuring that the
expenditure serves a public purpose exist in the first place. In other circumstances, this office has
concluded that an agreement for legal services can itself provide the requisite control to satisfy the
requirements of article III, section 52(a). See Tex. Att'y Gen. Op. No. GA-0078 (2003) at 5
(concluding that a commissioners court could find that the terms of a proposed contract for internet
Mr. Mike Morath - Page 3 (KP-0099)
legal research services provides sufficient control to ensure that the public purpose is carried out);
see also Key v. Comm 'rs Ct. of Marion Cty., 727 S.W.2d 667, 669 (Tex. App.-Texarkana 1987,
no writ) (providing that contractual terms may suffice to provide the requisite control). Whether
sufficient controls exist in this specific contract is a question we cannot answer, but the fact that
the trustees have been replaced by a board of managers does not affect whether control measures
to ensure the expenditure serves a public purpose were put into place when the expenditure was
made. See Request Letter at 2.
Regarding the third prong, your predecessor questioned the return benefit provided to the
district, noting the possibility that the payment could constitute a "windfall" if the law firm worked
less than 750 hours. Id. Article III, section 52(a) requires that a return benefit be received in
exchange for the expenditure of public funds. Texas Mun. League, 74 S.W.3d. at 383. What
constitutes a sufficient return benefit in this case could depend on a number of factors in addition
to the number of hours oflegal services rendered, such as the complexity of the case and the quality
of the representation. Only sufficient-not equal--consideration is required to keep a political
subdivision's expenditure of public funds from being unconstitutional. Id. at 384. Under contract
law principles, a court generally will not inquire into the adequacy of consideration supporting a
contract. Parker v. Dodge, 98 S.W.3d 297, 301 (Tex. App.-Houston [1st Dist.] 2003, no pet.).
However, "if there is such a gross disparity in the relative values exchanged as to show
unconscionability, bad faith, or fraud," a court may examine the adequacy of the contract in the
interest of equity. Id. Under such circumstances, a question could arise as to whether the contract
provides a return benefit sufficient to satisfy the requirements of article III, section 52(a).
The Texas Supreme Court has explained that an expenditure of public funds must also
provide a clear public benefit in order to comply with article III, section 52(a). See Texas Mun.
League Intergov'tl Risk Pool, 74 S.W.3d at 383. Your predecessor alleged that "there is no
demonstrable public benefit to challenging closure of the district" and that, instead, the expenditure
"ultimately benefits the individual board member plaintiffs rather than the district." Request Letter
at 2. Whether the public would benefit from the expenditure is a fact question that would require
looking into the background of the contract. Such a determination cannot be made in the abstract
and is not appropriate for the opinion process. 2 See Tex. Att'y Gen. Op. No. KP-0091 (2016) at 2
("[f]act finding is beyond the scope of an attorney general opinion").
Your predecessor also asked whether an agreement including "a non-refundable flat fee for
[the] provision of future legal services" that was in violation of Rule 1.04 of the Texas Disciplinary
Rules of Professional Conduct (the "Rules") would violate article III, section 52(a). Request Letter
at 2. The Rules generally define proper conduct of attorneys for purposes of professional
discipline. See TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ir 10, reprinted in TEX.
Gov'T CODE, tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9). Rule 1.04 prohibits a lawyer
from charging an "unconscionable fee." Id. R. 1.04. "A fee is unconscionable if a competent
lawyer could not form a reasonable belief that the fee is reasonable." Id. R. l.04(a); see also id.
2
However, even as a theoretical matter, boundaries exist beyond which there is clearly no public purpose.
See Tex. Att'y Gen. Op. No. DM-431 (1997) at 1-2 (concluding that a county could not reimburse an incumbent
sheriff for attorney's fees incurred in defending an election contest because the contest involved only his personal
interest as a candidate and not his interest as a county official or the interests of the governmental entity).
Mr. Mike Morath - Page 4 (KP-0099)
R. 1.04(b)(8) (including "whether the fee is fixed ... before the legal services have been rendered"
among factors that may be considered in determining the reasonableness of a fee). The Texas
Supreme Court Committee on Professional Ethics has explained that while the Rules "do not
prohibit a lawyer from entering into an agreement with a client that requires the payment of a fixed
fee at the beginning of the representation," the deposit and treatment of such fees by a lawyer can,
under certain circumstances, result in a violation of the Rules. 3 Tex. Comm. on Prof'l Ethics, Op.
611, 2011 WL 5831792, at *2 (2011).
The Rules provide .an avenue for filing a grievance against an attorney under the Texas
Rules of Disciplinary Procedure. TEX. RULES DISCIPLINARY P.R. 2.10, reprinted in TEX. Gov'T
CODE, tit. 2, subtit. G, app. A-1. However, we find no authority for using an alleged violation of
the Rules as direct evidence of an unconstitutional expenditure under article III, section 52(a). To
the extent that underlying circumstances forming the basis for an alleged violation of the Rules
suggest that an expenditure does not comport with the requirements of article III, section 52(a), a
court would rely on the test in Texas Municipal League to make that determination. See, e.g.,
Morales v. Hidalgo Cty. Irrigation Dist., No. 13-14-00205-CV, 2015 WL 5655802, at *3 (Tex.
App.-Corpus Christi Sept. 24, 2015, pet. denied) (mem. op.) (applying the Texas Municipal
League analysis to an employment contract in the context of early termination).
Finally, your predecessor asked, in the event that the district severed the agreement with
the law firm, whether the firm's subsequent refusal to refund unspent funds would violate the
constitution. Request Letter at 2. As we understand the hypothetical, the expenditure of public
funds would have already occurred, and the issue would be whether the refusal of the law firm to
issue a refund would change the nature of the return benefit so as to potentially trigger
constitutionality concerns. Whether a public purpose is served by a particular expenditure as
contemplated under article III, section 52(a) is a determination for a political subdivision to make
in the first instance, subject to judicial review. Tex. Att'y Gen. Op. No. KP-0056 (2016) at 2.
Because such a determination is generally made at the time the contract is entered into, it is unlikely
that a court would consider conduct subsequent to the contract's execution, particularly the actions
of a private party, in determining whether the contract itself violates article III, section 52(a).
However, if the contract allows for the possibility that the law firm would not perform, it may raise
constitutional questions about whether sufficient control over the expenditure was retained to
ensure that the public purpose is accomplished.
3
In particular,
[a] lawyer is not permitted to enter into an agreement with a client for a payment
that is denominated a "non-refundable retainer" but that includes payment for the
provision of future legal services rather than solely for the availability of future
services. Such a fee arrangement would not be reasonable under Rule 1.04(a) and
(b ), and placing the entire payment, which has not been fully earned, in a lawyer's
operating account would violate the requirements of Rule 1. 14 to keep funds in a
separate trust or escrow account when the funds have been received from a client
but have not yet been earned.
Tex. Comm. on Prof! Ethics, Op. 611, 2011WL5831792, at *2 (2011).
Mr. Mike Morath - Page 5 (KP-0099)
SUMMARY
Under the test articulated by the Texas Supreme Court, a
school district's contract for legal services would violate article III,
section 52(a) of the Texas Constitution if (1) the expenditure's
predominant purpose does not accomplish a public purpose, but
instead benefits private parties; (2) sufficient control over the
expenditure is not retained to ensure that the public purpose is
accomplished; (3) the school district does not receive a return
benefit; and (4) the expenditure fails to provide a clear public benefit
in return. Whether a public purpose is served by a particular
expenditure raises fact questions that cannot be answered in an
attorney general opinion and would be a decision for the school
district in the first instance, subject to judicial review.
In utilizing this test to evaluate public expenditures, Texas
courts have suggested that (1) an incidental benefit to individual
trustees does not invalidate the expenditure if the contract is
predominantly for the direct accomplishment of a legitimate public
purpose of the school district; (2) the principal constitutional
concern regarding control measures is not who is implementing
them but whether such controls are put into place to begin with; and
(3) what constitutes an adequate return benefit depends on a variety
of specific circumstances but is called into doubt if there is such a.
gross disparity in the relative values exchanged as to show
unconscionability, bad faith, or fraud.
To the extent that circumstances forming the basis for an
alleged violation of the Texas Disciplinary Rules for Professional
Conduct suggest that an expenditure does not comport with the
requirements of article III, section 52(a), a court would rely on the
test articulated by the Texas Supreme Court to make that
determination. However, it is unlikely that a court would consider
conduct subsequent to a contract's execution in determining whether
the contract itself violates article III, section 52(a).
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
Mr. Mike Morath - Page 6 (KP-0099)
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKYP. CASARES
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289333/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DANIEL CARRASQUILLO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-722
[June 28, 2018]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Paul L. Backman,
Judge; L.T. Case No. 03-010700-CF-10A.
Daniel Carrasquillo, Lake City, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed.
GERBER, C.J., KLINGENSMITH and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4130638/ | THE ATTORXET GENERAL
OF TEXAS
Mr. Vernon M. Arrell Opinion No.JM-831
Commissioner
Texas Rehabilitation
Commission Re: Whether section 111.058
118 E. Riverside Drive of the Human Resources Code
Austin, Texas 78704-9983 authorizes the Texas Rehab-
ilitation Commission to
require applicants for
employment to provide copies
of their records on criminal
history, traffic offenses,
military service and other
matters relevant to screen-
ing applicant (RQ-1272)
Dear Mr. Arrell:
You have requested an opinion from this office. Your
request letter states:
Recently an applicant for employment with
the Commission truthfully reported, at the
time she completed her written application
for employment, that she had not been
convicted of a felony offense. After her
written application was filed, and before
her employment with the Commission, she
entered a plea of guilty to two felony
offenses.
It is the view of the Commission that
this example demonstrates the need for a
strengthened application for employment and
hiring process. Section 111.058 of the
Human Resources Code, V.T.C.A., authorizes
the Commission to secure only criminal
history information on applicants or clients
receiving services provided by the
Commission. No other law appears to
specifically authorize the Commission to
ti. 3980
Mr. Vernon M. Arrell - Page 2 6%831)
secure such information on applicants .for
employment with the Commission.
Therefore, your opinion is requested on:
1. Whether Section 111.058 of the Human
Resources Code, V.T.C.A., or any other law
or regulation prohibits the Commission from
requiring an applicant for employment with
the Commission [to produce] for inspection
by the CommissionJs personnel office a copy
of available records on the applicant which
might include a criminal history record,
traffic record, military record, and other
necessary records, as part of the applica-
tion for employment screening process: and
2. Whether, after completion of the
written application for employment in which
no felony conviction is recorded, but the
applicant has, in the interim, entered a
plea of guilty to a felony, the Commission
may terminate the new hire even though all
answers on the written application were
technically.truthful when made. In other
words, does an applicant have a continuing
duty to update his/her application with
correct information?
Section 111.058 of the Human Resources Code provides:
The commission may obtain criminal
history record information from the Board of
Pardons and Paroles, Texas Department of
Corrections, and the Texas Department of
Public Safety if the records relate to an
applicant for rehabilitation services or to
a client of the agency. The Board of
Pardons and Paroles, Texas Department of
Corrections, and the Texas Department of
Public Safety upon request shall supply the
commission criminal history record
information applying to applicants for
rehabilitation services or clients of the
commission. The commission shall treat all
criminal history record information as
privileged and confidential and for commis-
sion use only.
p. 3981
Mr. Vernon M. Arrell - Page 3 (JM-831)
In answer to your first question, statutes limiting
the powers of governmental officers and agencies are to be
narrowly construed. See. e.a Anderson v. Houchins, 99
S.W.2d 1029 (Tex. Civ. App. -'Galveston 1936, no writ); 47
Tex . Jur. 2d Public Officers 5110. Accordingly, if
section 111.058 dealt with applicants for employment with
the commission, it might be construed as the kind of
prohibition you mentioned, since it authorizes the
commission to obtain only certain information. This
section, however, applies not to applicants for employ-
ment, but to "applicant[s] for rehabilitation services or
to [clients] of the agency." It therefore has no bearing
on the issues raised in your request.
We have found no statute that expressly either
authorizes or forbids the commission to require job
applicants to submit the records listed in your first
question or to impose upon applicants the "continuing
duty" to which your second question refers. Laws that
confer powers on public officers and agencies, however,
implicitly permit that which is reasonably necessary to
implement those powers. Se , 9 Ft. Worth Cavalrv Club
v. Sheovard, 83 S.W.2d 660 TTez: ;435) ; Terre11 v. Soarks,
135 S.W. 519 (Tex. 1911). Section 111.018(a) of the Human
Resources Code states:
In carrying out his or her duties under
this chapter, the commissioner shall, with
the approval of the board,, make regulations
governing personnel standards, the
protection of records and confidential
information, the manner and form of filing
applications, eligibility, investigation,
and determination for rehabilitation and
other services, procedures for hearings, and
other regulations subject to this section as
necessary to carry out the purposes of this
chapter.
Section 111.020 provides:
(a) The commissioner shall, with the
approval of the board, establish appropriate
subordinate administrative units;
(b) The commissioner shall, under
personnel policies adopted by the board,
appoint the personnel necessary for the
efficient performance of the functions of
the agency.
p. 3982
Mr. Vernon M. Arrell - Page 4 (JM-831)
Section 111.023 provides:
The commissioner shall take other action
as necessary or appropriate to carry out the
purposes of this chapter.
In terms of the public welfare, the commission works
in a highly sensitive area. In view of this, we believe
that the authority to "make regulations governing
personnel standards," section 111.018(a), to "appoint the
personnel necessary for the efficient performance of the
functions of the agency," section 111.020, and to "take
other action as necessary or appropriate to carry out the
purposes of this chapter," section 111.023, necessarily
implies the authority to promulgate policies reasonably
calculated to insure the commission's ability to employ
only well-qualified personnel who pose no safety risk. We
further believe that this authority is sufficiently broad
to enable the commission to impose the continuing duty
mentioned in your second question and to require the
submission of the records listed in the first question.
Requiring applicants to submit this kind of background
information and to update their applications to reflect
felony guilty pleas is a measure reasonably designed to
secure suitable commission personnel.
This measure, moreover, would violate no privacy
right of a job applicant. Courts have recognized a
constitutional right not to have to disclose personal
information, a, Whalen v. Roe, 429 U.S. 589, 599 (1977),
but this right is limited. In Plante v. Gonzales, 575
F.2d 1119, 1128-36 (5th Cir. 1978), cert. denied, 439 U.S.
1129 (1979), for example, the court held that a state has
the power to compel the disclosure of otherwise private
information when its interest in that information
outweighs the individual's interest in nondisclosure. In
this instance, we believe that the Rehabilitation
Commission has a clear interest in requiring job
applicants to submit the information mentioned in your
questions, particularly in view of the sensitive nature of
the commission's work, regardless of whether that informa-
tion would otherwise be .private. This situation is akin
to that involved in Shoemaker v. Handel 619 F. Supp. 1089
(D.N.J. 1985), aff'd, 795 F:2d 1136 i3rd Cir.), cert.
denied, 107 S. Ct. 577 (1986), where the New Jersey Racing
Commission required horse racing jockeys to submit
certification forms indicating all prescription and non-
prescription medications used. Noting that the commission
maintained the confidentiality of this information with
respect to the public, the court held that the commission
P. 3983
Mr. Vernon M. Arrell - Page 5 (.x4-831)
had a legitimate interest in obtaining this information in
view of its interest in strictly regulating the racing
industry "to presence and promote its safety and
integrity." 619 F. Supp. at 1106. Because this interest
outweighed any privacy interest of the jockeys in not
having to disclose the information to the commission, the
commission's rule requiring such disclosure violated no
privacy right.
In summary, we believe that the Rehabilitation
Commission is authorized to require job applicants to
submit the records listed in your first question and to
impose on applicants the continuing duty to which your
second question refers. Requiring the disclosure of this
information to the commission would violate no privacy
right of the applicants.
SUMMARY
The Texas Rehabilitation Commission may
require job applicants to submit available
records, including criminal history,
traffic, military, and similar records, as
part of the application process, and it may
impose on applicants a duty to update their
qt;cat;;is to reflect guilty pleas entered
application was submitted.
Requiring the disclosure of this information
to the commission would violate no privacy
right of the applicants.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jon Bible
Assistant Attorney General
p. 3984 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130651/ | THE ATTORSEY GESERAL
OF TEXAS
October 29. 1987
Honorable Dale Hanna Opinion No. m-818
Johnson County Attorney
Johnson County Courthouse Re: Whether a commissioners
Cleburne, Texas 76031 court is authorized or re-
quired to fund an independ-
ent audit of the county
clerk's office under certain
circumstances
Dear Mr. Hanna:
You ask:.
Can or must the commissioners court of
Johnson County, Texas pay for an independent
audit of the county clerk's office which was
done at the request of the county clerk
without prior commissioners court approval
in preparation for his trial on a charge of
theft and which resulted in his acquittal?
You furnish the following factual background:
During the summer of 1986 a misdemeanor
indictment charging theft was filed against
the county clerk of Johnson County, Texas.
The allegation was that the county clerk had
taken money from the office for personal
use. A jury trial was held and the county
clerk was found not guilty in October, 1986.
During the course of preparing for trial,
the county clerk hired an independent C.P.A.
'to do an audit of his office. This was done
at a cost of $7,700.00. After the trial,
the county clerk at a meeting of the Johnson
County commissioners court on December 8,
1986 asked the commissioners to consider
reimbursing him for the audit in view of his
acquittal and in view of the many recommen-
dations made by the independent auditor
p. 3879
Honorable Dale Hanna - Page 2 (JM-818) I
resulting in improvements in internal finan-
cial controls in the office of the Johnson
county clerk's office.
Additional factual information furnished by YOU
reflects that there was no reDresentation bv the county
clerk or anvone else that the countv was to be resDonsible
for the audit and there was no knowina acceDtance of
benefits bv the county.
At the time of the acts in question, article 1641,
V.T.C.S. (codified by the 70th Legislature as section
115.031 of the Local Government Code), provided in
pertinent part:
Anv Commissioners Court, when in its
iudoment an imDerative Dublic necessitv
exists therefor. shall have authoritv to
emDlov a disinterested, cornDetent and exDert
public accountant to audit all or any part
of the books, records, or accounts of the
county: or of-v district. countv or
precinct officers agents, or employees,
including auditors'of the counties, and all
governmental units of the county, hospitals,
farms, and other institutions of the county
kept and maintained at public expense, as
well as for all matters relating to or
affecting the fiscal affairs of'the county.
The resolution providing for such audit
shall recite the reasons and necessity
existing therefor such as that in the
judgment of said court there exists official
misconduct, willful omission or negligence
in records and reports, misapplication,
conversion or retention of public funds,
failure in keeping accounts, making reports
and accounting for public funds by any
officer, agent or employee. . . . (Emphasis
added.)
Article 1641 further provides the manner for giving
notice of such resolution and its adoption by the commis-
sioners court. It also requires that any contract entered
into by the court for such an audit shall be made in
accordance.with the statutes applicable to the letting of
contracts by the court.
p. 3880
Honorable Dale Hanna - Page 3 (J+818)
Article 1641 is explicit in vesting authority to
contract for an audit solely in the commissioners court.
Moreover, article 2351(10), V.T.C.S. (codified by the 70th
Legislature as section 115.031 of the Local Government
Code), provided at the time in question that the
commissioners court shall audit and settle all accounts
against the county and direct their payment. &S Attorney
General Opinion JM-725 (1987). 'Under the scenario you
have provided, the commissioners court did not enter into
the contract for the independent audit of the county
clerk. Clearly, there was no express contract upon which
the county is liable for payment of the audit.
Under certain circumstances, a county or city can be
held liable for benefits under a contract which is not
made in conformity with the constitution, state statute or
city charter. In Harris Countv v. Emmite, 554 S.W.2d 203
(Tex. Civ. App. - Houston [lst Dist.] 1977, writ dism'd),
the appellate court found that there was "some evidence"
which would support a jury finding that the county "know-
ingly accepted benefits" where the evidence reflected the
following:
Plaintiff and Harris County Commissioners
Court entered into two successive written
employment contracts providing that plain-
tiff would perform consultation services for
the county's Manpower project for a stipu-
lated number of hours at a stipulated hourly
rate. A third contract was prepared and the
plaintiff, in anticipation of its execution,
worked an additional 50 hours, but it was
not executed by the Commissioners Court and
plaintiff was not paid for that work.
. . . .
The record contains several references to
the county's knowledge, through its
representatives other than Commissioners
Court, of plaintiff's additional services.
Mr. Jeff Campbell, then director of the
Harris County Manpower program, testified
that he had asked plaintiff to continue with
his work pending the authorization of the
third contract, since the program#s standard
procedure was to pay for these over-runs by
making the contracts retroactive. co1 .
Dittman, iiason between Mr. Campbell's
p. 3881
Honorable Dale Hanna - Page 4 (JM-818)
department and the county judge , was
informed of the over-run and approved
it. . . . Mr. Campbell answered the
following guestion--
Q. Do you think that the over-run work
was beneficial to the county?
A. Absolutely.
544 S.W.2d at 204.
The court stated that the following principles of law
govern in such circumstances.
*It is the settled law in this State, as
established by the decisions of this court,
that where a municipality knowingly receives
property or services or an agreement which
it had power to enter into as a contract,
but which was not legally entered into so as
to make it binding as a contract, it will be
compelled to pay the reasonable value of the
property or services so received, as on an
implied contract. In such instances it is
not correct to say that the municipality is
estopped to deny that the illegal agreement,
as such, is a binding contract. The rule
correctly stated is that in such instances
the municipality is liable on an implied
contract to pay the reasonable value of the
property or services furnished to and
accepted by it. In the instances under
discussion the illegal agreement is not
enforced as a contract. To the contrary,
the illegal agreement such ' not
enforced at all. The %tract Fiat is
enforced is one that the law implies,
because justice demands that a municipality
shall not be permitted to receive and retain
the benefits of an agreement without paying
the reasonable value of such benefits.#
!Citv f Ho St Finn, 139 Tex. 111, 161
S.W.2: 776"(1::2;.
544 S.W.2d at 204-05.
Unlike !&unite, under your factual scenario you state
there was never any representation by anyone that the
p. 3882
Honorable Dale Hanna - Page 5 (JM-818)
county was to be liable for the audit and there was no
knowing acceptance of benefits by the county. It is our
opinion that under the foregoing facts the county is not
liable under the theory of implied contract for the cost
of the audit.
You also ask if the county is authorized to pay for
the audit. That which the commissioner's court could
authorize in the first instance could be ratified by it at
a subsequent date. Wilson v. Countv
s.W.2d 393, 397 (Tex. Civ. App. - Carp:: C,'~%n'l9~~~
writ ref'd n.r.e.). This principle of law was applied in
Anaelina Countv v. Kent, 374 S.W.2d 313, 317 (Tex. Civ.
APP. - Beaumont 1963, no writ), where it was stated:
The fifth point asserts that since no
official action was taken by the Commis-
sioners Court instructing Kent to proceed
with the final plans, the Court acts only as
a body. and through its minutes, Kent was
entitled to recover only for the sum of
$2,000.00 representing his work on the
Hill-Burton Fund application. The answer to
this is 'that what the Commissioners Court
could approve in the first instance, it may
ratify, and its order and resolution of
December 30th, 1958, clearly ratified the
work he had done to that time.
This raises the question whether the commissioners
court of Johnson County could have entered into a contract
for an independent audit of the county clerk under the
provisions of article 1641 at the outset. This would
require the commissioners court to make a determination of
whether in its judgment an imDerative DUbliC necessity
existed for such audit. In addition the commissioners
court must comply with the other requirements of article
1641. It is our opinion that the commisioners court may
pay for the audit if it chooses to ratify the
authorization of such audit in accordance 'with the
requirements of article 1641.
SUMMARY
JohnsonCounty is not liable to pay for
an independent audit of the county clerk of
that county which was done at the request of
the county clerk. The commissioners court
of Johnson County may pay for the audit if
p. 3883
Honorable Dale Hanna - Page 6 (JN-818)
it chooses to do so by ratifying the hiring
of the independent audit or in accordance
with the requirements of article 1641,
V.T.C.S. (now codified as section 115.031 of
the Local Government Code).
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3884 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130675/ | September 24, 1987
Honorable Bill Baumann Opinion No. JM-794
Potter County Attorney
303 Courthouse
Amarillo, Texas 79101 Re: Whether meetings of a Health
Facilities Development Corporation
Mr. John A. Fairman created pursuant to article 1528j,
Director V.T.C.S., are subject to the
Harris ,CountyHealth Facilities Open Meetings Act, article 6252-17,
Development Corporation V.T.C.S.
8203 Fawn Terrace
Houston. Texas 77071
Gentlemen:
You ask whether meetings of the board of directors of a Health
Facilities Development Corporation created pursuant to article 1528j,
V.T.C.S., must be held in compliance with the Texas Open Meetings Act,
article 6252-17, V.T.C.S. The Open Meetings Act applies to every
"meeting" of a "governmental body." See art. 6252-17. 52(a). Whether
the corporation is subject to the Opeaeetings Act depends on whether
the corporation falls within the act's definition of a "governmental
body."
Section l(c) of the Open Meetings Act defines a "governmental
body" as
any board, commission, department, committee, or
agency within the executive or legislative
department of the state, which is under the
direction of one or more elected or appointed
members; and every Commissioners Court and city
council in the state, and every deliberative body
having rulemaking or quasi-judicial power and
classified as a department, agency, or political
subdivision of a county or city; and the board of
trustees of every school district, and every
county board of school trustees and county board
of education; and the governing board of every
special district heretofore or hereafter created
by law.
p. 3753
Honorable Bili Baumann
Mr. Jchn A. Fairman
Page 2 (5X-794)
.
In Attorney General Opinion JM-340 (1985), this office indicated
that this definition comprises four parts. The first part describes
the stace-level governmental entities that are subject to the Open
Meetings Act. The remaining three parts describe the specific local
governmental entities that are subject to the act. For a local level
entity to be a "governmental body" within the meaning of section l(c)
of the act it must be included expressly in one of the three specific
descriptions of local governmental bodies. Attorney General Opinion
JM-340; -
see Attorney General Opinion JM-183 (1984).
The Bealth Facilities Development Corporations at issue here are
nonprofit public corporations created pursuant to article 1528j,
V.T.C.S. The purpose of article 15283 is to enable cities, counties,
and hospital districts to create corporations with the power to
provide, expand, and improve health facilities to improve the
adequacy, cost, and accessibility of health care, research, and
education in Texas. Art. 1528j. 51.02. Such corporations have
extensive authority, including the authority to issue revenue bonds
and notes, to accomplish these purposes. See id; sec. 4.01. An
article 1528j corporation can be created onlybyaTsponsoring entity"
-- a city, county, or district as defined in the act. Each
corporation must remain under the supervision of its sponsoring
entity. Art. 1528j; §4.01(14). Sponsoring entities cannot delegate
to article 1528j corporations any sovereign powers of the state or of
the sponsoring entity. See & The corporations have only the powers
authorized under articleT28j.
In Attorney General Opinion m-596 (1986), this office addressed
a similar question: whether nonprofit water supply corporations are
subject to the Open Meetings Act. Like the corporations at issue in
Attorney General Opinion m-596, the corporations authorized by
article 15283 are not entities within the executtve or legislative
branch of state government. Nor do they fit within the specific local
governing entities listed in section l(c) of the Open Meetings Act.
Because an article 1528j corporation cannot exercise delegated
governmental functions, it cannot reasonably be characterized as a
"department, agency, or political subdivision" of its sponsoring
entity, as those terms are used in the Open Meetings Act. See
Attorney General Opinion a-596; see also Attorney General Opine
JM-183 (1984). Nor is a nonprofit public corporation reasonably
characterized as a "special district." A special district is a
governmental entity, usually with taxing authority, created to provide
special rather than general governmental services in a specific
locality. See Black's Law Dictionary, 5th ed. Although both special
districts and nonprofit public corporations often serve to bypass
normal governmental borrowing limits, a nonprofit public corporation
cannot ordinarily be characterized as a special district.
p. 3754
Honorable Bill Baumann
Mr. John A. Fairman
Page 3 (m-794)
Of course, a public corporation's enabling statute may provide
expressly that such corporations must comply with the Open Meetings
Act. See Attorney General Opinion JM-120 (1983). Article 15283 does
not, however, provide that Health Facilities Development Corporations
must comply with the Open Meetings Act.
SUMMARY
A Health Facilities Development Corporation
created pursuant to article 1528j, V.T.C.S.. does
not fall within the definition of a "governmental
body" under section l(c) of the Texas Open
Meetings Act, article 6252-17, V.T.C.S., and
therefore need not comply with the Open Meetings
Act.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 3755 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130875/ | TEE ATTORSEY GENERAL
OF TEXAS
December 24, 1986
Honorable Roy Blake Opinion No. JM-594
Chairman
Committee on Administration Re: Whether a county judge
Texas State Senate may also serve as director of
P. 0. Box 12068 a river authority
Austin, Texas 78711
Dear Senator Blake:
You inquire about the legality of an elected official who serves
with pay also serving as director of a river authority. You state
that a director of the Angelina and Neches River Authority has been
elected to the office ~of c&nty judge in Cherokee County, to .a term
beginning January 1, 1987. You wish to know whether he may serve in
both positions.
Article XVI, section 40, of the Texas Constitutiowprovides the
answer to your question. This constitutional provision states as
follows:
Sec. 40. No person shall hold or exercise at
the same time, more than one civil office of
emolument, except that of Justice of Peace, County
Commissioner . . . [other exceptions not applic-
able] unless otherwise specially provided herein.
Tex. Const. art. XVI, section 40.
A director of the Angelina and Neches River Authority occupies a
civil office of emolument. Management and control of the affairs of
the district is vested in the board of directors, which consists of
members appointed by the governor and confirmed by the senate. Acts
1935, 44th Leg., ch. 97, 54 at 239; Acts 1945, 49th Leg., ch. 287 at
456 (formerly codified as V.T.C.S. art. 8280-108, §4). Various
governmental powers are conferred upon the directors of the river
authority, including the power to issue notes and other obligations
secured by revenues of the district. See Acts 1935, 44th Leg., ch.
97, 9511, 14-18 at 241, 242-6. The directors are to receive ten
dollars for each day of service necessary to carry out their duties,
provided that the service is authorized by vote of the board of
directors. Acts 1935, 44th Leg., ch. 97, $8 at 241. The directors of
p. 2653
Eonorable Roy Blake - Page 2 (JM-594)
_-.
the river authority exercise sovereign functions of the government
largely independent of the control of others, and they receive
compensation for serving. See Aldine Independent School District v.
Standley, 280 S.W.2d 578 mx. 1955). They are therefore civil
officers of emolument within article XVI, section 40, of the Texas
Constitution. See also Attorney General Opinions JM-172 (1984)
(directors of river authorities are not included within exemption in
article XVI. section 40 for directors of soil and water conservation
districts); M-45 (1967) (director of Water Control and Improvement
District occupies civil officer of emolument); O-490 (1939) (director
of Brazes River Conservation and Reclamation District occupies civil
office of emolument).
A county judge occupies a civil office of emolument. See Tex.
Const. art. V. 515, see also Attorney General Opinion V-15417952);
Letter Advisory No. 61 (1973). He does not fall within any of the
exceptions to article XVI, section 40. County commissioners are
excepted from that provision, but even though the county judge pre-
sides over the commissioners court, he occupies a distinct-elective
office with duties that differ from those of the four county commis-
sioners. See e.g.; Tex. Const. art. V, 0415, 18; art. XVI, 565.
Article XVI, section 40, of the Texas Constitution bars one
person from servini as director of the Angelina and Neches River
Authority and at the same time serving as a county judge. In this
case, the individual's qualification for the office of county judge
operates as a resignation from his office as director of the river
authority. See State ex rel. v. Brinkerhoff, 17 S.W. 109 (Tex. 1886).
The office ofdirector thereby becomes vacant.
SUMMARY
Article XVI, section 40, of the Texas Constitu-
tion prevents one person from serving as a county
judge and as director of the Angelina and Neches
River Authority.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
p. 2654
Honorable Roy Blake - Page 3 (JM-594)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2655 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144075/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable W. Lee O*Daniel
@overnor oi Texas
Austin, Texas
Deer Qovernor OlDanlelt Opinion
No. O-8313
Ret Whether or not the Qulf
Coast Water Company ia a
utility oompany "02 any
kind or charaoterwhatsoever*
within the manin& of Seotlon
,/' 3, Aots 1934, 4Srd Leg., 4th
,/ 0. S., Ch. 7, page Z3.
We reaeived ~your’ist+m dated June 15, 1940, requwt-
ompany was lnoorporetedin 1931
er to the publio for frrigation,
The Company apparent-
8 of Art1016 1308, Re-
elaum* in its oherter
go in eald article. It
authority uuder it8
which has been deolarad
Se0 Gulf States Utllitlss 00..
rror Refucred).
e been informed that the Gulf Oaaat Water Uom-
l.of Its water from the OoLorado RIveri that
the ooroganyhas approximatelyninety (90) oontraote for the
furnishing Or water to rios famere for irrigationpurpo444;
that the oorapanyfurnished water yaerly to irrigatr approximate-
ly thirty thousand (30,000) aores of land; that the aoazpanyowns
pumping plants, oanelr, laterale,ditohes, eto., used in furnlsh-
Ronoreble I?,lea O*Denlel,paga 8
fog water to Its ouetomere and that the company doer not own
eny lntereat in the land farmed to rlae.
Wa deem it neceeeary to quote e part of section 3,
botcr1934, 43ra Leg., 4th Oalled 866dlion, Oh. 7, at pccge33
alnoe your puery arises by 7irtua of the provleione of eala
Aat. Said aeotlon reefla,in par6, as follower
*That no gereon shall ho eligible for suoh
appointment (to the boera of Qireators OS the Iawer
Colorado River Authority) if he haa, during the pre-
cadlna three yearr berore his enrointmantbeen (IDI-
ployeb:by en eleotrio pewer and-light company, gar
Berore determiningwhether the dulf Ooaet water Company
is a uttlltp oompanywlthln the meaning of the Aoh oreatlng tha
l.ower Colorado River Authority, it 18 proper to ooneider the erl-
dent intent of the legislature in eneating the6 per6 of the above
mentioned AoQ.
An inepeotion0r sallate Bill le?.8, Aete 43rd Leg.,
4th C. 8.. ch. 9, page 19, reveals that paver has been conferred
upon the Lower Colorado River Authority, eating threugh it8 alr-
eotore, to control, store, pre6brve, uee, dietributeand sell the
weterm of the Colorado River, 60 develop, generate, dietribute
and eel1 water power and sleatrloal enorgy, to oonstruct,mein-
taln, u8e ana operate tsoilitien,and meny ether poware toe nu-
meroue to mention here.
The legislatureintended thaf the afreotore of the
Lower Colorado Rirer Authority should be persons who would aot
for the bent intereetsof the.State. It there?ore sought to end
did disqualifythose persons from being appointed to the Board of
Direotors of the Lower Colorado River Authority whho,at the time
of egpointzent,had been employedby an utility oompsnywithin
three (3) yeere preaedingthe date od e appolntmen6. This safe-
guard waarenaoted to insure as far (18possible thet 6he affairs
of the l,owerColorado River Authoritywould be oarrlsd on to the
t
510
Reuoxable 1. Lea OvDanlel, page 3
best Interestsor the State rather than for the Interest of
private lndlvlduale.
In this aouuectlan,It has been aalled to our atten-
tlon that the Gulf Coast Water Corcpanyhas entered Into a aon-
traat with the Rorrd 0r Dlreators 0r the Lower Colorado River
Authority for the purahase or water. It 1s r4aUlIy seen that
it a alreator, Officer or other employee or the Gull boast Water
Wapany 18 eligible for the appOintdcent la question, he rr,lght
roll be mom InterestedIn seelug that the water oompany bene-
fited rather than in protectInS the best interest8 or the Stste.
Xn Title Xo. 188, Revised Clvll Lftatutee,
we flhd the
followl~ articles whlah we believe to be pertinent to the ques-
tlon herein involved. They are a8 followst
*Artlalr 7466. Public rights
=!fheaonservatlonand develnpmentor alt or
the natural resourae8 or thla State, 1ncIkQlngthe
aontrol. etorlm. 9reaervatlonand dletributlonof
Its stoim and rid water8, the waters 0r Its rivers
and streams ior irrigation,power and all other use-
?tulpurposes~ the reuu2m6ffonana Irrigation0r it8
aria, semi-aridand other lauds needing irrigation;
the realarcatlon and drainage of its overflowedlands,
and other lands needing drainage; the aonservatlon
and deveIapuent~.of Its forest, water and hgd?o-aleatrla
power! the navlgatlon of its inland aad aoastal waters,
ana tha preservationand oonservatlohoilall snah 1)1-
tural r46ources or the State dre each and all hersb
dealared DubHa right4 and dufi~;s.~Iunaerscorlngo&a)
7467. Property of the State
"Jirtlolo
*The watera Or the ordlasry flbw ana underflow
and tlaes of,every ilowing river or netural stream,
of all lakes, bays or am.6 or tFisGull of Kexlco.
and the eta&, fiood or rain watare or every rivb or
natural stream. eanvon. ravine. ao~r4ssloa or watar-
shed, within the StkePot 'Paxa;,ai?4h&by &cl&d
and the right t the
~roarlatldnin zhe
manner and ior-the us& and piwp%ee-hereinafter pro-
vlaea, and icaybe taken or diverted from its natural
channel r0x any 0r the purpo64s expreesed la this
chapter. Wen an appllaatlon16 aadr ror approprla-
c
Honorable W. L. OrDaniel, ~680 4
tion af suah water for mining purpoaea, the owner of
the land through which the water flows and whlah 28 to
be arpropristedahell here the prior right to agpropri-
ate dlamo,ana ehall be permitted to extrolse suah right,
although nuah owner mey not hsts mde appl2oatlonprior
to such eppliaationby another, and suah owner ahall have
only ten days aftor the notice of applicationto appro-
priate muoh water In whlcahto exeraiss his prior right
to appropriate,whiah he shall do by written application
filed with the Board of Water Xn&mers within suah
time.*
"Artiale 7858. Possessory tight
~till,ptrsana who owa or h0ia a passes6cry risht
or title to land adJoining cr aont2@ous to any dem,
re84rvoir, aanal, dltah, rlume or let4s%l, oonstruatoa
and maintained under the provisiona ot this ahapter,
and who shall have esaured B ri&t to the ~4% of water
in mild aand dltoh, iluin6,ldtcral, ~4%~0lf, aam
or lake, shali be entitled to be supplied iram suah
aanal, dltah, flume, lateral.,dam, nwrvolr or lake
with nater ror irrl@tlon of suah Xand, and for mining,
tilling, manufaoturlng, aevslopment0r power, ana
etoakralslng,In accordanctwl%h the tsrmr of hir or
their oontract."
"Artlale 7656. Failure to fasrqeupon pria*~
*ff the person, essoaletlon0r persona, or oor-
port&ion owning or controllingrush wetek, and the
person who own8 or hold8 a porssaaory rl&ht or tlfla
to land aajofnlng or .co;lt2g~?us to any eanrrl,ditah,
rliie or lateral, lake or remxvolr, aonstruat4dor
maintained unQ,erthe provl62onsof'this ahapter, fall
to aerse upon a price for a permanent~viater right, or
for the ~4 or rent@1 of the neeeasary water to lrrlgato
the land or such person, or for mining, milling, m4nu-
taoturing,the aevslogmentof power, or stook raising,
wch person, assoaiationof pereon8, 03 aorporatlon
#hall, nsver8helesa+If h4, they or it, h4v4 or aontral
any water not aontraatedto othrrs, ttmnish the neoes-
sary water to euah pareon to irrigate his lads or
ror mining, milling, manufcaatuing,the development
or power or atook ralalnq, at aueh prices as aball be
reasonableand .just, and without d2aarlsinaflon.~”
Honorable2. lee O'Daniel, page 5
WArticle 7565. Ford to fix rct68
"The said Ecoardshall have Rower and eidhcrity,
and it ~&till?e its duty to fix reasonablerates for
the furniSbiIl& 0r water for the puryoaes or any SW-
pose msntioned in this chapter."
Urticle 7370. Rules and regulctiansmate and
published
TWery p6rSon, aasooiation0r persone, oorporatlon,
or irrigationdistrict, coneervlngor 8uyFlyIngwater
for any of the purpoaea authorized by this chapter;
shall make and pu'bliahreeeonablerules and ngulatlonr
relating to the method and manner of sqgly, u6e en4
dietributionof rater, and prescribingthe time and
manner of making eppllaationfor the une of water and
payment therefor.W
*Article 7883. Additional right or way obtained
*Any person, asoooiatlon0r pereons, aorpcration,
irrigbtlm or water improvementdistrlot, or any oity
or town, may ale0 obtain the right 0r way over privatr
lend8 and ale0 the lonae tar pumping plants, intakes,
beadgates and atorace re8ervcslr8, by oondemnetlon,by
causing the darr%iges for any Drivets property appTopried.ed
by any euoh person, aoeooirtion0r persone, oorpor2tioq
water improvementor irrigation district or city or town,
to be aasesscd end paid for as provided.bythe Statutes
0r thic Stctc and ae prcvided in Title 5Z 0r this Aot
relating to 1E. minent Domain* provided, however, that
when the power granted by this section is eought to be
exeroiaedby any person or aasoolaticnof persons, but
net including irrigationoorporatlona,diatrfcte, cities
or towns, he or they shall first make appliceEtion to the
Doz~rdci :vaterHnginsers for suoh condemnationand said
Board shall make due inveatigotion entl if it deems ad-
visable ahall give notioe to the party ownihg the land
8oU@t to be oondemned, end after hearing, may institute
such oondsnn!Jtion prooeedingsIn the name of the State
d
OL Texes ror the use and benefit of said person or per-
sons and eL1 others aimllwly aitunted, the coats of
said cult and condamnationto be paid by the person or
persons at whooseinstance the same la Institutedin pro-
portion to the benefit8 reoeived by each a6 fixad by
eaid board and to be paid before use is mrd
Honorable E. Lee C'Daniel,Rags 6
of Water Rnginvieraand ii euoh appllotiticnis granted
shall pay lees and clxrges 68 may be fixed by the
Bocrd."
The ?asr6 of Water Engineer8 is vested with broad pow-
ers in regulating the use o? water over whloh It has regulatory
ocntrol. Reoause the Gulf Coast Water Company takes all of its
weter out of the Colorado River and rdsllait to rioe farmers
for t!lerurpoae of irrigating rios land, the raid oompmny is
subject to regulationby the Roerd of Watsr Engineers ae pro-
vided in Title 128, Revised Civil Statutes. Artio1e 7555, 8upra,
provides that the furnisher of water must supply water to *all
persons who own or bold a possesscry right or title to land ad-
joining or oontiguouato any den, rcwervclr,tanal, ditch, flume
or letcrel*when they shall have asoured a rl ht to the use OS
the water. \:eare lnforrced that some ninety 790) persona have
secured the right to receive the water from the Gulf Coast Wa-
ter Company.
Artioies 7556 and 7557, provide, thst water must be
supplied at suoh prices as shall be rsaeoneblsandwlthout die-
or#dntition. Artiole 755.5$ivrs the Roard ot Water Engineers
power end authority to fix reasonablerntes lor the use of the
water. Article 7570 reqtirae the furnisher of water to make and
publish reasnncblerules and regulationsrslatiq to the manner
and x&hod of supply, usa and distribution,and preeorlblng
the time and manner OS making applloatlanfor the use of water
and ya~ymenttherefor,
krtiole 9883 grants irrigationoonpaniesth,sright
of eminent doma:n. To make oertein that irrigationocn5p4aie4
had the right to condemn land under Artlols 7583, the 44th
Xegislature,Reguler Eession, 1935, enaotsd Senate Bill Roe.
155, Ch. 48, page 126, clarifying aaid article. The emergency
oleuse of said Aot reads aa follows:
"b00. 2. The Sect thet under the oodlfioation
of 1925 the oodiilsrs, or else the printers, left a
question unCer the new laws of 1925 as to the power4
9f irrigationcorpora,tions to oondtvmnlend, whioh
power has a,lwaysbeen expressly reoogninedin Texas,
and it is necessary to clear up the question and it
is vital to the agriculturaldevelopmentof this Stats,
oreates an emargenoy and on imperativepublic neoeselty
513
Honorable W. Leo O*Daniel,page 7
that the ConstitutionalRule requiringbills to be
read on three several days la each House be surpended,
and the name is hereby suspended,and that thlrrAot
take effeot and be in foroe from and after its passage,
and it is 80 eneoted.n
In the oase of Colorado Canal Co., vs. KoFarland and
5outhwel1,94 8. W. 400, the Court of Civil ~ppealr went LIOfar
aI to sag that the possessionof the right of anbent domain
flxad the status of an Irrigationoompany as a quart publfa
corporationregardlees of whether it exerolnesthe power or not.
Wr. Justice Dibrall, speaking for the Supreme Court
of Texas in the oase of Raywood Rice, Canal and YillSng Co., vs.
V, F. Erp.and W. E. @right, 105 Texae 161, said:
*The granting of the power of eminent domain
imposes a public service in return. No authority
under our law exists ror conferringthe power at
eminent domain for private use. The moment suoh
p-or is granted the grantee beoomm quasi publio
in ohsraoter and while hi8 or Its funotlona are ex-
erolaed for prorlt they must be exeroieed in the in-
terent of the publio upon reasonableterme and without
dlaerlm,fnation.* e en
We quote from the oaee oi Amerioan Rio Wands Land and
Irrigation Co., vs. Mercedes Plantation Ce., 155 8. W. 886, (re-
r023d ani3 atrimed 208 6. w. 9041, as followa:
*Appellantoorporatlonwae organlsedand ohartsr-
sd under aeotion 11 o. El, p. 23, ot the dot8 of 1895
(R. 5. ~1911,art. !&02 at seq.), and follows the language
ot that aot In stating its purposes and powers. From
these powers grow, by operation of law, ita duties, which
cannot be #hanged or leeesnsd by Its intentions, In
Borden t. Rio8 & Irrigation Co., 981Tex. 404, %b 3. #.
11, 107 Am. St. Rep. 640, the Supreme Court of this state
held that euoh a oharter create8 a quasi publio oorpora-
tioa whiah is oharged with duties to the publio aoamienau-
rate with the powers candprivilegesoonferred upon it
by law. The Leglslsturein the above sot has not very
olearly doiined the rights of the publio nor the duties
of the eorporatlon, but a aartful rtudy of the langur,go
of the aot in the light of the well-eetablisbedprinoi-
pies OS law makes clam the meaning. As aptly raid by
the learned Judge who wrote the opinion in the Borden
c
DonorableW. I,eeO'Daniel,page 8
Caee the powers of the corporationare oonferred to
enae*ie It to approprlntewater and to convey it 'to all
persons entitled to the 8me$* to *all persons who OWA
or hold a poeeeseory right or title to land adjoining
or con"uiguous to any canal,* etc., aAd *bho shall h:ive
aacured a right to the use of water * * * in aooordance
with the terms of their oontraot.' In case-of a short-
age of water, a plan for prorating the supply is Fm-
vlded, and the sale of a permanentweter ri&t is made
an easement upon the land which will ycos with the title,
eto. It is further provided that in case no ecntreoi can
be agreed upon between the conamer and ttreIrrigation
company, the conauxer shnll neverthelessbe entitled to
water upon rez.scnable terms. Such lmgusge, aided by
the rule ot law that only puhlio or quasi puhllo aor-
porations are endowed with the power of eainent dozmln,
oan only bo understoodto mean that out of the grant of
power to the oor?oretlonahall grow, ipso faoto, the
right of the property owner to receive, upon reasonable
texvca,a fair proportion of the water taken from the
water ceurse and conducted through its oanals, and that
the power of the corporetionto contract for the aupplp
of water ia limited to such subjects a8 do not oonfllct
with the righte of the parties ae rlxed by the law.
In the Eorden Case the court, upon t,hla subject, aaid:
*The power to oontrtot,here given to the owmr of the
plant, oannot, if the business is to he regarded as
affected with a publia interest, be reaognized a8 ab-
solute and LIAoOAtrolled.Comon carriers aAd othera
engaged in publio oallings h:ve the power to Cantreat,
but it cexmot he 80 employed as to absolve them from
their duties to the puhllo or to deprive other8 of
their rights. Right8 hre evidentlysecured by this
statute to those 80 eitubted 38 to be able to avail
themselves of the water provfded for, and those rights
it is the duty of the owners of the contemplatedbusl-
ne38 to rospeot; ami the power to contract, under the
well-recngnizedprinciplea applicableto those oherged
with auah duties, mu& be exercised in subordinationto
suoh duties aAd rights. Reasonable contracts are what
this statute means, and not contrecteemployed as
evasions of duty.' 98 Tex. 511, 86 8. ?i. 15, 107 Am.
St. Rep. 640.”
See 8 a. 1. R. 968, 13 k. I. R, I.?27and 44 Tex. Jur.
339-369 for a full dlsousslon and oit&tioA of authOritio8oonoern-
ing the question of an irrigationcompany being a utility oom-
.
5513
Ronorable W. Lee O*Danial,pi-ee9
g-4.
Fran the above oiteb authorities,It ie apperent
that an irrigationoompany pamesses many of the attributes
oommon to the more generallyknowi utflity oompanies. Further,
it seems to ua that there ere a6 many reeson~~,it not more, for
alequalifyinga director, of’ffoeror employee of an Irrigation
oom~enp than there would be OS disqualifyinge direator, of-
fioer or employs of a gas or telephens oomgany. Certainly,
from e persoAa1 6teAdpoint,it would seem that e person in-
terested in e water oompeny is in a muoh better poaltlon to
profit from the appointmentin question than a person lnterest-
ed in a gas or telephoneoompanl.
For the reason* herein ststed~,ve are of the
opinion that the Gulf aoast Water Company 18 a utility oom-
pany rlthln the meaning of 8eotion 3, Aata 1934, &Ml Leg.,
4th a. a., ah. 7, p. es. It follewr that a director, of-
ifaer or other employee of said oompany is lnelig~blsto
be appointed to the Emord of Direotora of the Lower aoloredo
River Authority a8 provided in maid Aat.
Tows very truly
ATTORNRT QEW?AL OF T!XXAS
Leo 8hoptaw
LS:ZF
OPlNlON
GOMMI’lTEE: \ | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289321/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LEANNA HORNE,
Appellant,
v.
JASON COLBERG,
Appellee.
No. 4D17-3345
[June 28, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Debra Moses Stephens, Judge; L.T. Case No. 50-2017-DR-
009398-XXXX-MB (FD/TD).
Jane Woodfield Morin of Legal Aid Society of Palm Beach County, Inc.,
West Palm Beach, for appellant.
Ade Griffin, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
GERBER, C.J., GROSS and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4405741/ | IN THE SUPREME COURT OF TEXAS
══════════
No. 18-1099
══════════
JCB, INCORPORATED, D/B/A CONVEYING & POWER TRANSMISSION SOLUTIONS,
APPELLANT,
v.
THE HORSBURGH & SCOTT COMPANY, APPELLEE
══════════════════════════════════════════
ON CERTIFIED QUESTIONS FROM THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
══════════════════════════════════════════
Argued March 13, 2019
JUSTICE BLACKLOCK delivered the opinion of the Court.
This opinion addresses two questions of Texas law certified from the United States Court
of Appeals for the Fifth Circuit. 1 Our jurisdiction to answer these questions comes from article V,
section 3-c of the Texas Constitution. The questions concern the damages and attorney’s fees
available under chapter 54 of the Business and Commerce Code, also known as the Texas Sales
Representative Act. TEX. BUS. & COM. CODE §§ 54.001–.006. We accepted the questions 2 and
answer them below.
1
See TEX. R. APP. P. 58.
2
62 Tex. Sup. Ct. J. 178 (Nov. 30, 2018).
I. Factual, Legal, and Procedural Background
The disputed portion of the statute provides:
§ 54.004. Damages
A principal who fails to comply with a provision of a contract under Section
54.002 relating to payment of a commission or who fails to pay a commission as
required by Section 54.003 is liable to the sales representative in a civil action for:
(1) three times the unpaid commission due the sales representative; and
(2) reasonable attorney’s fees and costs.
TEX. BUS. & COM. CODE § 54.004.
The Fifth Circuit sets out the following undisputed facts, which we supplement with
undisputed facts provided by the parties and district court. Plaintiff JCB, Inc., d/b/a Conveying &
Power Transmission Solutions (“JCB”), was a commissioned sales representative for Defendant
Horsburgh & Scott Company (“Horsburgh”), a manufacturer of gears and gearboxes. Under a
written agreement, JCB’s commissions were due “on approximately the 10th of each month
following the payment of a commissionable order by the customer to [Horsburgh].” The parties
later terminated that agreement but separately agreed that Horsburgh would pay commissions on
orders received up to May 24, 2015. JCB claims Horsburgh owed approximately $280,000 in
commissions under these agreements. JCB claims all these commissions were paid late, while
Horsburgh says only some were paid late.
In March 2016, Horsburgh told JCB it could either accept further delays in payment or
accept reduced commissions. JCB rejected these options and sued Horsburgh for treble damages
and attorney’s fees under section 54.004. Prior to the suit, Horsburgh made some commission
payments. When suit was filed, Horsburgh still owed commissions totaling $77,000–$90,000.
The case was removed to federal court. While the case was pending, Horsburgh paid all remaining
2
commissions plus approximately five percent interest. Horsburgh then moved for summary
judgment.
The federal district court granted summary judgment for Horsburgh. The court’s opinion
briefly addressed the applicability of section 54.004. The court found persuasive Horsburgh’s
argument that “the Act does not apply because it only applies to unpaid commissions, and all of
the commissions owed [to JCB] have been paid.” JCB, Inc. v. Horsburgh & Scott Co., No. 6:16-
CV-146-RP, 2017 WL 6805045, at *4 (W.D. Tex. Oct. 25, 2017).
The Fifth Circuit certified the following questions to this Court:
(1) What timing standard should courts use to determine the existence and
amount of any “unpaid commissions due” under the treble damages provision
of TEX. BUS. & COM. CODE § 54.004(1)?
(2) May a plaintiff recover reasonable attorney’s fees and costs under TEX.
BUS. & COM. CODE § 54.004(2), if the plaintiff does not receive a treble
damages award under TEX. BUS. & COM. CODE § 54.004(1), and under what
conditions?
JCB, Inc. v. Horsburgh & Scott Co., 912 F.3d 238, 241 (5th Cir. 2018). Writing for the panel,
Judge Ho authored an opinion certifying these questions. As that opinion explained the treble-
damages question, there is no dispute that the parties had “a contract under Section 54.002 relating
to payment of a commission” and that Horsburgh “fail[ed] to comply with a provision of [that]
contract.” TEX. BUS & COM. CODE § 54.004. The dispute is over the date as of which the “unpaid
commission due” should be calculated. If the amount of “unpaid commission due” should be
calculated as of the date the commissions were originally due under the contract, Horsburgh may
face treble damages of three times the $280,000 it initially failed to pay. If the correct date is the
date suit was filed, Horsburgh may face treble damages of three times the amount it still owed at
the time of filing. If the correct date is the time of trial or judgment, the district court was right.
3
There was no “unpaid commission” due by that time, so there was nothing left to treble. JCB, Inc.,
912 F.3d at 240. The panel also asked this Court to determine whether JCB can recover attorney’s
fees under section 54.004(2) even if it does not recover treble damages under section 54.004(1).
Id. at 241.
In addition to the panel’s opinion, Judges Duncan and Ho authored concurring opinions
touching on the merits of the certified questions. Under Judge Duncan’s reading of section 54.004,
JCB can recover treble damages on the full amount it claims because the amount of “unpaid
commission due” should be calculated as of the time the parties’ contract made the commissions
due. Id. at 244–46 (Duncan, J., concurring). According to Judge Duncan, section 54.004
incorporates section 54.003 when there is no written contract and section 54.002 when there is a
written contract. Id. at 245. Section 54.003 provides a thirty-day deadline to pay the commission,
and under section 54.002, the written contract provides the due date. In either case, in Judge
Duncan’s view, the amount of “unpaid commission due” for trebling purposes must be calculated
as of the date the commission was initially due. Id. at 245–46. Under this reasoning, because
Horsburgh and JCB had a written contract with a ten-day deadline, all commissions paid after that
deadline are “unpaid commission due” under section 54.004 even though they have later been paid.
Id. at 245.
Judge Duncan also addressed the second certified question. In his view, the correct answer
is an easy “yes.” “Section 54.004 contains no indication that it makes recovering attorney’s fees
dependent on recovering treble damages. Rather, the text makes recovering fees contingent only
on the principal’s breach of a contractual provision relating to commission payments under Section
4
54.002, or on the principal’s failure to pay a commission as required by Section 54.003.” Id. at
246 n.3.
Unlike Judge Duncan, Judge Ho found the statute unclear on the date to be used to calculate
“unpaid commission due.” Id. at 242 (Ho, J., concurring). Judge Ho observed that the statute
could have specified, for example, treble damages for unpaid commission due “at the time the civil
action is filed” or some other specified time, but the statute does not so specify. Id. Although he
did not disagree with Judge Duncan’s view of the statute, he noted its tension with the general
common-law principle that contract damages are not set in stone at the time of breach but may be
reduced or mitigated by the parties’ later actions. Id. at 243. Judge Ho also noted the possible
effect of TEX. CIV. PRAC. & REM. CODE § 41.004(a), which states that “exemplary damages may
be awarded only if damages other than nominal damages are awarded.” Id.
With these concurring opinions as helpful resources, we consider de novo the two statutory
interpretation questions certified from the Fifth Circuit. See City of San Antonio v. City of Boerne,
111 S.W.3d 22, 25 (Tex. 2003) (“We review matters of statutory construction de novo.”).
II. Discussion
A. The Timing Standard for “Unpaid Commission Due”
The first certified question asks: “What timing standard should courts use to determine the
existence and amount of any ‘unpaid commissions due’ under the treble damages provision of
TEX. BUS. & COM. CODE § 54.004(1)?”
JCB argues that section 54.004 provides the time for determining the “unpaid commission
due” by referencing section 54.002. Section 54.002 contains requirements for a “contract between
a principal and a sales representative under which the sales representative is to solicit wholesale
5
orders within this state.” TEX. BUS. & COM. CODE § 54.002(a). The parties do not dispute that
they had a “contract under Section 54.002” which specified that commissions were due on the
tenth of each month following Horsburgh’s receipt of payment from its customer. According to
JCB, the only relevant date for calculating “unpaid commission due” is the date the commissions
were actually due under the contract. Nearly $280,000 in commissions allegedly were not paid by
the contractually specified due date, and JCB contends that this entire amount is subject to trebling
under section 54.004(1).
According to Horsburgh, there can only be “unpaid commission due” if the commission
remains both “unpaid” and “due” at the time of trial. “Late-paid” is not the same as “unpaid,” and
these commissions were only late-paid. Further, the statute makes the defendant “liable . . . for
. . . three times the unpaid commission due.” Id. § 54.004 (emphasis added). The usual time for
calculating the amount of a defendant’s liability is the time of trial, Horsburgh contends. And in
order for there to be anything to treble at the time of trial, there must be unpaid commission at that
time. If the “unpaid commission due” must be measured as of the time of trial, as Horsburgh
contends, then the “unpaid commission due” is zero because Horsburgh has paid all allegedly
owed commissions.
The Fifth Circuit understandably found it difficult to choose between these two plausible
interpretations of section 54.004(1)’s text. The statute could be much clearer on the timing
question. It could have specified, for example, that the defendant is liable for three times the
unpaid commission due at the time of the contractual due date or “at the time the civil action is
filed.” JCB, Inc., 912 F.3d at 242 (Ho, J., concurring). But the statute does not specify the moment
6
in time courts should look to when determining the existence and amount of “the unpaid
commission due.”
JCB argues that section 54.004 answers this timing question by referring to section 54.002,
which contemplates a contractual due date for the commission. According to JCB, “If there is a
Section 54.002 breach of a provision stating when commissions are to be paid, then it is the parties’
agreement that determines when an ‘unpaid commission’ is ‘due.’” Id. at 245–46 (Duncan, J.,
concurring). Certainly, the parties’ agreement sets a due date for the commissions. No one
disputes that all the commissions were “due” and “unpaid” on that date. But after Horsburgh paid
the commissions with interest, they were neither unpaid nor due. Answering when the
commissions first became unpaid and due does not tell us whether it matters, when a trial court is
calculating damages, that the commissions are no longer either unpaid or due. All the disputed
commissions were unpaid and due on the date of breach, some were unpaid and due when JCB
filed suit, and none were unpaid and due at the time of summary judgment. To which of those
three moments in time must courts look to determine the amount of “unpaid commission due” to
be trebled? We find nothing in section 54.002 or section 54.003 answering that question. Section
54.002 provides requirements for the parties’ written agreement, and section 54.003 provides a
default rule in certain cases where no written agreement governs. Nothing in these provisions
links the date of the breach to the calculation of treble damages.
As we read it, the statutory text does not answer the question. Nevertheless, we presume
the legislature enacted chapter 54 “with full knowledge of the existing condition of the law and
with reference to it.” In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 677 (Tex. 2007) (orig.
proceeding). In particular, “we presume that the Legislature acted with knowledge of the common
7
law.” Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999). Section 54.004 operates in the
common-law realm of breach-of-contract actions, so where the statute is silent, we should consider
the common law for guidance, assuming the legislature created a remedy unknown to the common
law only where the words of the statute so provide. See Cont’l Coffee Prods. Co. v. Cazarez, 937
S.W.2d 444, 453 (Tex. 1996) (“Where a statute creates a liability unknown to the common law,
the statute will be strictly construed in the sense that it will not be extended beyond its plain
meaning or applied to cases not clearly within its purview.”) (citation, internal quotation marks
omitted).
As a general matter, it almost goes without saying that damages typically are calculated by
the factfinder based on what is required to compensate the plaintiff at the time of verdict or
judgment. The general pattern jury charge for breach of contract asks: “What sum of money, if
any, if paid now in cash, would fairly and reasonably compensate [the plaintiff] for his
damages . . . ?” COMMITTEE ON PATTERN JURY CHARGES OF STATE BAR OF TEXAS, TEXAS
PATTERN JURY CHARGES PJC 115.3 (2018) (emphasis added). The question for the factfinder is
how much the defendant owes the plaintiff today. The question is typically not how much the
defendant owed the plaintiff at some date in the past. Nor is it how much the defendant would
have owed the plaintiff if the defendant had not already paid. The usual question for the factfinder
is how much the defendant owes the plaintiff at the time the factfinder assesses liability. We find
little in chapter 54 to suggest a departure from this default framework.
Under the common law and statutory law, damages for breach of contract are sometimes
appropriately measured at the time of breach, but they can also increase or decrease after this point
8
in time. 3 Under JCB’s reading of the statute, however, contract damages are locked in and trebled
at the time of breach, and there is nothing either party can do to mitigate or reduce the damages.
This approach to damages is foreign to contract law, which requires mitigation of damages before
trial and encourages defendants to pay what is owed in order to avoid litigation. 4 As JCB would
have it, its suit against Horsburgh isn’t really a contract suit at all. Its purpose is not to secure the
benefit of JCB’s bargain, to vindicate JCB’s reliance interest, or to compensate JCB for
consequential damages flowing from the breach. 5 From the perspective of contract law, JCB has
been made whole and has nothing else to litigate, besides perhaps attorney’s fees and interest.
Instead of a contract suit, JCB’s understanding of its claim is more akin to a strict liability tort with
3
The damages for a breach of contract are sometimes measured at the time of breach. For example, in suits
for breach of a sales contract, the Uniform Commercial Code provides that “the measure of damages for non-
acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and
the unpaid contract price,” together with certain incidental damages. TEX. BUS. & COM. CODE § 2.708(a). But such
damages, even if measured at the time of breach, can increase or decrease after the breach. For instance, damages
decrease in cases where the plaintiff mitigates his damages after the breach, or should have done so. “[T]he doctrine
of mitigation of damages . . . prevents a party from recovering for damages resulting from a breach of contract that
could be avoided by reasonable efforts on the part of the plaintiff.” Great Am. Ins. Co. v. N. Austin Mun. Util. Dist.,
908 S.W.2d 415, 426 (Tex. 1995). “Where a party is entitled to the benefits of a contract and can save himself from
damages resulting from its breach at a trifling expense or with reasonable exertions, it is his duty to incur such expense
and make such exertions . . . .” Walker v. Salt Flat Water Co., 96 S.W.2d 231, 232 (Tex. 1936). To quote a leading
treatise on remedies, “The avoidable consequences rules, or rules for minimizing damages, are cardinal instruments
of damages measurement. . . . Minimizing damages rules apply in all kinds of cases, including contract, tort, and
statutory claims.” 1 DAN D. DOBBS, LAW OF REMEDIES 380 (2d ed. 1993) (footnotes omitted) (hereinafter Dobbs).
Under these rules, “The defendant is entitled to a credit against liability for any consequential damages the plaintiff
could have avoided or minimized by reasonable effort and expense, whether or not the plaintiff actually avoided or
minimized such damages.” Id. Judge Ho also gives mitigation as an example, along with others, where “courts
typically do not treat damages as fixed at the moment of liability.” 912 F.3d at 243 (Ho, J., concurring). Conversely,
damages can increase after the breach as consequential damages mount. Dobbs at 305 (noting that consequential
damages “may stretch infinitely in time”); see also infra note 5.
4
See supra note 3 and infra note 10.
5
See Quigley v. Bennett, 227 S.W.3d 51, 56 (Tex. 2007) (recognizing benefit-of-the-bargain and reliance
measures of damages in contract cases); Mead v. Johnson Grp., Inc., 615 S.W.2d 685, 687 (Tex. 1981) (recognizing
that consequential damages are recoverable under Texas law for breach of contract).
9
statutorily defined damages that punish Horsburgh’s breach. Yet even in tort cases, plaintiffs have
an obligation to mitigate damages before trial, and defendants have the ability to reduce their
liability by paying the claimed damages before trial. Moulton v. Alamo Ambulance Serv., Inc.,
414 S.W.2d 444, 449 (Tex. 1967) (recognizing in negligence suit that plaintiff’s recovery excludes
damages caused by plaintiff’s failure to mitigate). Moreover, JCB’s damages-free claim for a
punitive recovery is not similar to how other treble-damages claims work. A DTPA plaintiff must
prove its then-existing damages at trial in order to have something to treble. 6 Even DTPA plaintiffs
hoping for treble damages have an obligation to mitigate their actual damages, thereby reducing
their trebled amount. Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 858 (Tex. 1999) (holding
“that a plaintiff in a DTPA case has the same duty to mitigate damages as in other cases”). JCB’s
approach, by contrast, would lock in the trebled damages at the moment of breach, making
mitigation by either party impossible.
JCB points to no other cause of action in Texas law that operates the way it claims section
54.004 should operate. Of course, the legislature could enact such an unusual rule if it wanted to
do so. But faced with statutory text that is amenable to two different temporal meanings, we will
not adopt the one that is foreign to the way civil litigation normally operates.
We find no fault with the district court’s common-sense approach. Section 54.004 required
the district court to calculate “three times the unpaid commission due the sales representative.”
6
TEX. BUS. & COM. CODE § 17.50(b)(1) (providing for award of “the amount of economic damages found
by the trier of fact. If the trier of fact finds that the conduct of the defendant was committed knowingly, the consumer
may also recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award not more
than three times the amount of economic damages; or if the trier of fact finds the conduct was committed intentionally,
the consumer may recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award
not more than three times the amount of damages for mental anguish and economic damages.”).
10
TEX. BUS. & COM. CODE § 54.004(1). To do so, the court first had to calculate “the unpaid
commission due the sales representative” before multiplying that number by three. A factfinder
asked to determine “the unpaid commission due the sales representative,” under a plain-meaning
approach to that phrase, would naturally want to know how much commission has not yet been
paid. Here, the answer is zero. There used to be unpaid commission due, but that does not mean
there is any unpaid commission due now, when the factfinder is being asked to calculate the
amount. And if the unpaid commission is zero, there is nothing to recover because three times
zero is zero. This is how the district court appears to have reasoned. We agree with its
straightforward, text-based approach: “the Act does not apply because it only applies to unpaid
commissions, and all of the commissions owed [JCB] have been paid.” JCB, Inc. v. Horsburgh &
Scott Co., No. 6:16-CV-146-RP, 2017 WL 6805045, at *4 (W.D. Tex. Oct. 25, 2017). Another
federal district court likewise concluded that a Sales Representative Act provision substantially
identical to section 54.004 “only applies in cases in which sales commissions were actually unpaid,
not paid late.” Utility Prods. Co. v. USCO Power Equip. Corp., No. 3-06-CV-1948-M, 2007 WL
4440946, at *2 (N.D. Tex. Dec. 18, 2007). 7
Absent legislative instruction to the contrary, a defendant who is “liable . . . for . . . the
unpaid commission due the sales representative” is liable for just that—unpaid commissions that
are due. He is not liable for amounts he has already paid prior to the determination of liability. 8
7
The court relied on a provision substantially identical to section 54.004 that was previously codified at
section 35.84 of the Business and Commerce Code.
8
Because we conclude that the text of chapter 54 does not support JCB’s position, we need not consider
whether the restrictions on punitive damages in chapter 41 of the Civil Practice and Remedies Code apply to treble
damages claims under chapter 54.
11
Late-paid is not “unpaid,” and late-paid amounts are no longer “due.” We hold that the statute’s
silence on the timing of the calculation leaves in place the normal approach to damages, under
which a factfinder charged with calculating “the unpaid commission due” asks how much
commission is due and unpaid as of the factfinding, not how much commission was due and unpaid
in the past. 9
JCB contends this construction deprives chapter 54 of any real effect, since a sales agent
can always sue under the common law for his commissions and obtain attorney’s fees in a breach-
of-contract suit under TEX. CIV. PRAC. & REM. CODE § 38.001. Courts “do not lightly presume
that the Legislature may have done a useless act.” Liberty Mut. Ins. Co. v. Garrison Contractors,
Inc., 966 S.W.2d 482, 485 (Tex. 1998). But chapter 54 is by no means useless under our
construction. If the defendant fails to pay all or part of the commissions prior to a judicial
determination of the “unpaid commission due,” he must pay treble damages. The threat of such
punitive judgments provides added encouragement for principals to pay their sales representative
the disputed commission.
JCB and its amicus supporters suggest that Horsburgh’s understanding of the statute gives
sales representatives insufficient recourse against capricious withholding of payments by
manufacturers. They contend that the legislature surely did not mean to allow Horsburgh to escape
punishment for its breach merely by paying its contractual obligation to JCB plus interest. But
9
As a compromise of sorts, it has been suggested that section 54.004 should be read to require trebling of
commissions that remain unpaid when suit is filed. Under that approach, some but not all of JCB’s late commissions
would be trebled. Neither side argues for this interpretation. It would be an odd result, as we have not discovered
analogous statutes or common-law remedies that cut off the accrual of damages at the moment the suit is filed. Such
an unusual time-of-filing rule for damages calculation would apply only if the legislature had specified it, and nothing
in chapter 54 does so. “We have no right to engraft upon the statute any conditions or provisions not placed there by
the legislature.” Iliff v. Iliff, 339 S.W.3d 74, 80–81 (Tex. 2011).
12
that is the option all contract defendants have always had under the common law. E.g., Stewart v.
Basey, 245 S.W.2d 484, 486 (Tex. 1952) (“The universal rule for measuring damages for the
breach of a contract is just compensation for the loss or damage actually sustained. By the
operation of that rule a party generally should be awarded neither less nor more than his actual
damages.”). If such an option encourages abusive breaches and exploitative conduct, then JCB's
complaint is not just with the district court’s interpretation of section 54.004. It is with all of
Anglo-American contract law.
The vast majority of contracting parties have only the option of filing a normal breach-of-
contract action when the need arises. As we interpret it, chapter 54 gives sales representatives a
valuable advantage few other litigants enjoy. The threat of treble damages down the road is a
heavy stick for the sales representative to wield against the principal, even if the blow cannot be
struck until judgment. That the threat of the blow only forces quicker payment of what the sales
representative is actually owed—as opposed to a punitive multiplier—hardly makes this
arrangement unfair to the sales representative, who can recover everything he is owed and, as we
explain below, the reasonable attorney’s fees he expends to recover it. If, on the other hand, treble-
damages liability irrevocably attaches the moment a breach occurs, the proverbial stick looks more
like heavy artillery. Under JCB’s approach, even if full payment is only a day late, nothing the
defendant can later do to satisfy its contractual obligation will prevent the award of treble damages
on the entire amount. Such a construction would deter the parties from settling their dispute
without litigation or settling the dispute after suit is filed. By contrast, the threat of treble damages
and attorney’s fees at final judgment encourages manufacturers to settle these claims prior to suit
13
or before incurring the full expense of litigation, consistent with Texas law’s strong preference for
encouraging settlement of legal disputes. 10
We disagree with JCB’s suggestion that chapter 54 must be given a punitive interpretation
because the common-law rules of contract litigation are unsuited for manufacturers and sales
representatives. The legislature can make such a judgment, and to some extent it has done so. It
has given sales representatives the extraordinary threat of trebled breach-of-contract damages to
hold over manufacturers who do not pay commissions as agreed. JCB infers from the legislature’s
decision to give sales representatives this special right that it must have also intended to go even
further by giving them an absolute right to treble damages that locks in at the moment of breach.
The opposite inference is stronger. The legislature has already given sales representatives an
advantage few parties enjoy. Nothing in the statutory text indicates that this advantage must be
applied in a way that is alien to how the law operates outside of chapter 54.
The foregoing discussion of policy concerns does not bear directly on the statutory-
interpretation question before the Court. “Our role here . . . is not to second-guess the policy
choices that inform our statutes or to weigh the effectiveness of their results . . . .” McIntyre v.
Ramirez, 109 S.W.3d 741, 748 (Tex. 2003). Our job is to apply the statutory text as written, not
as we would have written it. BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76,
86 (Tex. 2017) (“The text is the alpha and the omega of the interpretive process.”). The parties,
10
Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 60 (Tex. 2008) (Settlement agreements are “highly favored
by the law.”); Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 280 (Tex. 1995) (“Settlements are favored because they
avoid the uncertainties regarding the outcome of litigation, and the often exorbitant amounts of time and money to
prosecute or defend claims at trial.”); TEX. CIV. PRAC. & REM. CODE § 154.002 (“It is the policy of this state to
encourage the peaceable resolution of disputes . . . and the early settlement of pending litigation through voluntary
settlement procedures.”).
14
however, rely heavily on policy arguments, so we have addressed them in order to dispel the
misperception that the interpretation of chapter 54 adopted herein and previously adopted by two
federal district courts will unfairly rob sales representatives of their negotiating power, render
chapter 54 a nullity, or lead to absurd results.
For these reasons, we answer the first certified question from the Fifth Circuit by holding
that the time for determining the existence and amount of “unpaid commission due” under section
54.001(1) is the time the jury or trial court determines the liability of the defendant, whether at
trial or through another dispositive trial-court process such as a summary judgment. 11
B. Attorney’s Fees and Costs
The second certified question asks: “May a plaintiff recover reasonable attorney’s fees and
costs under TEX. BUS. & COM. CODE § 54.004(2), if the plaintiff does not receive a treble-damages
award under TEX. BUS. & COM. CODE § 54.004(1), and under what conditions?”
JCB argues as follows. Under the plain language of section 54.004, a principal who “fails
to comply with a provision of a contract under Section 54.002” is liable for the sales
representative’s reasonable attorney’s fees. Horsburgh failed to comply with the parties’
agreement when it did not pay nearly $280,000 in commissions when due. As a result, Horsburgh
is liable for JCB’s reasonable attorney’s fees. That ends the inquiry. The statute does not require
an award of trebled unpaid commissions before the plaintiff can recover its attorney’s fees. The
two recoveries are provided independently of one another by subsections 54.004(1) and 54.004(2).
11
See Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988) (holding that a summary
judgment proceeding is a trial for purposes of TEX. R. CIV. P. 63); AmeriPath, Inc. v. Hebert, 447 S.W.3d 319, 344
(Tex. App.—Dallas 2014, no pet.) (“Legally, we consider a summary judgment proceeding to be a trial within the
meaning of the rules of civil procedure.”).
15
Horsburgh argues that, without an award of trebled unpaid commissions, JCB is not a
“prevailing party” and therefore cannot recover attorney’s fees. Properly construed, according to
Horsburgh, section 54.004 requires actual damages as a prerequisite for attorney’s fees. Further,
fees must be “reasonable” under section 54.004(2), and awarding attorney’s fees in the absence of
actual damages is unreasonable.
JCB has the better interpretation of the attorney-fees provision. Under the plain language
of section 54.004, JCB’s entitlement to attorney’s fees is triggered by Horsburgh’s breach, not by
JCB’s success in litigation. The statute says, “A principal who fails to comply with a provision of
a contract . . . relating to payment of a commission . . . is liable to the sales representative . . . for
. . . reasonable attorney’s fees and costs.” TEX. BUS & COM. CODE § 54.004(2). Horsburgh failed
to comply with the commission contract. It therefore “is liable to” JCB for “reasonable attorney’s
fees.” That is what the statute says, so that is what it means. The only textual limitation is that the
fees must be “reasonable.” Unlike the treble-damages provision, the attorney’s-fees provision
does not require proof of an “unpaid commission due” or any other showing besides a breach of
the commission agreement. Set out in a separate subsection, the fees provision is textually and
structurally independent of the treble-damages provision. Section 54.004 does not make an award
of attorney’s fees dependent on an award of treble damages. 12
12
As noted, Judge Duncan suggested this reading of the statute. In his view, “Section 54.004 contains no
indication that it makes recovering fees dependent on recovering treble damages. Rather the text makes recovering
fees contingent only on the principal’s breach of a contractual provision relating to commission payments under
Section 54.002, or on the principal’s failure to pay a commission as required by Section 54.003.” 912 F.3d at 246 n.3
(Duncan, J., concurring). We agree.
16
Horsburgh argues that fees should be denied in their entirety because JCB’s claim for treble
damages failed, meaning that JCB was not the “prevailing party.” Under the American Rule,
attorney’s fees are not awarded unless a statute or contract authorizes them. In re Nat’l Lloyds Ins.
Co., 532 S.W.3d 794, 809 (Tex. 2017) (orig. proceeding). Any award of fees is limited by the
wording of the statute or contract that creates an exception to the American Rule. 13 The cases
Horsburgh relies on, which impose a “prevailing party” requirement, are based on statutes
expressly authorizing fees for the prevailing party or the party who brought a “valid” claim. For
example, Southwestern Bell Mobile Systems, Inc. v. Franco, 971 S.W.2d 52 (Tex. 1998),
interpreted a section of the Labor Code providing attorney’s fees to the “prevailing party.” Id. at
55. Other well-known attorney-fees statutes expressly require the plaintiff to win the case before
obtaining fees. The DTPA, for instance, says fees are available to “consumer[s] who prevail.”
TEX. BUS & COM. CODE § 17.50(d). Similarly, we analyzed “prevailing party” status of a party
seeking fees in Intercontinental Group Partnership v. KB Home Lone Star L.P., 295 S.W.3d 650
(Tex. 2009), because the contract at issue provided fees to the “prevailing party” in an action to
enforce the contract. Id. at 652. In this case, by contrast, the statute contains no prevailing-party
requirement, and we decline to imply one.
Reasonableness is nevertheless a very real limitation on chapter 54’s otherwise unbounded
grant of attorney’s fees and costs to the sales representative. Horsburgh plausibly argues that,
although the statute contains no prevailing-party requirement, awarding any fees to the losing party
13
See MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009) (“Texas has long
followed the “American Rule” prohibiting fee awards unless specifically provided by contract or statute.”); Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006) (“For more than a century, Texas law has not allowed
recovery of attorney’s fees unless authorized by statute or contract.”).
17
would always be unreasonable. But as we understand the record, even though the district court
granted summary judgment for Horsburgh, it would be incomplete to call JCB the losing party
without qualifying that statement. JCB lost in its bid to add treble damages to its fully paid
commissions, and we cannot envision a scenario in which fees expended in pursuit of JCB’s invalid
theory of treble-damages liability could ever be reasonable. However, the record suggests that
JCB’s lawsuit prompted Horsburgh to pay the remaining unpaid commission. According to
Horsburgh, after JCB sued in May 2016, Horsburgh fully paid approximately $90,000 in late
commissions by August 2016, several months after JCB filed suit. Attorney’s fees spent pursuing
that amount may be reasonable, assuming they satisfy other legal and factual standards applicable
to reasonable fee awards. 14 On the other hand, attorney’s fees spent continuing to press for treble
damages after the defendant paid all commissions due plus interest are likely not reasonable,
because at that point the case should have been finished. 15
In any event, JCB is eligible for an award of reasonable attorney’s fees and costs by virtue
of Horsburgh’s breach and the plain language of section 54.004. While the discussion above offers
some analysis of the reasonableness of JCB’s potential fee award, whether the fees JCB seeks are
14
The United States Supreme Court rejected the “catalyst theory” for an award of attorney’s fees in
Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598
(2001). Under the catalyst theory, a plaintiff could be a prevailing party entitled to fees even if his lawsuit did not
result in a judgment in his favor if his lawsuit nevertheless “brought about a voluntary change in the defendant’s
conduct.” Id. at 600. The Court held that this theory was not a permissible basis for an award of attorney’s fees. Id.
at 600, 610. As in most of our attorney-fees decisions, the Court in Buckhannon addressed the availability of fees
under statutes that allow a fee award to the “prevailing party.” Id. at 600–01. The Court based its decision on “the
clear meaning of ‘prevailing party’ in the fee-shifting statutes.” Id. at 610. Here, by contrast, the statutory entitlement
to fees is triggered by the principal’s breach, not by the plaintiff’s success in litigation. Our holding is limited to the
peculiar terms of chapter 54. We do not suggest that fee-shifting statutes containing prevailing party or analogous
requirements are satisfied when the lawsuit merely coerces the defendant to change its conduct prior to judgment.
15
Our recent decision in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, ___ S.W.3d ___ (Tex. 2019),
describes the current legal standards for awards of attorney’s fees in Texas courts.
18
reasonable is ultimately a question to be resolved in the district court after consideration of all the
relevant factors governing awards of attorney’s fees.
We answer the second certified question as follows: a plaintiff may recover attorney’s fees
and costs under TEX. BUS. & COM. CODE § 54.004(2) even if the plaintiff does not receive treble
damages, if the factfinder determines that the fees and costs were reasonably incurred under the
circumstances. Finally, reasonable costs, like reasonable attorney’s fees, are available under
section 54.004(2), and their availability does not depend on an award of treble damages under
section 54.004(1).
__________________________________
James D. Blacklock
Justice
OPINION DELIVERED: June 7, 2019
19 | 01-03-2023 | 06-12-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4147445/ | J-A29021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF DONNA IN THE SUPERIOR COURT OF
SWACKHAMMER PENNSYLVANIA
APPEAL OF: RANDY L. SWACKHAMMER,
M.D.
No. 323 WDA 2016
Appeal from the Order January 29, 2016
In the Court of Common Pleas of Westmoreland County
Orphans' Court at No(s): 65-15-241
BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED FEBRUARY 22, 2017
Randy L. Swackhammer, M.D., appeals from the January 29, 2016
order entered in the Westmoreland County Court of Common Pleas granting
the preliminary objections filed by Donna Swackhammer’s Estate. We
affirm.
The trial court set forth the following factual and procedural history:
Donna Swackhammer, hereinafter referred to as
“Decedent,” passed away on January 26, 2015. She
executed a will dated June 19, 2014 and a codicil dated
January 19, 2015. Addison Swackhammer, hereinafter
referred to as “Minor Child,” is the daughter of the
decedent and the sole beneficiary of the Decedent’s estate.
The June 19, 2014 will named Meghan Smith, daughter of
Decedent, as the guardian of the Minor Child and the
guardian of her estate. The codicil dated January 19, 2015
changed the guardian to Decedent’s other daughter,
Brienne Marco.1 On February 9, 2015, the Register of Wills
granted Letters Testamentary to Brienne Marco as
J-A29021-16
executrix of the Decedent’s estate and admitted both the
will and the codicil to probate.
1
In a separate pending custody action at docket
number 158 of 2015-D, Brienne Marco was granted
in loco parentis status and obtained temporary
custody of the Minor Child by Order of Court dated
February 3, 2015. This status was continued by
Order of Court dated May 21, 2015.
[Swackhammer] is the ex-husband of Decedent and the
biological father of the Minor Child.2 [Swackhammer] filed
a Notice of Appeal from the February 9, 2015 decree of the
Register of Wills. He filed a petition titled “Petition for
Citation and Rule to Show Cause Why this Appeal Should
Not Have Been Sustained and the February 9, 2015 Decree
of the Register of Wills Admitting Codicil Number One of
the Last Will Be Set Aside” and a petition titled “Petition for
Appointment of a Guardian Ad Litem.” The Estate filed
preliminary objections to both petitions, alleging that
[Swackhammer] was not a beneficiary under the will
pursuant to a consent agreement incorporated into his and
the Decedent’s divorce decree on January 29, 2003, where
he relinquished all right or interest to the estate of Donna
Swackhammer. Therefore, the Estate argued that
[Swackhammer] lacked standing to seek the requested
relief.
2
[Swackhammer] did not have an active parental
relationship with the Minor Child as of the filing of
the appeal. A custody action is currently pending at
a separate docket number.
Oral Argument was initially scheduled for October 16,
2015. At that time, the Honorable Judge Regoli ordered
both parties to submit a Memorandum of Law supporting
their position and scheduled a second oral argument on
January 19, 2016. After the second oral argument was
held, both parties were again provided with an opportunity
to submit any legal authority that supported their position.
After a review of the arguments presented, along with the
Memorandums of Law submitted, this Court entered an
Order on January 27, 2016 sustaining the Estate’s
preliminary objections for lack of standing. In accordance
with the Rules of Appellate Procedure, [Swackhammer]
-2-
J-A29021-16
filed a Notice of Appeal and delivered it to this Court on
March 1, 2016.
Opinion, 4/18/16, at 1-3 (“1925(a) Op.”).
Swackhammer raises the following issues on appeal:
I. The court below failed to apply the proper test where
Preliminary Objections Resulted in the Dismissal of
[Swackhammer’s] Petitions.
II. The court [below] erred in not appointing a Guardian Ad
Litem on its own motion (Pa. O. C. Rule 12.4 (a)[)].
III. The Order appealed from relies on a statute that does
not exist, specifically 20 Pa. C. S. A. §101(a). The
appellant cannot readily discern the basis for the judge's
decision (231 Pa. Code Rule 1925(b) (4) (vi)).[1]
Swackhammer’s Br. at 4.2
An “Orphans’ [C]ourt decision will not be reversed unless there has
been an abuse of discretion or a fundamental error in applying the correct
principles of law.” In re Estate of Whitley, 50 A.3d 203, 206–07
____________________________________________
1
Swackhammer has abandoned his third issue by stating in the
argument section of his brief that the “issue was cured in the Court’s
Opinion, therefore it will not be argued.” Swackhammer’s Br. at 17.
2
The Estate argues that Swackhammer failed to properly file with the
trial court the petition for citation, the petition for the appointment of a
guardian ad litem, and the Pennsylvania Rule of Appellate Procedure 1925(b)
concise statement of errors complained of on appeal. On October 7, 2016,
Swackhammer filed in the trial court an Application for Correction or
Modification of Record. That same day, the trial court granted the motion
and ordered that the trial court clerk include in a supplemental record to this
Court the petitions and the 1925(b) statement.
-3-
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(Pa.Super. 2012) (quoting In re Estate of Luongo, 823 A.2d 942, 951
(Pa.Super. 2003)) (alteration in original). Further,
On an appeal from an order sustaining preliminary
objections, we accept as true all well-pleaded material
facts set forth in the appellant’s complaint and all
reasonable inferences which may be drawn from those
facts. Preliminary objections seeking the dismissal of a
cause of action should be sustained only in cases in which
it is clear and free from doubt that the pleader will be
unable to prove facts legally sufficient to establish the right
to relief; if any doubt exists, it should be resolved in favor
of overruling the objections.
Rellick-Smith v. Rellick, 147 A.3d 897, 901 (Pa.Super. 2016) (internal
citations and quotation marks omitted).
Swackhammer first argues that the trial court erred in finding that he
lacked standing to challenge Decedent’s will without holding an evidentiary
hearing.3
A preliminary objection alleging a pleading is legally insufficient
because the plaintiff lacks standing “require[s] the court to resolve the
issues solely on the basis of the pleadings; no testimony or other evidence
outside of the complaint may be considered to dispose of the legal issues
____________________________________________
3
The trial court found that Swackhammer lacked standing to bring his
“Petition for Citation and Rule to Show Cause Why this Appeal Should Not
Have Been Sustained and the February 9, 2015 Decree of the Register of
Wills Admitting Codicil Number One of the Last Will Be Set Aside.” The
petition involved an appeal to the probate of Decedent’s will and codicil,
alleging Decedent lacked testamentary capacity or, in the alternative, was
under undue influence.
-4-
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presented by the demurrer. All material facts set forth in the pleading and
all inferences reasonably deducible therefrom must be admitted as true.”
Hill v. Ofalt, 85 A.3d 540, 547 (Pa.Super. 2014).4 Accordingly, the trial
court did not err in addressing the preliminary objections without an
evidentiary hearing.
____________________________________________
4
Swackhammer maintains the preliminary objection was pursuant to
Pa.R.C.P. 2018(a)(5), for lack of capacity to sue, and therefore, the trial
court could not address the preliminary objection based on the facts of
record. Swackhammer’s Br. at 8-10. The preliminary objection for lack of
capacity, however, is inapplicable here, where the issue was standing. As
our Supreme Court stated:
In a general sense, capacity to sue refers to the legal
ability of a person to come into court, and “[w]ant of
capacity to sue has reference to or involves only a general
legal disability, ... such as infancy, lunacy, idiocy,
coverture, want of authority, or a want of title in plaintiff in
the character in which he or she sues.” 67A C.J.S. Parties
§ 11 . . . . The quintessential example of someone who
lacks capacity to sue or be sued is a deceased person, as
capacity only exists in living persons. Id. In substance, as
well as in practice, however, the notion of capacity to sue
is extremely amorphous. Indeed, this Court has previously
referred to the blurry distinction between capacity to sue
and standing as a “somewhat metaphysical question.”
Witt[ v. Com, Dep’t of Banking], 425 A.2d [374,] 377 n.
7 [(Pa. 1981)].
In re Estate of Sauers, 32 A.3d 1241, 1248-49 (Pa. 2011) (emphasis
omitted).
-5-
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Swackhammer also contends that the trial court erred in finding he did
not have a substantial interest in the matter and erred in finding he lacked
standing.
The Probate, Estates and Fiduciaries Code provides that:
Any party in interest seeking to challenge the probate of a
will or who is otherwise aggrieved by a decree of the
register, or a fiduciary whose estate or trust is so
aggrieved, may appeal therefrom to the court within one
year of the decree: Provided, That the executor
designated in an instrument shall not by virtue of such
designation be deemed a party in interest who may appeal
from a decree refusing probate of it. The court, upon
petition of a party in interest, may limit the time for appeal
to three months.
20 Pa.C.S. § 908(a). Accordingly, “a party has the requisite standing to
contest a will when that party is aggrieved by a judgment, decree or order of
the register, in the sense that some pecuniary interest of that party has
been ‘injuriously affected.’” Luongo, 823 A.2d at 953 (quoting In re
Estate of Seasongood, 467 A.2d 857, 859 (Pa.Super. 1983)) (emphasis
omitted).
Further, this Court has noted that “historically,” interest in the
outcome of the will contest “must be substantial, direct, and immediate to
confer standing.” In re Estate of Briskman, 808 A.2d 928, 933 (Pa.Super.
2002). We have defined the substantial, direct, and immediate interest
needed to establish standing in a will contest as follows:
A “substantial” interest is an interest in the outcome of the
litigation which surpasses the common interest of all
citizens in procuring obedience to the law. A “direct”
-6-
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interest requires a showing that the matter complained of
caused harm to the party’s interest. An “immediate”
interest involves the nature of the causal connection
between the action complained of and the injury to the
party challenging it, and is shown where the interest the
party seeks to protect is within the zone of interests
sought to be protected by the statute or constitutional
guarantee in question.
Id. (quoting S. Whitehall Twp. Police Serv. v. S. Whitehall Twp., 555
A.2d 793, 795 (Pa. 1989)).
The trial court found:
[I]t is clearly evident that [Swackhammer] does not have
standing to contest the Decedent’s will and codicil for lack
of testamentary capacity or undue influence. In his own
1925(b) statement, [Swackhammer] acknowledges that he
does not claim to be a beneficiary of the Estate of Donna
Swackhammer. It is evident that he does not have a
direct or immediate pecuniary interest that has been
negatively affected by the probate of the will or codicil.
Therefore, [Swackhammer] is not a “party in interest” as
outlined and required by 20 Pa.C.S.A. § 908(a) to contest
probate. By applying the statutory definition for standing,
and the applicable case law that interprets said application,
this Court did not abuse its discretion or commit a
fundamental error in applying the correct principles of law
in entering the January 27, 2016 Order of Court granting
the Estate’s preliminary objections.
1925(a) Op. at 5.
The trial court also addressed Swackhammer’s claim that the minor
child had standing and he was acting on her behalf:
[Swackhammer] appears to set forth an argument in his
1925(b) statement that the Minor Child is a party in
interest, that she is not in a position to challenge the will
on her own due to her minority, and that therefore he is
acting on her behalf. However, [Swackhammer] failed to
set forth any case law or authority that permits a biological
parent that lacks legal and physical custody of the child
-7-
J-A29021-16
pursuant to a separate custody action to challenge the
probate of a will and codicil wherein the Minor Child is the
sole beneficiary. He did not set forth any averments that
the Minor Child requested his involvement, or that the
Minor Child expressed concern over the handling of the
estate funds. He did not provide any examples of
misconduct by Brienne Marco in performing her duties as
the guardian of the Minor Child’s estate. [Swackhammer]
also failed to establish how he would be in a better position
to oversee the estate funds as a co-guardian when he has
not had any contact with the Minor Child for a significant
period of time. Therefore, [Swackhammer] failed to set
forth any alternate legal authority that would permit him
standing to pursue the interests of the Minor Child and this
Court did not abuse its discretion in failing to accept said
argument. In fact, accepting same would be in direct
contradiction to applying the correct principles of law set
forth in 20 Pa.C.S.A. § 908(a).
1925(a) Op. at 5-6. This determination was not an error of law or an abuse
of discretion.
Swackhammer next challenges the trial court’s decision to not appoint
a guardian ad litem for the minor child.5
Pennsylvania Orphans’ Court Rule 12.4, which was applicable at the
time Swackhammer filed his petition for appointment of guardian ad litem,
provided: “On petition of the accountant or any interested party, or upon its
own motion, the court may appoint (1) a guardian ad litem to represent a
____________________________________________
5
Before the trial court, Swackhammer argued the trial court should
either appoint him as guardian ad litem or appoint an attorney guardian ad-
litem and appoint Swackhammer as co-guardian ad litem. On appeal,
Swackhammer no longer argues that the trial court should have appointed
him as guardian, or co-guardian, ad litem. Rather, he argues the trial court
should have, on its own motion, appointed a guardian ad litem.
-8-
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minor or an incompetent not represented by a guardian . . . .” Pa.O.C.R.
12.4(a)(1) (rescinded Sept. 1, 2016).6
Here, the trial court found:
In this case, the estate is not large. Although it is a
unique situation in which the guardian appointed under the
codicil is also the custodian of the minor child through a
separate custody action, there is no indication that the
guardian, Brienne Marco, is failing to act in the best
interests of the Minor Child. Therefore, there is no
indication that the expense of an appointed guardian is
necessary to deplete the funds that should remain in the
estate for the benefit of the Minor Child. Based on
[Swackhammer’s] lack of standing, this Court did not
abuse its discretion or commit a fundamental error in
applying the correct principles of law in sustaining the
Estate’s preliminary objections.
____________________________________________
6
Pursuant to a Supreme Court order, Rules 1.1 through 13.3 of the
Pennsylvania Orphans’ Court Rules were rescinded and replaced, effective
September 1, 2016. The rule governing the appointment of a guardian ad
litem is now Rule 5.5, which provides:
On petition of the accountant or any interested party, or
upon its own motion, the court may appoint one or both of
the following if the court considers that the interests of the
non-sui juris individuals are not adequately represented:
(1) a guardian ad litem to represent a minor or a person
believed to be incapacitated under the provisions of
Chapter 55 of Title 20, but for whom no guardian of the
estate is known to have been appointed by a Pennsylvania
court or by the court of any other jurisdiction;
(2) a trustee ad litem to represent an absentee, a
presumed decedent, or unborn or unascertained persons
not already represented by a fiduciary.
Pa.R.O.C. 5.5.
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1925(a) Op. at 8. This was not an abuse of discretion or error of law.7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
____________________________________________
7
In his brief, Swackhammer maintains that his counsel informed the
court that he would pay the Guardian ad litem’s expenses. However, the
certified record does not contain a transcript of the oral argument. It is the
appellant’s duty “to make sure that the record forwarded to an appellate
court contains those documents necessary to allow a complete and judicious
assessment of the issues raised on appeal.” Everett Cash Mut. Ins. Co. v.
T.H.E. Ins. Co., 804 A.2d 31, 34 (Pa.Super. 2002) (quoting Hrinkevich v.
Hrinkevich, 676 A.2d 237, 240 (Pa.Super. 1996)).
- 10 - | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147450/ | J-S93034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONTA REGUSTORS,
Appellant No. 2023 EDA 2015
Appeal from the PCRA Order June 1, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0001677-2011
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 22, 2017
Appellant, Donta Regustors, appeals from the order of June 1, 2015,
which denied, without a hearing, his first counseled petition brought under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel
has filed a motion to withdraw.1 For the reasons discussed below, we grant
counsel’s motion and affirm the denial of the PCRA petition.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Counsel mistakenly filed a “Turner/Finley Brief” comparable to a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, a
Turner/Finley no-merit letter is the correct filing. Because an Anders brief
provides greater protection to a defendant, this Court may accept an
Anders brief instead of a Turner/Finley letter. See Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
J-S93034-16
We take the underlying facts and procedural history in this matter
from this Court’s November 13, 2013 memorandum on direct appeal and our
independent review of the certified record.
At trial, the Commonwealth presented the
testimony of Edward Humphrey, Charles Britten,[a]
William Whitehouse, John Jones, Richard Sax, Dr.
Marlon Osbourne, Philadelphia Police Officers Gerald
Wolford, Kevin Port, Anthony Mooney, Travis
Washington, Jeremy Elliot, Timothy Esack, Stephen
Ahmie, and Donna Grebloski, Philadelphia Police
Detectives Phillip Nordo, Stephen Grace, Ron Dove,
Bill Urban, and Grady Petterson, and Philadelphia
Police Sergeants Christopher Small and Matt
Gillespie. [Appellant] presented the testimony of
Ronald Coleman. Viewed in the light most favorable
to the Commonwealth as the verdict winner, their
testimony established the following.
[a]
As Mr. Britten was killed between the
preliminary hearing and the trial, his
preliminary hearing testimony was read
to the jury, pursuant to Pa.R.E.
804(b)(1).[2]
On August 28, 2010, at approximately 4[:00]
a.m., Edward Humphrey and Charles Britten were
hanging out at the corner of 26th Street and Silver
Street. Jonathan Wilson was nearby sitting in his car.
After the three men had been on the corner for
about thirty minutes, [Appellant] and Kyle Pelzer
rode up 26th Street on bicycles and began firing
handguns at Mr. Britten and Mr. Humphrey from a
short distance away. [Appellant] and Mr. Pelzer fired
approximately ten shots at Mr. Britten and Mr.
Humphrey. Mr. Britten and Mr. Humphrey ducked
____________________________________________
2
Mr. Britten testified under an immunity agreement; by stipulation of the
parties, the Commonwealth read the immunity agreement into the record.
(See N.T. Trial, 3/28/12, at 5, 16-21).
-2-
J-S93034-16
behind a car, and Mr. Britten began firing his own
gun back at [Appellant] and Mr. Pelzer. [Appellant]
and Mr. Pelzer continued riding down the street on
their bicycles as they fired their guns at Mr. Britten
and Mr. Humphrey, shooting Mr. Wilson in the
process. Mr. Wilson drove away, but lost control of
the car and crashed into a pole. Mr. Britten and Mr.
Humphrey both fled the scene.
Mr. Wilson was taken by ambulance to Temple
Hospital, where he was pronounced dead at 4:42
a.m. He had been shot once in the back with a
[nine]-millimeter bullet. The bullet had torn his
abdominal aorta, which caused him to bleed to
death. Police removed [twenty-four] nine-millimeter
fired cartridge casings from the scene of the
shooting. Police also recovered nine .380 fired
cartridge casings from the scene of the shooting,
which were fired from Mr. Britten’s gun.
Mr. Britten was questioned by homicide
detectives. He identified [Appellant] and Mr. Pelzer,
both of whom he knew personally, as the people who
shot at himself and Mr. Humphrey, thereby killing
Mr. Wilson. Mr. Humphrey was also questioned by
the police. He identified [Appellant], whom he knew
personally, and Mr. Pelzer, whom he did not know,
from a photo array.
Trial Court Opinion, 2/[0]8/[]13, at 2-3 (record citations
omitted).
[Appellant] and Pelzer were arrested and charged with
multiple offenses relating to the incident. A joint jury trial was
held from March 26, 2012 to April 2, 2012. On that day, the
jury convicted [Appellant] of one count of first-degree murder
(victim Wilson), two counts of attempted murder (victims Britten
and Humphrey), one count of criminal conspiracy to commit
murder, two counts of first-degree aggravated assault (victims
-3-
J-S93034-16
Britten and Humphrey), and one count of [possessing an
instrument of a crime (PIC)].[b],[3]
[b]
[Appellant] was acquitted of several other charges
that originated from a different set [of] events that
allegedly took place two weeks before the charges at
issue here. Pelzer was acquitted of all charges. Trial
[Ct. Op.], [ ], at 1 n.1.
A sentencing hearing was held on May 31, 2012. The
[trial] court imposed the mandatory sentence of life
imprisonment for the first-degree murder conviction, a
consecutive sentence of [not less than] eight [nor more than
sixteen] years’ incarceration for the attempted murder of Britten,
a consecutive sentence of [not less than] eight [nor more than
sixteen] years’ incarceration for the attempted murder of
Humphrey, and a concurrent sentence of [not less than] eight
[nor more than sixteen] years’ imprisonment for the conspiracy
charge.[c] [Appellant] filed a post-sentence motion, which was
denied on October 2, 2012. This appeal followed.
[c]
The [trial] court did not impose a further penalty
with respect to the PIC offense and [the] aggravated
assault convictions merged for sentencing purposes.
(Commonwealth v. Regustors, 91 A.3d 1282, No. 3113 EDA 2012,
unpublished memorandum at **2-4 (Pa. Super. filed November 13, 2013)
(record citations and one footnote omitted)).
On November 13, 2013, this Court affirmed the judgment of sentence.
(See id.). Appellant did not seek leave to appeal to the Pennsylvania
Supreme Court.
On November 12, 2014, Appellant filed the instant, timely, counseled
PCRA petition accompanied by a memorandum of law. On April 8, 2014, the
____________________________________________
3
18 Pa.C.S.A. §§ 2502(a), 901, 903, 2702(a), and 907(a), respectively.
-4-
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Commonwealth moved to dismiss the petition. On May 11, 2015, the PCRA
court issued notice of its intent to dismiss the petition pursuant to
Pennsylvania Rule of Criminal Procedure 907(1). Appellant did not file a
response to the Rule 907 notice. On June 1, 2015, the PCRA court
dismissed Appellant’s PCRA petition.
On June 29, 2015, despite being represented by counsel, Appellant
filed a pro se notice of appeal. That same day, the PCRA court ordered
Appellant to file a concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b). Subsequently, Appellant filed two pro se requests for an
extension of time; the PCRA court denied both motions. The court
forwarded Appellant’s motions to PCRA counsel. Counsel did not take any
action. On September 1, 2015, the PCRA court issued an opinion, finding
Appellant waived all issues on appeal for failing to file a Rule 1925(b)
statement. See Pa.R.A.P. 1925(a).
On December 9, 2015, this Court remanded the matter to the trial
court for a determination of whether PCRA counsel abandoned Appellant on
appeal. On December 30, 2015, the PCRA court held a hearing on the issue;
the court then permitted PCRA counsel to withdraw and appointed new
counsel to represent Appellant on appeal. On January 20, 2016, this Court
again remanded the matter to permit new counsel to file a Rule 1925(b)
statement. Counsel filed a timely statement on February 8, 2016. See
-5-
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Pa.R.A.P. 1925(b). On March 11, 2016, the trial court issued a supplemental
opinion. See Pa.R.A.P. 1925(a).
On July 26, 2016, counsel filed a motion to withdraw in this Court. On
September 9, 2016, Appellant filed a pro se response.
On appeal, the Turner/Finley brief raises the following questions for
our review.
The Global Question
Whether there is anything in the record that might arguably
support the appeal that obviates a conclusion that the appeal is
without merit and/or frivolous[?]
Specific Areas of Inquiry
Whether trial counsel and PCRA counsel were ineffective (A)
where they failed to investigate and interview and obtain
affidavits from potential exculpatory witnesses (Tamika Ellis,
Delores Hawthorn, Givon Williams, Shawonda Harris, Erica
Walker, Turquoise Morrison, Shanee Brooks and Tyreek Thoms),
(B) where they failed to procure a videotape from Sampala Beer
Distributor[,] (C) where they failed to investigate forensic
evidence of the shell casings[,] (D) where they failed to obtain a
handwriting expert to validate a witness John Jones’ contention
that he did not signe (sic) the statements[,] and (E) where they
failed to investigate whether disgraced homicide Detective Ron
Dove tampered with evidence[?]
Whether trial counsel was ineffective for failing to object to the
admissibility of evidence regarding the shooting at 25 th and
Somerset on [August 27, 2010,] where the probative value of
the evidence was outweighed by its prejudice[?]
Whether trial counsel was ineffective by failing to mount a viable
and vigorous defense where he (A) failed to object to the
introduction of evidence not provided in discovery (Edward
Humphr[e]y’s statement to police), (B) where he failed to object
to a pattern of leading questions used by the prosecutor
throughout the trial[,] (C) where he left the courtroom during
-6-
J-S93034-16
the trial without permiss[ion,] drawing a reprimand from the
[trial] court[,] (D) where he failed to examine Police Officer
Ahmie concerning the fact that more than one .380 pistols were
used in the events at issue[,] (E) where he failed to cross-
examine Police Officer Esack about recovering a live round on
August 27 at the crime scene and sent it to the DNA lab for
analysis[,] and (F) where he failed to object when the [trial]
court provided firearms evidence to the jury during its
deliberations[?]
(Turner/Finley Brief, at 6-7) (unnecessary emphasis and capitalization
omitted).
In his pro se filing, Appellant raises three additional questions.
I. Was trial counsel ineffective for failing to object to the
prosecutor becoming a witness during trial by vouching for
the credibility of a witness?
II. Was trial counsel ineffective for failing to object to the
immunity petition inasmuch as it denied Appellant the right to
cross-examination?
III. Is it legally possible for intent to transfer to an accomplice or
co[-]conspirator insofar as it requires proof on intent to
commit an unintended killing and was trial counsel ineffective
for failing to object thereto?
(Appellant’s Answer in Opposition to Finley Brief, at 2, 6, 9) (unnecessary
capitalization omitted).
Appellant’s court-appointed counsel has moved this Court for
permission to withdraw and has submitted a Turner/Finley-compliant brief,
as is required for counsel seeking to withdraw on appeal of the denial of a
PCRA petition. Court-appointed counsel who seeks to withdraw from
representing an appellant on appeal of a denial of a PCRA petition on the
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J-S93034-16
basis that the appeal lacks merit must review the case zealously. See
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the
nature and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
Id. (citations omitted). Here, counsel has substantially complied with the
dictates of Turner/Finley.
When this Court receives a Turner/Finley brief, we conduct an
independent review of the record in light of the PCRA petition and the issues
set forth within it, as well as of the contents of the motion of counsel to
withdraw. See id. We will grant the motion to withdraw if we agree with
counsel that the PCRA petition is meritless. See id.
Appellant appeals from the dismissal of his PCRA petition without a
hearing. We review the denial of a post-conviction petition to determine
whether the record supports the PCRA court’s findings and whether its order
is otherwise free of legal error. See Commonwealth v. Faulk, 21 A.3d
1196, 1199 (Pa. Super. 2011). To be eligible for relief pursuant to the
PCRA, Appellant must establish, inter alia, that his conviction or sentence
resulted from one or more of the enumerated errors or defects found in 42
-8-
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Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He must also
establish that the issues raised in the PCRA petition have not been
previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An
allegation of error “is waived if the petitioner could have raised it but failed
to do so before trial, at trial, during unitary review, on appeal or in a prior
state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Further,
. . . a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision
dismissing a petition without a hearing for an abuse of
discretion.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
All of the issues raised by counsel in the Turner/Finley brief and in
Appellant’s pro se response4 claim that he received ineffective assistance of
____________________________________________
4
In Appellant’s third issue in his pro se response, in addition to claiming that
he received ineffective assistance of counsel, Appellant also appears to
substantively challenge the trial court’s jury instruction on criminal
(Footnote Continued Next Page)
-9-
J-S93034-16
trial counsel.5 Counsel is presumed effective, and an appellant bears the
burden to prove otherwise. See Commonwealth v. McDermitt, 66 A.3d
810, 813 (Pa. Super. 2013). The test for ineffective assistance of counsel is
the same under both the United States and Pennsylvania Constitutions. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v.
Jones, 815 A.2d 598, 611 (Pa. 2002). An appellant must demonstrate that:
(1) his underlying claim is of arguable merit; (2) the particular course of
conduct pursued by counsel did not have some reasonable basis designed to
effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the proceedings would have been
different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),
_______________________
(Footnote Continued)
conspiracy and accomplice liability as it relates to transferred intent. (See
Appellant’s Answer in Opposition to Finley Brief, at 9-11). However, this
claim is waived because Appellant could have raised it on direct appeal but
did not do so. See 42 Pa.C.S.A. § 9544(b); (see also Regustors, supra at
**1-2, *4, *9).
5
In the first claim in the Turner/Finley brief, counsel also alleges that
Appellant received ineffective assistance of PCRA counsel. (See
Turner/Finley Brief, at 6). However, Appellant did not raise his concerns
about PCRA counsel’s stewardship in a response to the Rule 907 notice or in
a serial PCRA petition. Appellant raised the claims for the first time in his
Pa.R.A.P. 1925(b) statement. (See [Appellant’s] 1925(b) Statement,
2/08/16, at unnumbered page 1). This Court has held that claims of
ineffective assistance of PCRA counsel must be raised either in a response to
a Rule 907 notice or in a serial PCRA petition; they cannot be raised for the
first time in a Rule 1925(b) statement or on appeal. See Commonwealth
v. Ford, 44 A.3d 1190, 1200-01 (Pa. Super. 2012). Thus, we lack
jurisdiction to hear Appellant’s claim of ineffective assistance of PCRA
counsel and, therefore, will not address it.
- 10 -
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abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will
require rejection of the claim.” Jones, supra at 611 (citation omitted).
In its first claim, the Turner/Finley brief contends that trial counsel
was ineffective for failing to call eight allegedly exculpatory witnesses. (See
Turner/Finley Brief, at 6). The PCRA court found Appellant had waived this
claim, noting that it was undeveloped and Appellant failed to discuss how it
met the second and third prongs of the Strickland test. (See PCRA Court
Opinion, 3/11/16, at 6). We agree.
In order to show that trial counsel was ineffective in failing to present
certain witnesses, Appellant must demonstrate
the existence of and the availability of the witnesses, counsel’s
actual awareness, or duty to know, of the witnesses, the
willingness and ability of the witnesses to cooperate and appear
on the defendant’s behalf and the necessity for the proposed
testimony in order to avoid prejudice. Moreover, Appellant must
show how the uncalled witnesses’ testimony would have been
beneficial under the circumstances of the case.
Commonwealth v. Gibson, 951 A.2d 1110, 1133-1134 (Pa. 2008)
(citations and quotation marks omitted). Appellant has not met this
standard.
- 11 -
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Appellant did not attach any affidavits or other documentation from
the witnesses to either his PCRA petition or to his memorandum of law.6
Further, Appellant did not provide any information regarding the substance
of their proposed testimony. (See Petition for Post-Conviction Relief,
11/12/14, at unnumbered pages 4-6; Memorandum of Law, 11/12/14, at
unnumbered pages 5-6). Appellant never states that trial counsel was
aware of the existence of these witnesses. (See id.). Lastly, Appellant
never explains how the testimony of these witnesses would have proved
beneficial to his case. (See id.). Thus, Appellant failed to set forth in his
PCRA petition the ineffectiveness analysis required by Strickland. See
Strickland, supra at 687. Because Appellant did not establish any of the
three prongs, we must deem counsel’s assistance constitutionally effective.
See Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008)
(holding where appellant fails to address three prongs of ineffectiveness
____________________________________________
6
In the Turner/Finley brief, counsel states that he attempted to investigate
Appellant’s contention regarding the eight witnesses; counsel was able to
locate two of the witnesses and, in the brief, discusses their proposed
testimony. (See Turner/Finley Brief, at 21-26). Counsel appended copies
of the statements they gave to his investigator as well as the investigator’s
report to the brief. (See id. at Exhibits F, G, and J). However, these
documents were not available to the PCRA court. Thus, they are not
included in the certified record. This Court has consistently stated that
copying material and attaching it to the brief does not make it a part of the
certified record. See First Union Nat. Bank v. F.A. Realty Investors
Corp., 812 A.2d 719, 724 n.3 (Pa. Super. 2002); In re M.T., 607 A.2d 271,
275 (Pa. Super. 1992). Therefore, as the documents are merely appended
to the brief, we will not consider them.
- 12 -
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test, he does not meet his burden of proving ineffective assistance of
counsel, and counsel is deemed constitutionally effective). There is no basis
to upset the PCRA court’s finding that Appellant was not entitled to PCRA
relief on this basis.
The Turner/Finley brief also contends that counsel was ineffective for
failing to call an expert witness to validate witness John Jones’ claim that it
was not his signature on his statement to the police. (See Turner/Finley
Brief, at 6). We disagree.
“To establish ineffective assistance of counsel for the failure to present
an expert witness, appellant must present facts establishing that counsel
knew or should have known of the particular witness.” Commonwealth v.
Millward, 830 A.2d 991, 994 (Pa. Super. 2003), appeal denied, 848 A.2d
928 (Pa. 2004) (citation omitted). Further, “the defendant must articulate
what evidence was available and identify the witness who was willing to offer
such evidence.” Commonwealth v. Bryant, 855 A.2d 726, 745 (Pa. 2004)
(citations omitted). Appellant’s PCRA petition and memorandum of law did
not identify any witness willing to offer expert testimony. (See Petition for
Post-Conviction Relief, 11/12/14, at unnumbered pages 4-6; Memorandum
of Law, 11/12/14, at unnumbered pages 5-6). Therefore, his claim fails.
See Bryant, supra at 745; see also Commonwealth v. Gwynn, 943 A.2d
940, 945 (Pa. 2008) (when defendant claims counsel was ineffective for
failing to introduce expert testimony at trial he must articulate “what
- 13 -
J-S93034-16
evidence was available and identify a witness who was willing to offer such
[evidence].”) (citations omitted). There is no basis to upset the PCRA
court’s finding that Appellant was not entitled to PCRA relief on this basis.
Further, the Turner/Finley brief maintains that trial counsel was
ineffective for failing to obtain a videotape from Sampala Beer Distributor;
failing to investigate forensic evidence with respect to a shell casing; and
failing “to investigate whether disgraced homicide detective Ron Dove
tampered with evidence.” (Turner/Finley Brief, at 6) (unnecessary
capitalization and emphasis omitted). However, Appellant’s arguments in
the PCRA court with respect to these claims suffer from the same fatal flaws
as discussed above, because Appellant never explained the substance of
these claims, never properly applied the Strickland test, and never
explained how a proper investigation of these issues would have changed
the result. (See Petition for Post-Conviction Relief, 11/12/14, at
unnumbered pages 4-6; Memorandum of Law, 11/12/14, at unnumbered
pages 5-6).
Our Supreme Court has stated that “[c]laims of ineffective assistance
of counsel are not self-proving[.]” Commonwealth v. Spotz, 896 A.2d
1191, 1250 (Pa. 2006) (citations omitted). The Court has repeatedly
refused to consider bald allegations of ineffectiveness, such as these. See
Commonwealth v. Thomas, 744 A.2d 713, 716 (Pa. 2000) (declining to
find counsel ineffective “where appellant fail[ed] to allege with specificity
- 14 -
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sufficient facts in support of his claim.”). Thus, because Appellant failed to
argue his claims with sufficient specificity below, we agree with the PCRA
court that Appellant waived these claims. (See PCRA Ct. Op., at 5-6).
Appellant is not entitled to PCRA relief on these issues.
In the next claim, the Turner/Finley brief states that trial counsel was
ineffective for failing to object to the admissibility of evidence pertaining to a
shooting at 25th and Somerset Streets on August 27, 2010. (See
Turner/Finley Brief, at 36-37). The PCRA court, Turner/Finley counsel,
and the Commonwealth, all contend that this claim is factually incorrect as
trial counsel “vigorously argued against the introduction of the evidence” at
a January 5, 2012 motion hearing. (Turner/Finley Brief, at 37; see also
PCRA Ct. Op., at 7; Commonwealth’s Brief, at 11). The PCRA court and the
Commonwealth agree that once counsel objected at the hearing, he was not
required to renew the objection at trial. (See PCRA Ct. Op., at 7;
Commonwealth’s Brief, at 11). The PCRA court also notes that Appellant
never raised the claim that the trial court erred in admitting this evidence on
direct appeal and never argued that appellate counsel was ineffective for
failing to raise the issue on direct appeal. (See PCRA Ct. Op., at 7 n.3). We
find that Appellant waived the claim.
The certified record does not include the January 5, 2012 hearing
transcript. We have reviewed the requests for transcript filed both on direct
appeal and in the instant matter and could not locate any request that the
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court reporter transcribe this hearing. (See Request for Transcript,
10/31/12, at unnumbered page 1; Notice of Appeal, 6/29/15, at
unnumbered page 2). We have stated “[w]hen the appellant . . . fails to
conform to the requirements of [Pa.R.A.P.] 1911 [(relating to transcript
requests)], any claims that cannot be resolved in the absence of the
necessary transcript or transcripts must be deemed waived for the purpose
of appellate review.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.
Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted).
Further, it is the appellant’s responsibility to make certain that the certified
record contains all items necessary to ensure that this Court is able to
review his claims. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.
Super. 2008). An appellant’s failure to ensure that the original record as
certified for appeal contains sufficient documentation to enable the court to
conduct a proper review constitutes a waiver of the issue sought to be
reviewed on appeal. See Growell v. Maietta, 931 A.2d 667, 676 (Pa.
Super. 2007), appeal denied, 951 A.2d 1164 (Pa. 2008); see also Smith v.
Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993), appeal denied, 652 A.2d
1325 (Pa. 1993). Accordingly, we find Appellant’s contention is waived.
The final claim in the Turner/Finley brief is that six errors by trial
counsel cumulatively deprived him of an adequate defense at trial. (See
Turner/Finley Brief, at 38). However, our Supreme Court has stated, “that
no number of failed ineffectiveness claims may collectively warrant relief if
- 16 -
J-S93034-16
they fail to do so individually. . . . if multiple instances of deficient
performance are found, the assessment of prejudice properly may be
premised upon cumulation.” Commonwealth v. Reid, 99 A.3d 470, 520
(Pa. 2014) (citations and internal quotation marks omitted).
Here, the trial court found that none of the six individual ineffective
assistance of counsel allegations merited relief because Appellant “did not
provide any argument or analysis showing that the underlying claims were of
arguable merit, that counsel’s actions lacked any reasonable basis, or that
the ineffectiveness of counsel caused [Appellant] prejudice.” (PCRA Ct. Op.,
at 8) (citation omitted). We have reviewed Appellant’s PCRA petition and
accompanying memorandum of law and agree that, as discussed above,
Appellant failed to apply the Strickland test or make any cognizable
argument that counsel was ineffective. (See Petition for Post-Conviction
Relief, 11/12/14, at unnumbered pages 4-6; Memorandum of Law,
11/12/14, at unnumbered pages 11-13). There is no basis to upset the
PCRA court’s finding that Appellant was not entitled to PCRA relief on this
basis. See Reid, supra at 520; Spotz, supra at 1250.
In his pro se response, Appellant raises three claims of ineffective
assistance of counsel. (See Appellant’s Answer in Opposition to Finley
Brief, at 2, 6, 9). However, Appellant waived these claims because they
were not raised in his PCRA petition. (See Petition for Post-Conviction
Relief, 11/12/14, at unnumbered pages 4-6).
- 17 -
J-S93034-16
It is long settled that issues not raised in a PCRA or amended PCRA
petition are waived on appeal. See Commonwealth v. Lauro, 819 A.2d
100, 103 (Pa. Super. 2003), appeal denied, 830 A.2d 975 (Pa. 2003)
(waiving five issues not in original or amended PCRA petition). Further, an
appellant cannot raise a subject for the first time on appeal. See
Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007),
appeal denied, 956 A.2d 432 (Pa. 2008) (new legal theories cannot be raised
for first time on appeal); Pa.R.A.P. 302(a). Accordingly, we find that
Appellant waived all issues in his pro se response.
Appellant’s issues are either waived or meritless. Further, this Court
has conducted an independent review of the record as required by
Turner/Finley and finds that no meritorious issues exist.
Motion to withdraw as counsel granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
- 18 - | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130690/ | August 31, 1987
Rouorable W. C. Kirkendall Opinion No. JR-779
District Attorney
25th Judicial District Re: Whether a district attor-
113 South River, Suite 205 ney is required to reimburse
Seguin, Texas 78155 a county clerk for services
rendered pursuant to a bond
forfeiture proceeding
Dear Mr. Kirkendall:
You ask whether a district attorney's office is required to pay a
fee to the county clerk to file an abstract of a final judgment issued
against a principal or surety in a bond forfeiture proceeditig. We
conclude that the district attorney need not pay such a fee.
A bond forfeiture proceeding is a criminal action, but after the
entry of a judgment nisi all further proceedings are governed by the
Rules of Civil Procedure. Code of Grim. Proc. art. 22.10; Tinker v.
g, 561 S.W.2d 200 (Tex. Grim. App. 1978); Blue v. State, 341
S.W.2d 917, 919 (Tex. Grim. App. 1960). Article 22.14 of the Code of
Criminal Procedure specifically provides that final judgments in bond
forfeiture proceedings "shall be collected by execution as in civil
actions." If a bond forfeiture hearing is concluded ~with a judgment
in favor of the state, then the award can be secured, at least in
part, by the creation of a lien against real property belonging to a
judgment debtor. To create such a lien, an abstract of judgment must
be filed in the county clerk's office for each county where real
property of the judgment debtor is to be found. V.T.C.S. art. 5447.
5448. Filing the abstract of judgment creates a lien against any
property owned, or after-acquired, by the j,udgment debtor. A lien is
valid for an initial period of ten years if the judgment on which it
is based does not become dormant. Article 5499, V.T.C.S. art. 5449.
The county clerk is authorized by section 51.318 of the Govern-
ment Code to charge a fee for recording abstracts of judgment. But
p. 3667
Eonorable W. C. Kirkendall - Page 2 m-f-779)
1
article 3912e. at section one, provides, in part, that
[nlo district officer shall be paid by the State
of Texas zany ~fees or cmmissions~-for any service -~
performed by him; nor shall the State or any
county pay to any county officer in any county
containing a population of twenty thousand
(20,000) inhabitants or more . . . any fee or
commission for any service by him performed .as
such officer . . . provided further, that the
provisions of this Section shall not affect the
payment of costs in civil cases or eminent domain
proceedings by the State. . . .
V.T.C.S. art. 3912e, -01.
In Attorney General Opinion w-628 (1959), this office observed
that:
It is noted that the prohibitions contained in
Sections 1 and 3 of Article 3912e . . . concerning
the payment of fees or commissions by the State do
not apply to the payment of costs . . . by the
State where the fees earned ~constitute a part of
the cost assessed against the State in a particu-
lar case. Therefore, such cost must be paid by
the State as provided by law rather than as a fee
to the individual officer. (Emphasis added.)
See also Attorney General Opinions M-134 (1967); WW-658 (1959); WW-508
(1958); O-807 (1939). Compare Attorney General Opinion M-168 (1967)
(filing fees in criminal cases need not be paid).
The charge levied by a county clerk for recording an abstract of
judgment is not a “cost” in the sense that word is used in article
3912e; as such, the district attorney need not pay it. This office
has previously concluded that the fee charged by a county clerk for
recording an abstract of judgment in a tax delinquency suit is not a
part of the “costs” attributable to the litigation on which the
judgment is based. Article 3912e thus excuses the state from paying
the statutory fee. See Attorney General Opinion MW-308 (1981). Cf.
Williams v. Simon, 235S.W. 257 (Tex. Civ. App. - Austin 1921, writ
1. Article 3912e. V.T.C.S., has been repealed and replaced,
effective September 1, 1987, with the Local Government Code. -See Acts
1987, 70th Leg., ch. 149, 951. 49.
P. 3668
Honorable W. C. Kirkendall - Page 3 (JM-779)
dism'd w.o.j.) (recording a "muniment of title" has never been
recognized as generating a "cost" taxable to a party on a suit).
SUMM~ARY
The county clerk is authorized by the
Government Code, section 51.318 to charge a fee
for recording an abstract of a final judgment.
The clerk may not collect the fee when-a district
attorney seeks to file an abstract of a final
judgment from a bond forfeiture proceeding,
article 3912e. section 1. V.T.C.S.
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
P. 3669 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130701/ | Rouorable B. F. Hicks Opinion No. JM-768
Franklin County Attorney
P. 0. Box 787 Re: Whether a water district may
Mt. Vernon, Texas 75457 contract with a commissioners court
to place an ambulance and emergency
medical facilities at a lake owned
and operated by the water district
Dear Mr. Hicks:
You ask two questions which we set out following:
1. Can the Franklin County Water District, a
conservation and reclamation district created by
P
act of the Texas Legislature as authorized under
Article XVI, Section 59, of the Texas Constitution
and also governed by the general law concerning
water control and improvement districts. lawfully
make a donation of money from the general
operating fund of the Franklin County Water
District to the CormeissionersCourt of Franklin
County, said money to be used for the purchase of
an ambulance to be owned by Franklin County
Bospital, said hospital being owned. by Franklin
County, Texas?
2. Can the Franklin County Water District, the
Commissioners Court of Franklin County, and the
Franklin County Hospital enter into an agreement
pursuant to the Interlocal Cooperation Act
(Article 4413(32c), V.T.C.S.) pursuant to which
Franklin County Water District will pay a sum of
money to the Commissioners Court of Franklin
County in exchange for which Franklin County
Hospital would agree to place an ambulance and
emergency medical technicians at Lake Cypress
Springs, which is owned and operated by Franklin
County Water District in Franklin County, during
specified days of the year?
P The Franklin County Water District is a water control and
p. 3599
Eonorable B. F. Hicks - Page 2 (JM-768)
improvement district created by the legislature pursuant to article
XVI, section 59, of the Texas Constitution. Acts 1965, 59th Leg., ch.
719. at 1668. See also Acts 1971, ,62d Leg., ch. 354, at 1330. The
water district is a political subdivision of the state. Acts 1965,
supra. The district derives its powers at large from the constitution
and specifically from the statutes governing the particular duties it
is to discharge. Franklin County Water District V. Majors, 476 S.W.2d
371, 373 (Tex. Civ. App. - Texarkana 1973, writ ref'd n.r.e.); see
generally Attorney General Opinions JM-258 (1984); M-171 (1967). -
The district may exercise either those oowers which are exoresslv
delegated to it or -those that are clearly'implied from the express
powers. Tri-City Fresh Water Supply District No. 2 of Harris County
v. Manor. 142 S.W.2d 945, 946 (Tex. 1940); Lower Nueces River Water
Supply District V. Cartwright, 274 S.W.2d 199, 207 (Tex. Civ. App. -
San Antonio 1954 writ ref'd n.r.e.1. Implied oowers are those that
are "indispensable to the accomplishment of the purpose" for which the
political subdivision was created; powers "merely convenient" or
"useful" cannot be implied and may not be assumed by the subdivision.
Tri-City Freshwater Supply District No. 2 of Harris County, supra, at
947. (Emphasis'added).
The act creating the district authorizes it t@ exercise the 7.
following powers, privileges, and functions, among others:
(1) To control, store, preserve and distribute
its waters and flood waters, the waters of its
rivers and streams, for all useful purposes and to
accomplish these ends by all practicable means
including the construction, maintenance and
operation of all appropriate improvements. plants,
works and facilities, the acquisition of water
rights and all other properties, lands, tenements,
easements and all other rights necessary to the
purpose of the organization of the District.
(2) To process and store such waters and
distribute same for municipal, domestic,
irrigation and industrial purposes, subject to the
requirements of Chapter 1, Title 128. Revised
Civil Statutes of Texas, 1925, as amended.
(3) To dispose of property or rights therein
when the same are no longer needed for the
purposes for which the District is created or to
lease same for purposes which will not interfere
with the use of the property of the District.
(4) To cooperate with and contract with the
p. 3600
Honorable B. F. Hicks - Page 3 (JM-768)
State of Texas, the United States of America, or
with. any of their departments or agencies now
existing, or which may hereafter be created, to
carry out any of the powers or to further any
of the purposes of the District and, for such
purposes, to receive grants, loans or advancements
therefrom.
. . . .
(6) To exercise all functions to permit the
accomplishment of its purposes including the
acquisition within or without said District of
land, easements, and rights-of-way and any other
character of property incident to, or necessary in
carrying out the purposes and work of the District
by way of gift, device, purchase, leasehold or
condemnation. . . .
(7) To do any and all other acts or things
necessary or proper to carry into effect the
purpose for which the District is created as
organized.
Acts 1965, 59th Leg., ch. 719, 14 at 1671-72.
Chapter 51 of the Water Code governs the operation of the
day-to-day affairs of the district. See Water Code 4951.121-51.194.
A district may purchase machinery Gded in the operation and
maintenance of its improvements. -Id. at 551.126.
Finally, the district may undertake activities in support of
public recreation cn its properties. Specifically, it may
(1) acquire land for public recreation;
(2) construct facilities for public use on
land acquired for public recreation;
(3) provide for the operation, maintenance.
and supervision of the public recreation areas;
(4) execute agreements with other local,
state, or federal agencies for planning. construc-
tion. maintenance, and operation of public
recreation facilities and necessary access roads;
and
(5) maintain adequate sanitary, standards on
p. 3601
Ronorable B. F. Bicks - Page 4 ' (JM-768)
the land and water areas that are part of or
adjacent to public recreation areas. (Emphasis
added).
Parks and Wild. Code 513.304.
.You first ask whether the .district may provide money from its
general fund to the Franklin County Commissioners Court for the
purchase of an ambulance for the Franklin County Hospital, which is
owned by Franklin County. You do not say how the ambulance will be
used, or whether it will be for the exclusive use of the district,
either to protect the health and safety of the district's employees,
or the well-being of members of the public using the district's
property for recreation. We assume that your question contemplates
that the district will provide the entire cost of the ambulance.
The district may provide for the health care needs of its
employees. Attorney General Opinion O-4140 (1941). Likewise, it may
provide for the operation, maintenance, and supervision of public
recreation areas. sparks and Wild. Code §13.304(3). Given these
powers, the purchase and operation of an ambulance by the district
would be a proper exercise of its authority. An ambulance can perhaps
be considered as a tool for providing first aid. Unlike a fixed
health care facility, such as a hospital or clinic, it cannot be used
for long-term care, or, indeed, for anything other than dealing with
critical or life-threatening~emergencies, such as those that might be
caused by construction or recreation accidents on the property of the
district.
We conclude that the transfer of district funds to the county for
the purchase of an ambulance to be owned by the county's hospital and
placed on the district property is permissible, so long as the
ambulance purchased with the transferred money is used exclusively for
a purpose lawful both to the district and the county. Article III,
section 52. of the Texas Constitution prohibits the use of public
money other than for public purposes. This section of the constitu-
tion bars a political subdivision from gratuitously granting its funds
to another political subdivision. Harris County Flood Control Dis-
trict v. Mann, 140 S.W.2d 1098 (Tex. 1940); San Antonio Independent
School District v. Board of Trustees of San Antonio Electric and Gas
System, 204 S.W.2d 22 (Tex. Civ. App. - El Paso 1947, writ ref'd
n.r.e.); Attorney General Opinions JM-220 (1984); JM-65 (1983); H-1170
(1978). This provision would not prohibit the arrangement you have
described to us, so long as it is carried out pursuant to an agreement
that clearly indicates what public purpose is being served by the
arrangement and that the district and the county each will derive a
specific public benefit from the arrangement. The agreement must
assure that the ambulance is under the joint control of both parties,
and that it will only be used for.a purpose lawful to the district.
p. 3602
Honorable B. F. Hicks - Page 5 (m-768)
See Attorney General Opinions JM-220 (1984); JM-65, JM-44 (1983);
m60 (1979) (county may make its funds available to city for
operation of the zoo) and H-413 (1974) (court authorized to contribute
to construction of swinnningpool operated by school district).
If ~the ambulance is not devoted to the exclusive service of
health care of water district employees, health care of persons using
the district's facilities, or both, then we do not believe that the
district is authorized to provide funds to the county for its pur-
chase. In other words, if the ambulance is not at the complete beck
and call of the district for either the protection of its employees,
or the health and safety of members of the public using the recreation
areas maintained by the district, then the district would have no
authority to purchase the ambulance, and it would likewise have no
authority to provide money to the county to purchase one to be used
for that purpose. Because the district has no authority to operate an
ambulance service to protect the public at large, it may not make its
funds available for that purpose, even if the grant is to another
public body. Thus, if the district provides all of the funds.neces-
sary for the purchase of the ambulance, the vehicle must be available
for just the needs of the district. A contribution of some part of
the cost of the ambulance would permit a proportionate dedication of
the machine to the exclusive needs of the district.
We caution, however, that any examination of the lawfulness of
the activity proposed by your first question must also include a
thorough consideration of what the county may lawfully do. An
agreement between the district and county must be supported by
adequate consideration to support the county's expenditure of public
funds to operate and maintain the ambulance. An arrangement which
requires the county to devote a part oftits ambulance service exclus-
ively to the needs of one client raises questions about whether the
county can ever receive a quid pro quo adequate-to satisfy the rule
against transfer of public funds without receiving corresponding
public benefits. While we are in no position to structure a bargain
for the parties, we suggest that the district and county consider the
absolute legal necessity of an agreement that provides adequate
assurances of a suitably equivalent exchange of public funds for
public benefits by both parties.
You also ask about an apparent alternative method for meeting the
health and safety needs of the district. You ask whether the
Franklin County Water District, the Commissioners
Court of Franklin County, and the Franklin County
Hospital [can] enter into an agreement pursuant to
the Interlocal Cooperation Act (Article 4413(32c).
V.T.C.S.) pursuant to which Franklin County Water
District would pay a sum of money to the
p. 3603
Honorable B. F. Hicks - Page 6 (JM-768)
Commissioners Court of Franklin County in exchange
for which Franklin County Bospital would agree to
place an ambulance and emergency medical
technicians at Lake Cypress Springs, which is
owned and operated by Franklin County Water
District in Franklin County. during specified days
of the year?
Our answer to this question is in the affirmative, and stands
apart from our answer to the first question. As we noted above, the
Parks and Wildlife Code permits the Franklin County Water District to
operate and maintain recreation areas. The district may "execute
agreements with other local, state, or federal agencies for planning,
construction, maintenance and operation of public recreation areas."
Parks and Wild. Code §13.04(4). Thus, it would be appropriate for the
district to enter into a contract with Franklin County for the
provision or services necessary to provide for healthy and safe
recreation areas, so long as the county can lawfully be a party to
such a contract.
The Interlocal Cooperation Act, article 4413(32c), V.T.C.S., also
permits the kind of agreement contemplated in your question. See art.
4413(32c), 54(b). So long as all of the parties to an InGlocal
cooperation agreement are authorized to provide the services con-
tracted for, such an agreement would be lawful.
We note that a county has the power both to provide for a
hospital, see article 4478, V.T.C.S.. and to appropriate and spend
money fromthe general revenues of the county for health and sanita-
tion. This power specifically includes the power to operate an
ambulance service in the county. Attorney General Opinion C-772
(1966). Any expenditure of county funds must not be contrary to
article III, section 52. of the constitution. See Attorney General
Opinion J&191 (1984). In other words, each party to the contract
must receive adequate consideration for its expenditure.
SUMMARY
The Franklin County Water District, a
conservation and reclamation district created
pursuant to article WI, section 59, of the Texas
Constitution, may provide funds to Franklin County
for the purchase of an ambulance, if the ambulance
will be used exclusively in furtherance of a
lawful purpose of the district. Such lawful
purposes are: protecting the health and safety of
the .district employees and providing for safe
public recreation on the'district's property. The
district may enter into an agreement with Franklin
p. 3604
Honorable B. F. Hicks - Page 7 (~~-768)
County and the county hospital to place an
ambulance and emergency medical technicians on the
district's property at certain times in order to
protect the health of district employees and the
general public using ~the district's property for
recreation purposes. Parks and Wild. Code art.
13.03(4): V.T.C.S. art. 4413(32c).
Very/truly y0urj.j
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STBAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
p. 3605 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130721/ | THE ATTORNEY GEXERAL
OF TEXAS
July 15, 1987
Hoaorable Barry L. Macha Opinion No. m-748
Criminal District Attorney
Wichita County Courthouse Re: Liability of a county for acts
Wichita Falls, Texas 76301 committed by members of a volunteer
fire department
Dear Mr. Macha:
You ask several questions touching on the liability of a county
for the acts of others furnishing fire fighting and fire protection
services in the county. Your request encompasses the following
issues:
1. Who can be considered to be 'an agent of
the county' when furnishing fire services in the
county?
2. When is a county liable for the acts of
volunteer fire fighting departments furnishing
fire service in the county?
3. What is the extent of a county's liability
for the intentional acts of its agents furnishing
fire service in the county?
Counties are permitted to undertake only those activities
expressly permitted by the constitution or by statute, or which
necessarily can be supported by an implied grant of authority. Tex.
Const. art. V, 118; Canales V. Laughlin, 214 S.W.Zd 451, 453 (Tex.
1948); Anderson V. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941); Attorney
General Opinion Nos. JM-697 (1987); JM-350 (1985).
Counties specifically are authorized by statute to provide fire
services directly. V.T.C.S. art. 2351a-1. This statute also permits
counties to contract with cities, towns, and villages in the county or
in adjoining counties, for the use of fire trucks and other fire
fighting equipment to furnish fire service in areas of the county
outside the limits of any municipality. Id. By implication, this
specific grant of authority to contract forequipment also includes
the power to contract for the personnel necessary to operate the
p. 3479
Honorable Barry L. Macha - Page 2 (JM-748)
,
equipment. Attorney General Opinion Nos. V-1275 (1951); O-4326
(1942).
Counties are also permitted to contract with incorporated
volunteer fire departments located within the county to furnish fire
service for areas not within the corporate limits of a city or town.
Article 2351a-5, V.T.C.S. The terms of such contracts are determined
by negotiation between the volunteer fire department and the county,
and the volunteer fire fighters may be paid from the general fund of
the county. -Id.
If a county contracts with a city, town, or village for the
provision of fire service, then article 2351a-1 provides that the acts
of the employees of the city , town, or village furnishing fire service
pursuant to such a contract "shall be considered the acts of the
count[y] in all respects." In a previous opinion, we stated that
article 2351a-1 fixes the potential for the liability of the parties
to a contract between a county and alcity permitted by the statute.
Attorney General Opinion E-279 (1974). There,.we held that a county
would be liable for the acts of a city employee committed while the
city was fulfilling a contractual obligation to the county to fight
fires.
Article 2351a-5, on the other hand, does not create an explicit
principal-and-agent relationship between the county contracting for
fire service and the volunteer fire department furnishing the service.
Although a casual reading of article 2351a-5 may create the impression
1. We note that in Attorney General Opinion H-279 we compared
article 2351a-1 with section 4(g) of the Interlocal Cooperation Act,
article 4413(32c), V.T.C.S., which provides:
(g) When governmental units enter a contract or
agreement for the furnishing of fire protection
services, any civil liability related to the furnishing
of those services is the responsibility of the govern-
mental unit which would be responsible for furnishing
the services absent the contract or agreement.
As this office said in Attorney General Opinion E-279, the two
statutes must be construed together. Article 2351a-1 is the more
specific statute and must prevail over the general provisions of the
Interlocal Cooperation Act. City of Baytown v. Angel, 469 S.W.Zd 923
(Tex. Civ. App. - Houston [14th Dist.] 1971, writ ref'd n.r.e.);
Commercial Standard Fire and Marine Co. v. Commissioner of Insurance,
429 S.W.Zd 930 (Tex. Civ. App. - Austin 1968, no writ); 53 Tex. Jur.
2d, Statutes 4161 (1964). --.
p. 3480
Honorable Barry L. Kacha - Page 3 (J&748)
P
that such a volunteer fire department contractin.: with a county
always will be an independent contractor, and thus bear the sole
responsibility for its acts, we are unable to say that such neces-
sarily will always be the case.'
Instead, we believe that the question of assigning liability when
fire services are provided by an incorporated volunteer fire depart-
ment pursuant to a contract with a county will always be one of fact.
Whether liability will be fixed on the volunteer fire department alone
as an independent contractor or placed on the county as a principal
responsible for the acts of its agent volunteer fire department will
depend30n an application of the principles of the law of agency to the
facts. As a general rule, of course, the precise legal impact of a
relationship arising out of a contract will be construed according to
the realities of a situation, and not simply by reference to the
formal recitals used in the contract (i.e., "X volunteer fire depart-
ment is an independent contractor.") We do not decide questions
of fact,.nor are we suited to advise parties to potential contracts
negotiated pursuant to article 2351a-5 how to structure their bargains
to reach a desired result in the law.
You express concern that certain language in the provisions of
article 2351a-1 may create unlimited liability on the part of the
county for the acts of anyone who provides 3 fire service, whether
pursuant to a contract authorized by statute, as an officious
intermeddler or as a volunteer. Your concern is engendered by the
somewhat awkward drafting of article 2351a-1. Specifically, the exact
2. We do not consider those cases where a contracting volunteer
fire department is truly an independent contractor with sole liability
for its acts, but where an injured party seeks to hold the contracting
county liable on the theory that it is responsible for the negligent
selection of an independent contractor who causes an injury. See
enerally Note, Torts of an Independent Contractor, Yale L. J. 861
:1916). Nor do we address the applicability of a rule of agency which
provides that contracting parties are responsible for acts of
independent contractors when the work to be performed pursuant to
contract can be classified as inherently dangerous. Restatement
(Second), of Agency 0416.
3. We note that volunteer fire fighters and fire departments are
not liable for "damage to property resulting from . . . reasonable and
necessary action in fighting or extinguishing a fire on the property."
Civ. Prac. and Rem. Code 578.001.
p. 3481
Ronorable Barry L. Macha - Page 4 (m-748)
meaning of the fourth sentence of the article, as emphasized below, is
problematical:
The Commissioners Court of any county of this
State shall also have the authority to enter into
contracts with any city, town or village within
the county and/or adjoining counties, upon such
terms and conditions as shall be agreed upon
between the Commissioners Court and the governing
body of such city, town or village, for the use of
the fire trucks and other fire-fighting equipment
of the city, town or village. It is specifically
Provided that the acts of any person or persons
while fighting fires, traveling to or from fires,
or in any manner furnishing fire protection to the
citizens of a county outside the city limits of
any city, town or village, shall be considered as
the acts of agents of the county in all respects,
notwithstanding such person or persons may be
regular employees or firemen of a city, town or
No city, town or village within a county
and or adjoining counties shall be held liable for
v-
the acts of any of its employees while engaged in
fighting fires outside the city limits pursuant to
any contract theretofore entered into between
the Commissioners Court of the county and the
governing body of the city, town or village.
(Emphasis added).
V.T.C.S. art. 2351s-1, 01.
At first blush, the fourth sentence of article 2351a-1 seems to
depart from the tenor of the rest of the provision: the questioned
language appears to create a liability on the part of the county to
the whole world for 5 act in any way connected with furnishing fire
service, including acts done while traveling to and from fires.
Reference to the canons of statutory construction provides
several rules which help to resolve the problem posed by the somewhat
confusing sentence. First, legislation is to be interpreted so as to
fairly meet the intent of the legislature, Calvert v. Kadane, 427
S.W.Zd 605 (Tex. 1968). and statutes must be given a fair, rational,
and sensible construction. Empire Gas and Fuel Co. v. State, 47
S.W.2d 265 (Tex. 1932). The precise intent of the legislature in
drafting article 2351a-1 is not difficult to divine: to permit
counties to furnish fire service directly or pursuant to a contract
with certain city, town, or village. We note that the caption to
article 2351a-1 as originally enacted read:
p. 3482
Eonorable Barry L. Macha - Page 5 (JM-748)
An Act authorizing the Commissioners Court in all
counties of this State to provide fire protection
and fire fighting equipment for the citizens of
the county outside of any city, town, or village
therein, either by the purchase and maintenance by
the county of the necessary equipment, or by
entering into contracts with the governing body of
cities, towns, or villages located within the
county and/or adjoining counties for the use of
the fire fighting equipment of the city, town, or
village; providing that the operation of any fire
fighting equipment outside the city limits of any
city, town, or village, pursuant to contracts with
the Cosanissioners Court of the county, shall be
considered as operations of the countyi and all
persons engaged in such operations, notwith-
standing they may be employees of a city, town, or
village, shall be considered as agents for the
county in all respects; providing purchase of fire
fighting equipment must be authorized by election;
and declaring an emergency. (Emphasis added).
Acts 1941, 47th Leg., ch. 360, at 567. The caption of a legislative
act may be considered as a guide to the purpose of the legislation.
Anderson v. Penix, 161 S.W.Zd 455, 459 (Tex. 1942). The caption to
article 2351a-1 as originally enacted gives a clear view of the
ultimate meaning of the section. It convincingly demonstrates that
~the legislature intended for the fourth sentence to relate to the
parties to a contract executed pursuant to the statute.
Second, if the legislature intended to subject a county to the
very real possibility of unlimited liability for the acts of anyone
providing fire service, then surely the statute would do so plainly
and forcefully. To say that the language of the fourth sentence of
article 2351a-1 imposes such liability would be to abolish the
county's defense of sovereign immunity in a large number of instances
and in a strikingly casual fashion. Legislation in derogation of the
doctrine of sovereign immunity should be strictly construed, and
legislative intent to waive the doctrine should be clear. and applied
only to cases clearly within the legislature's intent. Cf. Dobbins v.
Texas Turnpike Authority, 496 S.W.Zd 744, 748 (Tex.Tv. App. -
Texarkana 1973, writ ref'd n.r.e.).
Finally, to say that the troublesome language in the provision
here imposes almost unlimited liability -- in derogation of coxanonlaw
rules such as those relating to sovereign immunity -- would be to
ascribe to the legislation an unreasonable, unjust, and absurd
purpose, something contrary to the acceptable rules for divining
p. 3483
Honorable Barry L. Macha - Page 6 (JM-748)
legislative intent. State Highway Department v. Go=, 162 S.W.Zd
934, 936 (Tex. 1942).
Thus, we believe that the seemingly unlimited phrase "the acts of
any person" in the fourth sentence of article 235a-1 can only be
understood to refer to acts done pursuant to the kind of contracts
authorized between a county and named entities in the first part of
the provision. Our conclusion is buttressed by additional language
found elsewhere in the same sentence for the final clause of the
fourth sentence reads "notwithstanding such persons [the "any persons"
referenced in the first part of the sentence] may be regular employees
or firemen of a city, town, or village." Our interpretation of the
sentence is all the more forcefully supported by the language of the
last sentence in article 2351s-1, which clearly appears to have been
written to rewove even the slightest possibility for the implication
of liability to cities, towns, and villages furnishing fire services
to a county pursuant to a statutorily authorized contract. Article
2351a-1 must be construed as a whole, and all of the language employed
is to be viewed together. Attorney General Opinion Nos. JM-670
(1987); M-650 (1970); 53 Tex. Jur.Zd Statutes 0160 (1964). When taken
together, the consecutive sentences of article 2351a-1 limit and make
most certain the key ramification of the explicit agency relationship
created by the statute: counties potentially are liable for the acts
of city, town. or village furnishing fire service pursuant to contract
under the statute. A county is not liable for the acts of anyone
else, including volunteers who furnish fire protection service.
You also ask whether a county may be held liable for the inten-
tional acts40f others permitted by statute to furnish fire service to
the county. A county's liability for the acts of its agents must be
established by reference to the common law and to statute. The
doctrine of sovereign immunity bars suits against counties for the
4. Our consideration of this issue is limited to intentional
tortious behavior governed by state comaon law or statutory law. We
express no view on the possible application of certain federal civil
rights laws to intentional conduct by government employees or agents.
See Frels and Homer, The Interrelationship of Tort Liability,
Governmental Immunity, and the Civil Rights Statutes, 16 St. Wary's
L.J. 851 (1985). We also disclaim any intent to address the issue of
whether a county may be held liable for the negligent selection of an
agent or contractor who commits intentional torts. -
See note 2. supra.
p. 3484
Honorable Barry L. Macha - Page 7 (JM-748)
acts of its agents except in the circumstances specified in the Texas
Tort Claims Act [TTCA]. Clv. Prac. & Rem. Code §lc‘: et seq.: see,
&&S Davis v. Lubbock County, 486 S.W.Zd 109 (Tex. Civ. App. -
Amarillo 1972, no writ); Townsend v. Memorial Medical Center, 529
S.W.Zd 264 (Tex. Civ. App. - Corpus Christ1 1975, writ ref'd n.r.e.).
Consequently, acts done within the confines of a relationship between
a county and its duly authorized agent will be imaune from suit, save
for the limited waivers of sovereign immunity found in the TTCA. Civ.
Prac. 6 Rem. Code 5§101.001(1); 101.021.
The Tort Claims Act specifically preserves sovereign immunity for
claims arising:
(2) from the action of an employee while re-
sponding to an emergency call or reacting to an
emergency situation if the action is in compliance
with the laws and ordinances applicable to emer-
gency action; or
(3) from the failure to provide, or the method of
providing police or fire protection. (Emphasis
added).
P
Civ. Prac. & Rem. Code 5101.055 (2). (3).
The predecessor provision to these provisions, V.T.C.S. art.
6252-19, re-enacted without substantive change in the Civil Practice
and Remedies Code, has been the subject of substantial judicial
exposition, and we submit that those cases can be studied with profit
for guidance concerning preventative planning by county officials
charged with the provision and supervision of emergency services. See
V.T.C.S. art. 6259-19, §14(5). (8), (9). We only note that the
particular provisions quoted in some circumstances comparing fire
service can be navigated only with great care by a governmental unit
seeking to retain the protection offered by sovereign immunity. See.
s, Black v. Nueces County Rural Fire Prevention District No. 2, 695
S.W.Zd 562 (Tex. 1985) (immunity for action taken to provide emergency
service, only if the action is in compliance with any laws and
ordinances applicable to emergency service; if there are no ordinances
governing the provision of emergency service then there can be no
reliance in the immunity granted by this section); State v. Terrell,
588 S.W.Zd 784, 788 (Tex. 1979) (method of providing emergency service
refers to the general division or plan about how service is to be
provided; and not to case-by-case actions undertaken pursuant to a
plan, if any).
Moreover, as you correctly note, the Tort Claims Act preserves
sovereign immunity in cases "arising out of assault, battery. false
imprisonment, or any other intentional tort. . . .u Civ. Prac. 6 Rem.
p. 3485
Honorable Barry L. Macha - Page 8 (JM-748)
Code 5101.057(Z). Sovereign iaasunityclearly is an absolute bar to
liability in the case of all common law intentionai torts. Once a
claim is characterized as belonging to the class of common law
intentional torts, suit on that claim is barred by the sovereign
isalunity. Townsend v. Memorial Medical Center, 529 S.W.Zd 264, 266
(Tex. Civ. App. - Corpus Christ1 1975. writ ref'd n.r.e.).
SUMMARY
Counties are liable for the negligent acts of
agents furnishing fire services pursuant to a
contract authorized by articles 2351a-1 or
2351a-5, V.T.C.S.. to the extent specified in the
Texas Tort Claims Act. Incorporated volunteer fire
departments furnishing such services pursuant to
contract may be agents of the county in some
circumstances. Counties are not liable for
the intentional comon law torts of agents
furnishing fire protection service.
%?Jzh
JIM MATTOX
Attorney General of Texas
WARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STBAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
p. 3406 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130726/ | July 9, 1987
Honorable Gary Garrison opinion No. J&743
Ector County Attorney
Courthouse, Room 218 Re: Liability for medical costs
Odessa, Texas 79761 of an individual in a county jail
awaiting a hearing for violation
of parole conditions
Dear Mr. Garrison:
You ask whether the Texas Department of Corrections OK the county
of incarceration is responsible for the payment of medical care for a
parole violator held in county jail pending a parole violation
hearing.
The Adult Parole and Mandatory Supervision Law defines parole and
mandatory supervision as the release of a prisoner from imprisonment
but not from the legal authority of the state. Code Grim. Proc. art.
42.18, 02. Every prisoner on parole OK mandatory supervision remains
in the legal custody of the institution from which he was released but
is subject to the orders of the Board of Pardons and Paroles. Code
Crim. Proc. art. 42.12, 515(f)(3). If there is reason to believe that
a parolee has violated a condition of his parole, the Board of Pardons
and Paroles may issue a warrant authorizing the officers named in the
warrant to take the parolee into "actual custody." Code Grim. Proc.
art. 42.12, §21(a). The due process requirements of Morrissey v.
Brewer, 408 U.S. 471 (1972). require that the parolee be given a
revocation hearing at OK near the location of the alleged violation.
Pending the hearing on a charge of parole violation or violation of
conditions of mandatory supervision, Va prisoner returned to custody
shall remain incarcerated." Code Crim. Proc. art. 42.12, 521(a); art.
42.18, 514(a); 37 Texas Administrative Code §145.45(g). The Board of
Pardons and Paroles may require a county sheriff to accept a prisoner
of the board pending a parole revocation hearing. Representatives of
a county where a parolee is detained on the basis of a prerevocation
warrant issued by the Board of Pardons and Paroles may not transfer
the parolee to the Texas Department of Corrections before completion
or waiver of the required hearing. Attorney General Opinion JM-615
(1987).
Counties are liable for medical expenses of prisoners "confined
in OK kept under guard in the county jail." Code Crim. Proc. art.
104.002. Although there is an exception in article 104.002 for
p. 3458
Honorable Gary GaKKiSOn - Page 2 (JM-743)
prisoners transferred from another County "on a change of venue, fOK
safekeeping, OK for a habeas corpus hearing." there is no eXCeptiOn
for prisoners awaiting hearings on parole KeVOCatiOKi. The Texas
Department of Corrections is responsible fOK the medical care of
pKisoneKs "confined therein." V.T.C.S. art. 6166g. See generally
Attorney General Opinion JM-730. You suggest that because a parolee
is in the legal custody of the Department of Corrections. he should be
considered to be "confined" in the Department of Corrections KatheK
than county jail for purposes of determining liability for medical
care.
AKtiCla 61666 makes the Texas Department of Corrections respon-
sible for the medical care "of prisoners confined therein." Cf.
Attorney General Opinion Jt+580 (1986) (authority of TDC to aSS=
medical cost of hospitalization of infant born to an inmate). Even
though a prisoner incarcerated in a county jail pending a parole
violation hearing is in the legal custody of the Department of
Corrections he is in the actual custody of the county jail. We find
no basis for construing the term "confined therein" in article 61661:
to be synonymous with legal custody. Absent any indication of
contrary legislative intent. we most read "confined therein" in its
OKdinaKy meaning. Gov't. Code 5311.011(a) (words shall be construed
according to common usage). The ordinary meaning of "confine" is "to
restrain within limits." Webster's New International Dictionary (2d
ed.). See Attorney General Opinion JM-730. A prisoner InCaKCeKated
in a county jail is not confined in the department of corrections. We
conclude, therefore, that a county is responsible for medical care for
a parole violator incarcerated in a county jail pending a parole
revocation hearing pUKSUant to article 104.002.
SUMMARY
Medical care fOK a parole violator incarcerated
in a county jail pending a parole revocation hearing
is the responsibility of the county under the
provisions of article 104.002 of the Code of
Criminal Procedure.
/ "eKyz&
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
p. 3459
Honorable Gary GaKKiSOn - Page 3 (~~-743)
RICK GILPIN
Chairman, Opinion Conrmittee
Prepared by Nancy Sutton and
Sarah Woelk
Assistant Attorney General
p. 3460 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130773/ | .
May 14, 1987
ElonorableMark W. Stiles Opinion No. n-696
chairman
County Affairs Conduittee Re: Definition of "principal place
Texas House of Repres&tatives of business" for purposes of article
P. 0. Box 2910 60113, V.T.C.S.. the out-of-state
Austin, Texas 78769 bidding act
Dear Representative Stiles:
Tou ask about the proper construction of article 6Olg, V.T.C.S.
Thereinafter the act], which governs bids submitted by nonresidents
to political subdivisions in Texas for constructlou, supplies, and
services. Specifically, you ask about' the proper construction of
the phrase "principal place of business' that is set forth in the
statutory definitions of "nonresident bidder" and "Texas resident
bidder" found in section l(a) of the act.
Section l(b) of the act provides the following:
T'he state or a govermnsntal agency of the state
may not award a contract for general construction,
improvements, services, or public works projects
or purchases of supplies, materials, or equipment
to a nonresident bidder unless the nonresident's
bid is lower than the lowest bid submitted by a
responsible Texas resident bidder by the same
amount that a Texas resident bidder would be
required to underbid a nonresident bidder to
obtain a comparable contract in the state in which
the nonresident's principal place of business is
located. (Emphasis added).
Section l(a)(2). of article 6Olg. provides that "'[nlonresident
bidder' means a bidder whose principal place of business is not in
this state, but excludes a contractor whos.&ultimate parent company or
majority owner has its principal place of business in this state."
(Emphasis added.) Section l(a)(3) provides that "'Texas resident
bfdder' means a bidder whose principal place of business is in this
state, and includes a contractor whose ultimate parent company or
majority owner has its principal place of business in this state.'
(Emphasis added.) The act itself does not define the phrase
p. 3224
Honorable Mark W. Stiles - Page 2 (m-696)
"principal place of business." You express concern that political
s&divisions in this state are construing "principal place of
business" in such a way as to permit companies having, for example,
only one permanent office in the state with as few as one employee
engaged in activities other than submitting bids to governmenral
agencies to compete on an equal footing with Texas resident bidders.
You assert that this does not comport with the legislature's intent
when it enacted the statute.
In construing a statute, we must look to the intent of the
legislatiare and construe the statute so as to give effect to chat
intent. Knight v. International Harvester Credit Corp., 627 S.W.2d
382 (Tex. 1982). In determining legislative intent. we must consider
the end to be attained. the mischief to be remedied, and the purposes
to be accomplished. Flowers v. Den se -Ta eler h Co., 472 S.W.2d 112
(Tex. 1971); Calvert v. Kadane, 427 S.W.2d 605 (Tex. 1968). When the
words of a statute are subject to two reasonable Interpretations and
are therefore ambiguous. one may consider the legislative history of
the statute to determine which meaninn of the words the legislature
intended. San Antonio General Drive&, Helpers Local No, 657 v.
Thornton, 299 S.W.2d 911 (Tex. 1957); Miller v. Calverc, 418 S.W.2d
869 (Tex. Civ. App. - Austin 1967, no writ). Specifically, in
attempt&g to- dis&rn legislative intent from an examination of the
legislative history of a statute, one looks to the purpose the
original enactment served, the discussion of statutory meaning in
committee reports, the effect of amendments. whetha? accepted or
rejected, and the remarks in debatc preceding passage. Johnson v.
Department of Treasury, I.B.S., 700 F.2d 971 (5th Cir. 1983); Rogers
v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cit. 1980). cert. denied, 449
U.S. 889 (1980),
On the basis of our examination of both the Bouse Committee on
Business and Commerce and Iiouse of Representatives discussions of the
bill, we conclude that the act is intended to impose on any out-of-
state company seeking co bid on construction. supplies, or services
contracts with a political subdivision in Texas the same burdens that
are imposed, if any. upon Texas resident bidders by the state in which
the nonresident's principal place of business is located. In the
public hearing before the House Committee on Buslnass and Commerce,
the House author of the bill made the following remarks explaining the
purpose of the proposed bill:
In neighboring states. like Louisiana, Arkansas,
and New Mexico, there is a rule that says any
public work awarded In that state, if an out-of-
state contractor like a contractor from Texas bids
a project in that state, than the Texas bidder, in
order to receive the contract, has to be five
percent lower than the lowest bidder in that
p. 3225
Honorable Mark W. Stiles - Page 3 (JM-696)
state. This is Arkansas, for instance . . . . If
a state like Arkansas, New Mexico, Louisiana, New
York, wherever, requires that an out-of-state
contractor be lower by a certain amount in order
to receive that bid, we will require those state
contractors to do the same thing in Texas. . . .'
Teshony of Rep. Mark Stiles on Tex. B.B. No. 602 before House
Cosmlttee on Business and Commerce, 69th Leg., public hearing (Feb.
18, 1985) (transcript available from House Staff Services). In the
House discussion prior to the bill's passage to engrossment, the liouse
author of the bill explained that it was designed to create a
"reciprocity requirement in the award of state contracts so chat
bidders from other.states would face the same under-bid requirements
in Texas contracts that Texas bidders would experience from bidding on
comparable contracts in those states."
In Attorney General Opinion JM-616 (1987). we declared:
[T]he term 'principal place of business' as used
in article 601g does not necessarily refer to the
place of incorporation or organization of a
fompany . or to the residence of Its majority
owner. It means the place where the person'
whether natural or artificial, maintains offices
and transacts business. I.e., where the person's
business affairs are conducted. See National
Truckers Service, Inc. v. Aero SystG Inc., 480
S.W.2d 455 (Tax. Civ. App. - Fort Worth 1972. writ
ref'd n.r.e.). The 'principal place of business'
can sometimes be different from the place of the
person's general offices, see Dryden v. Ranger
Refining 6 Pipe Line Co., 280 F. 257 (5th Cir.
1922). but when a business ouerates in a number of
states and no one state is clearly the state in
which its activities are principally conducted,
the state from which centralized general
supervision is exercised may be considered the
location of the 'principal place of business,'
particularly if a substantial part of its
operations are also conducted there. See Jackson
v. Tennessee Valley Authority. 462 F.upp. 45
(D.C. Term. 1978). Cf. In re' Commonwealth 011
Refining Co., Inc., 596 F.2d 1239 (5th Clr. 1979).
It Is clear that the bill is intended to treat as a "Texas resident
bidder" a bidder that has more In Texas than merely an office In the
state with an employee who submits bids to various political sub-
divisions. "Principal" has been defined to mean "chief, leading,
p. 3226
liouorableMark W. Stiles - Page 4 (JM-696)
ttost important or considerable, primary, original' highest in rank'
authority, character, importance, or degree." Stilwell Co. v.
Commissioner of Taxation, 100 N.W.2d 504, 507 (Minn. 1959); Kelp v.
Burgess. 115 P.s 583, 584 (Kan. 1911).
The issue of whether an office or establishment is a "principal
place of business" requires, of course, a determination of fact,
Kibler v. Transcontinental & Western Air, 63 F. Supp. 724. 726 (E.D.
N.Y. 1945)' the resolution of which would be inappropriate in the
opinion process. We do conclude, however, chat, for purposes of
article 6Olg, V.T.C.S., a bidder's "principal place of business"
refers to the place-where the bidder maintains offices and a sub-
stantial part of its operations are also conducted there.
For purposes of article 601g, V.T.C.S., which
governs bids submitted by nonresidents to political
subdivisions in Texas for construction, supplies,
and services, a bidder's "principal place of
business" refers to the state in which the bidder
maintains an office and a substantial part of its
operations are also conducted there.
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JDDGE ZOLLIE STZAKLKT
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 3227 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144134/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Hoparable UoyQ 0. Bouldin
Oounty irOtorney
Palo Pinto County
Palo Pinto, TBxaI)
with no fniomatlrm ooa-
ration lnquir6d iaboutox-
roa the above qwation. vi8
d Civil Statut6rr,
whioh eubdivislons
aoIxLcdlathe
ail6loll6money with-
or Cieaountingprivilegea,
“49. For any one or more of the iollew-
ing prpoaeo: To aoouinulats and lend aon*p,
purohaes, sell and deal in notes, bonda and
securities, but without Wine: and dioaoW.it-
fng privllegae; to sot as trusts6 un&w any
266
lama errpresstzxst comiitto~ to thaz by oon-
traot an& a3 agent for ttr0 periorkumoe of any
l.w~ral sch."
Artlclo 71454evioed Civil Statutes, pmvidss
that 'all property,ma1 , prsCnal or tired, axospt 3uah
as nay be hereinart~3rexp,ress1yl3XdE;jL%d
:s subjeot to
taxatgcn, and the sum shall & renbar~d and listed as
herein deswibad."
Article 7152, Bevisod Civil Statutes, prasoribes
the mnmr in wIiichproperty shall be listdO or rendered,
iZkOlUdin& t.Ont Of 00r~~~t~0llS. UtiOle 7170, &WiStd
Civil Statutes, tea43 a5 followar
'All property of private aorparations,ax-
aapt in aas88 wiiaresorm other provision is made
by law, &all be aasossed in the nam IP tha aor-
poration; and in ccUeotin& the tares on the cane
all the personal property of suoh corporatisn
shall be liable to be seizad whgnsverthe aaae
may be tomi in the anunty, and so16 in the same
saner as the property of fndivi&ualsmy be sold
for taxes. All otatewmto and lists rmde by oor-
poratisns tLa;nt are required to 5e sworn to shall
be verified by tha affidavit a&M .uignattws of the
secristarp of said sorporation,and, IS thay have
no seoretary,the offfoer aho dlsoimrges the O.zties
of sacratal-l of said oorporation.*
Sinae our statutes provide,no exoaption SOP aar-
porations areated unitersubdivisions48 and 49 of Artiole
1302 frcm the >roViSionS of kX%iii ;irttQlS 7170, that Statute
governs the oasa whhiohyou inquira about. Such corpora-
tions should be rquired to pay taxes upon the real, per-
bionalan6 mixed property belongingto it.
Yours very truly
Al'TOWXY GEBZRAL OF TEUS
APPROVED MAY 3,
1940 ,
. _
C
APPROVED
6PINION
coMMn-rE~
42-s | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144290/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
cplnlon mr
RutWould
3on. 47.D. Loouey, Pa&e,2
court of '3owieCounty to oreata the offiae OS aountp veter-
~mrlen ma pup him n saltry out OS co-uritg funds.
You twe therefore mspoctfully advised that it
is the opkton of this departmnt that your c;ueetions!muld
be ankwerea In the negative, and it is so anuwured. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289329/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ERIC A. WILLNER,
Appellant,
v.
AVAIL HOLDING LLC, a Delaware limited liability company,
BERMUDA ISLES AT BOCA RIO HOMEOWNERS ASSOCIATION, INC.,
CYPRESS LAKES AT BOCA RIO HOMEOWNERS ASSOCIATION, INC.
and BOCA RIO TOWNHOME ASSOCIATION, INC.,
Appellees.
No. 4D17-3532
[June 28, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Dina A. Keever-Agrama, Judge; L.T. Case No.
502017CA000928XXXXMB.
F. Scott Fistel of Fistel Law Group, P.A., Fort Lauderdale, for appellant.
Melisa Manganelli of Law Offices of Mandel, Manganelli & Leider, P.A.,
Boca Raton, for appellee Avail Holding LLC.
PER CURIAM.
Affirmed.
GERBER, C.J., GROSS and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4131248/ | The Attorney General of Texas
JIM MA?TOX 0::ober 24, 1984
Attorney General
Supreme Cowl Building
Mr. Reymon L. Bynum Opinion No. m-219
P. 0. BOX 1254a Conrmissioner of Education
Austin. TX. 78711. 25.9 Texas Education Age n:y RI?: Authority of peace officers
51214752501 201 East 11th Street commissioned by school districts
Telex QlolS74-1367
Austin, Texas 78731
Telacooier 5121475-0266
Dear Mr. Bynum:
714 Jackson. Suite 7W
DaIhs. TX. 75202.4508 You have askwl the following two questions regarding peace
2141742-8944
officers commissiowd by boards of trustees of independent echool
districts:
4824 AIWRa Ave.. Suite 160
El Paso. TX. 799052793 1. What are the responsibilities of the Texas
91515333494 Commission on Law Enforcement Officer Standards
and Education concerning such peace officers?
. I Texas. Suite 700
HO”SlO”. TX. 77OQ2.3111 2. Do such peace officers . . . have all the
713l2255886 powers, privileges, and immunities of peace
officers whenever they are in the performance of
their official duties even when they are not on
EN Broadway, Suite 312
Lubbock. TX. 79401.3479
school property? ([For example, during the] hot
SOSi747.5238 pursuit of a person who has committed a crime on
school p’roperty. the regulation of traffic on
contiguous streets, and [the] investigation of
4309 N. Tenth. Sutle S
McAlle”. TX. 785ol.lS85
crimes co:mnitted on school property.)
5121682.4547
You advise us that :he first question is prompted by the refusal of
the Commission on Law Enforcement Officer Staodards and Education to
203 Main Plaza. Suile CO license putative Iwace officers commissioned pursuant to section
Son Antonio. TX. 782052797
21.483 of the Education Code. This section provides as follow:
512/225-4191
The board of trustees of any school district may
employ campus security personnel for the purpose
of carryiag out the provisions of this subchapter
and if the board of trustees authorizes any
officer tc bear arma then they must connaission
them as peace officers. Any officer comissioned
under this section is vested with- all the powers.
privilege,,, and immunities of pesce officers while
on the pr,>perty under the control and jurisdiction
of the dis,rrict or othervise in the performance of
his dutic!ri. Any officer assigned to duty and
commissiowd shall take and file the oath required
Mr. Raymon L. Bynum - Page 2 m-219)
of peace officers, aod ahall execute and file a
good and sufficfent boad In the au0 of $1,000,
payable to the board of trustees, vith two or more
good and sufficient sureties, conditioned that he
will fairly, impsrtlally. and faithfully perform
all the duties that nay be required of him by law.
The bond may be sued on from tima to time in the
name of any person l.njured until the whole amount
of the bond is wcovered. Any peace officer
coaunissioned under this section must meet all
minimum standards for peace officers established
by the Commission on Law Enforcement Officer
Standards and Education within one year of his
commission, or his commission shall automatically
expire.
The explicit language of’ section 21.483 establishes that: (1) a
school district board of trustees may employ campus security personnel
to carry out the provisions of subchapter H of chapter 21 of the
Education Code; (2) campus .,wurity personnel commissioned as peace
officers under section 21.483 possess “all the pavers, privileges, and
immunities of peace officers ,rhile on the property under the control
and jurisdiction of [their employing school] district or otherwise In
the performance of [their] duties”; and (3) officers commissioned
under section 21:483 must, within one year of their cowmission. meet
all minimum standards for Ilesce officers established by the Texas
Cosunission oo Law Enforcement Officer Standards and Education
[hereinafter TCLEOSE], or their commissions automatically expire.
Section 6(c) of article 4413(29aa). V.T.C.S., provides that
[n]o person who dowl oot have a license issued by
the Commission [on Law Enforcement Standards and
Education] shall be appointed as s peace
officer. . . .
Section 6(h) off the same statute provides:
‘Peace officer,’ 1cr the purposes of this Act,
means only a persor so designated by Article 2.12.
Code of Criminal I’rocedure, 1965, or by Section
51.212 or ,5! .214, Texas Education Code.
It has been suggested that csapus security personnel may not under any
circumstances be regarded ac, “peace officers,” because they are not
vithin either article 2.12 of the Code of Criminal Procedure or
sections 51.212 or 51.214 cmf the Education Code and are therefore
ineligible to be licensed as peace officers under article 4413(29aa).
We agree that campus tiecurity personnel commissioned as peace
otficers under section 21.483 of the Education Code are not eligible
p. 984
Mr. Raymon L. Byoum - Page 3 (JH-219)
to be licensed aa “peace officers” by the commission under article
4413(29aa). The express language of sections 6(c) and 6(h) of article
4413(29aa) dictates this conclusion. This does not meao. however,
that such personnel may not be designated as “peace officers” by a
different statute. Section 6(h) of article 4413(29aa) provides only
that “for purposes of --- this Act,” &, article 4413(29as), the term
“peace off ice?’ includes only those persons so designated by the
enumerated statutes; it dew not rule out the possibility that some
other act may designate somwne as a “peace officer.” And this offlce
haseld on severs1 occasions that a variety of statutes other than
article 4413(29aa) designat,? certain individuals as “peace officers.”
See, e.g., Attorney GeneraIL Opinion MU-54 (1979) and opinions cited
therein.
Section 21.483 expresrily designates as “peace officers” campus
security personnel commissioned as such under that section, and this
statute Is oo an equal footing with article 4413(29aa). When article
4413(29aa) and section 21.M are read together and harmonized. as
they‘must be, Calvert v. Pwt Worth Nat&al Bank, 356 S.W.Zd- 918
(Tex. 1962). the conclusion inevitably follows that section 21.483
campus security personnel are peace officers who by the very terms of
‘section 21.483 must meet .1:11 TCLEOSE minimum standards within one
year. Those standards include licensure by TCLEOSE. Of course, they
enjoy their status as peace officers ouly in certain instances, i.e.,
“while on the property under the control and jurisdiction of the
district or otherwise in t’w performance of [their] duties.” Educ.
Code 521.483.
In answer to your f::rst question, therefore, because campus
security personnel commissioned as “peace officers” under section
21.483 of the Education Cods are not eligible to be “peace officers,”
as defined by article 4413(29aa), the commission has oo licensing
responsibility coecerning t’wse officers. Under the express terms of
section 21.483, the boards of trustees of the school districts of this
state, not the commission, have the discretion to decide whether to
commission individuals as “peace officers” under that statute and the
power to issue such commissions If they choose to do so. The boards
of trustees must require that anyone commissioned as a “peace officer”
under section 21.483 satisf:r the “minfmum standards for peace officers
established by” the cowission, including medical, educational.
testing. and other requirenents, within one year. The cocaaission in
its discretion may consult with such boards .on the implementation of
these standards. V.T.C.S. art. 4413(29aa), 12(a)(6).
Your second question cannot be answered in the abstract. As
noted, campus security personnel may be employed “for the purpose of
carrying out the provisions of [subchapter M of chapter 21 of the
Education Code] .‘I They are clothed with the powers. privileges, and
immunities of peace officer:5 generally “while on the property under
the control and jurisdict:cln of the district or otherwise in the
performance of [their] duties.” Whether campus security personnel
p. 985
Hr. Rsyaon L. Bynum - Page 4 (m-219)
would be authorized to eagnge in the particular activities you
describe is a fact question. The resolution of this question depend8
upon the scope of their duttes as defined by their employing school
boards and vhether they maI’ be said to be “on property under the
control and jurisdiction wf the district or otherwise in the
performance of [their] duties;” vhen they engage in such activities.
2’u n n A u Y
The Texas Colnlission on Law Enforcement
Standards has no licensing responsibility I
concerning “peace officers” commissioned under
section 21.483 of the Texas Education Code. The
scope of the pouczs of section 21.483 peace
officers depends upon the nature and scope of
their duties as defined by their employing school
district boards of trustees and upon whether, when
they engage in pclrticular activities. they are
carrying out the Ilrovisions of subchapter M of .
chapter 2 of the Mucation Code and are “on the
property under the control and jurisdiction of
[their employing] district or [are] otherwise in
the performance of Itheir] duties.”
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINIONCOMHITTEE
Rick Gilpin, Chairman
Jon Bible
Susan Garrison
Ann Kraatx
Jim Moellinger
Nancy Sutton
Bruce Youngb load
p. 986 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130785/ | Eouorable Roy Blake Opinion No. SM-684
Chairman
Administration Committee Re: Authority of the State Preserva-
Texas State Senate tion Board to solicit and accept
P. 0. Box 12068 gifts, money and items of value
Austin, Texas 78711
Dear Senator Blake:
Pou ask whether the State Preservation Board has the auchoricy to
solicit and accept gifts. money. and items of value from private
donors for the purpose of assisting in the restoration of the State
Capitol. We conclude that the board has such authority.
In 1983. the leg&slature established the State Preservation Board
to “preserve, maintain, and restore” the State Capitol. its contents,
and its grounds. V.T.C.S. art. 6145-14 [hereinafter the act]. 61.
The board is empowered by ssccion 4 of the act to employ an architect,
who is in turn empowered by section 6. to employ a curator. Section 6
of the act sets forth the duties of the architect and the curator and
provides in part:
(a) The architect of the Capitol shall:
. . . .
(2) develop for approval by the board a master
plan with a projection of at least 20 years con-
cerning the maintenance, preservation, restora-
tion, and modification of the buildings. their
contents, and their grounds, including a plan to
restore the buildings to their original archi-
tecture;
. . . .
(5) develop a program to purchase or accept by
donation. permanent loan, or outside funding items
necessary to implement the master plan;
p. 3167
Honorable Roy Blake - Page 2 (JM-684)
. . . .
(8) employ a curator of the Capitol who shall
assist in matters dealing with the preservation of
historic materials and who must be a persou with a
minimum of ‘a master’s degree and four years’
experience in historic collections administration
vich a specialization in the material culture of
this state.
(b) The curator of the Capitol shall:
. . . .
(2) develop a program to purchase ot accept by
donation, permanent loan, or outside funding items
of historical significance that were at one time
in cha buildings. . . . (Emphasis added).
Section 8 of chs act confers authority ou the board to develop
programs to solicit gifts and money and sets forth the following:
Sec. 8. (a) The board shall develop plans and
programs to solicit gifts, money. and items of
iralue .
(b) The board may solicit gifts and money or
items of value frpm private persons, foundations.
or organizations.
(c) All property provided by private persons,
foundations, or organisations and all money
donated to the board become the property of the
state and are under the controi of the board.
(d) This section does not apply to temporary
exhibits or property of a person having an off ice
in the Capitol.
(e) The board shall use gifts of money made to
the board for the purpose specified by the
grantor, if auy.
The act clearly empowers the board to solicit gifts: your question
arises because the act fails to stde explicitly that the board may
accept gifts.
In order chat a state agency may accept a gift, ic first must be
authorized by law co do so; absent such authority. it may not accept
p. 3168
Honorable Roy Blake - Page 3 (Jh-684)
gifts or donations. Attorney General Opinions H-1309, H-1180 (1978);
O-4681 (1942). The legislature has explicitly conferred such authority
on several state agencies. See e.g., V.T.C.S. arts. 4413d-1 (Office
of State-Federal Relations); 4413(32f) (Texas Closeup Board); 4413(35)
(Commission on Fire Protection Personnel Standards and Education);
4413(44) (Governor’s Commission on Physical Fitness); 4413(47d) (Texas
National Research Laboratory Comsission); 4413(49) (Criminal Justice
Policy Council; Criminal Justice Coordinating Council); 4413(51)
(Interagency Council on Sex Offender Treatment). In each instance
cited above, the relevant state agency was given explicit authority to
accept gifts.
The primary consideration in construing a statute is giving
effect to legislative intent. Minton v. Frank, 545 S.W.2d 442 (Tax.
1976); Calvert v. British-American Oil Producing Co., 397 S.W.Zd 839
(Tex. 1965). The intention of the legislature should be determined by
examininn the entire act rather than isolated oortions of the act.
City of Houston v. Morgan Guaranty International’Bank, 666 S.W.Zd 524
(Tex. App. - Houston [lst Dist.] 1983, writ ref’d n.r.e.). Read as a
whole, article 6145-14. V.T.C.S., clearly contemplates that the board
possesses the authority to accept gifts or donations.
Section 6 of the act confers authority on the architect and the
curator to develop a program to accept gifts. Section 8 confers like
authority on the board. Additionally, section 8 explicitly coufers
authority on the board to “solicit” gifts and money. Generally,
administrative agencies have by implication such powers as are
necessary to effectuate the objectives of those powers expressly
granted to them. City of Corpus Christi v. Public Utility Commission,
572 S.Y.Zd 290 (Tex. 1978); State v. Jackson. 376 S.W.Zd 341 (Tex.
1964). We conclude that imulicit in the board’s Dower to “solicit” is
the power co accept gifts. ‘“Solicit” has been defined to mean
to approach for something; to ask for the purpose
of receiving; to endeavor to obtain by asking; to
importune or implore for the purpose of obtaining;
co awake or incite to action by acts or conduct
intended co and calculated to incite the giving.
People ax rel. Friedman v. Framer, 139 N.Y.S.Zd 331, 33i (N.Y. App.
Term 1954); see also People v. McCormack. 169 N.Y.S.2d 139, 142 (N.Y.
App. Term 1957); Schmid v. Langenberg, 526 S.W.Zd 940, 944 (MO. App.
1975). It would make no sense for the legislature to empower the
board to “solicit” gifts but then not empower the board to accept a
gift when the solicitation is successful. We will not construe a
statute so as to ascribe to the legislature an unreasonable result if
the stacute is reasonably susceptible of a construction that will not
accomplish such a result. Anderson V. Penix, 161 S.W.Zd 455 (Tax.
1942); Trimmirr~v. Carlton, 296 S.W. 1070 (Tax. 1927). Accordingly,
p. 3169
Honorable Roy Blake - Page 4 (34-684)
we conclude that the State Preservation Board is empowered to solicit
and accept gifts, money. and items of value in furtherance of its
statutory duties.
SUMMARY
The State Preservation Board is empowered to
solicit and accept gifts, money, and items of
value iu furtherance of its statutory duty.
J-k
Very truly you ,
.
JIM MATTOX
Attorney General of Texas
JACR HIGHTOweR
First Assistant Attorney General
MARYXFLLER
Executive Assiscanr Attorney GFneral
JUDGEZOLLIE STRAKLgT
Special Assistant Attorney General
RICX GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 3170 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147446/ | J. S93013/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
V. :
:
NORMAN WOODBERRY, :
:
APPELLANT :
: No. 2717 EDA 2015
:
Appeal from the Judgment of Sentence August 4, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001998-2015
BEFORE: DUBOW, SOLANO AND PLATT*, JJ.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 22, 2017
Appellant appeals from the Judgment of Sentence imposed after a
bench trial in the Philadelphia Court of Common Pleas, and challenges the
weight of the evidence. In addition, Appellant’s counsel, Michael J. Graves,
Jr., Esq., has filed a Brief pursuant to Anders and Santiago,1 and a Petition
to Withdraw. We affirm the Judgment of Sentence, and grant counsel’s
Petition to Withdraw.
The facts, as gleaned from the certified record, are as follows. On
January 2, 2015, and January 3, 2015, Officer Brian Kensey of the
*
Retired Senior Judge Assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J. S93013/16
Philadelphia Police Department, was conducting plainclothes surveillance
with the Narcotics Enforcement Team at the 6300 block of North Norwood
Street in Philadelphia after receiving complaints of drug dealing occurring on
the block. He observed Appellant and Appellant’s co-defendant, Eddie
Donald, speak with individual men on three different occasions while on or
near the porch of the house located at 6327 Norwood. Appellant would
accept U.S. currency from each man, and then give the men small packets,
on one occasion after going into the home. After each transaction, Officer
Kensey relayed a description of the buyer to back-up officers; police officers
stopped each of the three men and found plastic packets containing crack
cocaine and/or heroin in their possession.
On January 3, 2015, Sergeant Andre Simpson arrested Appellant on
the front porch of 6327 Norwood Street. Appellant was lying on his stomach
when Officer Simpson handcuffed him, rolled him over, and told him to sit
up. Officer Simpson then found a clear bag containing four pink-tinted
Ziploc packets holding crack cocaine that had been under Appellant’s body.
Other police officers, who had been in the house prior to Officer Simpson’s
arrival, recovered a clear packet of heroin from inside the house, along with
new and unused Ziploc plastic packets in various colors.
The Commonwealth charged Appellant and his co-defendant with
Manufacture, Delivery, or Possession with Intent to Deliver a Controlled
Substance (“PWID”); Knowing and Intentional Possession of a Controlled
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J. S93013/16
Substance; Use/Possession of Drug Paraphernalia; and Criminal Conspiracy. 2
Appellant filed an Omnibus Motion seeking to suppress the evidence, which
the trial court denied.
On August 4, 2015, a non-jury trial proceeded, at which four of the
officers involved in the surveillance and arrests testified in detail about the
events leading up to, and including, Appellant’s and his co-defendant’s
arrest. At the conclusion of the trial that same day, the court found
Appellant guilty of the three possession charges.3 The court immediately
sentenced Appellant on the PWID conviction to 9 to 23 months’ incarceration
in county prison with credit for time served, followed by 3 years’ probation.
No further penalty was imposed by the Court on the remaining convictions.
Appellant did not file post-sentence motions.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925. Appellant raised one issue in his Pa.R.A.P. 1925(b)
Statement challenging the weight of the evidence.4
On August 2, 2016, counsel for Appellant filed an Anders Brief and a
Petition to Withdraw as counsel. He also filed a copy of a letter addressed to
2
35 P.S. § 780-113(a)(30), (a)(16), and (a)(32); and 18 Pa.C.S. § 903,
respectively.
3
The court found Appellant not guilty of conspiracy. The trial court found
Appellant’s co-defendant to be not guilty of all of the offenses.
4
The appeal was subsequently dismissed for failure to file a brief, but by
Order dated July 18, 2016, this Court reinstated the appeal.
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J. S93013/16
Appellant informing Appellant of counsel’s Petition to Withdraw and his right
to retain new counsel or proceed pro se. Appellant did not file a response.
In his Anders Brief, counsel raises the following issue on Appellant’s
behalf:
Based on the totality of the Philadelphia Police Officers’
surveillance, observations, investigation and arrest of
[Appellant], was the [c]ourt’s [g]uilty [v]erdict against the
weight of the evidence[?]
Anders Brief at 7.
Before we address the merits of this appeal, we must determine
whether counsel has complied with the procedures provided in Anders and
its progeny. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). Counsel who wishes to withdraw must file a petition to
withdraw stating that he or she has made a conscientious examination of the
record and determined that there are no meritorious issues to be raised on
appeal. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Also, counsel must provide a copy of the Anders Brief to the appellant and
inform him of his right to proceed pro se or retain different counsel. Id.
See also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).
The substance of the Anders brief must “(1) provide a summary of
the procedural history and facts, with citations to the record; (2) refer to
anything in the record that counsel believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous. Counsel should
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J. S93013/16
articulate the relevant facts of record, controlling case law, and/or statutes
on point that have led to the conclusion that the appeal is frivolous.”
Santiago, 978 A.2d at 361.
Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous. See Goodwin, supra at 291; Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (footnote and citation omitted).
Counsel in the instant appeal has complied with the above
requirements. We, therefore, proceed with our independent review of the
record, first addressing the weight challenge raised in both the Rule 1925(b)
Statement and the Anders Brief.
The only issue raised by Appellant was whether the verdict is against
the weight of the evidence. Before reaching the merits of that question, we
must determine whether it has been properly preserved for consideration on
appeal. Commonwealth v. Washington, 825 A.2d 1264, 1265 (Pa.
Super. 2003). Pennsylvania Rule of Criminal Procedure 607 provides in
relevant part as follows:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
(1) orally, on the record, at any time before
sentencing;
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J. S93013/16
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3).
Here, Appellant did not file a post-sentence motion. He first raised his
claim that the verdict was against the weight of the evidence in his Pa.R.A.P.
1925(b) Statement. Because he did not comply with Rule 607, we must
find, as did the trial court, that this claim is waived. See Trial Court
Opinion, dated March 30, 2016, at 13.5
We further note that, although titled a weight challenge, the body of
counsel’s Anders Brief challenges the sufficiency of the evidence supporting
5
In addition, we note that “[a] weight of the evidence claim concedes that
the evidence is sufficient to sustain the verdict, but seeks a new trial on the
grounds that the evidence was so one-sided or so weighted in favor of
acquittal that a guilty verdict shocks one's sense of justice.” In re A.G.C.,
142 A.3d 102, 109 (Pa.Super. 2016) (citation omitted). “Appellate review of
a weight claim is a review of the exercise of discretion, not of the underlying
question of whether the verdict is against the weight of the evidence.”
Commonwealth. v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation
omitted). “Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial judge when
reviewing a trial court's determination of whether the verdict is against the
weight of the evidence.” Id. (citation omitted). Here, because Appellant did
not file a post-sentence motion, the trial court was not presented with an
opportunity to consider whether the verdict was against the weight of the
evidence. However, in light of the testimony presented at trial, which the
court found credible, we do not believe that the trial court would have
abused its discretion had it been able to conclude that the verdict was not
against the weight of the evidence. See id. (noting that “[o]ne of the least
assailable reasons for granting or denying a new trial is the lower court's
conviction that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.” (citation
omitted)).
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J. S93013/16
Appellant’s PWID conviction. The sufficiency challenge was not raised in
Appellant’s Rule 1925(b) Statement and, therefore, is also waived.
Pa.R.A.P. 1925(b)(4)(vii).
However, in accordance with Goodwin and Flowers, supra, we have
conducted an independent review of the record and conclude that, even if a
sufficiency challenge had been properly preserved for appeal, we would
conclude it has no merit.
We review a sufficiency challenge guided by the following precepts:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact finder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment for that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007)
Appellant challenges only his PWID conviction. The Pennsylvania
Substance, Drug, Device and Cosmetic Act provides that a person, who is
not authorized by appropriate registration or license, may not manufacture,
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J. S93013/16
deliver, or possess a controlled substance with intent to manufacture or
deliver, a controlled substance. 35 P.S. 780-113(a)(30).
To convict a person of PWID, the Commonwealth must prove
beyond a reasonable doubt that the defendant possessed a
controlled substance and did so with the intent to deliver it. In
determining whether there is sufficient evidence to support a
PWID conviction, all facts and circumstances surrounding the
possession are relevant, and the Commonwealth may establish
the essential elements of the crime wholly by circumstantial
evidence. Factors to consider in determining whether the drugs
were possessed with the intent to deliver include the particular
method of packaging, the form of the drug, and the behavior of
the defendant.
Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005)
(internal citations omitted).
The Commonwealth may prove either actual or constructive possession
of the drugs with proof of constructive possession requiring evidence of the
defendant’s intent and power to control the contraband. Id. at 1014.
In its Pa.R.A.P 1925(a) Opinion, the trial court provided a detailed
recitation of the testimony provided by all four police officers involved in the
surveillance and subsequent arrests of Appellant and his co-defendant. Our
review of the record supports the trial court’s recitation and we, thus, adopt
it for purposes of this appeal. We conclude that, viewing the record
evidence in the light most favorable to Commonwealth as the verdict winner,
the Commonwealth proved each element of the PWID offense with sufficient
evidence.
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J. S93013/16
Accordingly, in light of the above and our further independent review
of the record, we conclude that there are no meritorious issues to be raised
on appeal, and the Judgment of Sentence should be affirmed.
The parties are directed to annex a copy of the trial court’s March 30,
2016 Opinion to all future filings.
Judgment of Sentence affirmed. Counsel’s Petition to Withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
-9- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147447/ | J-S82001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLYDE EARL TONKIN
Appellant No. 1462 MDA 2015
Appeal from the Judgment of Sentence July 20, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002577-2012
BEFORE: OTT, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY OTT, J.: FILED FEBRUARY 22, 2017
Clyde Earl Tonkin appeals from the judgment of sentence imposed on
July 20, 2015, in the Court of Common Pleas of Luzerne County following his
jury trial, in absentia, on charges of statutory sexual assault, aggravated
indecent assault and related charges.1 Tonkin received an aggregate
sentence of 16 to 32 years’ incarceration. In this timely appeal, 2 Tonkin
raises one issue: “Whether the trial court erred in trying [Tonkin] in absentia
where there was no evidence indicating reasoning for [Tonkin’s] absence and
not appear[ing] at any point during the proceedings?” Tonkin’s Brief at 7.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3122.1(b) and 3125(a)(8), respectively.
2
On May 29, 2015, Tonkin’s PCRA petition was granted reinstating his direct
appellate rights.
J-S82001-16
After a thorough review of the submissions by the parties, the certified
record, and relevant law, we affirm.
The underlying facts of this matter are not relevant to the disposition.
Therefore, we merely relate that Tonkin engaged in an ongoing sexual
relationship with his 13-year-old niece by marriage, culminating in her giving
birth to their child. Just prior to her giving birth, the two fled Pennsylvania,
but were caught in Ohio after Tonkin’s car broke down.
Tonkin was returned to Pennsylvania, at which time he was charged
with the instant crimes. He was also charged with other crimes regarding
six other cases, the details of which are not found in this record. Shortly
before the instant trial, Tonkin was released on bail, informed of his trial
date, and was told he was required to appear for trial. As a condition of bail,
Tonkin was placed on house arrest and was required to wear an electronic
monitor (ankle bracelet). However, on the day of trial, Tonkin cut the
monitor from his leg and did not appear for trial.3 Tonkin was apprehended
three or four days after the trial, having been found hiding in some woods.4
____________________________________________
3
In Pennsylvania, it was not until 1992 that a defendant could be tried in
absentia if he was not present at the beginning of the trial. In announcing
this rule, our Supreme Court reasoned:
We hold that when a defendant is absent without cause at the
time his trial is scheduled to begin, he may be tried in absentia,
as Pa.R.Crim.P. 1117(a) contemplates.
A contrary rule ... would be a travesty of justice. It would
allow an accused at large upon bail to immobilize the
(Footnote Continued Next Page)
-2-
J-S82001-16
The law regarding trials in absentia is as follows:
The Sixth Amendment to the United States Constitution, Article
I, Section 9 of the Pennsylvania Constitution and Rule 1117(a) [5]
of the Pennsylvania Rules of Criminal Procedure guarantee the
right of an accused to be present in court at every stage of a
criminal trial. A defendant who has not been charged with a
capital offense may, however, waive that right expressly or
impliedly. Commonwealth v. Ford, 539 Pa. 85, 100-01, 650
A.2d 433, 440 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct.
1970, 131 L. Ed. 2d 859 (1995) (denying a capital defendant the
right to absent himself from trial despite the defendant's
assertion that his menacing appearance precluded any possibility
of a fair trial).
Commonwealth v. Tizer, 684 A.2d 597, 602 (Pa. Super. 1996).
Additionally, Pa.R.Crim.P. 602 states, in relevant part:
The defendant shall be present at every stage of the trial
including the impaneling of the jury and the return of the verdict,
and at the imposition of sentence, except as otherwise provided
by this rule. The defendant’s absence without cause at the time
scheduled for the start of trial or during the trial shall not
preclude proceeding with the trial, including the return of the
verdict and the imposition of sentence.
_______________________
(Footnote Continued)
commencement of a criminal trial and frustrate an already
overtaxed judicial system until the trial date meets, if ever,
with his pleasure and convenience. It would permit a
defendant to play cat and mouse with the prosecution to
delay the trial in an effort to discourage the appearance of
prosecution witnesses.... A defendant has a right to his
day in court, but he does not have the right unilaterally to
select the day and hour.
Commonwealth v. Sullens, 619 A.2d 1349, 1352 (Pa. 1992) (citation
omitted).
4
See N.T. Sentencing 7/20/15, at 12-13.
5
Now Rule 602.
-3-
J-S82001-16
Pa.R.Crim.P. 602(A).
The comment to Rule 602 states:
This rule was amended in 2013 to clarify that, upon a finding
that the absence was without cause, the trial judge may conduct
the trial in the defendant’s absence when the defendant fails to
appear without cause at the time set for trial or during trial. The
burden of proving that the defendant’s absence is without cause
is upon the Commonwealth by a fair preponderance of the
evidence. See also Commonwealth v. Bond, 693 A.2d 220,
223 (Pa. Super 1997) (“[A] defendant who is unaware of the
charges against him, unaware of the establishment of the trial
date or is absent involuntarily is not absent ‘without cause.’”).
Pa.R.Crim.P. 602, Comment (some citations omitted).
Finally,
A defendant has the absolute right to be present at all stages of
the criminal proceedings against him. Pa.R.Crim.P 602(A);
Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349, 1351
(1992). The trial court has the discretion to grant or deny a
request for a continuance. See, Pa.R.Crim.P. 106(C). Such grant
or denial will be reversed only on a showing of an abuse of
discretion. Commonwealth v. Ross, 465 Pa. 421, 350 A.2d
836, 837 n.2 (1976). “Discretion is abused when the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence or the record.”
Commonwealth v. McAleer, 561 Pa. 129, 748 A.2d 670, 673
(2000).
Commonwealth v. Pantano, 836 A.2d 948, 950 (Pa. Super. 2003).
As noted above, it was the Commonwealth’s burden to demonstrate
Tonkin’s absence was without cause. A hearing was held approximately two
hours after the trial was scheduled to commence, at which, the following
was disclosed:
-4-
J-S82001-16
THE COURT: Pending before the Court is a request under Rule
602 of the Pennsylvania Rules of Criminal Procedure to hold trial
in absentia in this matter. We note that on January 17th of this
year we had a hearing at which Mr. Tonkin was present. At
which time we indicated that his jury trial would commence
Monday, April 15th at nine o’clock. It’s now five after eleven.
Mr. Tonkin has not appeared. And we’ll note that he was
released last Thursday on bail?
[THE COMMONWEALTH]: Yes, Your Honor. He posted bail. And
one of the conditions of that bail posting was also that he be on
time for today’s trial and was specifically told that it started at 9
a.m.
THE COURT: Mr. Tonkin has been notified more than once of
today’s trial date. Again, we’re unaware of any request by him
or someone calling on his behalf to continue this matter for some
legitimate reason. As far as I’m concerned he is absent without
any legitimate cause and we’re going to proceed to trial.
[THE COMMONWEALTH]: Your Honor, if I may, I’d like to just
place on the record. I did have some further information
become available to me since we last left the courtroom. I
contacted Courtney Smith from Smith Bail Bonds approximately
10:15. She indicated that she had just received an alert from
his bracelet. She said an alert means that he has cut the
bracelet off. She gave me the last location of where that had
occurred which was in Pittston. The Pittston police are currently
looking for him. And that occurred this morning.
THE COURT: Thank you.
[DEFENSE COUNSEL]: Your Honor, another thing is obviously the
defendant[’]s at a disadvantage not being present. So I would
oppose the trial in absentia. Maybe he might be apprehended at
a later date. I don’t know that for sure.
THE COURT: He is absent by his own choice, and any
disadvantage he suffers as a result of that is solely on his
shoulders.
[DEFENSE COUNSEL]: I want to state also, as an officer of the
Court, I did speak with him last week, Tuesday, certainly in
preparation for the trial and to discuss it. And he changed his
-5-
J-S82001-16
mind. And he certainly knows that he’s required to be present.
Although he was incarcerated at that point he knows about the
trial date, no doubt in my mind.
N.T. Pre-Trial Hearing, 4/15/2013 at 6-8.
Our review of the notes of testimony leads us to conclude that the
Commonwealth demonstrated Tonkin had intentionally and voluntarily
absented himself from his scheduled trial. Here, Tonkin was manifestly
aware of the trial date, he had not appeared more than two hours past the
scheduled commencement of trial, neither he nor any other person
contacted the court to provide any reason why he was not present, and,
most importantly, he intentionally removed and abandoned his electronic
monitor, and that monitor was ultimately located away from his home even
though he had been placed on house arrest. Based upon this evidence, the
trial court reasonably concluded Tonkin had voluntarily waived his right to be
present during trial. Accordingly, there was no abuse of discretion in
conducting Tonkin’s trial in absentia.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
-6- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124969/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
June 16, 2016
The Honorable James Keffer Opinion No. KP-0095
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether a rental property owner's use of
Post Office Box 2910 an online payment option that is accompanied
Austin, Texas 78768-2910 by a convenience fee involves the imposition
of a credit-card surcharge in violation of state
law (RQ-0084-KP)
Dear Representative Keffer:
You ask three questions about the legality of a fee or charge imposed on a tenant who uses
an online payment option to pay rent and ancillary charges to a rental property owner through a
third-party vendor. 1 You question whether this fee or charge for paying online could constitute a
prohibited surcharge on the use of credit or debit cards in violation of section 339.001 of the
Finance Code and section 604A.002 of the Business and Commerce Code. See Request Letter at
1. Briefing submitted to this office indicates that the underlying matter, brought to your attention
by the Texas Apartment Association ("TAA''), has already been considered and made the subject
of an advisory letter by the Texas Office of Consumer Credit Commissioner ("OCCC"), the entity
tasked with enforcement of Finance Code section 339.001. 2 See TEX. FIN. CODE§ 14.101. It
appears from the briefing that the controversy giving rise to your request stems from TAA's
disagreement with the OCCC's interpretation that the online pricing practice at issue is noi
permissible. See TAA Brief at 3-5; OCCC Br~ef at 2-5.
Subsection 339.00l(a) of the Finance Code prohibits a seller of goods and services from
"impos[ing] a surcharge on a buyer who uses a credit card for an extension of credit instead of
cash, a check, or a similar means of payment." See TEX. FIN. CODE§ 339.00l(a). 3 Noting that the
1
See Letter and related attachment from Honorable James Keffer, Chair, House Comm. on Nat. Res., to
Honorable Ken Paxton, Tex. Att'y Gen. at I (Dec. 17, 2015), https://www.texasattomeygeneral.
gov/opinion/requests-for-opinion-rqs ("Request Letter" & "Attachment," respectively).
2
See Letter from David Mintz, Vice President of Gov't Affairs, Tex. Apartment Ass'n at 1-2 (Jan. 20, 2016)
("T AA Brief'); Letter from Matthew J. Nance, Deputy Gen. Counsel, Tex. Office of Consumer Credit Comm 'r at
1- 5 (Jan. 22, 2016) ("OCCC Brief') (briefs on file with the Op. Comm.).
3
Y our questions assume that the payments for rent and ancillary charges at issue are payments for goods or
services, and we answer accordingly. You do not ask, and we therefore do not determine whether any specific rental
payment is for goods and services.
The Honorable James Keffer - Page 2 (KP-0095)
Finance Code does not define the term "surcharge," the Fifth Circuit Court of Appeals recently
construed the term for purposes of section 339.001 to be like the federal definition of surcharge:
"an additional amount above the seller's regular price." Rowell v. Pettijohn, 816 F.3d 73, 80-82
(5th Cir. 2016) (upholding the constitutionality of Finance Code section 339.001 against First
Amendment and vagueness claims). The Court undertook an extensive historical analysis of how
federal law formerly allowed discounts for cash but forbid surcharges for credit. Id. at 76-77.
After the federal prohibition on surcharges lapsed in 1984, states like Texas enacted their own anti-
surcharge laws, but the law allowing cash discounts remains in effect. Id. at 77. The Court stated
that under a plain reading, section 339.001 "forbids a merchant from imposing an extra charge for
a purchase with a credit card, and is completely silent as to any other form of pricing." Id. at 84.
For example, section 339.001 would "not forbid merchants from charging cash customers a
different price than that charged to credit-card customers." Id. at 81. Instead, it would "forbid[]
charging credit-card customers an additional amount above the regular price that is not also
charged to cash customers." Id. (internal quotation marks omitted). Thus, section 339.001 "allows
a merchant to discount and dual-price as it wishes." Id (discussing the permissible practice of
offering a discount for payment in cash). In other words, a seller or merchant may establish a
regular price and discount for cash customers but may not establish a regular price and charge
more for credit customers.
The parallel provision governing debit cards, subsection 604A.002(a) of the Business and
Commerce Code, similarly prohibits a merchant from "impos[ing] a surcharge on a buyer who
uses a debit or stored value card instead of cash, a check, credit card, or a similar means of
payment" in a sale of goods or services. TEX. Bus. & COM. CODE§ 604A.002(a); see also id.
§ 604A.001(5) (defining "surcharge" for purposes of Business and Commerce Code chapter 604A
as "an increase in the price charged for goods or services imposed on a buyer who pays with a
debit or stored value card that is not imposed on a buyer who pays by other means").
With regard to these statutes, you first ask:
Whether an owner of rental property who offers an online payment
option through a third-party payment processor can be deemed
under Sections 339.001 and 604A.002 ... to be a party imposing a
"surcharge" when the processor remits no portion of any fee
imposed to make online payments to the owner[.]
Request Letter at 1. Related to this question, you also ask:
Whether it matters to the application of Sections 339.001 and
604A.002 ... that a third-party vendor that provides arms-length
payment processing services to a rental property owner or operator
provides additional arms-length services to the owner or operator[.]
Id. The plain language of the two provisions you ask about prohibits a "seller" or "merchant" from
imposing a surcharge on a buyer paying by credit or debit card. TEX. FIN. CODE§ 339.00l(a);
TEX. Bus. & COM. CODE § 604A.002(a). The statute defines a merchant as "a person in the
business of selling or leasing goods or services." TEX. Bus. & COM. CODE§ 604A.001(3). The
The Honorable James Keffer - Page 3 (KP-0095)
scenario you describe raises the question of whether it is the owner/operator of the rental property
or the third-party processor that is imposing the online payment fee. A truly arms-length
arrangement would not involve the property owner imposing an additional fee and would not run
afoul of the statutes because the third-party processor is a merchant charging a fee for the service
of paying electronically. But if the relationship between a seller and a third-party payment
processor blurs the line of autonomy between the parties, akin to a general agency or joint-venture
relationship, a court could find the two parties effectively to be one and hold that the property
owner would be imposing a credit-card surcharge. See Ayco Dev. Corp. v. G. E. T Serv. Co., 616
S.W.2d 184, 186 (Tex. 1981) (explaining the elements of a joint venture). Whether any given
relationship between a seller and a vendor rises to a problematic level is a question of fact that
cannot be addressed in an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-004 7 (2015)
at 3.
In your third question, you ask:
Whether a service fee for online payments is permitted and not a
surcharge so long as it applies to all forms of online payment (credit,
debit, ACH, electronic funds transfer or other electronic payment
format) and does not single out credit or debit card payments[.]
Request Letter at 1. The law does not expressly address the imposition of an online convenience
fee charged uniformly to all forms of electronic payment. It plainly prohibits the imposition of an
extra fee for using a credit or debit card "instead of' another means of payment. TEX. FIN. CODE
§ 339.00l(a); TEX. Bus. & COM. CODE§ 604A.002(a); see also Tex. Att'y Gen. Op. No. GA-0951
(2012) at 2 (concluding that Finance Code subsection 339.00l(a) does not prohibit a seller from
charging a service fee on all consumer transactions above a threshold dollar amount, provided that
the fee is not limited to the use of a credit card). But under recent Fifth Circuit precedent, this does
not prohibit the practice of discounting a regular price for customers who pay with cash. See
Rowell, 816 F .3d at 81. The answer to this question hinges on the dichotomy addressed above
regarding whether the third-party vendor is separate from the owner or operator. If a third-party
vendor is separate from the owner or operator and uniformly charges a fee to customers for all
means of electronic payments, then the vendor has a uniform price that would not violate the
surcharge statutes. If, however, a court viewed the vendor and owner or operator to be the same
entity, then the seller or merchant would be charging two prices: one for electronic methods of
payment and one for in-person methods of payment. The outcome would hinge on the variations
of charges that would occur. For example, if there were an option for in-person payment with
credit or debit card that was the same price as other in-person means of payment (and the same
uniformity in pricing were true for electronic means), then there would not be a surcharge for credit
or debit card payments within the meaning of the statute. Any additional pricing would be due to
the method of payment being online, not a fee for the means of payment being by credit or debit
card. The more difficult question arises ifthere is no in-person method of paying by credit or debit
card. In such an arrangement, a buyer might argue she is incurring a credit-card surcharge because
her only means to pay results in a higher price. But under recent Fifth Circuit precedent, the anti-
The Honorable James Keffer - Page 4 (KP-0095)
surcharge statutes do not prevent sellers or merchants from charging a regular pnce and
discounting it for cash customers. 4 Id.
Briefing submitted to this office notes that the OCCC has provided guidance through an
advisory bulletin regarding the credit-card surcharge prohibition and suggests that the bulletin
should be given serious consideration. See OCCC Brief at 3; see also OCCC ADVISORY BULLETIN
B15-2, ALTERNATIVES TO CREDIT CARD SURCHARGES (Revised June 25, 2015) ("Bulletin"). 5
When a statute is vague, ambiguous, or leaves room for policy determinations, we will defer to the
agency's interpretation "unless it is plainly erroneous or inconsistent with the language of the
statute." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). "Deference
to the agency's interpretation, however, is not conclusive or unlimited." Id. Deference "applies
to formal opinions adopted after formal proceedings," and "the language at issue must be
ambiguous." Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747 (Tex. 2006). Because neither
exists in this instance, we cannot defer to the OCCC Bulletin to provide definitive answers to the
questions posed.
4
0f course, such a conclusion is contingent on the seller's compliance with the requirements articulated in
Rowell, such as making clear that the higher price is a regular price and that persons paying cash in person may
receive a discount. Other variations could also occur, such as an owner or operator charging different prices for in-
person payments with credit or debit cards than for cash. The validity of such methods would tum on compliance
with the anti-surcharges statutes articulated in Rowell.
5
Available at http://www.occc.texas.gov/sites/default/files/uploads/misc/b l 5-2-credit-card-surcharge-
altematives-6-25-15 .pdf.
The Honorable James Keffer - Page 5 (KP-0095)
SUMMARY
A court is likely to conclude that a fee uniformly charged to
all online means of payment by an arms-length third-party vendor
does not violate the surcharge prohibitions of Finance Code
subsection 339.00I(a) or Business and Commerce Code section
604A.002. Whether a rental property owner or operator and a third-
party vendor of online payment processing services have a true
arms-length relationship is a question of fact that cannot be
answered in the opinion process.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130748/ | June 16, 1987
Mr. John R. Hale Opinion No. JM-721
Commissioner
Credit Union Department Re: Constitutionality of House Bill
914 East Anderson Lane Nos. 1953 and 1531. which regulate
Austin, Texas 78752 the sale of motor vehicles
Dear Commissioner Hale:
You inquire about the constitutionality of certain statutes and
proposed amendments applying to the sale of motor vehicles. You are
particularly concerned about pro+sions which prohibit sales of motor
vehicles from locations other than a permanent sales location. Briefs
submitted to us state that rental car agencies have in the past sold
used cars in Texas at temporary "off-site" sales. These sales are
also called "fleet" sales. Such sales are usually sponsored by credit
unions that make financing available to members who purchase vehicles.
Credit unions in the past have also sponsored off-site sales of new
cars, held at sites which are not permanent auto dealer locations.
The proposed legislation you inquire about will prevent both kinds of
sales -- the off-site sales of new cars and of used rental cars. You
specifically ask about House Bill No. 1531. which amends article
4413(36). V.T.C.S., and House Bill No. 1953, which amends article
6686, V.T.C.S.
Article 4413(36), V.T.C.S., the Texas Motor Vehicle Commission
Code, regulates the distribution and sale of new motor vehicles in
this state. V.T.C.S. art. 4413(36), 951.01, 1.02. It provides that
no one may act as a dealer of new motor vehicles without obtaining a
license from the Motor Vehicle Commissioner. Dealers may carry on the
business of a dealership at more than one location, if the separate
location is expressly authorized by the dealer's franchise and
license. V.T.C.S. art. 4413(36). 14.02(c)(l). Lxensees may not
participate in a "new motor vehicle show or exhibition at which new
motor vehicles are offered for sale" unless the Motor Vehicle
Commission has granted its approval. Id. House Bill No. 1531,
pending before the 70th Legislature, wouldprohibit the sale of any
new motor vehicle, except a motor home. at a show or exhibition.
House Bill No. 1531, 70th Leg., (1987) (proposing amendment to section
p; 3351
Mr. John R. Hale - Page 2 (JM-721)
4.02(c)(2) of article 4413(36)). Thus, the off-site sale of a gloup
of new cars would be prohibited if House Bill No. 1531 is enacted.
Article 6686, V.T.C.S., permits dealers in motor vehicles to
apply for a general distinguishing number and a master dealer's
license plate, icstead of registering vehicles individually. An auto-
mobile dealer must have "a currently valid general distinguishing
number" assigned by the Department of Highways and Public Transpor-
tation, and may not reassign a certificate of title or other evidence
of ownership without one. V.T.C.S. art. 6686(a)(l-A). These require-
ments apply to dealers in new or used cars.
To apply for a general distinguishing number, an individual must
file a sworn application with the department showing. among other
things:
(A) that the location for which the applicant
seeks the issuance of a general distinguishing
number is an established and permanent place of
business situated on real property owned, or
leased by him under a written lease for a term of
not less than one'year, on which the applicant
maintains a permanent furnished office for the
sale of vehicles of the type specified in his
application. . . .
(B) that the applicant intends to remain in
business for at least one year at the sp.+cifieh
location. . . .
V.T.C.S. art. 6686(a)(l-A)(vi)(A), (B) (enacted by Acts 1985, 69th
Leg., ch. 465, at 1633).
House Bill No. 1953, enacted by the regular session of the 70th
Legislature, requires a separate general distinguishing number for any
location from which the person engages in business. H.B. No. 1953,
70th Leg. (1987) (mending V.T.C.S. art. 6686(a)(l) (iii), (v)). In
addition, the dealer's sworn application for a general distinguishing
number wotild have to state that the applicant intends to remain
engaged in business as a dealer for at least one year at the speciflrd
1. A brief submitted in connection with this request argues that
the present version of section 4.02(c)(2), as interpreted by the Texas
Motor Vehicle Commission, allows participation in bona fide trade
shows and exhibitions only where a sale of vehicles is an incidental
purpose. Thus, "parking lot sales" which have as their primary
purpose the sale of vehicles may not be authorized by the statute.
p. 3352
Mr. John R. Hale - Page 3 (JM-721)
location and that he or his employee will be there to engage in
business during reasonable and lawful business hours. -
Id. (amending
V.T.C.S. art. 6686(vi)(B)).
These provisions on location will prevent both fleet sales of
rental cars and off-site sales of new cars. You question the
constitutional validity of legislation which restricts the sale of
vehicles by dealers that do not operate from a permanent location.
You first ask whether either or both of the bills could be construed
as an attempt by the legislature to pass a special law regulating the
automobile trade by effectively prohibiting some persons from engaging
in that trade. This question raises issues under the equal protection
clause and the due process ciause of the Fourteenth Amendxpentto the
United States Constitution.
The legislation distinguishes between persons who offer motor
vehicles for sale from a permanent business location virtuailjjevery
business day and those who wish to offer motor vehicles for sale
occasionally from a location only temporarily devoted to that purpose.
There is no fundamental right to engage in the business of selling
mqtor vehicles; therefore, the legislature needs only a rational basis.
for treating persons differently according to their particular mode of
selling motor vehicles. See City of New Orleans v. Dukes, 427 U.S.
297 (1976). Under the rational relationship test, a statute will be
sustained-if the legislarure could have reasonably concluded that the
challenged classification would promote 'a legitimate state purpose.
See, e.g., Exxon Corp. v. Eagerton, 462 U.S. 176, 195 (1983); Allied
Stores V. Bowers, 358 U.S. 522, 530 (1959).
Article 4413(36). V.T.C.S., includes the following purpose
clause:
The distribution and sale of new motor vehicles
in this State vitally affects the general economy
of the State and the public interest and welfare
of its citizens. :r: is the policy of this State
and the purpose of this Act to exercise the
State's police power to insure a sound system
of distributing and selling new motor vehicles
through licensing and regulating the manu-
facturrrs, distributors, and franchised dealers of
those vehicles to pruvide for compliance with
manufacturer's warranties, and to prevent frauds,
unfair practices, discriminations, impositions,
and other abuses of our cicieens.
V.T.C.S. art. 4413(36). 01.02.
p. 3353
Mr. John R. Hale - Page 4 (JM-721)
A brief submitted to us indicates that the proposed legislation
will serve to protect purchases by prohibiting car sales by un-
licensed, onfranchised "fly-by-night" dealers. Such dealers cannot
repair motor vehicles. They have no capital investment in the
facility from vhich they sell. Therefore, they cannot provide the
services necessary to keep the vehicles they sell in good condition.
The proposed legislation protects consumers from sales methods which
might leave them in possession of a defective vehicle without any
practical method of holding the dealer accountable.
Another brief argues that House Bill No. 1953 is anti-consumer,
because credit union members are satisfied with "off-site" sales. It
also argues that consumers are sufficiently protected under existing
law. because the vehicles have warranties and complete service
records. In the event of problems, the consumer may seek recourse
under the Deceptive Trade Practices Act. The consumer saves money on
the price of his purchased vehicle, and the car rental rates offered
by the rental companies reflect the savings they realize by selling
their used vehicles.
The view that House Bill No. 1953 is anti-consumer is supported
by a letter from the Chicago Regional Office of the Federal Trade
Commission on similar Illinois legislation. A letter to the minority
whip of the Illinois House of Representatives commented on legislation
which would have prohibited fleet sales by rental car agencies.
Letter from John N. Peterson, Acting Director, Chicago Regional Office
of the Federal Trade Commission to John W. Hallock, Jr. Minority Giip,
Illinois House of Representatives, Nov. 13. 1986. The letter stated
that the bill was contrary to the public interest because it would
unnecessarily restrain competitiou in the used car market. Its
principal effect would be to increase costs to consumers in the used
car market. Existing licensing requirements appeared sufficient to
address concerns about unscrupulous dealers. -Id.
Acts of the legislature are presumed valid. Anniston Mfg. Co. v.
Davis, 301 U.S. 337 (1937). When someone alleges that a statute
involves a classification denying the equal protection laws, he has
the burden of proving that it is essentially arbitrary. Minnesota v.
Clover Leaf Creamery Co., 449 U.S. 456 (1981).
An Attorney General Opinion cannot evaluate the factual bases of
statements for and against the proposed legislation. The arguments
and information provided to us do not, on their face, refute any
possibility that there is a rational basis for these bills. We must
conclude that the legislature reasonably believed that the proposed
restrictions on motor vehicle sales would protect Texas consumers from
fraud and unfair practices by "fly-by-night" dealers. We cannot say
that the proposed enactments violate the equal protection clause. Cf.
Calvert v. McLemore, 358 S.W.2d 551 (Tex. 1962) (statute violating
p. 3354
Mr. John R. Hale - Page 5 (JM-721)
article VIII, section 2. of the Texas Constitution which requires
reasonable basis for classifying and exempting persons engaged in same
occupation for occupation tax).
An economic regulation challenged under the Fourteenth Amendment
on substantive due process grounds will not be overturned if
there is an evil at hand for correction, and . . .
it might be thought that the particular legisla-
tive measure was a rational way to correct it.
Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488 (1955). The
court will not strike down state business regulatious merely because
"they may be unwise, improvident, or out of harmony with a particular
school of thought." -Id.
Article I, section 19, of the Texas Constitution also provides
for due process of law:
No citizen of this State shall be deprived of
life. liberty, property, privileges or immunities,
or in any manner disfranchised, except by the due
course of the law of the land.
We note that the opinions from other states, and the commentaries of
scholars, tend to place statutory provisions like the one at hand in a
very critical light, at least insofar as the guarantees against the
deprivation of liberty without due process of law in various state
constitutions are found to extend meaningful protection to substantive
interests in economic freedom. Our research suggests that a number of
state judiciaries would examine Rouse Bill Nos. 1953 and 1531 strictly
for real evidence of the actual relationship of the means embodied in
the prohibitions in the statute to the actual and purported purposes
of the prohibitions. If the courts of Texas should choose to follow a
similar approach to interpreting the liberty interests in the due
process clause of the Texas Constitution, then we surmise that it
might be difficult for this statute to pass constitutional muster.
See, e.g., Defiance Milk Products Company v. Du Mond, 132 N.E.2d 829
(N.Y. 1956); In re Certificate of Need for Aston Park Hospital, Inc.,
193 S.E.2d 729 (N.C. 1973); Paulsen, "The Persistence of Substantive
Due Process in the States," 34 Minn. L. Rev. 91 (195G); Comment,
"Rediscovering Means Analysis in State Economic Substantive Due
Process," 34 Ala. L. Rev. 161 (1983); Note, "State Economic
Substantive Due Process: A Proposed Approach," 88 Yale L.J. 1487
(1978).
You next ask whether this legislation would burden interstate
commerce in violation of the federal constitution. U.S. Const. art.
I. 48. We assume that some of the new and used motor vehicles sold in
p. 3355
Mr. John R. Hale - Page 6 (JM-721)
Texas move in interstate commerce, including some of the vehicles sold
in "off-site" sales and "fleet" sales, and that the Texas regulations
of the sale of motor vehicles would affect interstate commerce.
In Exxon Corporation v. Governor of Maryland, 437 U.S. 117
(i978), the Supreme Court considered a Maryland statute providing that
a producer or refiner of petroleum products (1) may not operate any
retail service station within the state and (2) must extend all
temporary price reductions uniformly to all service stations it
supplies. Although the burden of these provisions fell only on
certain interstate companies, the court rejected arguments that they
violated the commerce clause. It found that these provisions did not
favor local production, prohibit the flow of interstate goods, or
distinguish between in-state and out-of-state production. -Id. at 125.
The court stated that
interstate commerce is not subjected to an imper-
missible burden simply because an otherwise valid
regulation causes some business to shift from one
interstate supplier to another.
Id. at 127. We believe the court's reasoning in Exxon Corporation v.
Governor of Maryland supports a finding that the statutes and bills
you inquire about do not violate the federal commerce clause. --.
You finally ask whether the Texas provisions violate state or
federal antitrust provisions.
The' Texas Free Enterprise and Antitrust Act of 1983 defines ss
unlawful various practices that lessen competition, such as monopolies
and conspiracies in restraint of trade. Bus. 6 Coma. Code E015.01,
15.05. Rowever, nothing in the section defining unlawful practices
shall be construed to prohibit activities that are
exempt from the operation of the federal antitrust
laws, 15 U.S.C. Section 1 et seq. Furthermore,
nothing in this section shall apply to actions
required or affirmatively approved by any statute
of this state or of the United States or by a
regulatory agency of this state or of the United
States duly acting under any constitutional or
statutory authority vesting the agency with such
power.
Bus. 6 Comm. Code §15.05(g). Thus, the conduct required by the
proposed statutes does not violate the state antitrust law.
We finally consider whether the proposed legislation conflicts
with the Sherman Act, 15 U.S.C. 01 et seq. In Parker v. Brown, 317
?
p. 3356
Mr. John R. Hale - Page 7 (JM-721)
U.S. 341 (1943), the Supreme Court established the "state action"
exemption from the federal antitrust laws. The state, in exercising
its sovereign powers, is exempted from the restraints of the federal
antitrust laws.
The standards for applying the Parker v. Brown doctrine, as
articulated by the federal courts, are as follows:
1. The alleged anticompetitive activity must
be mandated by the state acting as sovereign;
2. The challenged restraint must be clearly
articulated and affirmatively expressed as state
policy 9 and the policy must be actively supervised
by the state itself.
3. Some decisions indicate that the importance
of the state's regulatory interest is also to be
considered.
Annot., 70 L. Ed. 2d 973 (1983).
In New Motor Vehicle Board v. Orrin W. Fox Co., 439 U.S. 96
(1978) the Supreme Court considered whether California statutes
governing the establishment or relocation of new-car dealerships
violated the Sherman Act. The statutes required that an automobile
manufacturer that wanted to add dealerships to the market area of its
existing franchises must notify the existing franchisees as well as
the New Motor Vehicle Board. If an existing franchise filed a protest
with the board, the manufacturer could not open the proposed dealer-
ship until the board heard the protest and determined its merits.
An automobile manufacturer and the proposed franchisees sought to
declare the statutes invalid as violating the Sherman Act, among other
grounds. They argued that
by delaying the establishment of automobile
dealerships whenever competing dealers protest,
the state scheme gives effect to privately
initiated restraints on trade.
Id. at 109. The court stated that the California regulatory scheme
was
a system of regulation, clearly articulated and
affirmatively expressed, designed to displace
unfettered business freedom in the matter of the
establishment end .relocationof automobile dealer-
ships. The regulation is therefore outside the
p. 3357
Mr. John R. Hale - Page 8 (JM-721)
reach of the antitrust laws under the 'state
action' exemption.
Id. The court also countered the argument that the legislation
conflicted with the Sherman Act because it allowed the auto dealers to
invoke state power to restrain competition. Quoting Exxon Corporation
v. Governor of Maryland, the court observed that there was a conflict
between the statute and the central policy of the Sherman Act, but
that
this sort of conflict cannot itself constitute a
sufficient reason for invalidating the . . .
statute. For if an adverse effect on competition
were, in and of itself, enough to render a state
statute invalid, the States' power to engage
in economic regulation would be effectively
destroyed.
439 U.S. at 111 (quoting Exxon Corporation v. Governor of Maryland,
437 U.S. at 133). In our opinion, the proposed enactments do not
violate either-the state or the federal antitrust laws.
SUMMARY
House Bill Nos. 1531 and 1953 of the 70th
Legislature restrict the locations from which new
and used cars may be sold. These proposed
restrictions do not on their face violate the
equal protection clause, the due process clause,
or the commerce clause of the United States
Constitution. Nor do they violate the Texas
Antitrust and Free Enterprise Act of 1983, Tex.
Bus. & Comm. Code 0515.01 et seq., nor the Sherman
Act, 15 U.S.C. 91 et seq. Scholarly authorities
and cases from other states on due process
requirements of state constitutions, if adopted by
the Texas Supreme Court, suggest that these bills
would violate article I, section 19 of the Trxas
Constitution.
JACK HIGHTOWER
First Assistant Attorney General
p. 3358
Mr. John R. Bale - Page 9 (JM-721)
,r-
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison and
Donald Bustion
Assistant Attorneys General
p. 3359 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144143/ | somrfme 0ml3ls S.Carpenter
Texas UPePlployasnt
aempensetionConmiseion
Brown Bld&
Austin, Texas
&bar Sir: Opfnlon No. o-2247
R%i uap the Coml%%loti r%uwe
to l.tealftb determlmitlone
8 alaim for benefit8 or rerlsw
e determlnatlonalrea6y rrde
before an appeal iron 8tmh de-
terwlnatlon~hasbeen iilod
with %% appeal Srfbunal and re..
latsd questions.
You2 reqamt for en opinioa on aar$ain ralattwl qws-
tlons imuting qqeml proaodure Wore the !gma U-r Qae
permotionOolPrlaaion lrrrrr
been reaefved. Pour questionswill bo
quoted end dltiassad in~tb& order +f their Irppemranae
In the
request.
The Lsgi~lmture has andearorodto ~tllne gatiieular4
the proaodureto be iollowed ta tfibhfutdl.~ ef benefit olairs
baiorathe Gomlaahn. Ue quote the peW.mmtSa&lons of &ti-
ale 5223.-b,Vernen's Ravlsod Civil Statutsst
"See. 4 (b). SnLtlal Determination: A represents-
tire clasignetedby the GQIBBX%SB~~P,antihwdmUter re-
ierred to aa a dsputp, shall promptly exnmine t4e O~&JU
and, on the baais of the faoCa foam3 by hiat,shall
either determkne whsther or not euoh aLaim 1% valid,
end if mild, the date 0% w!~l%hb%a%fit% shell oomue~e,
the benefit aiwiuutparetie end thciBlexilnumduration
thereof. or ahall refbr suon aletw or any question lo-
rolved theretn to en appeal xribunslor to the WIa5la-
&of%, wuoh shell m&e its detemninatlanswith rsapeot
thsreto In aooordanae with t!w proaedure deaeribed in
subseatlton (0) of this %eotfcm, exoept t&et in any oa%e
in which the peyment or d%ni%l of benefits wtil be da-
GrvIlla~S,Osrpantar,page 2
tarmIaad by tha prai%Iuns of %eotlon 5~x6) oi this
AOtt,the deputy ahall prompay txailadt hle zllllfinding
as rao4iwith reapeot to that aubaaationto the ConmU-
alon, WhIoh, on tho be%I% of the atidauoe submittedand
suoh a&ditlOual evldauoe 8% It may requlro, shall 8rriXJItj
6miif$, ox set a8Ida suah fiudiugs of facetend tran%&t
to tha dapaty a daaI%Ion apon the Issues Involtad
undar the subaeatlon. The daputy etia3.l propapt
notify the alaImnt.and any dtmr lnterestadpsrtg-of
tha deoiaion and the reabans thexsror. Unless tireal%Imsnt
or any suoh Interestadpsrty, within tan (10) calenderdays
ester the delivery of,ouoh uotificcrtion, or within twelve
(U) a%lendsr day% after auoh notirlaaticnwc.8mailed tb
hi8 leastlcuOspfl~addres:s,
files en eppettlfrom such da-
olalon, auoh dea$tsIon skmll baTIn%l and banefita shall
ba paid or-&dad ln eaoamlanoe -tharawTth. IX an eppa%l
Io~dulg filad, banaflto with respaot to the parlod prior
to the flnal detarmInstionor tLreCommIuslon, shall ba
pald or&y sitar such dstemInstIon; prop/dad, that If au
appeal tribuuel~erfirusa dacisian of a deputy, or tha
GomfnIe~~5o~
effirme a t!ieoisbmof en appaal trIbuna1,
allowIng behefits, such bonefIt% shall ba paid reGardlea%
efany~appaal.whloh~my tharaaftarbe taken but It
suah daoision Is fimlly revarssd, no amployar*s
daaouut ahall be ahergad with benefits so paid.
aho. 4 (a). Appbal~~ Unless suah appeal Is wlth-
drawn,,%u appeal trtbunal, artsir%tford&ng the partlea
raaeonable oppc&iuIty for fair hmriog, aLall bffimi
or.madYy the fludIng of faat anb'daoI%ionof the
depaty. The partlss ahall be da4 natIfIed of sash.
trlbtu+*6 deo+slon, tanager tit& It6 raaaom3 there-
ior, whiah ahall be de&mad to ba tlma& tla6iaiix1 Eb tth&
6anmiasi0r~,unlsss within tan (10) days r&a? tha date
of notlfloatlcmor msIl.ingof %%ah 4eaIaIoa rurtha
appeel Is IhItIstad pursuant to subsaatian {a, of
this aaotls4n;*
aSea 4.(a) Th% Conmiseion may on Its own motion
affira,modify, o? set as&de ang deoiaion of en Cppaal
tribunal on the heals of the eW¶anaa previously sub-
mitted In auah oasa, or dIreat the taking of eddftioual
eviBauae, ax may peruit an$ of the partlee to s&h da-
aiaion to unitlate further appesls before it . . ~. .
The %mraIssIon may remva to Itself or transfar to
another eppecl tribune1 the proeeadln,;sau any claim
penblng before an eppeal tribunal. . rW ,.
Thui a aaraful awmiuatioa of relevant eeatloua of Artlole
5221-b disaloses e power Hithin the Cor%n3.~sion,
faund in Laotian
4 (a) to affirm, mdffy or set aoSda say Uaaoisionof en appeal
tribunal on :ts own motion,. This m?i.ua
%eatIon of our law~.fur-
thar empowers the G&saion to ranove to ItaaU or to anothar
appasl tribunal my alai& pendiug before en eppac~ltribuual.
Raforanoa to the oour%e 6f a bleiu from Its fIlIug to
Its rlnal deteruiuatlon,%how%.tha first datam&mtIou to ba
teetea by Artlola 5221-b, Eaatian 4 (b), la a raprasantatiraor
deputy designeted by tha &%rm~I%%Lon;subsaquantto detormf.a%tlon
by the dapaty the prooedure 1% .outliuedfox an appaal to aa
appeal tribunal und from that body to the .,
GomnIesIan.
Bon.~GrvllleS, Carpenter,paga 3
A pruvibionIa -de In Artlola !%!a-0, SeotIan 4(e),
far remwal by the CoxnaIasIon on 1tS motion of a ola5.mber~re an
appeal tribunal, bntno auhorlmatlonappears in the statute for
the Gom&mion, on its own motion, -toremove e olain for revfew
pr1a.rto an appaal to the appeal tribunal.
1t:obviouslywas intended that the epplioant for banerlts
take the IuItlatIvaia'saaurIxtg
benefita and that the Cumalsslon
would not of Ita own volition award payments fndlaorimI~toly
rrom a rund designed to help the needy unamployed.
We have oonsideredthe datalledmanner adopted by the
Lagls.:eturain oatlInIngthe prooedura of P olelm, tha authority
and the duty of tha Colgfacilonand Ita daputlca with rderenoe
to olaims. Thla sppears to be En apt situationror the appI&
aatlon of the legal marIm vexpresalourrius~est exaluelo alterIus*.
Where the stat&a auumarataat!m powers and dutias of ofiloialrr
UoLto be ear&trued aa axaludlng all those not expresslyman-
This rule was long ago laid down In Texae ln the opLn-
ion oreJudge Wheeler in &-yen vs. gundberg, f,Tox. Rap. &I&
Your first queetIon 18 qmwered in the negative.
‘QuestionHo. 2, ~May a oat38p&ding b&ore an
appaak tribunal be ramovkd to the Commlselon bx an
aotlon 00 the Corplnisslou
taken ln the sbsenoe of trie
tha oonaumdnoe 0r the
lmpartislnumber; or iwioitheut
impartialmember in aueh ~aotIanV
Artdale 5223.-b,GeotIW 8 (e), reads as follows:
"(e) Quorumt Any tool(2) Gorraalseione~sshall oon-
atituta a quarum, provided, hewevar, that whanavar tha
ConudsaIon hefms wy ease Imdlrlng 8 dlaputed 0lal.itoi,
benefits kdar the &cwlmIon~ of Sd3.rm 6 af this Aat,
the impcmtlalmember oi-ths Caaualaalon shallaot u3.e~~
in the sbeenoe or &isqualYioatio~~ai any other member,
end in no oese ehall suoh a heerlng prooeed unless the
inqpartlalmemberof the C~sslon is present. Bbroept
as harefnbeioreprovided, no vaoanoy &aBu Impair the
right 0r the ramaInIug Gumksslone173to exarelaa all
oi the.poriaraoi the Gamai8sI01&"~
Our’aJlsW~ to this question IS rurther oomplioatadby
oral.InformatIon,not-in the Xetter of requaat, that a ramavel
to the Commission is In hot a ravlew of the olaira. This
sltuatlonexlsting as It does Rlaaea the proeadura strIotly
within tha prohlbltlonfouud in Section 8 (a) quoted abova-,
ue advert partioularlpto that portion of f5actlon8 (a)
whiohrsade "r . . and In no aase aasll.a hearing proased unIess
the lmpartlalmambar of the Ccmmlssion 5s present.* . . . Ths
'presenoeand oouaurrenoaof tha impartlalmembar la tturrdm
mmdatory if .thereglovalfrW au 8pped tribunal iS tankMouat
to a revlaw 0r the olatsa
n
Quastlan No. 3 May the G&aeion act upon an
applloatlonrar lea4 to appeal to ths aolRIRi86ion3.n
the ebsanae of the ~urtIalmambar?*
The provisions of Artiole 5221-b, Seotlon S-(e) Ver-
non*8 RavIsed GIvII Statutes, damand the presanoe of the &a-
partial mambar bafore a hearing may prooead. yh,have WId In
il~~.urvll.LeS. GqrpantBf.page 4
w user to your saooxu?question, that under the faota as.we
hars'tham, the ramoval of an appeal vans that the mambara ham
atudled the reaord and the ramoval la a rsvl&w, thus out anawar
to your third qaeation la no. The bssle far our answar Is the
same as that in question tnro;
WgueatlonNo; 4 ~Xn an aotlon by the Gommlsalon
unon an aoalloation;or leave lx aDDeal to the km-
-~- ~. ~~a_-
mIssIon, is the onourrerioeof the--&artIal m%mb%r
neoes~aaryto s dealsion?*
* is derlnsd by Webster asr "Aot
'The term ~"00110urren0e
or oonourrlng*; "a meeting or corni&?together"; "union"; "aon- .'
junotion*.
Th%ra is also tha Interpratatlckn 0r oonourr%naeto ba
*in agreement* as found In swordsand Phrases, PirEt Cexiea pg.
1390, and Worda end Phrases, Seoond series, Pa. 8!&
We arcwont to believe that.the use implied in your ques-
tion la the -aotIng together-. This Infermrrs rasults tram
ratlure to rjnd any raqu5ramantor lndloatlon that the law aon-
tamplatesthatall thrnmmbersm~~tagr88 onanappeal. Suoh
a aonolusion w0uld not be Ln hsrnsny with the idea of a thra%-man
baard.
Adopting the vleu that aonaurr%no0embxapea the sating
or preaenoa In tha me&In&.oi the isp?artIalmmb~, weibelieve
our statutes apiwifloally require the prsaenoe of the kpartIa1
I -bar on any aation, but do%a not require the sfilrmatIv%vota
0r .auohxns&er.
nere'the -8son has grantad
daiiwminatIm~a olatiicrr
benefits and wheie Micahappeal M berma the Oem~IaaIon
on the raaord end so fori@ hearIng.haabeen hald, Is
the oonaurr%aaa0r ~the Impartlalmamber IXbO886ErF to a
deslaian on auoh app%aX?a
TM.8 answer alao ambraoas prerloua QlauusaIon In thIa
oplnian, W% find nothIag In the Texas statutes on unamp&~ ..
~eomp~tlonInaur8nee that suggest8 that the iagartI%laemb%r
auat tippruvea bsnsiit 01al.mor appeal.b%fore 1% oan be paid.
It appears to us that the,- uWa&asnta of the law and psrtleularly
Artlole $i42l-13,
S%otion 8 (e!, ar% 6atisfIed ii the partial
member Is prssent et the hearing as aonaS.der~tIen of the olalm.
The preseuti or oonaurr%ne%of the I&partIal~~~bar is al.1that
Is riqulred, but the statute Is ol~~and~ unambIguouaIn its
roquiraarentthat suoh memberbe premmnt b&ore the hearing may
The atstutes appar%ntl.ydo n@t lnt%nd that a deolalon
~~~*ln the abaenoe of the &psrtial m%mW. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144151/ | I
PRICIi DAXIEL ,.
ATTORNEY GESEHAL ..
Gerald C. Farm
////////(///
Honorable L. A. Moods
State.Suptli5ntendentbf,Public
Instruction,
Austin, Texas
izinion No. -0-2239
: General Appropriation Act
1939 - State Decartn;ent
of Education --,Contingent
Expenties-- Printing -d
Buarterly'~allocationoft
annual appropyiation,.
You ,statethe'following case for an opinion:
:
*Thd statutes make it mandatory ',
upon the Departnent of Education that :
certain forms,'bulletins atid,reports
such as teacher's daily .reeisters,
teach.er'smonthly reports, voucher
forms, etc., bo filade~,available
,to
the schools of the State.by Septen-
her lst, the beginning of the sc!:olas-
tic year.. In order to have these
form, bulletins and reports avail-
&blc:for scholastic yoer'1;~13940,
the Departrmn$ as in the past was
compelled to issue requisitions ut
least three to .faur e:or;ths
prior tc
,Scptel,:ber
1, 1937, to alloirmple
tims fop nrir:tirl:;
zl:dr!clivi?r:!.
;Zlcn
the accounts for ,suchwere prc!&ented
to the State Cor~:!)tro$lcr
for payment
they wero~rcfu&cd $.)rth.e'reason that
they bol;ercquiiition dates prior to
Sc;.t;:iril.u,r
1, 193:1,"
U,bO$ l;bc:;.b,f;iCtS gi0U .pT.,poll;ld- thes following
quesi.ion:
RdnorableL. A. Foods - Page 2
Whether or not it ismaterial when the requisi-
tion is.made for printing, provided the printingwhen
done, is to be paid out of the appropriation,for the.cur-
rent fiscal year for which the printing,is dote.
,
The 'answerto yburinqu%ry is ruled.by the
opinion of this,,de$artnentof date November 17,.1915,
(Opinions of the Attorney General 1914-19~6, p. 695)‘,, . -~
holding it to be regular and lawful for a Board of
Regents to contract for the erection of a dormitory.
and dining room:to be paid for out of the appropriation
available thereafter,.to-urit,on Se>teltiber1, 1916. It
is declared in that opinion: .'
"The,fact that this &12~,OQO,OQ :
appaoprfated for the erecti,onof a _'
'dormitory..anddining rooLr,isnot
: available until the lst..'dayof Sep-,
~tenber,,l916, does snot postpone the
. .taking ~effectof this Act of the
Legislature until that dato. This
Act is as much the lat\rnow as it
will be subsequent to.Septembcr~l,
Y' '.,1916,,and the Board of Regents would
.be warranted in letting the'contract'
.for the erection of said building at
the present time or at any ti:.leaft.er
the enactment of'such law aridprior
to August 31, 1017, 'the expiration
.of the fiscal '-eriodfor hriliCh
.appropriation is made.
“of d0uk32, as this %25,000.00
is bji:express r;rovisionof the Act
not availabls until Ee:ztemborl,,1'36,
no warrant-scoul.dbe drawn or naj,ments
mado out of same .until that date."
The oj~,Anicn
furthcr states:
.JrableL. A. Woods -.'Page3.
appropriation, nor do,we mean by
this opinion to make a holding of
that character."
'As we understand your inquiry, it discloses
that the supplies are'to be received by your depart-.
mentbut will notbe consumed pri.orto the time ,when
the anpro,iriationIbocomes.available, thus coming with-
.inthe hoMing of that opinion.
Trusting,that thi.swill be a satisfactory
answer 'toyour inquiry,
'. we are
.Very truly yours
. ' ATTORHEY GEi:ERALGF.TEXRS
BY
: Ocie Speer
Assistant
.OS*KR:bb .
/e/ Gerald C.. Kann '~.
;.
ATl'CRIJhY
GIUERAL OF TEXAS
‘. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144156/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAR
AUWIN
Honorabh EnaiD Rurkott
County Attora4y
Cmtro Coulltf
Dbnnltt,
Tmrpr
D4arSira oplnlon No. beeSI
RI! Conetruoti
&ml1 11,3940, la whibh.JOU
nrat on ths qu4rtlonthanln
oi fcur 14ttey -4)
"I droir4 your
trsarursr 04~ 00114
four 1ett.r oonmtitut4m 4 r4~wat that.thir
tIeput-
aaat oon4tru4 tha abot4 quot0Q oldor paw04 bt the oomni44inn-
arr' oourtr
Honorablr -In Burkett, P4g4 Z
Article6941.ofthe B4vi44tl Civil Statute8of T4144,
1985, prOvi444that the oommla81tmers* courtmy fir a ret@
~&o~penratIon for a county treamrer~on ~0n4~4 r4041~44 by
“....llot4IC444lIl& tro an4 one-half p4r 44nt, 4n4 not
4xo444Ing tuo and ens-half per 44nt for peyln.: out the same
....y.. ArtielrSOIS, Rsrieed Civil Statute8of T4x4s l~tabllshes
a maJam that may b4 pai4 him.
Th above quote4 order must be construedas meaning
th6t the aompensatlonprovidedior thereinIs to b4 oaloulatsd
at tho rate OS thre+iourths of one per oat on ill money m-
tmlved, or pal4 out with an establIshed~rImum of SIX Hundred
($600)Dollar8per year. The hat sentcnoeof snob order read-
Ing1
That he presentbflla each month showinghis
earningsand that said #600 bs paid to him at the
rate o? $60 per month.a
Ir neoersarllymade aantingentupon the proposition that thrso-
Sou$ho of on4 par cant of the msney handled will 441x1 th4 month-
ly paymntnt.
Th4 uorde, Qot to 4xcc4d $600 p4r annum” appearing
'in the SIrBt bar&en44 or the ord4r 0re necos8arIlyword6 of
llmitetlonupon the trsasurw*s earningpuaor an4 h4 would be
limItedt$auOh atlount 4v4n thoughthree-royrthr 0f one per
dent of the money handledbight 'farexdeed nuoh SIX Eundr44
($600) IMllara.
TrustLngthat ne have 8atlrfaotorIly anerrred your
Inquiry,we ar4 ~
Your6.vary truly
APPRCVEDAPR 23, 1940
ATTOm ~ENFiRALOF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130960/ | .
The Attorney General of Texas
JIM MATTOX June 25, 1986
Attorney General
Supreme Court Building Mr. Robert c. Lanic!r Opinion No. JM-507
P. 0. BOX 12546 Chairman
Austin, TX. 76711. 2546 State Department of Highways and Re: Whether the Texas Highway
5121475-2501 Public Transportation Commission may temporarily close
Telex 9101674-1367
Telecopier 512/475-0266
11th and Brazes Streets a portion of the Interstate 35E
Austin, Texas 78X1 frontage road in Dallas for the
purpose of allowing an inter-
714 Jackson. Sulie 700 city "grand prix" race
Dallas. TX. 752024506
21417428944
Dear Mr. Lanier:
4624 Alberta Ave., Suite 160 You have requ,ested our opinion regarding the authority of the
El Paso, TX. 79905.2793 Texas Highway Conmission to close temporarily a portion of the
915a33-3464 Interstate 35E frontage road in downtown Dallas for the purpose of
allowing its use f0.can inter-city "grand prix" race on June 19, 20,
/-
31 Texas, suite 700 and 21, 1987.
muston, TX. 77W2~3111
713,2255886 The Texas Righway Commission is authorized by article 6674w-1,
V.T.C.S., to "lay cut, construct, maintain, and operate a modern State
Highway System. . ." (Emphasis added). In the absence of indica-
606 Broadway. Suite 312
Lubbock, TX. 79401-3479
tion of contrary l&slative intent, we believe it is clear that this
606/747-5236 provision empowers Ithe commission to adopt regulations governing the
day-to-day operation of the state highway system, and all portions
thereof. As the Sr.premeCourt declared in Texas Highway Commission V.
43M) N. Tenth, Suite S
McAllen, TX. 76501-1665
El Paso Building anjlConstruction Trades Council, 234 S.W.2d 857, 859
512i@2-4547 (Tex. 1950).
[tlhe Stc.tehas created a Highway Commission, and
2w Main Plaza. suite 400 has placc!dunder its direct and exclusive control
San Antonio. TX. 76205-2797
51z2254191
the manaf:ementof its highway system.
Id. at 859. Furtkrmore. the commission is specifically empowered,
An Equal OppOtiunityl inter alia,
Affirmative Action Employer
(a). To designate any existing or proposed
State HighGay, of the Designated State Highway
System, or any part thereof. as a Controlled
Access Mghway;
(b) . To deny access to or from any State
Highway, presently or hereafter designated as
p. 2327
Mr. Robert C. Lanier - Page 2 (JM-507)
such . . . which may be hereafter duly designated
as a Controlled Access Highway, from or to any
lands, public or private. adjacent thereto, and
from or to any streets, roads, alleys, highways or
any other public or private ways intersecting any
such Controlled Access Highway, except at specific
points designated by the State Highway Commission;
and to close any such public or private way at or
near its point of intersection with any such
Controlled Access Highway;
Cc). To designate points upon any designated
Controlled Access Highway, or any part of any such
highway, at which access to or from such Con-
trolled Access Highway shall be permitted, whether
such Controlled Access Highway includes any
existing State Highway or one hereafter con-
structed and so designated;
Cd). To control, restrict, and determine the
type and extent '~!5access to be permitted at any
such designated point of access. . . .
--.
V.T.C.S. art. 6674w-1, subtliv.2(a)-(d). Interstate 35E is clearly a
"controlled access highway-" Accordingly, the commission is specifi-
cally authorized "to close any such public . . . way," &, the
Interstate 35E frontage road, "at or near its point of intersection
with" Interstate 35E. Ii our opinion, the foregoing provisions
furnish ample authority for the commission to close temporarily a
portion of the Interstate ?5E frontage road.
You express concern &about section 185(a) of article 6701d,
V.T.C.S., which provides:
No person sha:.ldrive any vehicle in any race,
speed competition or contest, drag race or
acceleration contest. test of physical endurance,
exhibition of speed or acceleration, or for the
purpose of making a speed record, and no person
shall in any manuer participate in any such race;
competition, contest, test, or exhibition.
We assume that this statute is limited in application to "highways."
"Highway" is defined in section 13(a) of article 6701d. V.T.C.S., as
[t]he entire wid:h between the boundary lines of
every way publicly maintained when. any part
thereof is open to the use of the public for
purposes of vehicular travel. ?
p. 2328
Mr. Robert C. Lanier - Page!3 (JM-507)
If the commission validly ,::Loses a portion of a state highway between
two specific points, so ~that it is not open to the public, that
portion so closed ceases during the period of closing to be a
"highway" for purposes of section 13(a). As a result, section 185(a)
is not applicable thereto.
In conclusion, it is our opinion that the Texas Highway
Commission is authorized to close temporarily a portion of the
Interstate 35E frontage road In'Dallas for the purpose of permitting
its use in an inter-city "grand prix" race.
SUMMARY
The Texas Highway Commission is authorized to
close temporaril:ra portion of the Interstate 35E
frontage road in Dallas for the purpose of
permitting its use in an inter-city "grand prix"
race.
JIM MATTOX
Attorney General of Texas
JACK HIGHTONER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee:
Prepared by Erik Moebius
Assistant Attorney General
p. 2329 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4162733/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4650
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHARAY LAVON WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Elizabeth City. Terrence W. Boyle, District Judge. (2:16-cr-00006-BO-1)
Submitted: April 20, 2017 Decided: April 24, 2017
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Jaclyn L. DiLauro, Assistant Federal
Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United
States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, Kristine
L. Fritz, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sharay Lavon Williams appeals the 96-month sentence imposed after he pled
guilty pursuant to a plea agreement to possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2012), and possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2012). Williams asserts
that his sentence is: (1) procedurally unreasonable because the district court failed to
adequately consider or discuss the 18 U.S.C. § 3553(a) (2012) factors applicable to his
case; and (2) substantively unreasonable because the § 3553(a) factors do not justify the
extent of the variance imposed. We affirm.
We review a sentence for procedural and substantive reasonableness, applying “an
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007). A district
court “has flexibility in fashioning a sentence outside of the Guidelines range,” and need
only “set forth enough to satisfy the appellate court that it has considered the parties’
arguments and has a reasoned basis” for its decision. United States v. Diosdado–Star,
630 F.3d 359, 364 (4th Cir. 2011) (internal quotation marks and brackets omitted). “In
reviewing a variant sentence, we consider whether the sentencing court acted reasonably
both with respect to its decision to impose such a sentence and with respect to the extent
of the divergence from the sentencing range.” United States v. Washington, 743 F.3d
938, 944 (4th Cir. 2014) (internal quotation marks omitted). “The farther the court
diverges from the advisory guideline range, the more compelling the reasons for the
divergence must be.” United States v. Tucker, 473 F.3d 556, 562 (4th Cir. 2007) (internal
quotation marks and brackets omitted).
2
The record belies Williams’ argument that his sentencing was insufficiently
individualized. During sentencing, the district court recalled that it previously sentenced
Williams on separate offenses after he was engaged in a high speed car chase with police
while possessing an AK 47, bayonet, and body armor. The district court explained the
dangerous situations Williams created in the current and prior cases, and reflected upon
what the district court perceived to be Williams’ refusal to learn from his mistakes.
Although the district court imposed a 15-month upward variant sentence, the district
court explained that the variance was necessary because of Williams’ criminal history,
lack of remorse for the dangerous conduct in which he engaged, and the likelihood
Williams would reoffend. Having reviewed the record and the district court’s
explanation for the selected sentence, we conclude that Williams’ variant sentence is
neither procedurally nor substantively unreasonable.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
3 | 01-03-2023 | 04-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295074/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4111642/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RONALD E. GARDINER, )
)
Appellant, )
)
v. ) Case No. 2D15-2621
)
MARSHA GARDINER, )
)
Appellee. )
)
Opinion filed December 28, 2016.
Appeal from the Circuit Court for Manatee
County; Janette Dunnigan, Judge.
Jaime L. Wallace and Marc C. Dungan of
Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., Sarasota, for Appellant.
Cecilia A. Eaton, Bradenton, for Appellee.
SALARIO, Judge.
Ronald Gardiner appeals from a final judgment that awarded lump sum
alimony to his former wife, Marsha Gardiner.1 The final judgment also denied the
1
Although the order is titled "Final Judgment of Dissolution of Marriage,"
this is a misnomer. As noted by the trial court in the order, the parties were previously
divorced in Sweden. The order does not otherwise purport to dissolve the marriage of
the parties.
former wife's request for permanent periodic alimony, awarded the former husband his
businesses on the former wife's prayer for equitable distribution, and denied the former
wife's request for attorney's fees and costs. The former husband argues that the trial
court erred in awarding the former wife the marital home as lump sum alimony.
Because the trial court failed to make the findings of fact required to support the award,
we reverse that portion of the final judgment, affirm the balance, and remand for further
proceedings.
The parties were married in Sweden in 2006. In October 2011, the former
husband filed for divorce in Sweden. Two months later, the former wife filed this
dissolution case in circuit court in Manatee County. Her petition requested that the
former husband be required to pay permanent periodic alimony and, in addition, that the
former wife receive the parties' marital home either as lump sum alimony or as part of
an equitable distribution scheme. The marital home was titled in both parties' names
and had been paid for with the former husband's premarital funds.2
After an evidentiary hearing on the former wife's petition, the trial court
entered a final judgment of dissolution. It found that the parties had lived a "comfortable
2
The former husband asserted in the trial court that he retained a special
equity in the property based on his contribution of premarital funds. However, special
equity was abolished in 2008. § 61.075(11), Fla. Stat. (2008) ("Special equity is
abolished. All claims formerly identified as special equity, and all special equity
calculations, are abolished and shall be asserted either as a claim for unequal
distribution of marital property and resolved by the factors set forth in subsection (1) or
as a claim of enhancement in value or appreciation of nonmarital property."); Jurasek v.
Jurasek, 67 So. 3d 1210, 1212 (Fla. 3d DCA 2011). Furthermore, the fact that one
spouse used his or her nonmarital assets to purchase a jointly titled marital property is
insufficient, standing alone, to prove that the spouse did not intend the contribution of
premarital funds to be a gift. Zangari v. Cunningham, 839 So. 2d 918, 921 (Fla. 2d DCA
2003). Thus, this finding alone would not prevent an equal distribution of the property.
-2-
and exciting life together" but that their circumstances had changed and that the income
and assets available to the former husband had "dwindled due to his increased age and
decreased ability." It found that the former husband received income of $1091 a month
and that the former wife received income of $1195 a month. The trial court also found
that the value of the marital home was $110,000.
The trial court denied the former wife's request for permanent periodic
alimony, finding that while she had a need for alimony, the former husband lacked the
ability to pay and that the circumstances did not warrant granting the former wife
permanent alimony. The trial court did, however, grant the former wife's request for the
marital home. It found that the former wife had made uncompensated contributions to
the former husband's businesses—businesses which produced only meager income—
for which it believed she should be compensated. The trial court also found that the
former wife "would be without shelter and likely homeless" if she was not awarded the
property. The trial court characterized its award of the marital home as an award of
lump sum alimony and ordered the former husband to deed his interest in the home to
the former wife.
The former husband challenges the award of lump sum alimony. He
argues that it was an erroneous award of spousal support or, alternatively, an erroneous
unequal distribution of marital assets. To the extent that the trial court failed to make
the findings necessary to support the award under either theory, we agree.
Lump sum alimony may be awarded either for spousal support or as part
of an equitable distribution of marital property. Pipitone v. Pipitone, 23 So. 3d 131, 136
(Fla. 2d DCA 2009); Miulli v. Miulli, 832 So. 2d 963, 964 (Fla. 2d DCA 2002). "[W]here
-3-
a trial court makes an award of lump sum alimony, it shall first determine whether the
award is necessary for support or to effect an equitable distribution of marital property."
Guida v. Guida, 870 So. 2d 222, 224 (Fla. 2d DCA 2004) (citing Glazner v. Glazner, 693
So. 2d 650, 651 (Fla. 5th DCA 1997)); see also Pipitone, 23 So. 3d at 136. Here, the
trial court made no findings that the award was necessary for either purpose. This in
itself was error and requires reversal for the appropriate findings. See Pipitone, 23 So.
3d at 136 (reversing and remanding so that trial court could determine whether lump
sum alimony was for spousal support or equitable distribution); cf. Pignataro v.
Rutledge, 841 So. 2d 636, 638 (Fla. 2d DCA 2003) (reversing and remanding because
appellate court could not determine for what purpose the trial court unequally distributed
the parties' assets).
Moreover, even if the trial court had made legally sufficient findings as to
the purpose of the award, it did not make any findings that would support the award
under either the equitable distribution or spousal support statutes. With regard to
equitable distribution, section 61.075(1), Florida Statutes (2011), provides that a "court
must begin with the premise that the distribution should be equal, unless there is a
justification for an unequal distribution based on all relevant factors." The statute lists
ten specific factors—including, as might be relevant here, the duration of the marriage,
the economic circumstances of the parties, and the contribution of each spouse to the
marital assets and liabilities—that a trial court must consider when effecting an unequal
distribution of marital property. § 61.075(1)(a)-(j). A trial court's decision concerning an
unequal distribution must "be supported by factual findings in the judgment or order . . .
with reference to [these] factors." § 61.075(3); see also Feger v. Feger, 850 So. 2d 611,
-4-
615 (Fla. 2d DCA 2003) ("[T]he court must specifically address the facts pertinent to
each statutory consideration . . . .").
The statute governing the award of spousal support similarly requires a
court to make specific findings of fact. Section 61.08(2) provides that in determining
whether to award spousal support, a trial court must
first make a specific factual determination as to whether
either party has an actual need for alimony or maintenance
and whether either party has the ability to pay alimony or
maintenance. If the court finds that a party has a need for
alimony or maintenance and that the other party has the
ability to pay alimony or maintenance, then in determining
the proper type and amount of alimony or maintenance
under subsections (5)-(8), the court shall consider all
relevant factors . . . .
In many respects similar to those in the equitable distribution statute, the statute then
lists ten factors that the court must consider in fashioning an award of support.
§ 61.08(2)(a)-(j). Thus, as with an unequal distribution of marital property, sufficient
factual findings regarding each of the factors in the alimony statute are required to
justify an award of lump sum alimony on spousal support grounds. Guida, 870 So. 2d
at 224 (citing Farley v. Farley, 800 So. 2d 710, 711 (Fla. 2d DCA 2001)).
Although the trial court in this case made some factual findings that may
be relevant to a few of the factors in either the equitable distribution or alimony
statutes—for example, the trial court's finding that the former wife could be left without
shelter bears on the economic circumstances of the parties—it made no findings
specific to those factors that would show that it actually considered all of them in making
its decision to award the former wife the marital home. Furthermore, while the trial court
found that the former husband had no ability to pay permanent periodic alimony, it made
no finding regarding his ability to pay the lump sum alimony. See § 61.08(2) ("In
-5-
determining whether to award alimony . . . , the court shall first make a specific, factual
determination as to whether either party . . . has the ability to pay alimony or
maintenance."); Dunkel v. Dunkel, 196 So. 3d 480, 482 (Fla. 2d DCA 2016) ("A judge
may award lump sum alimony to ensure an equitable distribution of property acquired
during the marriage, provided the evidence reflects (1) a justification for such lump sum
payment and (2) financial ability of the other spouse to make such payment without
substantially endangering his or her economic status." (quoting Canakaris v. Canakaris,
382 So. 2d 1197, 1201 (Fla. 1980))). Thus, even if the trial court had made findings
with respect to the purpose of that award, we would remain unable to review it due to
the lack of findings under either of the applicable statutes. See Pavese v. Pavese, 932
So. 2d 1269, 1270 (Fla. 2d DCA 2006) (reversing and remanding for further
proceedings because final judgment did not contain required factual findings to support
either an alimony award or equitable distribution); Farley, 800 So. 2d at 711-12
(reversing and remanding so that the trial court could enter a final judgment that
contained requisite findings to support an award of alimony).
With respect to the absence of findings by the trial court, this case is quite
similar to our decision in Guida. There, a trial court awarded a former wife the parties'
marital residence and other marital property as lump sum alimony and unpaid child
support. The trial court made no finding as to whether the award was made for the
purpose of equitable distribution or spousal support and made no findings as to the
factors identified under sections 61.075(1) or 61.08(2). 870 So. 2d at 224. We held that
absent such findings, the final judgment was "insufficient to support either an equitable
-6-
distribution scheme or an award of alimony." Id. We reversed the judgment and
remanded the case for the trial court to make the required findings of fact. Id.
Nothing in this case supports an outcome different from the one we
reached in Guida. We reverse the portion of the final judgment awarding lump sum
alimony and remand the case to the trial court to make the appropriate findings of fact.
We affirm the final judgment in all other respects.
Affirmed in part; reversed in part; remanded.
WALLACE and BLACK, JJ., Concur.
-7- | 01-03-2023 | 12-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4130792/ | .
TEE ATTORSEY GEXERAL
OF TEXAS
April 14, 1987
Mr. F. E. Williams opinion NO. .1X-677
Chambers County Auditor
P. 0. Box 910 Re: Calculation of maximum tax
Anahuac, Texas 77514 attributable to the road and
bridge fund
Dear Mr. Williams:
Chapter 26 of the Tax Code sets forth the method by which each
taxing unit must calculate an "effective tax rate" and the procedures
that each taxing unit must follow in adopting a tax rate. The "effec-
tive tax rate" is the tax rate that will produce both the revenue
necessary to satisfy the taxing unit's debt payment obligations for
the year in which the rate is calculated and the same amount of
operating revenue levied on properties taxed in the previous year and
taxable in the current year. See Attorney General Opinion m-495
(1982). We understand you to askhree questions about the calcula-
tion of the effective tax rate for a county. We will answer each of
your questions in turn.
Generally, the total county tax rate vll result from the tax
rates sat for three different property taxes. Article VIII. sections
l-a and 9 of the Texas Constitution impose a ceiling on each indivi-
dual rate and provide that the total rate cannot exceed $1.25/$100
valuation. The three individual taxes are: (1) the fund for farm-to-
market road/flood control (lateral road fund), with a rate ceiling of
$.30/$100 valuation (section l-a); (2) the general fund, the permanent
improvement fund, the road and bridge fund. and the jury fund, with a
rate coiling of $.80/$100 valuation (section 9); and (3) the fund
for the further maintenance of public roads, with a rate ceiling of
1. We note that other statutory and constitutional provisions
permit counties to 1-Y additional property taxes in certain
instances, a, for jails, courthouses, sea wall const.ruction,fire
fighting, and other special purposes. For convenience. we are
limiting our answer to the first question to the three most widely
imposed constitutional taxes. If a county levies any of these addi-
tional property taxes, the assessor calculates an effrctive tax rate
for each additional tax under the reasoning we adopt herein and adds
it to the county's total effective rate.
p. 3107
Nr. F. E. William - Page 2 (JM-677)
$.lS/$lOO valuation (section 9). We understand you to ask first
whether the tax rate rollback election provisions set forth in section
26.07 of the Tax Code may be invoked when the increase in either the
general fund, the permanent improvement fund, the road and bridge
fund, and the jury fund component of the tax rate exceeds the
effective tax rate for that fund by eight percent or more or whether
the tax rate rollback election provisions can be invoked only when the
total county tax rate exceeds the total county effective tax rate by
eight percent or more. For two Gns. we conclude that section
26.07 of the Tax Code may be invoked only when the tocal couuty tax
rate exceeds the total county effective tax rate by eight percent or
more.
First, courts generally will confer great weight to an agency's
interpretation of a statute, unless it is obviously contrary to the
statute's clear and unambinuous meaninn. Teacher Retirement Svstem v.
Duckworth. 260 S.W.2d 632;~ 636 (To=.-Civ. App,. - Fort Worth 1953),
aff'd. 264 S.W.2d 98 (Tex. 1954); Pacific Employers Insurance Co. v.
Gon. 242 S.W.2d 185, 189 (Tex. 1951); Dallas Title and Guaranty
Co. v. Board of Insurance Commissioners, 224 S.W.2d 332, 336 (Tex.
civ. ADD. - Austin 1949. writ ref'd). The contemmraneous
construction of a statute by those charged with the responsibility of
its administration will be respected, especially when the construction
has been sanctioned by long acquiescence. Stanford v. Butler, 181
S.W.Zd 269, 273 (Tex. 1944). The State Property Tax Board has always
construed sections 26.05 and 26.07 of the Tax Code to require that
each component of the tax rate be calculated as an independent rate
and then added together for a total rate.
Second, the clear terms of the Tax Code provisions require that
the eight percent tax rate increase triggering the tax rate rollback
election apply to the county's effective rate, not to the effective
rate of each component of a county's rate. Section 26.04(d) of the
Tax Code provides in pertinent part:
The designated officer or employee shall calculate
the tax rate that if applied to the total taxable
value submitted to the governing body leas the
taxable value of new property would impose the
amount of property taxes determined as provided by
Subsection (c) of this section [which essentially
determines the amount of operating revenue levied
on properties taxed in the previous year and
taxable in the current year]. . . . (Emphasis
added).
See also Tax Code 526.042 (governing calculation of effective tax rate
in a county imposing a sales and use tax).
p. 3108
Mr. F. E. Williams - Page 3 (JM-677)
Section 26.05 of the Tax Code provides the following in pertinent
part:
(a) By September 1 or as soon thereafter as
practicable, the governing body of each taxing
unit shall adopt a tax rate for the current tax
year and shall notify the assessor for the unit of
the rate adopted. The tax rate consists of two
components, each of which must be approved
separately. The components are:
(1) the rate that, if applied to the total
taxable value, will impose the amount of taxes
needed to pay the unit's debt service as
described by Section 26.04(e)(3) of this code;
and
(2) the rate that, if applied to the total
taxable value, will impose the amount of taxes
needed to fund maintenance and operation
expenditures of the unit for the next year.
(b) a taxing unit may not impose prop.erty
taxes in any year until the governing body has
adopted a tax rate for that year, and the annual
tax rate must be set by ordinance, resolution or
order, depending on the method prescribed by law
for adoption of a law by the governing body. . . .
(c) The governing body may not adopt a tax
rate that exceeds the tax rate calculated as
provided by Section 26.04 of this code by more
than three- percent until it has held a public
hearing on the proposed increase and has otherwise
complied with Section 26.06 of this code. The
governing body of a taxing unit shall reduce a tax
rate set by law or by vote of the electorate to
tberate calculated as provided by Section 26.04
of this code and may not adopt a higher rate
unless it first complies with Section 26.06 of
this code. (Emphasis added).
And finally. section 26.07 of the Tax Code sets forth the
procedures that must be followed in order to conduct a tax rate
rollback election to repeal the rate increase. The section provides
in pertinent part:
(a) If the governing body of a taxing unit
other than a school district adopts a tax rate
that exceeds the rate calculated as provided by
p. 3109
Mr. F. E. Williams - Page 4 (JM-677)
Section 26.04 of this code by more than eight
percent, the qualified voters of the taxing unit
by petition may require that an election be held
to determine whether or not to reduce the tax
rate adopted for the current year to a rate that
exceeds the rate calculated as provided by
Section 26.04 of this code by only eight percent.
(Emphasis added).
A reading of chapter 26. as a whole, indicates that the tax rate
rollback election provisions of section 26.07 may be invoked only in
an instance in which the total tax rate adopted exceeds the total
effective tax rate by eight percent or more. If the legislature had
intended that a county's component rates individually be limited to
the three percent-eight percent rate increase lixitations. it could
easily have so provided. But it did not. Because we are required to
give effect to the evident intent of the legislature, Bernard l-lanyard
Enterprises, Inc. v. McBeath. 663 S.W.Zd 639. 643 (Tex. App. - Austin
1983, writ ref'd n.r.e.); Chemical Bank v. Commercial Industries
Service Co., 662 S.W.Zd 802. 804 (Tax. App. - Rouston [14th Dist.]
1983), writ ref'd n.r.e., 668 S.W.2d 336 (Tex. 1984). we are compelled
to conclude that the tax rate rollback election provisions set forth
in section 26.07 may be invoked only when the total tax rate adopted
pursuant to section 26.05 of the code exceeds the total effective tax
rate as calculated by section 26.04 by eight percent or more.
We understand your next question to be whether the construction
that we have adopted in answer to your first queation permits, in
effect, the "transfer" to another fund of tax money that must be used
only for purposes authorized by the qualified voters of the county in
the first election permitting the imposition of the tax. Our answer
is that it does not. Your coucern apparently arises from the language
contained in the relevant constitutional provisions authorizing the
imposition of the taxes at issue.
Article VIII, section l-a, of the Texas Coustitution provides the
following in pertinent part:
Sec. l-a. From and after January 1, 1951. uo
State ad valorem tax shall be levied upon any
property within this State for general revenue
purposes. From and after January 1. 1951, the
several counties of the State are authorized to
levy ad valorem taxes upon all property wlthin
their respective boundaries for county purposes,
except the first Three Thousand Dollars ($3,000)
value of residential homesteads of married or
uomarried adults. male or female, including those
living alone, not to exceed thirty cents (30~) on
each One Hundred Dollars ($100) valuation, in
p. 3110
Mr. F. E. Williams - Page 5 (JM-677)
addition to all other ad valorem taxes authorized
by the Constitution of this State, provided the
revenue derived therefrom shall be used for
construction and maintenance of Farm to Market
Roads or for Flood Control, except as herein
otherwise provided. (Emphasis added).
Article VIII, section 9. of the Texas Constitution sets forth the
following:
Sec. 9. The State tax on property, exclusive
of the tax necessary to pay the public debt, and
of the taxes provided for the benefit of the
public free schools, shall never exceed Thirty-
five Cents (35~) on the One Hundred Dollars ($100)
valuation; and uo county, city or town shall levy
a tax rate in excess of Eighty Cents (80~) on the
One Huudred Dollars ($100) valuation in any one
(1) year for general fund, permanent improvement
fund, road and bridge fund and jury fund purposes;
provided further that at the time the Commis-
sioners Court meets to levy the anuual tax rate
for each county it shall levy whatever tax rate
way be needed for the four (4) constitutional
purposes; namely, general fund, permanent improve-
ment fund, road and bridge fund and jury fund so
long as the Court does not impair any outstanding
bonds or other obligations and so long as the
total of the foregoing tax levies does not exceed
Eighty Cents (80~) on the One Hundred Dollars
($100) valuation in any one (1) year. Once the
Court has levied the annual tax rate, the same
shall remain in force and effect during that
taxable year; and the Legislature may also
authorize an additional annual ad valorem tax to
be levied and collected for the further main-
tenance of the public roads; provided, that a
majority of the qualified property taxpaying
voters of the county voting at an election to be
held for that purpose shall vote such tax. not to
exceed Fifteen Cents (15~) on the One Hundred
Dollars ($100) valuation of the property subject
to taxation in such county. Any county may put
all tax money collected by the county into one
general fund, without regard to the purpose or
source of each tax. And the Legislature may pass
local laws for the maintenance of the public roads
and highways, without the local notice required
for special or local laws. This Section shall not
be construed as a limitation of powers delegated
p. 3111
Mr. F. E. Williams - Page 6 (JM-677)
to counties, cities or towns by any other Section
or Sections of this Constitution. (Emphasis
added).
The underscored sentence of article VIII, section 9, was added by
a constitutional amendment in 1967. Acts 1967, 60th Leg.. H.J.R. No.
3. at 2979. Prior to the 1967 amendment it was well established that
the general fund. permanent improvement fund, road and bridge fund,
and jury fund, the four so-called "constitutional funds" of article
VIII. section 9. could not be comminaled or used for ourooses other
than-that for which each was levied.- See First State Bank and Trust
Company of Rio Grande City v. Starr Couafy, 306 S.W.2d 246 (Tax. Civ.
APP. - San Anconio 1957, no writ); Carroll v. Williams, 202 S.W.2d 504
(Tax. 1918); Attorney General Opinion Nos. O-6948 (1945): O-5422
(1943); O-4763 (1942): After the-adoption of the 1967 amendment, the
courts and this office consistentlv construed the amendment to nermit
commingling or consolidation of the article VIII, section 9, funds.
Lewis v. Nacogdoches County, 461 S.W.2d 514 (Tex. Civ. App. - Tyler
1970. no writ); Attorney General Opinion Nos. H-530 (1975); h-194
(1974) ; M-1250, M-1195 ~(1972); M-892 (1971); M-369 (1969); M-207
(1968). but not to permit the commingling or consolidation of any of
the article VIII, section 9, funds with the articlr VIII, section l-a
fund. Attorney General Opinion Nos. H-530 (1975); M-1250 (1972).
The matter of commingling funds is entirely separate from the
matter of determining the effective tax rate. As indicated. the
county may raise the effective tax rate by eight percent without
triggering the rollback election provisions. There is no requirement,
however, that any tax increase be apportioned among the funds for
which taxes are raised. All or none of the increase may go to the
lateral road fund. Ouce the taxes are assassad and collected for the
lateral road fund, however, that money may not be commingled with the
other funds.
Your final question is about the effect of the adoption of
article VIII, section 21. of the Texas Constitution on the tax rate
ceilings set forth in article VIII, section l-a and 9. Article VIII,
section 21 provides the following:
Sec. 21. (a) Subject to any exceptions pre-
scribed by general law, the total amount of
property taxes imposad by a political subdivision
in any year may not exceed the total amount of
property taxes imposed by that subdivision in the
preceding year unless the governing body of the
subdivision gives notice of its intent to consider
an increase in taxes and holds a public hearing on
the proposed increase before it incraases those
total taxes. The legislature shall prescribe by
law the form, content, timing, and methods of
p. 3112
Mr. F. E. Williams - Page 7 (JM-677)
giving the notice and the rules for the conduct of
the hearing.
(b) In calculating the total amount of taxes
imposed iu the current year for the purposes of
Subsection (a) of this section, the taxes on
property in territory added to the political
subdivision since the preceding year and on new
improvements that were not taxable in the pre-
ceding year are excluded. In calculating the
total amount of taxes imposed in the preceding
year for the purposes of Subsection (a) of this
section. the taxes imposed on real property that
is not taxable by the subdivision in the current
year are excluded.
(c) m= legislature by general law shall
require that, subject to reasonable exceptions. a
property owner be given notice of a revaluation of
his property and a reasonable estimate of the
amount of taxes that would be imposed on his
property if the total amount of property taxes for
the subdivision were not increased according to
any law enacted pursuant to Subsection (a) of this
section. The notice must be given before the
procedures required in Subsection (a) are insti-
tuted. (Emphasis added).
The "general law" required by article VIII. section 21 (or rather
the "exceptions" to the specific formula calculations set forth
therein) is the effective tax rate calculation detailed in section
26.04 of the Tax Code. See Attorney General Opinion MW-495 (1982).
Your concern apparently ar=s from the recent decline in the value of
real property in Texas. When article VIII. section 21. of the Texas
Constitution and its companion statute, now-repealed article 7244~.
V.T.C.S. (the predecessor statute to section 26.04 of the Tax Code).
were euacted in 1978. real property valuations in Texas were rising.
As a result, the effective tax rates generally dropped from year to
year. A simple example will illustrate (for purposes of brevity; we
will discuss only the maintenance and operation component of the tax
rate). If in 1978 a taxing unit's tax rate was $1.50/$100 valuation,
with the taxable property on the tax roll having en appraised value of
$10 million, the same taxing unit's effective tax in 1979, after a
reappraisal that increased the appraised value of taxable property on
the tax roll to $20 million, would be $.75/$100. & the rate that,
when applied to the property taxed last year cud taxed this year at
this year's appraised value. will produce the same amount of operating
revenue produced last year. Obviously, when the appraised value .of
real property dropsfrom one year to the next, the effective tax rate
will necessarily rise. In those counties that suffer significant
p. 3113
Mr. F. E. Williams - Page 8 (JM-677)
reductions in appraised value of property on their tax roll, it is
conceivable that the effective tax rates of the various components of
the county's total tax rate may exceed the constitutionally imposed
tax rate ceilings. We understand you to ask whether article VIII,
section 21. acts to supercede or impliedly repeal the tax rate
ceilings set forth in article VIII, sections l-a and 9. The answer is
"no."
Article VIII. section 21, of the Texas Constitution is a notice,
provision; neither it nor its statutory counterpart prescribes any
maximum tax rates. Together, they only require public notice if any
tax rate adopted exceeds a certain calculated tax rate (the effective
tax rate) by a specified percent and permit a tax rate roliback
election in the event that the adopted rate exceeds the calculated
rate by a larger specified percent. The Texas Supreme Court has
enunciated the rule that
[t]he Constitution must be read as a whole, and
all amendments thereto must be considered as if
every part had been adopted at the same time
and as one instrument, and effec:t must be given
to each Dart of each clause, exvlained and
qualified-by every other part. [Citation omitted].
Different sections, amendments. or provisions of a
Constitution which relate to the same subject
matter should be construed together aud considered
in the light of each other. [Citations omitted].
Purcell v. Lindsey, 314 S.W.2d 283, 284 (Tex. 1958); see also State v.
Clement*. 319 S.W.2d 450 (Tex. Civ. App. - Texarkaua 1958, writ
ref'd). We do not perceive any conflict between the two constitu-
tional provisions. mArticle VIII. section 21. requires that each
taxing unit must calculate au effective tax rate and, if the tax rate
that the taxing unit finally adopts exceeds a specified percent, must
comply with certain public notice and public meeting requirements.
The other two constitutional provisions, article VIII, sections l-a
and 9, authorize the imposition of certain property taxes for certain
purposes and impose a tax rate ceiling on each in the event that those
taxes are imposed. In this instance, we must construe article VIII,
sections l-a. 9. and 21. of the Texas Constitution together; the tax
rate ceilings imposed by article VIII that are applicable to the tax
rates that are actually adopted remain in effect.
SUMMARY
The tax rate rollback election procedures set
forth in section 26.07 of the Tax Code way be
invoked in a county only when cha total tax rate
adopted by a county exceeda the total effective
tax rate by a specified percent; it may not be
p. 3114
Mr. F. E. Williams - Page 9 (JM-677)
invoked when the adopted tax rate of a component
of the county's total tax rate exceeds that
component's effective tax rate by a specified
percent. When the adopted tax rate of a component
of the county's total tax rate exceeds that
component's effective tax rate, no i.mpentissible
"transfer" of tax money occur*. Article VIII,
sections l-e, 9. and 21 of the Texas Constitution
should be construed together. In au instance in
which the effective tax rate calculated pursuant
to article VIII, section 21, of the Texas
Constitution and section 26.04 of the Tax Code
exceeds the tax rate ceilings set forth in article
VIII, sections l-a and 9. the tax rate ceilings
imposed by article VIII that are applicable to the
tax rates that are actually adopted, are still in
effect.
J
Very truly yours
A
JIM MATTOX
Attorney General of Texas
JACX HIGHTOWER
First Assistant Attorney General
MARYXELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLF.T
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 3115 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130812/ | March 26, 1987
Honorable Robert M. Saunders Opinion No. JM-657
Chairman
Committee on Agriculture and Re: Effect of the federal Food
Livestock Security Act of 1985 on pro-
Texas Rouse of Representatives visions of state law relating
P. 0. Box 2910 to security interests in agri-
Austin, Texas 78769 cultural products
Dear Representative Saunders:
In 1985 the United States Congress enacted legislation that
provides protection for purchasers of farm products from secured
creditors of the seller. 7 U.S.C. 61631 (Supp. III 1985). You ask
vhether that federal legislation preempted sections 9.307(a) and (d)
and 9.401 (a) and (f) of the Texas Business and Comerce Code and
section 32.33(f) of the Texas Penal Code.
The explicit purpose of the federal legislation was to preempt
certain state laws. Subsections (a) and (b) of section 1631 provide:
Congress finds that --
(1) certain State laws permit a secured lender
to enforce liens against a purchaser of farm
products even if.the purchaser does not know
that the sale of the products violates the
lender’s security interest in the products,
lacks any practical method for discovering the
existence of the security interest, and has no
reasonable means to ensure that the seller uses
the sales proceeds to repay the lender:
(2) these laws subject the purchaser of farm
products to double payment for the products,
once at the time of purchase, and again when
the seller fails to repay the lender;
(3) the exposure of purchasers of farm
products to double payment inhibits free
competition in the market for farm products:
and
p. 2993
Honorable Robert M. Saunders - Page 2 (JM-657)
(4) this exposure constitutes a burden on and
an obstruction to interstate commerce in farm
products.
The purpose of this section is to remove such
burden on and obstruction to interstate commerce
in farm products.
7 U.S.C. 51631(a), (b) (Supp. III 1985). A house report on section
1631 statms:
The bill is intended to preempt state lav
(specifically the so-called ‘farm products excap-
tion' of Uniform Commercial Code section 9-307) to
the extent ‘necessary to achieve the goals of this
legislation. Thus, this Act would preempt state
laws that set as conditions for buyer protection
of the type provided by the bill requirements that
the buyer check public records, obtain no-lien
certificates from the farm products sellers, or
otherwise seek out the lender and account to that
lender for the sale proceeds. By contrast, the
bill vould not preempt basic state-law rules on
the creation, perfection, or priority of security
interests.
H.R. Rep. No. 99-271, 99th Cong., reprinted in 1985 U.S. Code Cong. 6
Admin. News 1103, 1214.
The federal legislation contains the following provision:
Except as provided in subsection (e) of this
section and notwithstanding any other provision of
Federal, State, or local law. a buyer who in the
ordinary course of business buys a farm product .
from a -seller engaged in farming operations shall
take free of a security interest created by the
seller, even though the security interest is
perfected; and the buyer knows of the existence of
such interest, (Emphasis added).
7 U.S.C. 51631(d). Subsection (e) of section 1631. which contains
exceptions to the provision above, provides that a buyer of farm
products takes subject to a security interest if the buyer received
notice of the security interest before buying the farm products and if
the notice meets certain other requirements. 7 U.S.C 51631(e)(l). In
addition, subsection (e) provides that a buyer of farm products takes
subject to a security interest if the products were produced in a
state that has a central filing system as defined in section 1631 and
if the buyer had constructive notice of the security interest as
p. 2994
n’
Honorable Robert M. Saunders - Page 3 (~~-657)
provided for in section 1631(e)(2) or (3). The secretary of agri-
culture must certify that a particular state’s filing system qualifies
as a central filing system for purposes of section 1631. 7 U.S.C.
5 1631(c) (2).
Your first question is whether the federal statute preempts
section 9.307, subsections (a) and (d), of the Texas Business and
Commerce Code. Saction 9.307(a) thereof provides:
Except as provided by Subsection (d) of this
section. a buver in ordinary course of business
(Subdivision (9) of Section- 1.201) other than a
Person buying farm products from a person engaged
in farming operations takes free of a security
interest created bv his seller even though the
security interest is perfected and even though the
buyer knows of its existence. (Emphasis added).
Subsection (d) of section 9.307 provides:~
A secured party, including a secured party
under a securitv interest covered bv Stction
9.312(b) of this code, may not enforce a security
interest in farm products against a person who has
purchased the farm products from a person engaged
ia farming operations -unless the -secured party
gives notice of the security interest to the buyer
by certified ‘mail, return receipt requested, not
later than the 90th day after the date of c
chase. The notice must state the terms of ti;
Gity interest and the amount claimed to be
oved to the secured party. (Emphasis added).
Section 9.307(a) is the Texas version of the provision that Congress
intended to preempt. See H.R. Rep. No. 99-271. m. Subsection (d)
of section 9.307 provi= some protection for buyers of farm products.
Because subsection (d) allows a secured creditor to protect his
security interest by giving the buyer notice within 90 days after the
sale, however. the provisions of the Texas statute are less favorable
to buyers than the notice provisions in the federal statute, which
allow a secured party to protect his security interest only by prior
notice. Because the federal statute was intended to ease the burden
on purchasers of farm products. we conclude that the federal statute
preempted both subsection (a) and subsection (d) of section 9.307 of
the Texas Business and Commerce Code.
Your second question is vhether the federal legislation preempts
section 9.401, subsections (a) and (f). of the Texas Business and
Commerce Code. Section 9.401(a) sets out the proper places co file in
, order to perfect a security interest:
p. 2995
Ronorable Robert M. Saunders - Page 4 (m-657)
The proper place to file in order to perfect a
security interest is as follows:
(1) when the collateral is consumer goods,
then in the office of the County Clerk in the
county of the debtor’s residence or if the debtor
is not a resident of this state then in the office
of the County Clerk in the county where the goods
are kept;
(2) when the collateral is timber to be cut or
is minerals or the like (including oil and gas) or
accounts subject to Subsection (e) of Section
9.103. or when the financing statement Is filed
as a fixture filing (Section 9.313) and the
collateral Is goods which are or are’ to become
fixtures. then in the office of the County Clerk
in the county where a mortgage on the real estate
would be filed or recorded;
(3) in all other cases, in the office of the
Secretary of State.
Section 9.401(f) deals with continuation statements:
A continuation statement filed to continue a
security interest perfected before September 1,
1985, in collateral that is equipment used in,
farming operations, farm products, or accounts or
general Intangibles arising from or relating to
the sale of farm products by a farmer must be
filed in the office of the Secretary of State, and
must contain the information ,contained in the
original financing statement, in addition to the
information required for a continuation statement
under Section 9.403 of this code. The priority of
such a security interest is not affected by the
fact that a continuation statement filed according
to this subsection is filed at a different place
than the original financing statement.
The federal legislation provides for constructive notice of
security interests in farm products in states that have central filing
systems certified by the secretary of agriculture. As of January 23,
1987, Texas did not have a certified central filing system. See.
s, 51 Fed. Reg. 45493 (1986) (North Dakota’s central filing system
certified); see generally, CIS Federal Register Index (under heading
“Food Security Act”). The federal statute does not require states to
have central filing systems. Rather, it merely allows for construc-
tive notice of security interests in farm products in states that have
p. 2996
I
Honorable Robert M. Saunders - Page 5 (JM-657)
central filing systems. In states that do not have central filing
systems. secured parties can protect their security interests only
by giving actual notice to potential buyers. In order to permit
constructive notice, states may wish to change their filing systems,
but the federal legislation does not mandate such a change. Also. the
house report cited above states that the federal legislation would not
preempt “basic state laws on the creation. perfection, or priority of
security interests.” Filing is often required for the perfection of a
security interest. See Tex. Bus. & Comm. Code 59.302. Also, filing
may determine the priority of security interests. See Tex. Bus. 6
Comm. Code 09.312. Because the federal statute doesot mandate a
central filing system and because it was not intended to change state
procedures regarding perfection or priority of security interests, we
conclude that the federal legislation does not preempt subsections (a)
and (f) of section 9.401.
Your third question is whether the federal legislation preempts
the following provision in the Texas Penal Code:
A person who is a debtor under a security
agreement, and who does not have a right to sell
or dispose of the secured property or is required
to account to the secured party for the proceeds
of a permitted sale or disposition, commits an
offense if the person sells or otherwise disposes
of the secured property, or does not account to
the secured party for the proceeds of a sale or
other disposition as required, with intent to
appropriate (as defined in Chapter 31 of this
code) the proceeds or value of the secured
property. A person is presumed to have intended
to appropriate proceeds if the person does not
deliver the proceeds to the secured party or
account to the secured party for the proceeds
before the 11th day after the day that the secured
party makes a lawful demand for the proceeds or
account. An offense under this subsection is:
(1) a Class A misdemeanor if the proceeds
obtained from the sale or other disposition are
money or goods having a value of less than
$10,000;
(2) a felony of the third degree if the
proceeds obtained from the sale or other
disposition are money or goods having a value
of $10,000 or more.
Tex. Penal Code 132.33(f). This provision applies to all types of
secured property, not just farm products. We assume you are asking
p. 2997
Honorable Robert M. Saunders - Page 6 (m-657)
whether the federal legislation excepts farm products from the
co&rage of section 32.33(f). We conclude that it does not. Under
section 32.33(f) it is a crime for a debtor under a security agreement
to sell or dispose of secured property without accounting to the
secured party for the proceeds if the security agreement requires the
debtor to account to the secured party for the proceeds. Not only
does section 32.33(f) protect secured creditors, but it also protects
subsequent buyers of secured property. Therefore, it is in harmony
with the intent of the federal legislation.
We note that the federal legislation also makes certain conduct a
criminal offense:
(1) A security agreement In which a person
engaged in farming operations creates a security
interest in a farm product may require the person
to furnish to the secured party a list of the
buyers, commission merchants, and selling agents
to or through whom the person engaged in farming
operations may sell such farm product.
(2) If a security agreement contains a
provision described in paragraph (1) and such
person engaged in farming operations sells the
farm product collateral to a buyer or through a
commission merchant or selling agent not included
on such list, the person engaged in farming
operations shall be subject to paragraph (3)
unless the person --
(A) has notified the secured party in
writing of the identity of the buyer,
cossaission merchant, or selling agent at
least 7 days prior to such sale; or
(B) has accounted to the secured party
for the proceeds of such sale not later
than 10 days after such sale.
(3) A person violating paragraph (2) shall be
fined $5,000 or 15 per centum of the value or
benefit received for such farm product described
in the security agreement, whichever is greater.
7 U.S.C. 01631(h). Under both the federal statute and the Texas
statute, failure of a debtor under a security agreement to account for
proceeds may constitute a crime. We do not think that overlap in
coverage, however, is indicative of congressional intent to preempt
state law provisions such as section 32.33(f). The federal legisla-
tion was intended to preempt state law only to the extent necessary to
p. 2998
Honorable Robert M. Saunders - Page 7 (JM-657)
achieve the goal of easing the burden on purchasers of farm products.
Section 32.33(f) helps, rather than hinders, that goal. Further,
state prosecution and federal prosecution of the same person for
the same act does not constitute double jeopardy. United States v.
Wheeler, 435 U.S. 313 (1978). Therefore. we conclude that the federal
legislation did not remove farm products from the coverage of section
32.33(f) of the Penal Code.
SUMMARY
Federal legislation intended to protect
purchasers of farm products from secured creditors
of the seller preempts subsections (a) and (d) of
section 9.307 of the Texas Business 6 Commerce
Code. It does not preempt subsections (a) and (f)
of section 9.401 of the Texas Business and
Comerce Code or section 32.33(f) of the Texas
Penal Code.
Attorney General of Texas
JACK HIGHTOWRR
First Assistant Attorney General
MARYKELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 2999 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147452/ | J. S02003/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH McGRATH, : No. 1354 EDA 2016
:
Appellant :
Appeal from the PCRA Order, April 15, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0000658-2011,
CP-51-CR-0000698-2011, CP-51-CR-0006929-2010
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2017
Joseph McGrath appeals from the April 15, 2016 order dismissing his
petition for relief filed pursuant to the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
In separate proceedings on March 3, 2011 and
April 29, 2011, [a]ppellant appeared before th[e trial
c]ourt and entered an open guilty plea to aggravated
assault, criminal conspiracy to commit aggravated
assault, criminal solicitation of murder, witness
intimidation, and criminal conspiracy to commit
witness intimidation.
Prior to accepting [a]ppellant’s plea, th[e trial
c]ourt conducted a proper and thorough colloquy in
1
The Commonwealth has not filed a brief in this matter.
J. S02003/17
accordance with [Pa.R.Crim.P.] 590. During each
colloquy, [a]ppellant testified that he understood all
of the rights he was waiving and that he was acting
on his own free will. Appellant was shown his
written, guilty plea colloquy form and [a]ppellant
confirmed his signature. Appellant affirmed that he
was making a voluntary, knowing, and intelligent
guilty plea by his oral responses and his signature on
the written colloquy form.
Having knowingly and understandingly
completed the colloquy, [a]ppellant then pleaded
guilty to the following facts:
A. Aggravated Assault and Related Criminal
Conspiracy.
On March 9, 2010, [a]ppellant attacked his
neighbor Neil Lawn around 5:15 p.m. on the
1800 block of East Airdrie Street in Philadelphia,
Pennsylvania. Appellant walked over to Mr. Lawn,
grabbed him, punched him in the face, and knocked
him to the ground. Appellant started kicking and
stomping at Mr. Lawn, repeating the word, “[g]ive
me the money,” in reference to a $50 drug debt.
Appellant also engaged an unidentified
co-conspirator in stomping and kicking Mr. Lawn.
Mr. Lawn’s neighbor Amber Pratt yelled at the
perpetrators to stop and said that she was calling the
police. Appellant threatened to kill Ms. Pratt if she
called the cops. Thereafter, [a]ppellant and the
unidentified co-conspirator departed the scene in a
vehicle. Mr. Lawn was admitted to the ICU at Erie
Torresdale Hospital in critical condition. Mr. Lawn
suffered from two broken ribs, four broken vertebrae
in his back, a broken right orbital bone, a broken
jaw, multiple facial fractures, and a punctured lung.
Mr. Lawn was placed on a ventilator due to
respiratory failure. Additionally, a doctor informed
Mr. Lawn that had he sustained one more punch, he
would have died.
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B. Criminal Solicitation of Murder.
On May 1, 2010, Nicole Rosa assisted the First
Judicial District Warrant Unit officers in setting up a
drug purchase with [a]ppellant in order for the
officers to apprehend him. Ms. Rosa sent [a]ppellant
several text messages stating that she wished to
purchase Xanax at his residence. After an exchange
of text messages, two officers knocked on
[a]ppellant’s door, came in the house, and arrested
[a]ppellant.
Appellant made several phone calls from
prison. The calls were recorded and authenticated
by the Philadelphia Prisons and Public Call,
Incorporated. On May 3, 2010, [a]ppellant called his
nephew and informed him that “Nicky set me up”
and that he wanted her dead. He directed his
nephew to mix battery acid with a batch of heroin.
That mixture was to be given to [a]ppellant’s
accomplice in drug dealing, who would then sell it to
Ms. Rosa. On May 11, 2010, [a]ppellant followed up
with his nephew and the accomplice to check if the
order was carried out. On May 19, 2010, [a]ppellant
further communicated to his sister on how he wanted
Ms. Rosa dead: “I want her dead—to die.”
In August 2010, [a]ppellant realized the calls
were recorded and declared to Lieutenant Knight, “I
told somebody I wanted to have someone killed and
I just found out that the telephone conversations are
monitored. I got to see how I can get out of this.”
Afterwards, [a]ppellant was taken to the Psych Unit.
C. Witness Intimidation and Related Criminal
Conspiracy.
On May 10, 2010, [a]ppellant met with two
co-conspirators in prison and instructed them to
“take care of the victim” in the aggravated assault
case, Mr. Lawn. Appellant instructed his nephew to
pay Mr. Lawn $500 every time he did not appear in
court, until three times when [a]ppellant’s case
would be thrown out per the Three Strikes Rule.
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Mr. Lawn gave a statement to the District Attorney’s
Office corroborating the recorded phone
conversations and confirmed that he was physically
approached by the nephew on three separate
occasions and was offered $500 not to appear in
court. Mr. Lawn also stated that on one occasion, a
second co-conspirator pulled up his shirt, exposed
bullet holes on his body, and told Mr. Lawn, “[t]his is
what can happen.”
Trial court opinion, 6/29/16 at 2-4 (citations and footnotes omitted).
At the March 3 and April 29, 2011 guilty plea hearings, the trial court
informed appellant of his right to withdraw his guilty plea, but he failed to
invoke this right.2 Thereafter, on August 26, 2011, the trial court sentenced
appellant to an aggregate term of 20 to 40 years’ imprisonment, followed by
10 years’ probation. On September 1, 2011, appellant filed timely
post-sentence motions to withdraw his guilty plea and for reconsideration of
his sentence. The trial court denied both motions that same day.
On May 10, 2013, a panel of this court affirmed appellant’s judgment
of sentence. See Commonwealth v. McGrath, 81 A.3d 993 (Pa.Super.
2013) (unpublished memorandum). Appellant did not file a petition for
allowance of appeal with our supreme court. On May 21, 2013, appellant
filed a timely pro se PCRA petition, and Sharon Meisler, Esq.
(“Attorney Meisler”) was appointed to represent him. Following
Attorney Meisler’s removal, Sandjai Weaver, Esq. (“Attorney Weaver”) was
2
Appellant was represented during his guilty plea hearings and on direct
appeal by Robert Trimble, Esq. (hereinafter, “plea counsel”).
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appointed on January 14, 2015. On June 23, 2015, Attorney Weaver filed
an amended PCRA petition on appellant’s behalf. Thereafter, on
November 9, 2015, the PCRA court provided appellant with notice, pursuant
to Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a
hearing. Appellant did not respond, and on April 15, 2016, the PCRA court
dismissed appellant’s petition without a hearing. On April 28, 2016,
appellant filed a timely notice of appeal.3
Appellant raises the following issue for our review:
Whether the [PCRA] court abused its discretion by
failing to grant an evidentiary hearing, and for failing
to permit [a]ppellant to withdraw his guilty plea
where [plea] counsel inaccurately advised him he
would receive a ten (10) year sentence if he entered
a guilty plea, and where such advice caused
[a]ppellant to enter involuntary, unknowing, and
unintelligent guilty pleas in violation of his
constitutional rights under the U.S. Const. Amend.,
V, VI, and XIV and see, PA.Const. art. I, sec. 9?
Appellant’s brief at 4.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
3
The record reflects that appellant was not directed to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Nonetheless, the PCRA court filed an opinion that
comports with the requirements of Rule 1925(a) on June 29, 2016.
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the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman,
799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted). In order to be
eligible for PCRA relief, a defendant must plead and prove by a
preponderance of the evidence that his conviction or sentence arose from
one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). Further,
these issues must be neither previously litigated nor waived. 42 Pa.C.S.A.
§ 9543(a)(3).
Where the PCRA court has dismissed a petitioner’s petition without an
evidentiary hearing, as was the case here, we review the PCRA court’s
decision for an abuse of discretion. See Commonwealth v. Roney, 79
A.3d 595, 604 (Pa. 2013), cert. denied, 135 S. Ct. 56 (2014) (citation
omitted). Moreover,
the right to an evidentiary hearing on a
post-conviction petition is not absolute. It is within
the PCRA court’s discretion to decline to hold a
hearing if the petitioner’s claim is patently frivolous
and has no support either in the record or other
evidence. It is the responsibility of the reviewing
court on appeal to examine each issue raised in the
PCRA petition in light of the record certified before it
in order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal
citations omitted).
Appellant contends that his guilty plea was unlawfully induced due to
plea counsel’s ineffectiveness in “advis[ing] him he would receive a ten (10)
year sentence if he entered a guilty plea[.]” (Appellant’s brief at 10.) We
disagree.
In Commonwealth v. Willis, 68 A.3d 997 (Pa.Super. 2013), a panel
of this court explained that the PCRA will provide relief to an appellant if
ineffective assistance of counsel caused him to enter an involuntary guilty
plea. Id. at 1001-1002. We conduct our review of such a claim in
accordance with the three-pronged ineffectiveness test under
Section 9543(a)(2)(ii) of the PCRA. To prevail on a claim of ineffective
assistance of counsel under the PCRA, a petitioner must plead and prove by
a preponderance of the evidence that counsel’s ineffectiveness “so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Specifically, a petitioner must establish that “the underlying claim has
arguable merit; second, that counsel had no reasonable basis for his action
or inaction; and third, that [a]ppellant was prejudiced.” Commonwealth v.
Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014), appeal denied, 104
A.3d 523 (Pa. 2014) (citation omitted). “[C]ounsel is presumed to be
effective and the burden of demonstrating ineffectiveness rests on
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[a]ppellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.
2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citation omitted).
Additionally, we note that “counsel cannot be held ineffective for failing to
pursue a meritless claim[.]” Commonwealth v. Hall, 867 A.2d 619, 632
(Pa.Super. 2005), appeal denied, 895 A.2d 549 (Pa. 2006).
This court has explained that the entry of a guilty plea constitutes a
waiver of all defects and defenses except lack of jurisdiction, invalidity of the
plea, and illegality of the sentence. See Commonwealth v. Zeigler, 112
A.3d 656, 660 (Pa.Super. 2015) (citation omitted). Before a withdrawal of a
plea will be permitted after sentencing, the appellant “must make a showing
of prejudice amounting to manifest injustice. A plea rises to the level of
manifest injustice when it was entered into involuntarily, unknowingly, or
unintelligently.” Commonwealth v. Bedell, 954 A.2d 1209, 1212
(Pa.Super. 2008), appeal denied, 964 A.2d 893 (Pa. 2009) (internal
quotation marks and citation omitted). In order to ensure a voluntary,
knowing, and intelligent plea, the trial court, at a minimum, must ask the
following questions during the guilty plea colloquy:
1) Does the defendant understand the nature of
the charges to which he or she is pleading
guilty or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she
has the right to a trial by jury?
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4) Does the defendant understand that he or she
is presumed innocent until found guilty?
5) Is the defendant aware of the permissible
ranges of sentences and/or fines for the
offenses charged?
6) Is the defendant aware that the judge is not
bound by the terms of any plea agreement
tendered unless the judge accepts such
agreement?
Zeigler, 112 A.3d at 660 (citation omitted); see also Pa.R.Crim.P. 590(C).
Moreover, a defendant is bound by the statements that he makes during his
plea colloquy. See Commonwealth v. Yeomans, 24 A.3d 1044, 1047
(Pa.Super. 2011).
Upon review, we find that appellant’s claim that he was induced to
plead guilty because of counsel’s purported ineffectiveness is belied by the
record. As noted, a panel of this court on direct appeal found that appellant
entered into his guilty plea “voluntarily, knowingly, and intelligently.”
McGrath, 81 A.3d 993 (unpublished memorandum at 9). This court
reasoned as follows:
With respect to the requirements set forth in
Rule 590, the record indicates the following:
(1) [appellant] understood the charges against him;
(2) he agreed to the Commonwealth’s summary of
the case against him; (3) he understood his right to
a trial by jury; (4) he understood that he was
presumed innocent unless the Commonwealth
proved his [sic] guilty beyond a reasonable doubt;
(5) the court informed [appellant] that the maximum
aggregate sentence that could be imposed for the
crimes he was charged with was 100 years’
incarceration and a fine of $125,000; and (6) the
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court informed him that it was not bound by the
terms of the plea agreement unless it accepted the
agreement.
Id. (unpublished memorandum at 9-10) (citations to notes of testimony
omitted).
This court has long recognized that “[t]he law does not require that
[the defendant] be pleased with the outcome of his decision to enter a plea
of guilty: All that is required is that [his] decision to plead guilty be
knowingly, voluntarily and intelligently made.” Commonwealth v.
Anderson, 995 A.2d 1184, 1192 (Pa.Super. 2010), appeal denied, 9 A.3d
626 (Pa. 2010) (citation omitted). Because appellant’s plea was found to
have been entered voluntarily, knowingly, and intelligently, and not due to
any ineffectiveness on the part of plea counsel, allegations of ineffectiveness
related to his plea may not be raised as a basis for relief. See Willis, 68
A.3d at 1001-1002 (stating, “[a]llegations of ineffectiveness in connection
with the entry of a guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or unknowing
plea.” (citation omitted; brackets in original; emphasis added)); see also
Bedell, 954 A.2d at 1212 (same). Accordingly, we affirm the PCRA court’s
April 15, 2016 order dismissing his petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
- 11 - | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147453/ | J-S03004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEITH DARNAY MCDANIEL,
Appellant No. 1819 WDA 2015
Appeal from the Judgment of Sentence of October 21, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000098-2014
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2017
Appellant, Keith Darnay McDaniel, appeals from the judgment of
sentence entered on October 21, 2015. We affirm.
On June 3, 2014, Appellant entered a negotiated guilty plea to
indecent assault, indecent exposure, corruption of minors, and endangering
the welfare of a child.1 During the plea hearing, the Commonwealth
summarized the facts underlying Appellant’s guilty plea:
Your Honor, had the case proceeded, the Commonwealth
would have called Detective Joe Simunovic from the City of
Pittsburgh Police. He would have testified that on
November 8th of 2013[,] he did attend a forensic interview
with the [11-year-old] victim in this case, [T.P.]. During
the course of that forensic interview, the victim stated that
____________________________________________
1
18 Pa.C.S.A. §§ 3126(a)(1), 3127(a), 6301(a)(1)(i), and 4304(a)(1),
respectively.
* Retired Senior Judge assigned to the Superior Court.
J-S03004-17
[Appellant, who is] her mother’s ex-boyfriend, [] did on two
occasions touch [the victim] inappropriately. . . .
Specifically, there was a time in which he touched her
breasts. Furthermore, there was a time in which he
exposed his penis and rubbed it against her naked buttocks.
N.T. Guilty Plea and Sentencing Hearing, 6/3/14, at 5.
At the conclusion of the factual recitation, Appellant testified that he
was “pleading guilty [to the charges] because [he is] guilty.” Id. at 6. The
trial court then sentenced Appellant in accordance with the negotiated
terms; specifically, the trial court sentenced Appellant to serve an aggregate
term of 11 ½ to 23 months in jail, serve a concurrent term of five years of
probation, and register with the Pennsylvania State Police, under Megan’s
Law, for 15 years. Id. at 7. Moreover, during the sentencing hearing, the
trial court imposed the following special conditions of probation:
you must participate in and complete mental-health
treatment and/or sex offender treatment and comply with
the terms and conditions of your therapist. You must
refrain from using alcohol.
You are to have no contact with any child under the age of
18 or be within [100] feet of a yard, park, playground or
other places used by children. You’re to have no contact,
either directly or indirectly, with the victim or the victim’s
family.
You’re to have no sex paraphernalia, and you may not have
any access to the computer, either through a phone – in
fact, you’re not even allowed to have a cell phone or a
computer. You may not live with anybody that has a
computer.
Id. at 7-8.
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Further, when the trial court was informed that Appellant and the
victim’s mother had a biological child together, the trial court amended the
relevant probationary condition to read that Appellant “may have visitation
with biological child through family court order.” Sentencing Order, 6/3/14,
at 1-2.
On February 11, 2015, Appellant appeared before the trial court for a
sex offender court review hearing. During the review hearing, Appellant’s
probation officer testified that Appellant committed a number of technical
probation violations, including: “having telephone contact with his 16-year-
old son;” “having contact with his infant granddaughter after being released
from the Allegheny County Jail;” smoking marijuana; and, having contact
“with his 12-year-old niece and 10-year-old nephew while visiting his sister.”
N.T. Review Hearing, 2/11/15, at 2. That day, the trial court added “a zero
tolerance stipulation” for future substance abuse infractions and again told
Appellant: “[y]ou are to have no contact with minors[,] and family members
are included in that group. You can have no contact with minors unless you
receive written permission from your probation officer that you can see
them.” Id. at 4 and 5. The trial court scheduled a review hearing for May
13, 2015. Id. at 5.
Appellant appeared for the May 13, 2015 review hearing and, during
that hearing, Appellant’s probation officer testified that Appellant had
continued to violate the conditions of his probation. As Appellant’s probation
officer testified:
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On [April 21, 2015, Appellant] was found in possession of a
Wi-Fi capable cell phone. A check of his cell [revealed] a
picture of [Appellant] holding a child with the date taken of
[February 28, 2015]. And another picture of multiple
children around a birthday cake with the date taken of
[January 27, 2015].
[Appellant] did admit to taking the picture where he’s seen
holding the child, but he denies having contact with any
children since his initial report to the probation office.
He further admitted to access to the internet through the
use of the aforementioned cell phone. The [trial] court was
notified and a probation violation warrant was issued. A
further check of that cell phone [revealed] a picture of
[Appellant] consuming alcohol with the date taken of
[January 9, 2015]. And multiple emails from daily hookup
internet websites. He has also failed to make any payments
towards his financial responsibility [in this] case. A balance
of $4,954.34 remains owed.
N.T. Review Hearing, 3/11/15, at 3-4 (some internal capitalization omitted).
After hearing of these violations, the trial court informed Appellant:
[Appellant], at count five, I’m going to continue it as a
stage two hearing. I’m going to lift your detainer to
electronic monitoring only. For a period [of] six months.
You must take a polygraph test within 90 days. And you
are going to have zero tolerance. That means if you do one
single thing wrong, you are going back to jail. And then
you are going to come here for your second hearing and I’m
going to put you in Camp Hill.
Id. at 4-5.
On June 5, 2015, the trial court placed Appellant on electronic home
monitoring. See Appellant’s Electronic Monitoring Rules Acceptance, 6/5/15,
at 1-4.
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On October 21, 2015, Appellant appeared before the trial court for a
probation violation hearing. During the hearing, Appellant’s attorney
admitted that – on the very same day that Appellant was placed on
electronic home monitoring – Appellant cut off his electronic home
monitoring bracelet, left his house, and was later apprehended, by the
Sheriff’s Office, in an apartment with his two-year old granddaughter. N.T.
Probation Revocation Hearing and Resentencing, 10/21/15, at 2-4. The trial
court then revoked Appellant’s probation and resentenced Appellant to serve
a term of two to five years in prison. The trial court explained:
Okay. Well, the reason you have so many days [of] credit
[for time served] is because I kept letting you out of jail and
then you would violate the terms and conditions of
probation and I would put you in, I would let you out again.
Specifically starting with the seriousness of the original
offense, you assaulted a 13 [sic] year old child. You served
a period of time. You then got out of jail. As soon as you
were out of jail you went to smoke marijuana. You have
contact with a number of minors, although you have denied
this. You have been positive for drugs. I then had a
hearing where I imposed a zero tolerance for drugs. You
were found with a cell phone with a connection to [Wi-Fi].
This phone, contrary to the specific conditions, contained
photos of you with [children] and photos of you drinking.
You were in jail for a while. I lifted the detainer. I put you
on the bracelet and you left. They found you at your
girlfriend’s house with her infant son. You were then put on
the bracelet and the same day you were arrested again in
the company of I guess who was your daughter and the
two-year old child. I would point out that [the original]
offense was an assault of your girlfriend’s child. You have
been involved with drugs since 2002. You have had four
PFAs with three different victims. You have ten children,
none of whom you have seemingly supported. Although
since you only know the names of nine of them, I will just
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count nine as the number of children you have. Your
adjustment to probation has been poor. I see no evidence
that you wish to rehab yourself. And you are a danger
because of violence and drugs. You had prior EM, prior
incarceration. And county supervision is no longer an
option.
At Count [Six,] I am going to revoke your probation and
order you to serve not less than two years nor more than
five years with credit. . . .
Id. at 6-7.
On Monday, November 2, 2015, Appellant filed a timely motion to
modify his sentence. See Pa.R.Crim.P. 708(E) (“[a] motion to modify a
sentence imposed after a revocation [of probation] shall be filed within 10
days of the date of imposition. The filing of a motion to modify sentence will
not toll the 30-day appeal period”). Within Appellant’s motion to modify,
Appellant claimed that the trial court imposed a “manifestly excessive,
unreasonable [sentence]” and failed to “consider [his] rehabilitative needs,
nature, characteristics, and personal history” at sentencing. Specifically,
Appellant claimed that the trial court “failed to consider” certain mitigating
factors, such as: Appellant has a “mental health and substance abuse
history;” Appellant “took responsibility for his criminal behavior by pleading
guilty;” and, Appellant’s “probation violations were all technical in nature.”
Appellant’s Motion to Modify, 11/2/15, at 5. Appellant also claimed that the
trial court “considered impermissible factors” during sentencing. According
to Appellant, these impermissible factors were: “emphasizing social history
that has no bearing upon criminality such as he had ten children, but the
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pre-sentence investigator claimed that he could only name nine” and
“[r]eciting that he had multiple PFAs and ICC violations filed against him,
even though the pre-sentence investigation noted that most of these actions
had been dismissed or withdrawn.” Id.
On November 5, 2015, the trial court denied Appellant’s motion to
modify his sentence and Appellant filed a timely notice of appeal. Appellant
raises three claims on appeal:
[1.] Whether the revocation sentence imposed by the trial
court . . . is manifestly excessive, unreasonable, and an
abuse of discretion where none of the factors of 42
Pa.C.S.A. § 9771(c) were established?
[2.] Whether the revocation sentence imposed by the trial
court . . . is manifestly excessive, unreasonable, and an
abuse of discretion where the trial court failed to consider
the personal history, character[,] and rehabilitative needs of
[Appellant] as required by 42 Pa.C.S.A. § 9721(b)?
[3.] Whether the trial court considered, focused on and/or
discussed impermissible factors and/or information not of
record prior to sentencing [Appellant]?
Appellant’s Brief at 5.
All of Appellant’s claims challenge the discretionary aspects of his
sentence. See Commonwealth v. Carver, 923 A.2d 495 (Pa. Super.
2007) (claim that the trial court erred in sentencing appellant to total
confinement is a challenge to the discretionary aspects of sentence);
Commonwealth v. Ferguson, 893 A.2d 735, 736-737 (Pa. Super. 2006)
(same); Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)
(same); Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim
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that the trial court erred in imposing an excessive sentence is a challenge to
the discretionary aspects of a sentence); Commonwealth v. Roden, 730
A.2d 995 (Pa. Super. 1999) (claim that the trial court considered
impermissible factors at sentencing is a challenge to the discretionary
aspects of a sentence).
We note that, in an appeal following the revocation of probation, our
scope of review includes discretionary aspects of sentencing claims.
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en
banc). With respect to our standard of review, we have held that
“sentencing is a matter vested in the sound discretion of the sentencing
judge, whose judgment will not be disturbed absent an abuse of discretion.”
Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).
Moreover, pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, Pa.R.Crim.P. 720; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, 42 Pa.C.S.
§ 9781(b).
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Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also
Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of
a sentence [following the revocation of probation] must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived”); Commonwealth v. Kalichak, 943 A.2d
285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a
new sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by objecting during the
revocation sentencing or by filing a [motion to modify] sentence”).
As our Supreme Court has held, the determination of whether a
substantial question exists must be done prior to – and be divorced from –
the determination of the potential merits of an issue. Commonwealth v.
Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it were otherwise, a challenger
would “in effect obtain[] an appeal as of right from the discretionary aspects
of a sentence” – a result that would violate statutory law. Id.
First, Appellant claims that the trial court abused its discretion by
imposing a sentence of total confinement, where: Appellant “was not found
guilty of committing any new crime . . . [, Appellant] was not charged with
any new crimes . . . [, t]here is no evidence to support any bald allegation
that he is likely to commit another crime . . . [, and t]he trial court made no
assertion that its authority needs to be vindicated.” Appellant’s Brief at 19.
Appellant did not raise this claim at sentencing or in his motion to modify
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J-S03004-17
sentence. See N.T. Probation Revocation Hearing and Resentencing,
10/21/15, at 2-8; Appellant’s Motion to Modify, 11/2/15, at 1-6. Therefore,
this claim is waived. Cartrette, 83 A.3d at 1042.
Second, Appellant claims that the trial court “failed to consider the
personal history, character[,] and rehabilitative needs” of Appellant.
Generally, for an appellant to raise a substantial question that his
sentence is inappropriate under the Sentencing Code, an appellant must
“advance a colorable argument that the trial judge’s actions were: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);
Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en
banc), appeal denied, 759 A.2d 920 (Pa. 2000).
Since Appellant was sentenced following the revocation of probation,
the sentencing guidelines do not apply to Appellant’s sentence. 204 Pa.Code
§ 303.1(b); Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super.
2006). Nevertheless, in sentencing Appellant, the trial court was required to
“consider the general principles and standards of the Sentencing Code.”
Commonwealth v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section
9721 expresses these general principles in the following manner:
the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the
- 10 -
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victim and on the community, and the rehabilitative needs
of the defendant.
42 Pa.C.S.A. § 9721(b).
As this Court has held, a claim that the sentencing court “failed to
consider relevant sentencing criteria, including the protection of the public,
the gravity of the underlying offense and the rehabilitative needs” of the
defendant, does raise a substantial question under the Sentencing Code.
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2013) (a claim
that the trial court “failed to consider relevant sentencing criteria, including
the protection of the public, the gravity of the underlying offense and the
rehabilitative needs” of the defendant, raised a substantial question);
Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) (en
banc) (“we find that Appellant’s claim that the sentencing court disregarded
rehabilitation and the nature and circumstances of the offense in handing
down its [consecutive, standard range] sentence presents a substantial
question for our review”). Therefore, we may reach the merits of Appellant’s
claim that, at sentencing, the trial court “failed to consider the personal
history, character[,] and rehabilitative needs” of Appellant.
However, Appellant’s claim on appeal immediately fails because the
trial court undoubtedly considered Appellant’s personal history, character,
and rehabilitative needs when it imposed Appellant’s sentence. Certainly,
when the trial court resentenced Appellant, the trial court had already
presided over Appellant’s guilty plea, original sentencing hearing, and
- 11 -
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multiple probation review hearings. Therefore, at the time of resentencing,
the trial court was deeply familiar with Appellant’s personal history and
character. Further, during Appellant’s resentencing hearing, the trial court
informed Appellant that it had provided him with multiple opportunities to
abide by the terms of his probation – and, yet, Appellant continually violated
the express terms of his probation. See N.T. Probation Revocation Hearing
and Resentencing, 10/21/15, at 2-8. Moreover, Appellant’s actions while on
probation demonstrated an overt contempt for the trial court, a refusal to
rehabilitate himself, and Appellant’s clear danger to the public, given that:
Appellant continuously violated the express terms of his probation; Appellant
cut off his electronic monitoring bracelet and absconded on the same day
that he was placed on electronic monitoring; and, Appellant originally
pleaded guilty to sexually molesting his then-girlfriend’s 11-year-old
daughter and, yet, Appellant continued to violate the terms of his probation
by closely associating with young children. Simply stated, Appellant’s claim
that the trial court “failed to consider the personal history, character[,] and
rehabilitative needs” of Appellant is meritless.
Finally, Appellant claims that the trial court abused its discretion when
it considered “impermissible factors” at resentencing. This Court has held
that an appellant raises a substantial question where he alleges that the trial
court relied upon impermissible factors at sentencing. See Commonwealth
- 12 -
J-S03004-17
v. Rhoads, 990 A.2d 732, 745 (Pa. Super. 2009), appeal denied, 14 A.3d
827 (Pa. 2010). Thus, we will address the merits of this claim.
As we have held:
In deciding whether a trial judge considered only
permissible factors in sentencing a defendant, an appellate
court must, of necessity, review all of the judge's
comments. Moreover, in making this determination it is not
necessary that an appellate court be convinced that the trial
judge in fact relied upon an erroneous consideration; it is
sufficient to render a sentence invalid if it reasonably
appears from the record that the trial court relied in whole
or in part upon such a factor.
Commonwealth v. Scott, 860 A.2d 1029, 1030 (Pa. Super. 2004) (internal
quotations and citations omitted).
First, Appellant claims that the trial court impermissibly relied upon the
purported fact that Appellant had “four PFAs with three different victims.”
Appellant’s Brief at 25; see also N.T. Probation Revocation Hearing and
Resentencing, 10/21/15, at 7. According to Appellant, this was improper
because “the pre-sentence investigation noted that almost all of the ex parte
PFA petitions filed against [Appellant] had been dismissed or withdrawn at
their initial stages [that] required judicial review.” Appellant’s Brief at 25.
Appellant failed to include the pre-sentence report in the certified
record. Therefore, Appellant’s claim on appeal is waived. Commonwealth
v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005) (“this Court may not
consider anything that is not part of the official certified record: [a]ny
document which is not part of the official certified record is considered to be
- 13 -
J-S03004-17
non-existent”) (internal quotations and citations omitted); Commonwealth
v. Gonzalez, 608 A.2d 528, 530 n.6 (Pa. Super. 1992) (“[i]t is appellant’s
responsibility to provide the reviewing court with a complete and
comprehensive record for purposes of appeal”); Commonwealth v. Martz,
926 A.2d 514, 525 (Pa. Super. 2007) (“[a] failure by [a]ppellant to [ensure]
that the original record certified for appeal contains sufficient information to
conduct a proper review constitutes waiver of the issue sought to be
examined”) (internal quotations, citations, and corrections omitted).
Appellant also claims that, during the resentencing hearing, the trial
court impermissibly “emphasized [Appellant’s] social history that has no
bearing upon criminality, such as the fact that [Appellant] has [ten] children,
but the pre-sentence investigator claimed that he could only name nine.”
Appellant’s Brief at 25. Yet, it is clear that the trial court’s passing reference
to the number of children that Appellant fathered and Appellant’s ability to
name his children had no bearing upon Appellant’s sentence. See N.T.
Probation Revocation Hearing and Resentencing, 10/21/15, at 7-8; Trial
Court Opinion, 5/19/16, at 4-5. Indeed, the record demonstrates that the
trial court placed absolutely no reliance upon the asserted factor. Further,
the record demonstrates that the trial court’s sentence was appropriate and
necessary, given Appellant’s: manifest and utter contempt for the trial
court; refusal to rehabilitate himself; clear danger to the public; and,
- 14 -
J-S03004-17
repeated violations of the conditions of his probation. Appellant’s claim on
appeal fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
- 15 - | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147454/ | J. S02012/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GUIDO RYAN LaVELLA, : No. 1505 EDA 2016
:
Appellant :
Appeal from the PCRA Order, April 29, 2016,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0003645-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2017
Guido Ryan LaVella appeals, pro se, from the order entered in the
Court of Common Pleas of Chester County that dismissed, without a hearing,
his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we vacate the order and
remand with instructions.
The PCRA court set forth the following procedural history in its
April 12, 2016 notice of intent to dismiss PCRA petition pursuant to
Pa.R.Crim.P. 907(1):
[Appellant] entered into an open guilty plea on
August 14, 2014 to five (5) counts of Theft by
Deception, 18 Pa.C.S.[A.] § 3922(a)(1). A
Pre-Sentence Investigation Report was completed,
and a sentencing hearing was conducted on
October 24, 2014. [Appellant] was sentenced by the
court to an aggregate term of not less than six (6)
J. S02012/17
years four (4) months, not more than fifteen (15)
years in prison. [Appellant] filed a motion for
reconsideration on November 3, 2014, and oral
argument on that motion was held on January 9,
2015. [Appellant’s] motion was granted in part and
denied in part, and [appellant’s] sentence was
amended on February 5, 2015 to include the proper
[Recidivism Risk Reduction Incentive] minimum
sentence calculation. [Appellant] filed an appeal to
the Superior Court on March 4, 2015 which was
subsequently withdrawn on May 5, 2015.
[Appellant] then filed the instant pro se PCRA
petition on September 2, 2015, and a related “First
Supplemental Petition” on November 16, 2015. The
court issued a Notice of Intent to Dismiss the PCRA
petition on November 30, 2015. Pursuant to the
provisions of Pa.R.A.P. 907(1), [appellant] was
informed that he had twenty (20) days from the
docketing of that Notice (which occurred on
December 1, 2015) to respond, or else his petition
would be dismissed. [Appellant’s] Response to the
court’s notice was filed on December 14, 2015.
Upon review of [appellant’s] response, on January 7,
2016 the court vacated its Notice of Intent to
Dismiss and appointed Robert P. Brendza, Esquire to
represent [appellant] in these PCRA proceedings.
Counsel filed a Petition to Withdraw as PCRA Counsel
per Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) [(en banc)] and Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988) on March 29,
2016.
PCRA court’s notice of intent to dismiss PCRA petition pursuant to
Pa.R.Crim.P. 907(1), 4/12/16 at 2 n.1.
The record reveals that the PCRA court’s April 12, 2016 notice of intent
to dismiss PCRA petition pursuant to Rule 907(1) properly informed
appellant of his right to respond to the proposed dismissal within 20 days of
the date of the notice. The record further reflects that appellant certified in
-2-
J. S02012/17
a proof of service that he served on the PCRA court, among others, by
U.S. First Class Mail, his response to show cause to notice of intent to
dismiss PCRA petition pursuant to Rule 907(1) on April 27, 2016.
Appellant’s response and proof of service are time-stamped as being
received by the Clerk of Courts of Chester County on May 2, 2016. Although
no timeliness issue exists with respect to the filing of appellant’s response,
the record raises a concern that the PCRA court may have dismissed
appellant’s PCRA petition prematurely because (1) appellant’s response is
time-stamped as being received on May 2, 2016, and the PCRA court
entered its order dismissing the petition on April 29, 2016; and (2) the PCRA
court attempted to respond to appellant’s response to its notice of intention
to dismiss nearly one month after it entered its order that, in fact, dismissed
appellant’s PCRA petition.
The next relevant docket entry reveals that on May 13, 2016,
appellant filed a notice of appeal to this court of the PCRA court’s April 29,
2016 order dismissing his PCRA petition. On May 23, 2016, which was
nearly one month after the PCRA court entered its order dismissing
appellant’s PCRA petition, the PCRA court filed an “Amended Order” in which
it attempted to vacate its April 29, 2016 order dismissing appellant’s PCRA
petition. In the May 23, 2016 filing, the PCRA court attempts to “address
-3-
J. S02012/17
herein the issues raised by [appellant] in his second Response of April 28,
2016.”1 (Docket #38.)
Although a trial court may generally modify or rescind any order within
30 days of its entry, it is prohibited from doing so once an appeal has been
taken. See 42 Pa.C.S.A. § 5505 (providing that “a court upon notice to the
parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken”). Here, appellant filed his notice of appeal on
May 13, 2016, appealing from the April 29, 2016 order that is, of course, the
subject of this appeal. Once appellant filed that notice of appeal, the PCRA
court lacked jurisdiction to vacate its April 29, 2016 order and enter another
order dismissing the petition and responding to appellant’s response to the
PCRA court’s April 12, 2016 notice of intention to dismiss.
In light of the puzzling procedural history of this case and the concern
it raises regarding the premature dismissal of appellant’s PCRA petition, we
are constrained to vacate the PCRA court’s April 29, 2016 order dismissing
appellant’s PCRA petition and remand to the PCRA court with instructions to
provide the parties with the requisite notice of intention to dismiss pursuant
1
We are unable to determine why the PCRA court referred to appellant’s
response as the “[r]esponse of April 28, 2016” because appellant dated the
response April 27, 2016 and it is time-stamped as being received by the
Clerk of Courts of Chester County on May 2, 2016.
-4-
J. S02012/17
to Rule 907; afford appellant 20 days to respond to the proposed dismissal;
and thereafter enter an order on the petition.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
-5- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144148/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AU8TIN
Hon. Frank R. IlWrray
County Attorney
Carson Countp
Fenhandle, Texas
Dear Sir: opinion ao. o-es4
Ret Constitutiona
Your requeet ior 0
carefully ooneidered by thl
your letter of requeet a@ f
Wqder the ao turn ~mtorreb
to in the eaptlon unty Is author-
ized to employ a s lerk for the
County Judge 036YOU 0rfi0e
suoh a8 o-19 10 eeem that thie
aot wou.M be
to give a brief
y oited anaple
e aessstant8 OT
1010 3891 met be paid
In this oaee the olerk
olae none of the authority
employed nerely for work
other work made neeseeary
eatly appraoiate your advice ae to
t is lawful for the County to es-
or etenographorto work unbr the
f the County Judge and pay said olerlt
utideother then ieer’of the
In thisl00nnect10n,will
say that the fees of olfice of Cc;uityJudge in thie
oountg are only nomlnrl, the lcalnvolume of work
being caused by oil valuations,P,W.A. prejeota,
County Superintendent’swork and various new things
that have grown up in connectionwith ooilntywork.*
eon. Prank R. Warray, Page 2
Corson County, Texas has a populationof aeven
thnusand, seven hundred and forty-five (7,745) inhabitants,
accordins:to the last preoeding Federal Census of 1930,
and Sts officers are covzpensatedupon a fee basis.
Oninion No. O-2224 of this departments
holds Rouse
Pill 438 of the 46th Legislatureof Texas unconstitutional
as a local Or SpeOiel law attemptingto regulate the affairs
of a county in contraventionof Section 56 or Article 3 of
our Ctste Constitution. We enclose herewith a copy of
Opinion R0. C-2224.
Article 3902, Vernon's knnotatedTexas CiQil Sta-
tutes, reads in part as follows:
Whenever any district, county or preoinot
officer shall require the rervices of deputies,
assistantsor clerk6 in the performanoeof hSs
duties he shall apply to the County Commissioners*
Court of his county for authority toappoint such
deputies,assistants or clerks, stating by sworn
applicationthe number needed, the position to be
filled and the amount to be paid. Said applica-
tion shall be aooompanled by a statement showing
the probable receipts from fees, oommSssionsand
compensationto be COll8Oted by said 0irSce during
the fiscal year and the probable disbursements
which shall include all salaries and expenses of
said oiftioe;and said court shall make its order
authorizingthe appointmentof such deputies, assis-
tants and clerks and fix the compensationto be
paid them within the limitationsherein prescribed
aad determine the number to be appointedaa in the
disoretionof said oourt may be proper; provided that
in no oase shall the Commissioners'Court or any
member thereof attempt to influenoethe appointment
of any person as deputy, assistant or clerk in any
0Tfice. Upon the entry of'such order the officers
applyiw for such asaiatants, deputies or lclerks
shall be authorized to appoint them; provided that
said oomp8nSatiOnshall not eXOe8d th8 marSmum
amount hereinafter set out. The ooapensatlonwhich
may be allowed to the deputiee, assistantsor 018rks
above named for their cervices shall be a reasonable
one, not to 8XOe8d the fOllOwin$ amountsx
71. In oounties haQing a populationof twenty-
fSye thousand (25,000) or leas inhabitants,first
Eon. Frank R. XurraY, Page 3
assistant or chief deputy not to exceed Eighteen
Hundred ($1800.00)Dollars per annum; other
assistants, de dies or clerks not to exoeed Fif-
teen Hundred ($1500.00) Dollars per annum each."
Artiole 3883, Vernon's Annotated Texas Civil Sta-
tutes, reads in part as hollows:
RExospt aa otherwlsa providsd in this Act
the annual fees that may be retained by preclnot,
county and district ofiioers mentioned in this
Article shall be as follows:
"1. In counties containingtwenty rive
(25,000)'$housandor lose Inhabitants;County
Judge, Distriot or ,CrimlnalDistrict Attornsy,
sherirr, County Clerk, County Attorney, Distriot
Clerk, Tax Collector, Tax Ass4s8or, or the Aeseae-
or and Collector or Taxes, Twenty-fourHundred
(824OO.OOjDollars eaoh; Juatios of the Paaae and
Conatablo,Twelve liundred ($1200.00)Dollars 4aob.v
Article 5891, Vernon's Annotated Texas Civil Sta-
tutes, reads in part as tollowsr
*Each orrieer named in this Ohapter shall
be rirst out,@ the aurrent Be5 of his orrice
pay or be paid the amount allowed him under the
provisions of Article 3863, together with the
salaries of his assistanta and deputies, and
authorized axpcnsea under Articla 5699, and the
amount neosssary to cover costs or premium on
whatever surety bond may be req:llredby law. If
the cu-rent feea of such office colleatedin any
year be more than the amount needed to pay the
amounts above specified, same shall be deemod
excess tees, and shall be wp044a 0r in the
manner hereinafterprovided.
*In counties containing twenty-rivethousand
(25,000) or less inhabitants,Distriot and County
offioers named heroin shall retain one-third of
such 4xccs5 roes until such one-third, together
with the amounts spoairied in Article 5253, amounts
to Three Thousand Dollars (#&OZO). Preolnat offi-
aera shall retain one-third until such one-third
together with the amount SpeOlfied in Article 3663,
amounts to Fourteen Ruadred Dollars (@400).*
Hon. Frank I?.Yurray, Page 4
Article 3892, Vernon's ¬ated Texas Civil Sta-
tutes, reads as follows;
-Any orfioer mentioned in this Chapter who
does not collect the maximum amount or hls r444
for any fiscal year and who reports delinquent
roes for that year, shall be entitled to rstaln,
when colleatea, such part of such delinquentfees
as is sufficientto complete the maximum oompensa-
tion authorised by Articles 3883, 3883-A. and
3886 for the year In whiah delinquentfees were
charged, and also retain the amount of 4x04s~
fees authorized by law, and the remainder oi the
delinquent roes for that fiscal year shall bs
paid as heroin provided ror when oolleoteai pro-
vided, the provision4 or this Article shall not
apply to any officer atter one ysar from the date
he oeasos to hold the orrioe to which any d~alin-
quent ree is au4, ana in the event the orricsr
earning the roes that are delinquenthas not ool-
ledted the s4m4 within twelve months arter ho
coasee to hold the Orfhe, the amount or r44e
colleoted shall be paid into the oounty treasury.
Provided, howover, that nothing in this Act pro-
eludes the payment of 4x-otiiolotees in acoor-
aanp,s with Title 61 or tba Revised Civil Statutes
Of Toxae, 1925, as part of the maximum compansa-
tlon. Provided, that any change made in this Arti-
cle by this Act shall not apply to roes herotoior4
earned.*
Article 3t39!3,
Vornon*s Annotated Texas Civil Sta-
tutes, roads as rollows:
"The Commiesionors'Court is hereby debarred
rrom allowing oom,pensation r0r 4x-0rriaiO 44r-
vicest, county officialswhen the compensationan&
exoers roes which they are allowed to retain shall
roach the maximum provided ror in this chapter.
In oases where tha compensationand exaess iess
which the orricers ar4 allowed to retain shall not
reaoh the maximum provided ror In this ohaptsr,
the Commissioners'Court shall allow compensation
for 4x oriicio servla4ewhen, in their judgment,
such companeationis nec4ssary, proviaed, such
compensationror ex ofiioio eervioas allowed shall
Hon. Frank R. Wrray, Page !3
not increase the compensationof the official
beyond the aaxlmum or compensationhnd excess
tees allowed to be retained by him under this
ohapter. Provided, however, the ex orflcio
herein authorized shall be allowed only aiter
an opportunityfor a public hearing and only
upon the arriwatw vote or at least three
members oS the CommissioneratCourt."
Artiole 3899, Vernon’s Annotated Tetas Civil Sta-
tutes, reads in part as Sollousr
"(al. At the sloae OS eaoh month or his
tenure or ofrio% each oiiieer named herein who
is compensatedon a See basis shall make as
part or the report now required by law, an
ttemleed and sworn statement OS all the actual
snd neoessary expenses incurred by h5m in the
oonduat OS his oifioe, suoh as stationery,stamps,
telephone, premiums on oSSloials*bonds, includ-
ing the oost or surety bonds ror~hia deputlera,
premium on iire, burglary, theit, robbery lnsur-
anoe proteuting publia Sunds, traveling expenses
and other necessary expenres.... The amount of
salaries paid to assistant8and deputies shall
also be clearly shown by suoh officer, giving
the name, position and eaount paid eaah; and
in no event ahall any orricer show any greater
amount than aotually paId any such aaaistant or
deputy. The amount oS suah expenses, together
with the amount oS salaries paid to assistants,
&putles or clerks shall be paid out of the Sees
earned by suoh oSS1ser....I (Underscoringours)
The language or sub-division(:a)0r Artiofe 3899,
supra, is essentiallythe same as Article 3897 OS the Revis-
ed Civil Statutes oS 1911, a8 amended by hots OS 1923, which
was construed by the Texarkana Court OS Civil Appeals in the
aase oS Casey vs. State, 9SS 8E 488, as not lnoluding steno-
graphio help In its allowsnoe or *actual and neaessary ex-
penses," to the ofSloe holder in the conduct of his office.
The Court applies the rule oS oonstructlon"ejusdem generis"
which would likewise apply to the present statute lnasmuoh
as the same sets out the allowable oSSice expenses particu-
larly, in like manner, as the statute construed in the
above mentioned case, Sixing the grade and aharaoter OS such
ae not including stenographlohelp.
Ron. Prank R. Eurrag, Page 6
Opinion MO. O-1620 or this department holds that
the county attorney of'Walker County, Texas, has no authority
to employ a stenographerand pay her salary es an authorized
expenee out or his fees or offiae. This opinion deiinet the
term estenogrepher."
Opinion Wo. O-1674 of this department holds that
when the oounty attorney of Liberty County, Texas, complies
with Artiole 9902, Vernon's Annotated Texas Civil Statutes,
a "clerk" may be appointed for the oountp attorney.
Opinion Ro. o-1930 of this departmentholds that
neither the aounty attorney nor the oommissloners~oourt
have any statutoryauthority to employ a stenographerfor
the aounty attorney of Johnson County, Texas, and pay for
mme Out or county funds. Thla opinion also holds that
neither the oosvsissionersf oourt no@ the distriat attorney
of Johnson County and th% l2th Judlaial Dlstrlot hare any
statutory authority to employ a stenographerfor said distrlet
attorney and expend either oounty or state funds for the pur-
peas. This opinion further holds that the oomissioners’
oourt of Johnson County, Texas, a salary county, having a
population or thirty-threethousand, three hundred and seven-
teen (33,317) inhabitantsacoording to the last preaeding
Federal Census, may authorize the employmentof a stenographer
by the county judge and pay for suoh services out of the
general fund of the aounty to an amount not to exceed Twelve
3undred ($12OO.C0)Dollars per year, under the provisions of
Sub-division(a) of Seotion 13 of Artiale 2912e, Vernon’s
Annotated Texas Civil Statutes. We also enoloss herewith
ao$$es of opinions Nos. O-1220, O-1874 and O-1930 of this
department.
We are unable to find any velld statutory authority
wbloh would authorize the oommissionere” oourt of Carson
County, Texas, to expend any oounty funds for the employment
Or a stenographerfor the aounty judge of said county.
The county judge of Carson County Is without atatu-
tory authority to employ a stenographerand,my her,selary
as an authorized expense or his ofrice out of his roes or
orri ce.
You are respeotl'ullyadvised that it is the opinion
or this department that when the county judge of Carson County,
Texas, complies with Artiole 3902, Vernon's Annotated Texas
Bon. Frank R. Hurrap, Page 7
Civil Statutes, a clerk may be appointed for the oount
judge am3 when the aounty judge eomplles with Seotion Ta)
of Article 3899, Vernon's Annotated Texas Ciril Statutee,
he may pay 6aid olerk oat or his reea of orriae as an
authorized expenee 0r orrice. The county would not be
authorized to expend any county ruuda whatsoever for the
payaent or the salary of the aounty judge*a clerk in your
oounty.
Very truly yours
ATTO?SEP GK'IERALOF TEXAS
#C
APPROVI
OP,N,O
COMMn-i
=?& | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144160/ | “raE LtITORNEY GENE-L
OF TEXAS
Honorable P. G. Stanford
County Attorney
YoaknmCounty
Plaina,Texas
Dear Sir: Opinion No. 0-2230
Re: Vacancies on board of trustees of rural
high school district should be filled by
remaining members of board.
We are in receipt of your letter of April 12, 1940, requesting the
opinion of th?s department, which reads 8s follows:
"I amesking for an opinion on a question that seems to be contra-
&icMryas to AheCekatutory provisions therefor, to-wit: As to
whether or not the county s&ho01 board of trustees or the local board
of a consolidated district shall appointtrustees to fill vacancies
on the,l~al board oiLthe consolidated district, and I cite you
to Articles 2745 and 277ka, Acts of 1930,.klst Legislature, Fifth
Called Session.
'There seems to be a contradiction in these statutes. Last year,
we .bring at that time a consolidated sbhool district, grouped.two
other smaller common school district with this one, to form a rural
high school district.
'khen a vacancy occurs in the local board of seven members, do the
remaining members of the local board fill the vacancy or‘ is tha
appointment made by the -county board of trustees?"
We understand from your letter that the school district in question has
been organized and is now functioning as s rural h&gh school district.
Article 2745, Revised Civil Statutes of 1925, applies only to common school
districts and is not in conflict with Acts 1930, klst legislature, Fifth
Called Session, page 212 (Art.277&3, Vernon's Texas Civil Statutes) since
the last mentioned act does not purport to make provision with reference to
common school dlstricts'trustees.
Your letter indicates that the question presented is with reference to
filling vacancies on the board of trustees of a rural high school district.
Article 25%?2e,enacted in 1925, provides that any vacancy shall be filled
by appointment by the county board of trustees. Section 4 of Acts 1930,
Honoralbe P. G. Stanford, Page #2 (O-2230)
4ls.t Legislcture, Fifth Called Session, page 212, Ch. 66 (Article 277h,
Section 4, Vernon's Texas Civil Statutes) provides that if the rural high
school district fails to elect a trustee the County Board shall appoint
such trustee: It also provides that the members of the board remaining
after a vacancy shall fill the same for the unexpired term. Article 2774S,
Section 4, wascolstrued and applied in Clerk vs. Wornell (T. C. A. 1933)
65 S. W. (2d) 350. The court held:
1,
. . . . We think the act contemplates that, upon the creation of a,"
newrural high school district, an election shall be held for the. :
purpose of selecting the required number of trustees, and that, if "
for any reason there is a failure to elect any one or more of the first
board of trustees for such district, the county school board shall
make appointments to fill such places. If, thereafter, there is a
vacancy on said school board; either by Teason of a failure to elect
or for any other cause, the trustees of the rural high school district
should make the appointment to fill such vacancy . . . ."
'?'romwhat we have said, it is apparent that we are of the opinion
that the board of trustees df the Blum rural high school district,
ahd not the county school board, had the right to select Simmons'
successor, and that Hyder, and not 'Clark,has the ri@t ~tofill such
office." ,~
It is eppsrent that the court correctly applied Article 27748, Section 4,
snd not Article 2922e, since the last mentioned statute is insdirect conflict
with the more recent enactment end has necessarily been repealed by
implication in so far as this provision is concerned. Whittenberg vs.
Craven (Corn.App 1924) 258 S. W 152; 39 Tex Jur.,p. 137, et seq.
It is our opinion that when a~vrasncyoccurs in the board of trustees of a
rural high school district, such vacancy should be filled by the remaining
members of the board, and not by the county board of school trustees.
Yours very truly,
APPROVED APR. 20, 191i.O ATTORNEY GENERAL OF TEXAS
s/ GROW SELLERS
FIRST ASSISTANT s/ CecilC cammack
ATTORNEY GENERAL
APPROVED OPINION COMMI!M'EE
BY B. W. B. CHAIRMAN By
Cecil C. Cammack
Assistant
ccc:w | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144163/ | Honorable Lloyd G. F!ouldin
County Attorney
-PaId mtlto county
Palo Pinto, Texas
Dear Sj.r:
Opinion No 0..2227
Re: (1) Liability of farm tractor
for ad velorq taxes of indewdent
school district;
(2) Statu,t,@y right of tax assessor
of :'ndemndent school distrkt to
assess proparty for taxation where
owner refuses to do so.
This Department is In receipt of yo,ur letter of April 12, 1940, wherein you
submit for om determination the two ;@llow.i.n::
.~. questions, which we quote
tharefram:
"Mrr L,?yd %. Stevens, Tax Assessor and Collector of the Santo Independent
School District. has asked me: in wri~t5.n~ -I~%0obtain an opinion from
your dea-tmen'c on the following questLons:
"(1) Is a farm tractor subject to assessment for taxes?
"(2) IP said tractor ins subject to assessment for taxes, what can
the ta;: assessor of an Independent School distrrct dl3, I~f the owner
of said tractor refuses ts render said tractor for taxat?on?"
We concu? in your conclvs!.on that c farm tractor is not exempt from ihe
taxes levied hy on ?ndci)endent sch,ool d:strict under pertinent statlkes.
In thiq connection, Article ;lk>, Vernon's Annotated Civil Statutes,
provides as follows:
"All proi,erCy, real, personal or mixed, ek$cept such as may be herein-
zliper expressly exe$@.ed, Is subject to taxation, and the same shall
he rendered and listed aa herein prescribed."
Article '7147 provides that, "?&sons1 property, for the purposes of
taxation, shall be construed &include all goods, chattels and effects."
and proceeds to enumerate certain species of personal property as being
Honorable Lloyd G. Bouldin, Page 2 (O-2227)
within the intendment of the tax stu tutes . Nothing appears therein to
remove a farm tractor from the 1” ‘-1 category of taxable personal
property
Article 7150, Vernon’s Annotated Civil Statutes, enumerates certain
specific c*assifications of property, real and personal, which the
legi;latu~e, under enabling provisions of the Constitution, has elected
to exempt. Farm tractors not appearing there in, it must follow that they
are subject to various ad valorem taxes, includi.ng those of independent
school districts.
Turning our attenti.on to your second question, it appears that the rights
and duties of the tax assessor of an f~ndependent school district are
fixed and governed by applicable generel laws rel;-,lating the time and
manner for the assessment of State and County ad valorem taxes by county
tar assessors-collectors. This is so by virtue of the following specific
provisions of Article 2791, Vernon’s Annotated Civil Statutes:
“It shall ba within the discretion of the board of trustees of any
independent school district t.o name an assessor of taxes who shall
asoesa the taxable property l*ichin the llmita of the Independent rahwl
met within the time _-end In the mannar provided by existing laws,
in oo far .ai they are appJioable, and when said arsarsraent hag been
equalized/by a bosrd of equaliesti.on appointed by the board of trr:tear
for that purpna, ahall prepare the tax rolls of raid district and
shall duly ‘n?.m and oertify oamc to tha county tax aolleotor as provided
for in the sucaeedlng artlola.” ( Underscoring ours)
these :Mrtinent general statutes are Articles 7192 and 7193, Vernon’6
,,r.r;titated Civil Statutes, which provide, respectively, a6 followa:
“In every case where any person whose duty It is to lint any property
for taxation has refused or neglected to list the same when called on
for that purpose by the easesaor of texeo , or has refused to aubecrlbe
to the oath in regard to the truth of hia statement of property, or
any part thereof, when required by the tax assessor, the .seseasor rhall
note in a book the nahe of such person who refused to llat or to
swear; end in eysry case where any person required to list property
for taxation has been absent or unable from slckncas to list the same,
the tax assessor shell note In a book such fact, together withthe
name of such person. rr
“In all oases of failure to obtain a statement of real and personal
property from any cause, the assessor of taxes shall ascertain the
amount and value of such property and assess the same 8s he believer,
to be the true and full value thereof; and such easeasment shall
be as valid and binding as If such property had been rendered by the
proper owner thereof. ”
mnorable kloyd C. Bouldin, Paze 3. (o-2227)
It readily appears' from the foregoing statutory provisions that the tax
assessor of Santo Indkpsndent School District would be authorized and
r&ulred to 8esem the farm thactor In question for taxes of said
school district, upon the failure and refusal of the owner thereof to
rpler s*me for taxation purposes.
Trusting we have fully answered your inquires, and with best regards,
we me
Yours very truly,
AT!EXNEYGENFFALQFTFXAS
a/ Pat M. Neff, Jr.
Pat M. Neff, Jr.
Assistant
PMN:AMM/ldW
AppRovEDwi 27, 1940
s/GERALDc. MANN
A!MORNEYGENERALOFTEXAS
APPROVED OPINIONCOMMITTEE
BY B. W. B.
CHAIRMAN | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144171/ | E’m. Char, k; ca8?iBer, Chid
Elramo8yB4ry DlQlsion
State Beard af Control
Austin, Te~c
ophicm Ho* O-2220
Nt sroasutty of advanor G provul
bp the Attomrey G~RCPJ of out-
8f-state tripe b 6uptdatahnts
pear sir: OS e~oQo8ym3rpf astitutione
In your bitter ef aprll 12 If&c+ @Ia*tat* t&d on
Few LO, Zm, t&t Otata Boatd 0) Cantto r appzwmd tt trip
by SupdshnQmnt 6’4 .9. Nright of the Taxas school for the
Dti to St. LOuis, Kisorntr:, to attond the cmferano~ of the
H tlord Form! UB Doafnros and 6peeoh PathoLogy@an& that the
tfartptrollor@r teprVtmentIt not ~iq%wing the sxp8noo uccount
ior thts trip, on the ground that it duoa not appear that tht
Attorney Go~~ral htm approved this flip as being cm atute*s
bu8inOZU.
The prmlrtm as to the 8pprovoll in a&anae of wt-,
of-state trips & reprrsdiatlver cS tba rtate 66 being m
atatr’r bussn8rr, by thsc de tnlmt, 1s WBtdBsd in the do-
@at4 6pproprl6t1m in thr geaa?Pl rider appendti
ha-do4 Pour attention-2t dfroct8dto the fact that the the-
e"t"
a roprtationbill; EmroeBill Xoo 256, contsl~t the
FiiTxg %l,t
“rruom.ng ISqxmm8* Iicllo 0P theee opproprl-
8tions may be urcb d:artravellm out&e of the
Btete of~exa~wavlthcut the fstlvmwVTitton oaualt
ti the State DoerO of .Cetitrcll rzc$ot in a oinfry
statsr In d X‘tltimnOB~si~.Bt %BSSt6S a3 return-
ramped $BM T es to laatitutlons. Othandse, the
state Co~troll~ &all 8pply the mm na%*o to the
apprwarl,readpt OS trmebg rxpensee of 011
06 aset the su~rlatendents of the elsstpo~
r& T natltutlons as he appU08 to SU& lxpclOucr of
the Gtate Lei)eCtQltl~ tluparinteazl3mt
8’ trips shall b8
as authorbed bp the frO@d Of C~~t?ok”
AXIexd.nati~ofthlt rovlsianofthe ll.eeuo
appro ,&otlon bill rovwls that t to Logislature ha8
lswpp .Q efpr by Mp&#Mnd@irr from ths protrieion
state co+m~llo~ &all wplpthe wsmorules to the WP~ ad
paylwlt o? trawling 8xpoBres of rll am1 08 8U hs appliorr tQ
mh expenrer of the &at& MptrrbWit8. T 18 libdm
1 ohmd
that it is rpoulrlcull.y ProoiQsdt
ash C&8. 'J!*
cartaar - Pa&o 2
"SupeClnteaadQIt6' trips shall bo as author-
l&&d by the hard of Cmtr&.*
YOU a.ro therefOr a~~s6d that by virtue of the pro-
tislm OS the 6ltra06~ Ml1 above guotod, lt it a:t neoaw
aary that advance o~init~ OL'the Attommy Gcrmal, that Such
a trip 1s on statc~s bu61nas61 bc obt&aed ln rcspoct to mti-
of-state trips by ruper%ntendentrof the clccmoqmry lnetlttl-
tions of this mite, On the omtrary, this act coatcsPplates
that tho Board of Control rather than the ittorncy Goner
6ha gi~0 it6 peY8tia tarftt6n t0fi~nt t0 the t3dbg 0f 8~0
% atl
aut-oi-statetrip*
It lst of aourw not the lntontlon of thf.~f.igm
~oamtcs ths view that the Bosrd of C&ml
of eletmloqmry
superintanlirntcr ~aEtltu
7 Lens,
uhere t% tri c WC m ctatelc burirusr. k‘cho&! mere1
w
the a&mnoa vriPtan approval of this de nont to the
02 6uahatrlpl6n~4,rcqulred butthap"tthsedvamcwlttcn
cmsmt ti the stat6 kd of ktrd ia rcqultcd. If la this
oranycther sltuatlettof similarcharacterthe Comptroller
shouldentertainsrrl~~rdonbtsastotho purpo~ of the lc-
for the trarmactlrm of #tata’s business, r c may
dc~rtemt upmpnscnta-
We do cd tMnrtuad that
trd.l.erhasdeellnodto oppxwcthc&ooowt
q~~#ti~!%Od Vh&br ltath 6 buuincsr w86
approve the aoocunt.#or
.‘.
ATTORXiX
GEXESWL | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147455/ | J-S03005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERMAINE LEMAR KENNEDY,
Appellant No. 1913 WDA 2015
Appeal from the PCRA Order of November 17, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013109-2014
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2017
Appellant, Jermaine Lemar Kennedy, appeals from the order entered
on November 17, 2015, which dismissed his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On March 3, 2015, Appellant entered a negotiated guilty plea at three
criminal docket numbers. Under the plea agreement, Appellant agreed to
plead guilty to: two counts of possession of a controlled substance with the
intent to deliver (“PWID”); three counts of possession of a controlled
substance; three counts of possession of a firearm by a prohibited person;
and, one count each of receiving stolen property, criminal use of a
* Retired Senior Judge assigned to the Superior Court.
J-S03005-17
communications facility, and possession of drug paraphernalia.1 In
exchange, the Commonwealth agreed to withdraw one count of PWID and
recommend an aggregate sentence of four to eight years in prison, followed
by five years of probation.
During the guilty plea hearing, the Commonwealth set forth the factual
basis for Appellant’s guilty plea:
Your Honor, had Case No. 2014-14631 gone to trial, the
Commonwealth would have called as its witnesses City of
Pittsburgh Police Officers Glavach [], Novosel []; and from
the Allegheny County Medical Examiner’s Office, Emily Ashy.
They would testify substantially as follows:
That on August the 7th, 2014, the officers mentioned
observed what they believed to be a drug transaction
between [Appellant] and an individual named Adam Todd.
They pursued Mr. Todd and, in fact, recovered heroin from
him. They then went back and got [Appellant] who was in
or at his Mercedes automobile and took him into custody. A
search was made. They recovered additional heroin. Mr.
Todd had ten stamp bags marked “HEART ATTACK” in red
ink, and there were four stamp bags marked “RICH” in red
ink. [Appellant] had $101 in [United States] currency and
three cell phones.
The drugs were turned over to the Allegheny County
Medical Examiner’s Office for testing. . . . The weight of the
heroin was 0.67 grams and tested positive for heroin. . . .
The car was towed by the police. Subsequently[,] the police
received information from an informant that there were
more drugs to be found in the car. And so at Case No.
2014-13098, the Commonwealth would call City of
____________________________________________
1
35 P.S. § 780-113(a)(30) and (16), 18 Pa.C.S.A. §§ 6105(a)(1), 3925(a),
and 7512(a), and 35 P.S. § 780-113(a)(32), respectively.
-2-
J-S03005-17
Pittsburgh Police Officers Brian Martin[,] Brian Burgunder, []
William Churilla, [] Walter Jones[,] and Jeffrey Deschon[.]
Having received information from the informant there were
more drugs in the car, they took a K-9 officer on August the
15th to the impound lot. The dog hit on the car, and as a
result, the officers obtained a search warrant for the car
resulting in the recovery of [69] blue stamp bags marked
“MTV” each holding tan powder, [68] stamp bags – excuse
me, [12] stamp bags stamped “Buzz Light Year” or with a
Buzz Lightyear picture each holding tan powder, five stamp
bags stamped “Heart Attack” each holding tan powder,
three stamp bags marked “Black Jack” each holding tan
powder, and three stamp bags stamped “Rich” each holding
tan powder, and one each of stamp bags marked “Focus”
and “Chi-Raq”. . . . The material tested positive for heroin.
. . . The approximate weight was 1.592 grams. There was
an additional knotted baggie of off-white solids that tested
positive for cocaine. That weighed .518 grams.
It would be the officer’s opinion, based on their training and
experience, the quantity of heroin, that the heroin was
possessed in that case with the intent to deliver.
As a result of finding the heroin pursuant to the search
warrant, an arrest warrant was issued for [Appellant] for
that material, the heroin and the cocaine; and on
September the 11th, 2014, at Case No. 2014-13109, the
Commonwealth would call Detective Sheila Ladner[,]
Detective Joseph Novakowski[,] Detective Matt Truesdell[,]
Detective Anthony Palermo[,] and from the Allegheny
County Crime Lab, Jason Very, Nicole James[,] civilian
witness, John Ciangiarulo[], and Ryan Young from the
Pittsburgh Police. They would testify that an attempt was
made to locate [Appellant] on the warrant issued from the
previous case. They located him in the McKees Rocks area,
and he was going in and out of a house on Olivia, but they
weren’t sure which one, and he was seen going to a black
Mercedes, not the same black Mercedes that was involved in
the first case. He was seen at and in the trunk of the car.
Detective Ladner placed phone calls and text messages to a
phone belonging to [Appellant] and arranged to buy a
-3-
J-S03005-17
bundle of heroin from [Appellant] in the McKees Rocks area
under a bridge.
Once the meet was set, the detectives who were watching
the street observed [Appellant] leave the house on Olivia,
go over to the trunk of the car, open it, take something out
and then head down . . . towards the bridge at which time
United States Marshals and City of Pittsburgh Police
apprehended him. At the time they apprehended him, he
was on his cell phone with Detective Ladner. She was
giving him directions on where she was, and she’d testify
that she actually heard [Appellant] – the beginning of the
attempt to take [Appellant] into custody over the phone.
[Appellant] was searched incident to arrest and found to
have a bundle of ten blue stamp bags marked “DRAFT,” []
on his person as well as $60 in cash . . . and they recovered
the cell phone.
Once he was taken into custody, they sat on the black
Mercedes that he had gone to before he went to make the
deal and obtained a search warrant for it. When they
executed the search warrant, they recovered Exhibit 2, a
gray Atlanta Braves drawstring bag which contained the
following: [a] plastic sandwich bag containing two bundles
and seven loose bags of heroin marked “DRAFT,” [] in blue
ink that matched the bundle [Appellant] had on his person
when he was taken into custody.
There was also a Ziploc bag containing one knotted baggie
of loose crack cocaine and one knotted baggie containing a
number of knotted baggie corners of crack cocaine.
There was also a brown box which contained [36] white
unmarked bags of heroin, one Scotch Tape roll, . . . two
stamp pads and two wooden stampers, neither of which was
the “DRAFT” stamp.
They also recovered a Ziploc baggie of marijuana and a
plastic bag containing multiple bundles of heroin marked
with a red stamp. The stamp itself was unreadable.
There was also a pack of Juicy Fruit gum and a black digital
scale.
-4-
J-S03005-17
Then there were three additional Ziploc baggies each of
which contained a handgun. One contained a loaded
Beretta [92FS] 9-millimeter semiautomatic. . . . One
contained a loaded Israel Military Industries Desert Eagle 9-
millimeter semiautomatic handgun. . . . That gun had been
reported stolen by Mr. Ciangiarulo approximately eight
months earlier from his residence in McKees Rocks. And the
third one was an FIE .22 caliber Model T18 revolver. . . .
We would introduce documents that were recovered from
the car in [Appellant’s] name; specifically, purchase
documents for the Mercedes that had been seized earlier as
well as a financial responsibility card for the Mercedes that
had been seized earlier in the first case that led to all of
this.
The drugs were turned over to the Allegheny County
Medical Examiner’s Office. . . . The total weight of the
heroin on [Appellant] was . . . in excess of .25 grams. . . .
There was a calculated collective net weight of slightly over
one gram of the [27] blue stamp bags. There was the
cocaine base. The crack cocaine weighed 5.815 grams.
That was the baggie of it. And then the multiple baggies
had a collective gross weight of 2.091 grams. There was
also .839 grams in the exhibit holding the [36] white stamp
bags. . . . The marijuana weighed 14.923 grams. . . .
The guns were all examined and test-fired, and they were
all found to be in good operating condition.
It would be the officer’s opinion, based on their training and
experience, the quantity of heroin, the possession of the
digital scale, the ink pads, the stampers, the multiple stamp
bags with the different stamp bags, the lack of any use
paraphernalia, the fact that [Appellant] engaged in
conversation with the detective to make a sale and, in fact,
went to make a sale of heroin, that he possessed the heroin
as well as the crack cocaine with intent to deliver and not
solely for personal use. There was no paraphernalia
whatsoever for the crack cocaine.
-5-
J-S03005-17
We would also introduce evidence that [Appellant] had two
prior felony drug convictions which would make him a
person who is not permitted to possess a firearm. . . .
N.T. Guilty Plea and Sentence, 3/3/15, at 6-12.
At the conclusion of the factual recitation, Appellant testified that he
was “pleading guilty to [the] charges because [he is], in fact, guilty.” Id. at
12-13. The trial court then sentenced Appellant in accordance with the
negotiated term of incarceration; specifically, the trial court sentenced
Appellant to serve an aggregate term of four to eight years in prison,
followed by five years of probation, for his convictions. Id. at 14-15.
On April 20, 2015, Appellant filed an untimely, pro se “Motion to
Withdraw Guilty Plea.” Within the motion, Appellant requested to withdraw
his guilty plea for a number of reasons, including: 1) “counsel was
ineffective for fail[ing] to present [Appellant’s] mental health status before
sentencing in court for mitigating circumstances;” 2) “counsel [was]
ineffective . . . for not filing [a] suppression [motion] as requested by
[Appellant];” 3) “counsel was [] ineffective for nondisclosure of discovery;”
and, 4) “guilty plea was coerced due to misrepresentation by counsel and
the apology to trial judge while taking the plea.” Appellant’s “Motion to
Withdraw Guilty Plea,” 4/20/15, at 1-3.
The trial court correctly construed Appellant’s untimely motion as a
first petition filed under the PCRA. See Commonwealth v. Johnson, 803
A.2d 1291, 1293 (Pa. Super. 2002) (“the PCRA provides the sole means for
obtaining collateral review, and [] any petition filed after the judgment of
-6-
J-S03005-17
sentence becomes final will be treated as a PCRA petition”). Therefore, the
trial court appointed counsel to represent Appellant during the PCRA
proceedings. PCRA Court Order, 4/28/15, at 1. However, on September 2,
2015, appointed counsel filed a no-merit letter and a request to withdraw as
counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
After reviewing counsel’s no-merit letter, the PCRA court granted counsel’s
petition to withdraw and issued Appellant notice, pursuant to Pennsylvania
Rule of Criminal Procedure 907, of its intent to dismiss Appellant’s petition in
20 days, without holding a hearing. PCRA Court Order, 10/21/15, at 1-3.
Appellant did not file a meaningful response to the PCRA court’s Rule
907 notice and, on November 17, 2015, the PCRA court finally dismissed
Appellant’s petition. PCRA Court Order, 11/17/15, at 1.
Appellant filed a timely, pro se notice of appeal from the PCRA court’s
order and the PCRA court appointed counsel to represent Appellant on this
appeal. See PCRA Court Order, 2/4/16, at 1.2 Appellant raises one claim on
appeal:
____________________________________________
2
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Moreover, although Appellant filed a purported Rule
1925(b) statement pro se, Appellant only did so after the PCRA court
appointed counsel to represent him on appeal. See Appellant’s Pro Se Rule
1925(b) Statement, 2/16/16, at 1. Therefore, since Appellant filed his pro
se Rule 1925(b) statement while he was represented by counsel, we will not
hold that Appellant’s pro se Rule 1925(b) statement constricts the claims he
(Footnote Continued Next Page)
-7-
J-S03005-17
Did the [PCRA] court err as a matter of law in refusing to
grant relief on the [PCRA] petition in the form of permitting
[Appellant] to withdraw his guilty plea due to the ineffective
assistance of counsel?
Appellant’s Brief at 5.
As we have stated:
[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
_______________________
(Footnote Continued)
is entitled to raise on appeal. See Commonwealth v. Ellis, 626 A.2d
1137, 1139 (Pa. 1993) (“there is no constitutional right to hybrid
representation either at trial or on appeal”); Commonwealth v. Pursell,
724 A.2d 293, 302 (Pa. 1999) (“[w]e will not require courts considering
PCRA petitions to struggle through the pro se filings of [petitioners] when
qualified counsel represent[s] those [petitioners]”); Commonwealth v.
Ruiz, 131 A.3d 54, 56 n.4 (Pa. Super. 2015) (the defendant’s “pro se
motion to modify sentence . . . was a legal nullity . . . [because] he was
represented by counsel” at the time); Pa.R.Crim.P. 576(A)(4) (where a
represented criminal defendant submits a pro se document for filing, “the
clerk of courts shall accept it for filing, time stamp it with the date of receipt
and make a docket entry reflecting the date of receipt, [] place the
document in the criminal case file[, and forward a copy of the document] to
the defendant’s attorney and the attorney for the Commonwealth”);
Pa.R.Crim.P. 576 cmt. (Rule 576(A)(4)’s “requirement that the clerk time
stamp and make docket entries of the filings in these cases only serves to
provide a record of the filing, and does not trigger any deadline nor require
any response”).
-8-
J-S03005-17
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Rivera, 10 A.3d at
1279. To satisfy this burden, Appellant must plead and prove by a
preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.
To establish the reasonable basis prong, we must look to see whether
trial counsel’s strategy was “so unreasonable that no competent lawyer
would have chosen that course of conduct.” Commonwealth v. Williams,
640 A.2d 1251, 1265 (Pa. 1994). An attorney’s trial strategy “will not be
-9-
J-S03005-17
found to have lacked a reasonable basis unless it is proven that an
alternative not chosen offered a potential for success substantially greater
than the course actually pursued.” Commonwealth v. Howard, 719 A.2d
233, 237 (Pa. 1998). Further, if an appellant has clearly not met the
prejudice prong, a court may dismiss the claim on that basis alone and need
not determine whether the other two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).
We also note that “[a] criminal defendant has the right to effective
counsel during a plea process as well as during trial.” Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). Yet, where the
ineffectiveness of counsel is claimed in connection with the entry of a guilty
plea, a petitioner may only obtain relief where “counsel’s deficient
stewardship resulted in a manifest injustice, for example, by facilitating [the]
entry of an unknowing, involuntary, or unintelligent plea.” Commonwealth
v. Moser, 921 A.2d 526, 530 n.3 (Pa. Super. 2007) (en banc) (internal
citations and quotations omitted). As we have explained:
once a defendant has entered a plea of guilty, it is
presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him. Therefore,
where the record clearly demonstrates that a guilty plea
colloquy was conducted, during which it became evident
that the defendant understood the nature of the charges
against him, the voluntariness of the plea is established.
Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal
quotations, citations, and corrections omitted), quoting Commonwealth v.
- 10 -
J-S03005-17
Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an]
appellant must prove he would not have [pleaded] guilty and would have
achieved a better outcome at trial.” Commonwealth v. Fears, 86 A.3d
795 (Pa. 2014) (internal quotations and citations omitted).
According to Appellant, his trial counsel was ineffective for failing to
file a suppression motion and for failing to inform the trial court about his
“mental health issues.” Appellant’s Brief at 17.3 These claims fail.
First, with respect to counsel’s failure to file a suppression motion, the
claim of ineffectiveness fails because Appellant never specified the possible
basis for a suppression motion in his PCRA petition or in his brief to this
Court and Appellant thus never claimed or argued that: the unarticulated
suppression claim had arguable merit; counsel’s failure to file the
suppression motion lacked “some reasonable basis designed to effectuate his
interests;” or, Appellant suffered prejudice as a result of counsel’s alleged
failing. Fulton, 830 A.2d at 572. The claim thus immediately fails.
With respect to Appellant’s claim that his trial counsel was ineffective
for failing to inform the trial court about Appellant’s “mental health issues,”
the claim likewise fails because Appellant never pleaded or claimed that he
____________________________________________
3
Within Appellant’s brief to this Court, Appellant also claims that counsel
was ineffective for failing to inform the prosecution about his “mental health
issues.” Appellant’s Brief at 14 and 17. Appellant never raised this claim in
his PCRA petition; as such, the claim is waived. Fulton, 830 A.2d at 572;
Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal”).
- 11 -
J-S03005-17
suffered from some specific, identifiable “mental health issue” and Appellant
never pleaded or claimed that the trial court would have acted any
differently had it known of Appellant’s alleged “mental health issue.” See
Fulton, 830 A.2d at 572.
Therefore, Appellant’s claims on appeal fail.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
- 12 - | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147456/ | J-S87036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAHEEM JONES
Appellant No. 643 MDA 2016
Appeal from the Judgment of Sentence March 16, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-MD-0000067-2016
CP-35-MD-0000097-2016
CP-35-MD-0000107-2016
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 22, 2017
Raheem Jones appeals from the judgment of sentence entered in the
Court of Common Pleas of Lackawanna County following his conviction for
indirect criminal contempt.1 Upon review, we affirm.
The trial court summarized the relevant facts as follows:
On October 13, 2015, the Honorable Judge [Margaret] Moyle
issued a temporary [p]rotection from [a]buse (hereinafter “PFA”)
[o]rder against the Defendant, Raheem Jones[.] The protect[ed]
party was [Jones’] former partner, Deborah Bohn, (hereinafter
“Victim”). The Honorable Judge [Richard] Saxton entered a
[f]inal PFA [o]rder on October 26, 2015, which expires on
October 26, 2018. The PFA [o]rder stated [Jones] shall not
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See 23 Pa.C.S. § 6114.
J-S87036-16
“abuse, harass, stalk or threaten” the Victim and prohibited him
from having any contact with the Victim, either directly or
indirectly.
On January 29, 2016, an [i]ndirect [c]riminal [c]ontempt
[c]omplaint was filed under docket number 2016-MD-67 for one
(1) count of contempt for violation of the PFA [o]rder for being
present at the Victim’s residence on January 1, 2016. On
February 17, 2016, a second [i]ndirect [c]riminal [c]ontempt
[c]omplaint was filed under docket number 2016-MD-97 for one
(1) count of contempt for violation of the PFA [o]rder for [Jones]
contacting the Victim, via telephone, on January 24, 2016. On
February 19, 2016, a third [i]ndirect [c]riminal [c]ontempt
[c]omplaint was filed under docket number 2016-MD-107 for
forty (40) counts of contempt for violation of the PFA [o]rder,
one (1) count for [Jones] being present at the Victim’s residence
on January 23, 2016 and thirty-nine (39) counts for [Jones]
contacting the victim via telephone thirty-nine (39) times.
A hearing commenced on March 16, 2016[,] for forty-two (42)
counts of indirect criminal contempt, where the Victim, her
witnesses[,] Officer [Anthony] Gieda, Captain Robert McGuire,
Officer [Carmen] Wega, and [Jones] and his witness[,] Officer
[Juan] Baizan[,] provided oral testimony[.] Following testimony
at the contempt hearing, [Jones] was found guilty of forty-two
(42) counts of contempt.
[Jones] was ordered to serve six (6) months of incarceration at
the Lackawanna County prison under [each of the three docket
numbers, each sentence run consecutively to the others.]
[Jones] was [also] placed on probation for a period of thirty-nine
(39) months upon release from Lackawanna County prison. . . .
It was further ordered that [Jones] is required to attend and
complete the domestic violence intervention program upon
release, have no contact with the Victim[,] and pay cost[s] and
fees associated with the proceedings.
On March 22, 2016, [Jones] filed a [m]otion for
[r]econsideration of [s]entence. This [c]ourt entered an [o]rder
dated March 29, 2016[,] denying the [motion]. [Jones] then
filed his [n]otice of [a]ppeal on April 18, 2016. The Superior
Court issued an [o]rder dated May 28, 2016[,] remanding the
-2-
J-S87036-16
matter to the trial court to hold a Grazier[2] [h]earing. A
Grazier hearing was held on June 18, 2016[, and an order was
entered] dated June 20, 2016 granting [Jones’] request to
proceed pro se and excus[ing] counsel of record from the
matter.[3]
Trial Court Opinion, 6/30/16, at 1-3.
On appeal, Jones raises the following issues for our review:
1. Did the trial court commit legal error when it convicted and
sentenced [Jones] on thirty-nine counts of indirect criminal
contempt in violation of the double jeopardy clause of the
United States Constitution?
2. Was not the evidence insufficient to find [Jones] guilty beyond
a reasonable doubt on forty-two (42) counts of indirect
criminal contempt?
3. Did the trial court abuse its [discretion] when it allowed
hearsay documentary evidence into the proceedings that was
not subjected to a hearsay exception?
4. Did counsel render ineffective [assistance] of counsel by
failing to object to the court[’s] jurisdiction over the person of
the defendant when the trial court failed to timely schedule a
PFA violation hearing on all charges pursuant to 23 Pa.C.S.A.
§ 6113(f) in violation of [Jones’] procedural due process of
law rights?
____________________________________________
2
Commonwealth v. Grazier, 393 A.2d 335 (Pa. 1978).
3
The court entered an order directing Jones to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on April 28,
2016. Jones filed a timely pro se statement; counsel also filed a timely
statement and timely amended statement. After the Grazier hearing on
June 18, 2016, Jones filed an amended pro se Rule 1925(b) statement on
June 23, 2016. The trial court’s opinion pursuant to Pa.R.A.P. 1925(a)
addresses each of the issues raised by counsel as well as the issues Jones
has raised on appeal. On June 28, 2016, Jones filed a “Petition to Direct the
Trial Court to File an Answer ([Rule] 1925(a) Statement) to Appellant’s Pro
Se Amended Concise Statement” in this Court. This application for relief is
denied.
-3-
J-S87036-16
Brief for Appellant, at 6.
Jones first contends that the trial court erred by convicting him of 39
counts of indirect criminal contempt “where the alleged violations stemmed
from [one] alleged violation of a single provision of a PFA [o]rder.” Brief for
Appellant, at 42. Jones asserts that the 39 counts included in the case at
docket number 2016 MD 107, for separate phone calls Jones made to the
Victim, should have been charged only as one incident of harassment. See
18 Pa.C.S. § 2709(a)(5)-(7) (certain forms of harassment involve repeated
communication with victim). We note that Jones failed to preserve this
argument for our review, since it was not raised in the court below. See
Pa.R.A.P. 302(a) (issues not raised before trial court waived on appeal).
Even if the issue were preserved, the plain language of the PFA order
prohibits Jones from contacting the Victim. Each phone call was a separate
contact in violation of the order. Moreover, the Commonwealth charged
Jones only in relation to the 39 phone calls that the Victim answered out of
203 calls that were attempted. Accordingly, this issue is without merit.
In his second issue on appeal, Jones asserts that the evidence was
insufficient to convict him of a total of 42 counts of indirect criminal
contempt. In considering sufficiency of the evidence claims,
we must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in the
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. . . . Where
there is sufficient evidence to enable the trier of fact to find
every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
-4-
J-S87036-16
Of course, the evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to
believe all, part or none of the evidence presented.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).
The Commonwealth can satisfy its burden via wholly circumstantial
evidence. Id.
To establish indirect criminal contempt, the Commonwealth must
prove the following: 1) the order was sufficiently definite, clear, and specific
to the contemnor as to leave no doubt of the conduct prohibited; 2) the
contemnor had notice of the order; 3) the act constituting the violation must
have been volitional; and 4) the contemnor must have acted with wrongful
intent. Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012)
(citation omitted).
[W]hen reviewing a contempt conviction, much reliance is given
to the discretion of the trial judge. Accordingly, [the appellate
court is] confined to a determination of whether the facts
support the trial court decision. We will reverse a trial court’s
determination only when there has been a plain abuse of
discretion.
Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa. Super. 2002)
(citations omitted).
Instantly, the language of the PFA Order clearly prohibited Jones from
entering the Victim’s residence and from contacting the Victim. The record
indicates that Jones was well aware of the PFA Order. In the case at docket
number 2016 MD 67, the Victim’s testimony established that Jones entered
her residence and assaulted her. Thus, the elements of volitional action and
-5-
J-S87036-16
wrongful intent clearly are established with regard to that incident. Walsh,
supra.
In the case at docket number 2016 MD 107, Jones called the victim
over 200 times and made contact with her 39 times from 4:30 a.m. to 11:30
a.m. on January 23, 2016. In the case at docket number 2016 MD 97,
Jones made a phone call from jail on January 24, 2016, in which he
threatened the Victim and attempted to persuade her to drop charges
against him. The threats and sheer volume of telephone calls from Jones to
the Victim establishes that Jones’ actions were purposeful and ill-intentioned.
Id.
Next, Jones argues that the trial court abused its discretion by allowing
hearsay documentary evidence to be admitted when it was not subject to a
hearsay exception. At the PFA contempt hearing, Jones’ counsel objected to
the admission of the Victim’s telephone records on grounds that a proper
foundation had not been laid. However, a hearsay objection was not made
at any point during the hearing. Accordingly, this issue is waived. See
Pa.R.A.P. 302(a).
Finally, Jones asserts that counsel rendered ineffective assistance of
counsel by failing to object to the court’s jurisdiction when the trial court
failed to timely schedule a PFA violation hearing. This claim fails because
Jones raised a claim of ineffective assistance of counsel only after appealing
-6-
J-S87036-16
this matter to this Court4 and, generally, such claims are to be brought in a
petition pursuant to the Post Conviction Relief Act.5 See Commonwealth
v. Grant, 813 A.2d 726, 738 (Pa. 2002). Moreover, this claim fails because
Jones’ hearing was timely scheduled pursuant to 23 Pa.C.S. § 6113(f). The
record reveals that Jones requested and received two continuances
regarding the PFA contempt hearing; nevertheless, the hearing was initially
scheduled within 10 days as required pursuant to the statute. Accordingly,
Jones’ due process rights were not violated.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
____________________________________________
4
Because Jones’ argument regarding ineffective assistance of counsel was
not raised in the trial court, no argument was held, nor was a record created
regarding counsel’s alleged ineffectiveness. Therefore, Jones’ application for
relief requesting a Bomar hearing is denied. See Commonwealth v.
Bomar, 826 A.2d 831 (Pa. 2003) (exception to Grant, supra, carved out
where claims of ineffective assistance of counsel properly raised and
preserved in trial court and trial court conducted hearings on those claims
and addressed such clams in its opinion).
5
42 Pa.C.S. §§ 9541-9546.
-7- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144178/ | THEATTORNEY GENERAL
OF ?I?ExAs
Xion.it.Plner Powell
County Attorney
Brown county
Erownwood, Texas
Dear Sir: Opinion No. o-2214
Re: Is a constable ln a~~countywhere the
sheriff 1s on a salary basis, entitled
to.hls or+glnal arrest fees in a felony
case where the defendant is properly
3nalctea and convicted, but sentenced
ln district court to the penitentiary
or to the county jail, and in which
no money Is paid into the court by the
defendant?.
Your letter of Air&l 11, 190, requesting an opinion of
this department on the above stated question, has been received.
Your letter reads as follows:
"What prodedure does a Constable report to
collect.hls'arrestfees, where the sheriff In the
same county Is paid on a salary basis?
"I refer to a fel&y case, where the defend-
ant Is indicted by the &ran&jury, and the case Is
disposed of by~a conviction ln the penn or properly
sentenced to the county~jall on a .felonycharge.
"I refer to Art. 1065, C.C.P.
"It Is our understanding that some constables
over the state have been collecting Original arrest
fees ln felony cases, where the defeni¶sntIs later
Indicted by the grand jury, ani3 the caee disposed of.
So far ln this county'the constable has been collect-
i;& no fees In such cases, except'wherereduced to
misdemeanors on the trial of the case, or so reduced
by the grad jury upon Indictment.
"Therefore, I would like an opinion on the
followln&
"11s a Constable, ln a county where the sheriff
ii on a.salary basis, entitled to hls orl%lnal arrest
fees, In a felony case, where the defendant Is properly
lnalctea and convicted, but .&sentencedln District Court
to the penn or to the county~jall, snclln.whlch no
---a-.4" ..-,A4n+r.thn nnnmt hu~fhe A~fendmt?‘”
Hon. J. Plner Powell, page 2 O-2214
According to the last Federal Census the population of
Brown County Is 26,382 Inhabitants. The county offlclals of sala
county are compensated on sn annual salary basis, and the precinct
offlclals are compensated on a fee bafils.
Article 1065 Code of kmlnal Procedure provides
certain fees for the sheriff, or bbher peace offlcers'performlngthe
same services In a misdemeanor casa, to be taxed against defendant on
conviction.
Article 1030, Code of Crlmlnal Procedure, specifically
provides certain fees for the sherlff'orconstable for definite services
performed by them In eelony cases ln counties having a population of
less than 40,000 Inhabitants,as shown by the preceding Federal Census.
Section 17 of Article 3912e, Vernon's Annotated Civil
Statutes, reads, ln part, as follows:
"Sec. 17. (a) The term 'Precinct Officers'
as used In this Act means justices of the peace and
constables,
"***it**
In counties wherein the county officers named
In this Act are 'compensatedon the b&s of an annual
salary, thenState of Texas shall not be charged with
ma shall not pay any fee or commission to any pre-
cinct officer for any services by hlm performed, but
said officer shall be paid by the County out of the
Officers' Salary Fund such fees and commlsslons as
would otherwise be paid him by the State for such serv-
ices."
Article 1019 of the Co& of Criminal Procedure reads as
follows:
~"Ifthe defendant Is lnalctea for a felony and
upon conviction his punishment Is by fine or conflne-
ment In the county jail, or.by ~bothsuch fine and con-
flnement In the county jail or convicted of a mlsae-
meanor, no costs shall be pala by the State to any
officer. All costs In such oases shall be taxed,
assessed ana collected :~as ln mlsdbmeanor cases."
In view of the forego& statute& you are respectfully
advised that It Is the opinion of this department that ln counties
where the county officials are compensatedon a salary basis and the
precinct officers a&compensated on a fee basis; the constable Is
entitled to the.statuto3.yfees for all services actually performed by
him ln felony cases,.sala fees to be paid by the o3unty out of the
Officers' Salary Fund when sala fees would otherwise be paid hlm by the
State fob such services. ,~
. &m. J.’Plner Powell, Page 3 O-2214
You are Further advised that where a defendant Is lnalctea
for a felony and upon convlctlon hi8 punishment Is by fine or conflne-
ment In the county jail, or by both, such fine and conflriementIn the
county jail or convicted 0r a misdemeanor, no fees can be paId a con-
stable ,forservices rendered In such cases by thecounty out of the
Orflcers’ Salary Fund or any other fund, such fees shall be taxed, assesse
ana collected as ln misdemeanor cases.
In felony ca6es where a constable is entitled tofees to be
paid out of the Officers’ Salary Fund he shall.be paid on warrants approve
by the county auditor In the counties having a county auditor; otherwise
all claims against the OfficersI Salary Fund shall first have been audited
and approved by the commlssloners1 court of said county and the money
shall be disbursed on such approved claims bywrrada drawn by the county
treasury on said ma.
!Prustlngthat the foregblng fully answers your lnqdry, we
remain
Yours very truly
ATTORNEX OENERAL OF TEXAS
By s/ Ardell Wllll8ms
Ardell Williams
Assistant
AW:obiwc
APPROVED APRIL 23, 1940
s/ Qerald C. ~Mann
ATTORNEY QENERAL OF TEXAS
Approved Opinion Committee by s/BwB Chairman
_.’ | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144169/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Bon. Joe Ibnsohlk Comnlnsioner
Bureau of Irbop 8&.tirtlor
Aultb, Torar
Bear Slrl
TOUT Teoent
partDhnt on em above
Eon. Joe Kunrtclrik, Co~~~iosioner, page 2
in finding engageWlentsfor oroheetraa. 'B'
ha8 no authority to fir prices, eta., but is
lnstruotedby (1' as to the orchestrasthat
are available @.caEl to b8 sscured, eta. If
*B(,suaoeede in interestinga person in one
of *n's' orohsetras,he eske *A' fox one of Its
contracts. *A* rills out the contract on lte
regular form and aendsit to *B* who in turn
has the client sign the oontraat. *B* alao uaual-
ly colleots a deposit, which is usually made out
to 'A'. Both the contract and deposit are then
sent t0 (A’. After the contract is fulfilled
and the engagement has been played, '~1 charges
the oroheatra a fee I@ senioee in oonnection
with the boo- of tha engagement. 'A' then xe-
mits one-half of ths rse (or sovm portion thereor)
to 'B*.
*Do oontraot is binding until the orcheetra
leader himself signs It, unless he ha8 delegated
such authority to *A*. The contrsct form doe8
not stipulatehow the leader is to conduot his
orchestrawhile fulfillingthe engagement. The ,
contract seta forth the length of the eagagemnt,
e.g., 9 till 12, 0 till 1, eta., ana also men-
tions the place of the engagement,price to be
paid, deposit oolleatod, etc., but does not 8tip-
ulate the type of mualc to be played, number of
intermlssionsto be taken or when, eta. The
orchestramsrelg plays and performa in the man-
ner in vihichit is accustomed,and they may vary
samewhat the nature of their parfoxmance if they
viish. If the persm attempts to euperrisethe
parformancain a mannerwhioh the leader does not
approve, he is not oompelled to adhere to the
su~estions made. *gl probebly never ivmes in
oontaot with the orchestra leader at all, and
has no su~emieion of any kind over his actions.
*B* probably will not appear at the function fat
which the orchestra is engaga6, nor will his neme
appear on any of the contmots,
*Do the activities described above come with-
in the provisions of the Employment A@ncy I&SW,and,
if SO, HOUltl'A', t3r, or both, be required to ob-
tain employment agency lioensee before carrying on
such operations?"
Hon. Joe Plnaohik, Cvwledoner, page 3
Article 6208, Veruon*&iAnnotated Clril~.St&~t-
.
utes, read8 as follows:,~
"The term *Zmploywnt Agcint*'w*s 'erery
person, firm, partnership'or68aooiat$+ .ofper-
son8 engaged In the ~busiaeaeof assisting emphyeqs
to mmu-8 employees,and persaas to s*otu+saplo~-
melit,or of 001leating htormatloA regmdla&
emplorera seeking emp+oyee#.a& persum 8eNdag
employment. The tear %mplo~nt Office'mea&i
every plaae or office where the bualneea of giving
intelligenceor inforntetfon where amplop& or
help may be obtained or where the business of @II
employmentagent la carrieA on. The term 'ixQnml8-
eionertwan8 the Co~~~~isrionar
ai labor Stetl6tioe
of the State OS Texas. The term *Beputy ar'Iaspeot-
or* means any person who shall be duly authorizeA
by the Commiesloaerto aat in that oapaoitr'.*
to the 8tatutorydOriniti0nabm 6et
AcoorU.Ix+g
out an *EmploymentAgent* fs a parson,firr, partwrrhip
or associationof persona engageA ia tha busi~esa of
bringing about JIBemployer-employeeor water-wrvent re-
latfonehip between two perscms or s.firm, oorporation,
partnership,eta,, a8 employer or master and a person ar
employee or am-rant.
We quote from Word dcPhrases),mnent XAltion
9, page 529, a8 rvihtst
*Where ovntract is let.for nosk to be done
by another In wiiiohoontraotaereserves no control
aver means of its acooinpllshment,but merely as to
result, employment is indepsmdent one establishing
relation of luontxaotee*an8 *contra&or*, and not
of *master* and *servant.*
-Fe again quote from Words k Phraoea, toluma 9,
page 2992. as followst
.I.
Hon. Joe Xhnsohik, Comnisaioner,pa$e 4
'i
l
Webster define8 employee* aa one who i8
employed; a *oontraotor* as one who oontraotai
to do anything. Those ~efinitlonsare very bn-
eral, but they obrloucly suggeet, applied speo-
ifioally, that an tunployelr.one who is em,ploye&
to perform personal asniees and a oontraotor
one who engage8 to dd a parthlar thlq~ #a
idea or personal rervfoe not being a zmoes8ary
element in the bargain. In the BtaxkdardMe
tionary it is said that an employe ia a per-
who is~emploped;one who work8 ior wage8 or I
salary, or who ia engaged In the asnloe of an-
other; a oontractor.isone who exeoutes pla&
under a oontraot;a muboontraotar i8 6htewhe’,,’
oontractewiththe prfnofpal ochntraotor ti do .
work embraoed in the latter*8contraot~that.ir,
obviously, one who oaatxaotil to ezeoute sown itb
tegral part of the work oorered by the SO- of
t&e prfnoipl oontraot. By the 0ediin-y I3iotiiop-
a~weereinfom8dtbatauamployeisone*bo
work8 for an employer a pormn -workingfor .a.
salary or wa*S: Utmnilr olortr, workmen, I- I
ere, eta. $ that a oomtraotoris QII~who aorit+etQ
to fUrni8h BupplieI#, or to OoMtrPUt. WiZk 0~'
emeot built or perfoa 8ltywerk 011aonfao, I
at a 0ertaiD price or rates that a wbo0ntmMtot
is one who takes a part or the whole of t&w01 .
eonl'the prinaiPaloontraatm. quo~lttill~be
amen, dtht auy extended analyaia Or the fart ,(
lous lesfoal definitiona, that the 8Qnfffoaat /
sl.cumntin the,relation of an employs au& hia
employer, npealrically aonsidered,is permo!a&
serrloe, while the signiri0m element In 6uoh
relation between a oontraotorend his prinoipal
is the worki aB an entirety, to be peCfoti1y .
him& ?a-2 v, St. Croix Power Co., 93 H.W. 850,
834, 117 wf8.'?6.
who hare entire acmtrol .af
~~Contxa:aetors
the work to.be done, and were in no way subjeot
to the oontrol or direotlon of the person with
whom they aontmoted, while perfoIPiagt&e Wark .
they oontreotsdto do for them, are not laboMx8,
in the MMe that they were earnin
pe~eon 8tw ths work to be don6 by fih2-*&~~
atitate~?laborersor employera,who can be eald'to
be earning wages of an employer, they must b8
Joe KtinsohIk,Cormfssioner,Page 5
HCSZI.
holding such e relation to the eqloyer that he
can Bi??c?ct and control then in aad about the work
whioh they are &ofnh;fog him. . . .*
The term w-anployee8aindLeatespereoae hired to
work ror wages
. as the
- ..employer may
. direot,
- and does not
embraoe t;?ecase or tne employmentor a person oarr9lng
on a distinct trade or calling to perform servious tide-
pendent of the control of the employer. CAHPFIIEISV. LAB&
0. S. 25 Fed. 128, 131.
We are oonstrainedto the opinion that the stat-
utes involvedwere enacted to regulate the tJrpioaland well-
reoognized saploylaentagent's bnslness which roti not in-
clude that of the booking oolnpanyas desorlbed & year
letter.
The e%a910yAmntagency law oontmaplatasonly the
regulation of the neg,otiationsbetween the employer and em-
ployee, md does sot relate to negotiationsoi independent
oontraotualnature. The rule of master and aermnt, whether
';hadetails of the work are coatrolLed b9 the independent
ccmtraotoror by 'theperson hiring the work deae, is the
orltarfon'fnpeakingthe dlst,inotien betwsn an eaplloyer-
e3aployee,and an Independentoontraaterrelatltmilhlp.
Under the facts stated in 9our inquiry,wa tkink
it is alear that the contraatualrefataon between the per-
son for ophoti
the orohestra furnishedamsi.aand the 1eaUer
oi the orohestra is not one of emploger an& ~emplo9eeor
master and servant, but that of an independentoontraotor-
oontraatorand oontra~otes.
In view of the Poregoing, you tie reapeottull9
advised that It is the opinion of this department that
the above desoribad adtivitlse do not ocntt,
aitkfn the pro-
visioas oi the uaemplo9mmt aganoy law and neither *A* or
=B* would be requtiad to obtain an eiuplo9mentalgenoylioenee
before oarrying an such opsratiom,
- -.
95
Hon. Joe Eunsahik, Commissioner,page 6
Trusting that the foregoing fully answers your
inquiry, we are
Yours very truly
Willlams
A88i8taUf
A?TORNEY GENERAL OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130890/ | November 24, 1986
Honorable Richard G. Moral~zs.Sr. opinion No. m-579
Webb County Attorney
1104 Victoria Re: Time at which a newly elected
Laredo, Texas 78040 justice of the peace takes office,
when he is elected to a position
previously filled by appointment
Dear Mr. Morales:
You inquire about the adatewhen the person elected justice of the
peace in -theNovember general election should take office. You inform
us that the incumbent was appointed to fill a vacancy in the office
and ask whether the newly elected individual will take office on
January 1, after he is swrn in, or immediately after he is declared
the winner in the November general election.
Article 2355. V.T.C.S., provides that the commissioners court
shall have power to fill vacancies in the office of justice of the
peace, "and the person chosen shall hold office until the next general
election." V.T.CrS. art. 2355; see also Tex. Const. art. V, 828.
Article 17, V.T.C.S., states more specifically when officers elected
at a general election take office:
The regular terms of office for all elective
state, district, county and precinct offices of the
State of Texas, excepting the offices of Governor,
Lieutenant Gowmor. State Senator, and State
Representative, shall begin on the first day of
January next following the general election at
which said respective offices are regularly filled,
and those who we elected to regular terms shall
qualify and ass,%e the duties of their respective
offices on the f?rst day of January following their
canvass of the results of the election at which
p. 2590
Eonorable Richard G. Morales, Sr. - Page 2 (JM-579)
they were elected, and they shall take office as
soon thereafter as;possible. (Emphasis added).
V.T.C.S. art. 17. Thus, a person elected at the general election to
fill an unexpired term takes office as soon as he can qualify after
the election, while a peruon who is elected to a new term beginning
January 1 may not qualify or assume the. duties of office until that
date. -See Attorney General Opinions MW-521 (1982); M-742 (1970).
The candidate elected to a new term has no right to serve any
portion of the term which ends December 31. Ex parte Sanders, 215
S.W.Zd 325 (Tex. 1948); Anierson v. Parsley, 37 S.W.Zd 358 (Tex. Civ.
APP. - Fort Worth 1931, ;fcc ref'd). The appointed incumbent will in
such case continue td hold the office from the general election until
the newly elected justice of the peace qualifies on or after January
1. His continuance in offLce is required by article XVI, section 17,
of the Texas Constitution, the "holdover" provision, which states that
[a]11 officers w:.t.hin
this State shall continue to
perform the dutjes of their offices until their
successors shall tieduly qualified.
Tex . Const. art. XVI, 917.
Attorney General Opinion M-742 (1970) explains the apparent in-
consistency between article 17, V.T.C.S., and the constitutional and
statutory provisions which sipecifythat persons appointed to a vacancy
shall serve until the next general election:
The primary Ilurpose and intent of those pro-
visions of sect:.on 28 of article V and article
2355, which specify that persons appointed to
vacancies in the offices named therein shall serve
until the next general election, was not to vacate
the office upon that date but rather to establish
the policy that the people shall fill the office
by election at the earliest opportunity.
Attorney General Opinion M-.742at 4. (1970).
The answer to your specific question depends on whether the
present term of office ends on December 31 following the November
general election or cont:.nues into the next year. See generally
Attorney General Opinion Jlt-558(1986). If the present term of office
ends on December 31, the newly elected justice of the peace should
qualify and assume the duties of his office on January 1 or as soon
thereafter as possible. IE the present term of office continues into
the next year, then the person who wins the general election has been
elected to the unexpired term of the office, and he may qualify and
p. 2591
Honorable Richard G. Moralt,s,Sr. - Page 3 (JM-579)
assume the duties of office "immediately upon receiving a certificate
of election. . . .II V.T.C.S. art. 17. See Elec. Code §§67.001-67.006
(canvassing of local election returns);- 967.016 (issuing certificate
of election).
SUMMARY
Article 17. T'.T.C.S., provides that a person
elected to the ,mexpired term of the office of
justice of the ptzacemay qualify insnediatelyupon
receiving the cer,tificateof office and shall take
office as soon thereafter as possible. A person
elected to a new term of justice of the peace
shall qualify an'1 assume the duties of office on
the January 1 following his election or as soon
thereafter as por,sible.
JIM MATTOX
Attorney General of Texas
JACK BIGHTOWER
First Assist&t Attorney Gt,neral
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Conrmittec
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2592 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144187/ | 2
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
f
f | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130938/ | The Attorney General of Texas
JIM MAlTOX Angust 7. 1986
Attorney General
Supreme Court Building Mr. William N. Kirlsy Opinion No. JM-529
P. 0. BOX 12548 Commissioner of Eduxition
Austin. TX. 78711.254S
512l4752501
Texas Education Agexy Be: Applicability of the Texas
Telex 9101874~1387 1701 N. Congress Avenue Proprietary School Act to certain
Telecopier 512l4750268 Austin, Texas 787DL enterprises
Dear Mr. Kirby:
714 Jackson. Suite 700
Dallas. TX. 7520245OS
21417428944 You have asked,several questions about the interpretation of the
Texas Proprietary School Act. Educ. Code §§32.01-32.81. We will
answer only the specific questions asked. We note that some
4824 Alberta Ave., Suite
160 provisions of the z.ctmay raise constitutional questions of vagueness
El Paso, TX. 799052793
9151533-3484
or improper delegation. We do not address those questions.
Under the ProlbrietarySchool Act your agency is responsible for
WGl Texas. Suite 700 issuing certificatxs of approval to proprietary schools. Several of
p90n. TX. 77002.3111 your questions have to do with the definition of “proprietary school.”
I .#223-5888
In particular you are concerned about the status of~organizations that
teach courses for avocational purposes.
6W Broadway, Suile 312
Lubbock, TX. 79401.3479 The act defines “proprietary school” as follows:
SoSn47.5238
‘Proprietary School,’ referred to as ‘school,’
4309 N. Tenth. Suite 8 means ar.y business enterprise operated for a
McAllen. TX. 78501-1685 profit, c’ron a nonprofit basis, which maintains a
51216824547 place of business within the State of Texas, or
solicits business within the State of Texas, and
200 MaIn Plaza, suite 400 which is not specifically exempted by the pro-
San Antonio. TX. 782052797 visions of this Chapter and;
51212254191
(A) which offers or maintains a course or
courses of:instruction or study; or
An Equal Opportunity/
Affirmative Action Employer
(B) ill:which place of business such a course
or course:3 of instruction or study is available
through classroom instruction or by correspon-
dence, or both, to a person or persons for the
purpose s,iI
training or preparing the person for a
field of endeavor in a business, trade, technical,
or industrial occupation, or for avocational or
p. 2434
Mr. William N. Kirby - Page 2 (at-529)
personal improv~nent, except as hereinafter
excluded. (Emphmis added).
Educ. Code 532.11(l). Thm. the definition of "proprietary school"
expressly includes an organization that teaches courses for the
purpose of "avocational 01' personal improvement." However, the act
specifically exempts from the definition of "proprietary school"
a school or training program which offers
instruction of pllrelyavocational or recreational
subjects as detemined by the administrator. . . .
Educ. Code 932.12(a)(3)..
Although there are slight differences in wording, the exemption
in section 32.12(a)(3) appears to negate the specific inclusion ia the
definition of "proprietary school" of courses taught for purposes of
"avocational or personal improvement." Statutes apparently in
conflict should be given the most reasonable construction that can be
placed on them consistent with the intent of the legislature. State
v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App. - Rouston 1963) aff'd,
376 S.W.2d 341 (Tex. 1964)
A connnittee report to the Sixty-second Legislature and a law ?
review artic~le both show that the concerns that gave rise to the
Proprietary School Act were focused on regulation of vocational
education in Texas. The Rqort of the Senate Committee on Vocational-
Technical Education to the 62nd Leg., January 1971; Conment, The
Proprietary Vocational School: The Need for Regulation in Texas,-
Tex. L. Rev. 69 (1970). -Also, the act exempts schools that teach
subjects that are "purely" avocational or recreational. Subjects are
not inherently avocational or recreational. Rather, a subject such as
cooking may be vocational or avocational depending on a particular
person's relationship to the subject. We assume that the legislature
intended to exempt schools that teach subjects that are avocational or
recreational for most people and that do not claim to be offering
vocational training. Therefore, we conclude that the most reasonable
reading of section 32.11(l) together with section 32.12(a)(3) is that
a school that teaches courses primarily for vocational training is a
proprietary school, even if the purpose of some of its courses is
merely "avocational or personal improvement." On the other hand, if a
school teaches subject laltter that is primarily considered to be
recreational or avocational and if it does not hold itself out to be
offering vocational training, then it is exempted from the provisions
of the Proprietary SchcNol Act under section 32.12(a)(3). The
legislature left it to the discretion of the commissioner of education
to determine which subjects are primarily avocational or recreational.
Educ. Code 132.12(a)(3).
p. 2435
Mr. William N. Kirby - Page 3 (JM-529)
The preceding discussion of the status of "avocational" courses
guides us in our responses to two of your questions. The first of
those questions is:
How does the term 'purely avocational' differ from
the term 'recreational?
We do not think that the act requires you to distinguish between
courses that are avocaticnal and courses that are recreational.
Rather, as we explained above, we think that the entire phrase "purely
avocational or recreational." should be read to exempt from the
provisions of the Proprietary School Act organizations that do not
claim to be offering vocatj.onaltraining and that teach subjects that
are generally considered to ‘be for non-vocational purposes.
Your second question is:
How would courses which you deem to be purely
avocational difflat from a standard business or
professional course?
The legislature left it to the discretion of the commissioner of
education to determine wha.t types of courses would be exempt under
section 32.12(a)(3). Since many subjects can be taught for either
vocational or avocational puxposes, we think that the act permits the
commissioner to examine thszclaims or advertising of an organization
to determine whether a particular subject is offered for vocational or
avocational purposes.
Your third question is:
Does the Texas Proprietary School Act apply to
private enterprises (regardless of whether they
are profit or nonprofit) which offer courses of
instruction in the use of products they market
when the products in question have applications
which are not exclusively recreational or purely
avocational?
You explain that you are particularly concerned about courses
taught by businesses that sell computers. You note in your letter
that there is no exemption in the act for businesses that instruct
buyers in the use of produc:t:s.We do think, however, that it would be
within the discretion of the commissioner to conclude that certain
types of assistance in he:.ping customers learn how to use a product
are not "courses of instruction or study" for purposes of the
Proprietary School Act and therefore not within the act.
p. 2436
’
Mr. William N. Kirby - Page 4 (x4-529)
Also, even if a computer company does offer “courses of
instruction or study,” it 4s the nature of the courses offered and not
the nature of the product that determines whether courses are exempt
under section 32.12(a)(3). Some courses offered by such businesses
deal with uses for a computer that are primarily for personal use,
rather than business use, Other courses are probably taught for
primarily business or vocational purposes. It is within the
discretion of the commissj.onerto determine which courses fall into
which category.
Your fourth question 1.6:
Pursuant to sect:;on32.12 (courses sponsored by an
employer) at whic!n point must the employer absorb
any tuition cost:;for this exception to apply? If
the employer reinburses the student for all tuition
charges upon suc.cessful completion of the course
(as an incentive! to the student to complete the
same) does the exc,eptionapply?
Section 32.12(a)(4) exempts from the provisions of the
Proprietary School Act
a course or courses of instruction or study
sponsored by an employer for the training and
preparation of 11:sown employees, and for which no
tuition fee is clzzged to the student. . . .
You ask whether the employer must absorb any tuition costs in order
for this exemption to app1.y. The exemption requires that no fee be
charged to the student and that the course be “sponsored by” the
employer. A “sponsor” has been defined as “a person or an organiza-
tion that pays for or pl~~~:rand carries out a project or activity.”
Webster’s Ninth New Collegiate Dictionary (1984). Conceivably, then,
an employer could “sponsor” a course by organizing it even if it were
paid for by a third party. Whether a particular course is “sponsored
by” an employer is a question of fact that depends on the
circumstances of a particu:iarcase.
You also ask whether ,ehe exemption for courses sponsored by an
employer is applicable if t’hestudents initially pay a tuition charge
and are subsequently reinbursed by the employer. We do not think
that the requirement of section 32.12(a)(4) that no fee be charged to
students necessarily forecloses such an arrangement. Your question
indicates, however, that :you contemplate a situation in which a
student would not be reimbursed if he did not successfully complete
the course. We do not think that the section 32.12(a)(4) exemption
would apply under those cpccumstances.
,
p. 2437
Mr. William N. Kirby - Page 5~ (JM-529)
Your fifth question is,:
Must each center (or store) where training is
offered be consida!reda separate school?
A "proprietary school" is a "business enterprise . . . which
maintains a place of business . . . or solicits business [in Texas]."
Educ. Code 132.11(l). The word "enterprise" suggests an activity,
%I! William Buchanan Foundation v. Shepperd.
project, or undertaking. ---
283 S.W.2d 325 (Tex. Civ. QI. - Texarkana 1955, no writ). Nothing in
the term "business enterpr:Lse"limits the meaning to one place. We
think that the phrase "main~tainsa place of business . . . or solicits
business" in section 32.11(l) merely sets a minimum on what activity
an enterprise must be engagrd in to come within the Proprietary School
Act. It does not mean &at each separate place of business is a
separate enterprise. A single proprietary school may maintain more
than one place of business. Of course, each separate place of
business maintained by a proprietary school must comply with the
requirements of the Proprietary School Act. See Educ. Code 132.33.
.What constitutes a "business enterprise" will depend on the facts of a
particular case. See ht.torney General Opinion H-313 (1974)
(discussion of term "busines:;entity").
Your sixth question is:
Must sales clerka: in computer stores who take
customer orders for one or more courses be
considered repre::entativesas defined in section
32.11(4), thus rcqliring them to obtain represen-
tative permits?
All representatives employed by a proprietary school must
register with the commissioner of education. Educ. Code 432.37.
Section 32.11(4) defines "representative" as
a person employed by the school as defined herein,
whether the school is located within or without
the State of Texas, to act as an agent, solicitor,
broker, or independent contractor to directly
procure students or enrollees for the school by
solicitation within or without this State at any
place.
That definition contemplates active recruiting of students. Therefore,
the fact that someone acce])tsan application or enrollment form for a
course is not by itself encugh to make that person a "representative."
p. 2438
Mr. William N. Kirby - Pago 6 (JM-529)
SUMMARY
Schools that teach courses in subjects that are
generally considered to be for recreational or
avocational purpmes and that do not claim to be
offering vocatimal training are exempt from the
provisions of the Proprietary School Act. Educ.
Code 5532.11-32.31. It is within the discretion
of the commissioner of education to determine
whether certain Itypes of assistance offered to
help customers learn to use a product are "courses
of instruction or study" for purposes of the
Proprietary School Act.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
WARY KELLER
Executive Assistant Attormy General
RICK GILPIN
Chairman, Opinion Comeittec~
Prepared by Sarah Woelk
Assistant Attorney General
p. 2439 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130944/ | The Attorrwy General of Texas
July 17, 1986
JIM MATTOX
Attorney General
Supreme Court Building Mr. Llas B. "Bubba" Siteen Opinion No. JM-523
P. 0. BOX 12546
Austin, TX. 7671% 2546
Executive Director
512,4752501 State Purchasing and General Re: Whether the city of Austin
Telex 9101674-1367 Services Commiss:.on may assess a capital recovery
Telecopier 512/475-0268 P. 0. Box 13047, Cal'itolStation fee on state construction pro-
Austin, Texas 787:.1. jects
714 Jackson, Suite 700
Dallas. TX. 752024506 Dear Mr. Steen:
214/74&3344
You ask whethlnr a home rule city may legally assess capital
recovery fees against state construction projects. The city requires
4624 AlbeRa Ave., Suite 164
El Paso. TX. 799052793
that the owner of any new construction must pay a capital recovery fee
9151533-3464 at the time a water t:apis purchased. The amount of the fee is deter-
mined by the size and type of water meter required for the project.
The fees are intentledto include both the actual costs of providing
pl Texas. Suite 700 new service to a specific site and the estimated proportional cost of
ston, TX. 77002~3111
I ,Y223-5866
building and maintaining the general water infrastructure to meet the
collective demands o:Eall new development. You assert that the city
may not assess these fees against state construction projects.
604 Broadway, Suite 312
Lubbock. TX. 79401.3479 The question ,p:cesentedis one raised but left unanswered in
80617476236
Maverick County Watlz:Control and Improvement District No. 1 v. State,
456 S.W.2d 204 (Tel:.Civ. App. - San Antonio 1970. writ ref'd) and
4309 N. Tenth, Suite S Attorney General Opinion l&-551 (1982). A central question in
McAllen, TX. 76601-1665 Maverick involved the nature of the charges -- whether they constl-
512,662-4547
tuted a tax or a special assessment. Special assessments differ from
general taxes insof,sras special assessments are levied only on land,
200 Main Plaza, Suite 400 the amount based on the benefits conferred to the land; a special
San Antonio, TX. 762052797 assessment is uniqw as to time and locality. See generally 456 S.W.2d
5121225-4191 204, note 4 (cases cited therein); Londerholm V. City of Topeka, 443
P.2d 240 (Kan. 196,s). The Maverick court held that state statutes
An Equal Opportunity/
clearly exempt stat,e property from taxation by a water control and
Affirmative Action Employer improvement district so long as the state holds full legal title to
the property. 456 S.W.2d at 206 (relying on article 7150, V.T.C.S.,
now replaced by Tex. Prop. Code 111.11); see also Tex. Const. art. XI,
59; City of Beaumo:z:v. Fertitta, 415 S.W.2d 902 (Tex. 1967). The
court acknowledged 1:hatthe legal ramifications of special assessments
differ from those of a tax, noting Wichita County Water Improvement
District No. 2 v. l:ity of Wichita Falls, 323 S.W.2d 298 (Tex. Civ.
APP
__ . - Fort Worth r359. writ ref'd n.r.e.) in which the court held
that a city was 1:table for special assessments levied by a water
p. 2403
Mr. Lias B. "Bubba" Steen - Page 2 (JM-523)
district. The court in Wichita County reasoned that a special assess-
ment is not a tax withinthe meaning of constitutional and statutory
provisions exempting public property from taxation. 323 S.W.2d at
300. The Maverick court found it unnecessary to determine whether a
special assessment is a tax for those purposes because it adopted the
common law rule that a polil:icalsubdivision of the state cannot levy
a special assessment against state property without express legisla-
tive authority. 456 S.W.;:d at 206-07. Attorney General Opinion
MW-551 applied this reasoning to a home rule city and decided that a
home rule city may not legally levy a drainage fee against state-owned
property.
On the other hand, home rule cities have full authority to do
anything the legislature could authorize them to do. Lower Colorado
River Authority v. City of San Marcos, 523 S.W.2d 641, 643 (Tex.
1975). Accordingly, as a &neral rule, it is necessary to look to
legislative limitations on the power of home rule cities rather than
to specific grants of pow=::.. Id. The Maverick court dealt with a
water control and improvement district, a political subdivision which
holds only the powers granted to it expressly or by necessary implica-
tion by the constitution or statutes of this state. A home rule
city’s powers, however, are limited to the area of Its jurisdictfon.
The issue at hand has state-wide implications. Attorney General
Opinion MW-551 applied the 'zaverickcase to a home rule city but did
not address the different le:velsof power held by home rule cities and
special districts. The sources cited by the Maverick court, however,
suggest that its holding was intended to be broad. See 456 S.W.2d at
207. note 6 (cases cited therein). Levying special assessments
against the state requires authorization from the state legislature.
See & Accordingly, we conclude that the Maverick rule applies to
n political subdivisions, including home rule cities.
Nevertheless, the impact of Maverick is limited. The court
stated:
Even if it be ,assumed that a county or munici-
pality is subject to special assessments levied by
another political subdivision of the State, it does
not necessarily follow that a subordinate political
subdivision can impose an involuntary monetary
obligation on the sovereign. It is generally held
that, in the absence of clear legislative authorisa-
don. a political :subdivisionof the State has no
power to levy a special assessment against State
property. [Footnote omitted]. We adopt this view
at least in a case where, as here, the sovereign is
neither making no; contemplating any use of the
allegedly benefittid land and has neither received
p. 2404
Mr. Lias B. "Bubba" Steen - 'Page3 (JM-523)
nor requested the services rendered by the assessing
agency. (Emphasis added).
456 S.W.2d at 207. Similarly, Attorney General Opinion MW-551
emphasized that it did not purport to address a situation where the
state acted in a manner that indicated a willingness to pay a fee. In
the question presented, the :stateis requesting water service from the
city.
Maverick stands for the proposition that the city cannot impose
an involuntary monetary &ligation on the state without express
legislative authorization. Accordingly, the city cannot treat state
property in the same manner as private property with regard to special
assessments for local improvements. It does not follow, however, that
the city cannot charge the state for the actual cost of extending
service which the state expressly requests. As indicated previously,
the fees in question are intended to include both the actual costs of
providing new water service to a specific site and the estimated
proportional cost of build:_ng the general infrastructure. To the
extent that the city can dc:terminethe actual costs, both general and
specific, attributable to faxtendingservice to the state, we do not
believe that Maverick prevarnts the city from requiring the state to
pay those costs as a cond::tionof extending service. The city may
not, however, assess the s1:atefor its pro-rata share of the cost of
local improvements which provide benefits that are too general to
specifically apportion to each user.
Further, we emphasize that any "exemption" for state property
from special assessments by political subdivisions is limited to
property used exclusively for public purposes. It is well-settled in
Texas that the constitutLona1 and statutory exemption of state
property from taxes applies only when the nrouerty is used exclusivelv
for public purposes,. See Satterlee V. -Gulf Coast Waste Disposal
Authority, 576 S.W.2d 77nTex. 1978); State V. Houston Lighting and
Power Co., 609 S.W.2d 263 (Tex. Civ. App. - Corpus Christi 1980. writ
ref'd7r.e.); Attorney C,eneral Opinion MW-430 (1982); -- see also
Central Appraisal District of Erath County V. Pecan Valley Facilities,
Inc., 704 S.W.2d 86 (Tex. App. - Eastland 1985. no writ). We belfeve
that the courts of this state would apply similar restrictions to the
common law "exemption" from special assessments announced in the
Maverick case. This conclusion finds support in the sources relied
upon in Maverick. For example, one such source states the general
rule as follows:
Apart from constitutional or statutory authori-
zation public property . . . used for public
purposes is not liable to special assessment for
local improvement:;..
. . . (Emphasis added).
p. 2405
Mr. Lias B. "Bubba" Steen - Page 4 (JM-523)
14 McQuillin, Municipal Corporations (3d. ed., rev. 1970) §38.73
(cited in Maverick County, 456 S.W.2d at 207, note 6).
SUMMARY
Without express constitutional or legislative
authorization, a 'home rule city may not levy
special assessmen:s; against state property which
is used solely fo,cpublic purposes. This general
rule, however, i.oes not prevent a city from
c requiring the state to pay the actual costs
attributable to extending service to the state
when the state recuests
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 2406 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130987/ | The Attorney General of Texas
April 21, 1986
JIM MATTOX
Attorney General
Supreme Court Building Honorebla Jasusa Sanchez-Vera Opinion No.JM-480
P. 0. BOX 12548 Jim Walls County Attorney
Aus,,n, TX. 78711. 2548 P. 0. Drawer 2080 Ra: Whether a vetaren's county
512/475-2501 Alice, Texas 78333 service officer may simultene-
Telex 910/874-1367
Telecopier 512i4750266
ously sarva as e city councilmen
Deer Ms. Sanchez-Vera:
714 Jackson. Suite 700
Dallas, TX. 75202-4506
You ask whethaer e veteran's county service officer may et the
214/742-a944
same tima sarva ae a city councilman. You point out that article XVI,
saction 40, of 1:ba Taxes Constitution prohibits one person from
4824 Alberta Ave., Suite 160 holding more than one civil office of emolument et the same time, end
El Paso. TX. 79905-2793 ask whether e vatcram county service officer and the city councilmen
915/533.3484 of a particular city both hold civil offices of amlment.
1 Texas, Suite 700
Prior Attornsy General Opinions have held that the veterans
,P ,ston, TX. 77002-3111 county sarvica officer occupias e civil office of emolument. Attorney
I ,3/223-5886 General Opinions '7-144 (1947); O-5675 (1943); Latter Advisory No. 61
(1973). Thase opinions state that the veterans county service officer
is a civil officm of molumaat but do not discuss his duties or
806 Broadway. Suite 312
Lubbock, TX. 79401-3479
provide any other reesons for their conclusion.
806,747-5238
Subsequent ta the issuenca of Latter Advisory No. 61 (1973), this
office daterminad that there was no distinction between "civil office"
4309 N. Tenth, Suite B
and "public office." Attorney General Opinion MU-415 (1981) concludad
McAllen. TX. 78501-1885
512/682-4547
that the defint:ion of "public office" articulated in Aldina
Indapandant Schoo:,District v. Standlay, 280 S.W.2d 578 (Tax..1955)
also applies to the term "civil officer" es it appears in article XVI,
200 Main Plaza, Suite 400 section 40 of the Taxes Constitution. Thus,
San Antonio. TX. 78205-2797
512/2254191
the datarmining factor which distinguishes e
public xfficer from an amployee is whether any
An Equal OppOrtUnitYI sovereign function of the govarnmant is conferred
Affirmative Actlon Employer upon the individual to be exercised by him for the
benefit of the public largely independent of the
control of others.
AldLna Independent-School Dietr&mt~~y.Stendlay: supra et 583 (quoting
Dunbar v. Brezoria County, 224 S.W.2d 738. 740 (Tex. Civ. App. -
Galveston 1949, WI!Tt ref'd) (amphesis deleted). Sac Green v. Stawert,
516 S.W.2d 133 (Tm. 1974). . This is the definition "a must emlv to
determine whether the vatarens county service officer is a'civil
officer within article XVI, section 40, of the Taxes Constitution.
p. 2197
MS. Jesuse Sanchez-Vera - Pega 2 (JM-480)
Article 5787, V.T.C.S., creates the office of veterens county
service officer. The commis:xtoners court may maintain end operate
such an office when It determdnrs
that such en office is a public necessity in order
that those residents of a county who have served
in the ermad forcc!s may promptly properly end
rightfully obtain t'lebenefits to which they ere
entitled. . . .
V.T.C.S. ert. 5787. 51(e). The commissloners court appoints the
vatarens county service offj.cer end any assistant vetarens county
service officers es ere necessary end pays their salary end expenses
from the general funds of tha county. The veterans county service
officers end the assistants f!ervefor a two year term unless sooner
removed for ceuse by the cclurmissionerscourt. The duties of the
veterans county service offictz end assistants
shell be to aid all residents of the county end/or
counties providing fclrsuch officers who served in
the Military, Navel, or other Armed Forces or
Nurses Corps of the United States during any wer
or peacetime lnlis~xaant, end/or veterans end/or
orphans end/or depandants in preparing. submitting
and presenting any claim against the United Stetas ?
or any state, for compensation. hospitalization,
insurance or other itam or benefits to which they
mey ba entitled under the existing laws of the
United States, or of any steta, or such laws es
may haraefter be enacted, pertinent thereto. It
shell also be thel.1:duty to defeat all unjust
claims that may come to their attention.
V.T.C.S. art. 5787, 51(c). No fees may be charged of applicants.
Veterans county service officc!rsend assistant officers are
given official entry into records of the
alaamosynary end penal institutions of the State
of Taxes . . . for the purpose of determining the
status of any parson confined therein in regard to
any benefit to which such person mey be entitled.
Id. $1(d). Contiguous counr:j:esmey agree to "jointly employ and
Gpenseta a Veterans County Service Officer. . . .II -Id. §l(a).
Your request letter dltscribas the functions of the county
veterans service officer as fo:llows:
[Ha] acts es e 1:Lesonofficer between veterans,
their widows and/or dependents end student
veterans end the F'ilitery, Social Security, the
Veterans Association or Educational Institutions.
p. 2198
Ms. Jesuse Sanchez-Vera - Page 3 (m-480)
He helps prepare end handle the paperwork between
the individual :md the agency. BeI mekas no
decisions or da:terminetions of the veteran's
eligibility. All decisions end eligibility
detarmluetions ece meda by the Military, Social
Security, end Veteran’s Association, or the
Educational Instj,tution.
The vatarens county s,arviceofficer assists others to apply to
various governmantal agencies for vaterens benefits, end ha has no
power to grant or deny eny application for benefits. Although
veterans county service officers have a duty "to defeat all unjust
claims that mey come to their attention," this provision dots not
authorize tham to deny cla:ims;that euthority rests with the state or
federal agency which edmiulstars the particular benefit program. The
veterans county service xEficar ten assist in defeating "unjust
claims" by refusing to hair prepare such claims.
In our opinion, the vatarens county service officer is en
"officer" In neme only. Be does not exercise any sovereign function
of government. A veteran hss legal authority to submit his claim to
the appropriate state or fe:daralagency without involving the vetarens
county service officer. The latter individual merely provides those
ministerial services nacassery to assist the veteran in applying for
benefits.
Although article 578" creates "en office" end identifies the
occupant es the "Veterans County Service Officer" it dots not grant
him the powers of a public officer. The veterans county service
officer is not s civil of::llcar of amolumant, but a county employee.
He is not barred by article XVI, section 40 from serving es e
compensated city councilmarlwhile he also holds employment es a county
vatarens sarvica officer. Attorney General Opinions O-5675 (1943) and
V-144 (1947), end Letter Advisory No. 61 (1973) era overruled to the
extent inconsistent with this opinion.
SUMMARY
The veterans county service officer whose
position is estel~lishadby article 5787, V.T.C.S.,
dots not hold a public office. Ha is e county
employee end Is not barred by article XVI, section
40 of the Texas Constitution from serving es a
compensated city councilman.
J ti
Very truly you
AN
> I M MATTOX
Attorney General of Taxes
p. 2199
Ms. Jesuse Sanchez-Vera - Pa:%=4 (JM-480) .
JACK HIGHTOWRR
First Assistnnt Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairmen, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2200 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130995/ | The Attorney General of Texas
April 9, 1986
JIM ilATTOX
Attorney Qeneral
~~9nwCo~Sulldl~ Rowreblo George Pierce opinloo No. m-472
cheirmen
Ai&. TX. 78711. 2545
Urban Affeirs Comlttee RO: Effect of failure to pay
512l4752501
Telex 9101074.1557 Texas House of Rep~rrrsentstives a processing fee authorized by
T.l.coplsr 5121*7M255 P. 0. Box 2910 article 9022, V.T.C.S., for
Awtin, Taxes 78’169 dishonored checks
714 JaCkMn. Suile 700
OallaI. TX. 75202-4509 Dear Rapresentativs Pierce:
214i?426ou
You esk sevccol questions relating to a processing fee by the
holder of s dishmored check. Article ,9022. V.T.C.S., which is a
4524 AIbwt4 Av*., SUN4 150 civil stetute enactad by the legisleturc in 1983, provides that
El Paso, TX. 799052792
QlW3454
(e) The holder of s check or its assignee,
sgmt . representative. or w other person
cr-rexu. suite 700 retained by the holder to seek collection of the
I ~ton. l7.. 77002-3111 face vs!.ue of the dishonored check on return of
7xX2235559 the check. to the holder following its dishonor by
a peyor m.sy chsrge the drawer or endorser a
905 Broadway, Suite 312 ressona~le processing fee, which shall not exceed
Lubaock lx. 79401-3479 $15.
595n47.5225
(b) Nothing herein shell be constmed as
4309 N. Tenth. Suite 8 affecting, sny right or remedy to which the holder
YcAllm. TX. 7S501.1955 of l check mey be entitled under any rule,
512s524547 regulst~.cm. written contract, judicial decision,
or other statute.
200 MaIn Plaza. Suite 400
Ssn Antonlo. TX. 752952797 You ask whether a persoo would be innocent of e theft by check
512l225-4191 cherge if the person offered the holder of a dishonored check a cash
payment in the amount of the check but refused to pay the processing
fee authorized b:r erticle 9022. An offer to pay the amount of a
An Eqwl Opportunllyl
Attlmutive Action Employer
dishonored check does not necessarily preclude e conviction of theft
or of Issuance of a bed check under the Penal Code. See Penal Code
131.03 (theft); jI31.04 (theft of service); 132.41 (is~nce of bad
check. which mey be e lesser offenee of theft). Peilure to pay the
amnunt of the ckeck may give rice to the l vldentlary presumptions
establiehed by Thea Penal Code. It is our opinion. however, that
refusal to pay a processing fee is not en element of the offenses of
theft or lssusncc of s bad check and neither does such refusal trigger
the evidentiary presumptions.
p. 2158
Bonoreble George Pierco - l’ego 2 .(JX-472)
The proceasing foe authorized by article 9022 is e civil natter
between the iaauer end the holder of l dishonored check. Article 9022
was lnected to reaolve uncllrteinty la to the velidlty of feee iopoaed
for proceaeing dishonored checke, which were conridered pert o f l
contract between the issuer end the holder. See Bill Anelyaie to S.B.
lo. 921, prepered for the lgouro Cowittu ~Buainere end Cowerce.
filed in Bill File to H.B. No. 921, Legirletive Reference Library. We
do not bolievr that such 41procosaing fee becones pert of the mount
of the check. Hence, we ctmlcludc thet failure to pey a proceesing fee
authorized by erticle 9022 is not the feilure to pey the holder within
10 deya of receipt of nol:!lce thet is requkod for the l vldentiery
prealmptiona established bg section 31.06(e) and aectlon 32.41(b) of
the Penal Cod..
Receipt of property endi proof of its velue sre necessary elements
In the offense of theft wder articles 31.03 and 31.04 of the Penal
Code but ere not required for proof of the offense of issuance of e
bed check under section 32,4,1 of the Penal Code. Section 31.b6 of the
Penel Code, entitled “Preaualptlon for Theft by Check,” does not create
e seperate, epeciflc offen:le, end l person la not prosecuted for theft
by check under section 31.136. When the defendant obtaine property by
issuing e check without sufficient funds, section 31.06 provides en
evidentiery presumption of intent to deprive the ovner of property
which is ancillary to the (;amerel theft atetutea. See Christiansen 0.
State, 575 S.U.2d 42, 45 (l:aa. Criol. App. 1979); Suzie v. State, 631
s.u.ld 569, 571 (Tax. App, - El Psso 1982. no writ). Section 31.06
provides that if e person abteins property or services by issuing or
passing e check when the issuer did not heve sufficient funds in the
benk for payment in full ot the check, the person’s intent to deprive
the owner ,of property under section 31.03 or to ovoid payment for
remices under section 31.04, lo presumed if
(1) he bed no eccount with the benk or other
drawee et the time he issued the check or order;
or
(2) psyuent wea refused by the bsnk or other
drewee for leek of funds or insufficient funds, on
prea.entstion wit!rln 30 daye efter issue, end the
issuer failed tcl pey the holder in full within
10 daye efter rt~:eivtng notice of that refusal.
(E&eels edded) a_
A similar evidentiery presumption of knovledge of insufficient
funde ia provided by eectiun 32.41 of the Penel Code for the offense
of ieauing or peasing e bad check. Under section 32.41, e peraon
commits en offenee if he issues or passes e check for the payment of
money knowing thet the issuer does not heve sufficient funds on
p. 2159
Ronoreble George Pierce - Pepa 3 (Jn-472)
dapoelt with the benk for thr psyment in full of the check. Subaec.
(a). Subrection (b) states t:het
Thie section does wt prevent the proeecutlon
fr o lm
atebllahi.ng the required knowledge by direct
evidence; however, for purposes of thie l ec tio n,
th eissuer’s kuowladge of Insufficient fundo is
preeueed (except Lmt the case of e poet&ted check
or order) if:
(1) he had no eccount with the bsnk or
other drawee st the time he issued the check or
order; or
(2) psyment wss refused by the benk or
other drswee for lsck of funds or insufficient
funds on preseutstion within 30 days after
issue and the issuer feiled to pay the holder
in full within-10 deya efter receiving notice
of that refusal, (Emphssia added).
’ Presentment, dishonor, notice, and subsequent failure to pay are
necessery to support both of those presumptions. See Sulecie v.
e, 631 S.W.Zd et 572. It is our opinion that z evldentlery
presumptions of an lsaencia:l llemant of the offenses of theft snd
issuance of a bsd check epply where the Issuer fsila to pay the holder
the full smount of the check efter dishonor end notice end that
refuael to psy e processing fee does not sffect those presumptions.
It should be noted, however, that regardless of the existence of such
presumptions, the prosecution may establish the elements of the
offense by direct evidence.
In addition to the avldentfary praaumption of the Issuer’s
knowledge of Insufficient funda, section 32.41 of the Pens1 Code, es
-ded by the Sixty-eighth Legislature, espreaaly euthoriaes
restitution of l bsd check thst is issued or passed by l person who
knows thet sufficient funds era not on deposit. Subsection (8) states
that
[e] person cbargad tith sn offense under this
section mey make restitution for the bsd checke.
Restitution shall be made through the prosecutor’e
office if eollect:ton and processing were initiated
through thet off fee. In other ceeea reetitution
may, with the approve1 of the court in which the
offenee is filed ,, be mede through the court, by
certified checks, cashiers checks. or money order
only, psysble to t’he person that received the bsd
checks.
p. 2160
Bowreble George Pierce - Pege 4 (JU-472)
For certeln purpoees, reetitution conetitutee tbet whtch io
or&red by the court. See C,odeCrir. Proc. lrt. 42.03, SS(b)(4) (work
releese programs); l rt.J.12, 18(c) (probetion revoution); lrt.
42.12, 115(g)(l) (conditiotm of parole). The provisions of aubeection
(e) neith e r nor l
define pmify the effect of “restitution.’ One of
the fundamtal rules of ltatutory construction la the rule thet worda
in comon use, when contained in a etstute, will be read eccordlng to
their neturel, ordinaq, and populer meaning, unless l contrery
intention is cleerly sppermt from the context. See Wetlonel Life Co.
v. Ste all, 169 S.W.?d 155, 157 (Tu. 1942); Attzey Genersl Opinion
&962). A dicttmery my be consulted to eacertsin the
meaning of e word. See Board of Insurance Cowaaisaioners v. Duncan,
174 S.W.Zd 326, 328 T&-Civ. App. - Amarillo 1943, writ ref'd);
Attorney General Opinion I:-,1277 (1978). Bleck'a Law Dictionary 1180
(5th ld. 1979) defines "restitution" as the set of making good or
giving equivalent for any loss. dsmage, or injury. Since section
32.41(e) does not provide for “payment in full of the chsck" but.
Instead, provides for "re~ltitutlon," we believe that the legialgture
Intended to give the isauar the opportunity to reimburse the holder
for both the mo u nt of l dishonored check snd snp processing fee to
which the holder is entitbkd.
Weither restitution nor the absence of restitution is an izlement
of the offense of iaeuing e bad check. It la our opinion that the
legialeture intends thet I:hc effect of meking restitution for having
issued s bsd check is within the discretion of the prosecutor whose
office initiates collectlca. and processing of the check or the judge
before whom the offense is pending. See also Code Grim. Proc. art.
102.007 (fee for prosecutor's office for collecting and processing
check thet constitutes offense under Penel Code 131.03; 131.04;
132.41).
You inquire whether s collection agency may cherge the processing
fee even though the collection agency is not l party to whom the
diehonored check wee written. We conclude thet the lenguege of
lrticle 9022 expresses en jstention on the pert of the legisleture to
euthorize the charging of a resaoneble processing fee by such sn
w-7. Article 9022 atatee thet the holder of e check or its
assignee. *gent, repreaen~:trtive. or eny other person retained by the
holder to seek collection of the fete velue of a dishonored check may
charge the drawer or endorser e ressonable processfng fee. not to
exceed $15.
You llao sek whether e civil suit ie the only loge1 recourse of s
holder of l dishonored check or of s collection sgancy for the
collection of e processing fee suthoriaed by article 9022, V.T.C.S.
Prosecution of en offenaa, egainat the state under the Penal Code is
not i.nitleted by the bolder of l check or s collection sgency but is
decormined by the atate':~ prosecuting attorneys and the courts. A
p. 2161
.
Rormreble George Pierce - Page 5 (a-472)
processing fee under srtlc1.o 9022 is e civil matter, end the only
legal recourse svsilsble to the holder of the check or s collection
agency for the collection of such e processing fee is s civil suit.
SUMMARY
The charge snd payment of l processing fee for
s dishonored check under srticle 9022, V.T.C.S..
is e civil mettex. The fsilure to psy the pro-
ceasing fee is 001: an element of an offense of
theft or of Issuance of s bad check under the
Penal Code and does not affect the evidentiary
presumptions provided by sections 31.06(s) and
32.41(b) of the Pens1 Code. A civil suit is the
only legal recoume svsilsble to s holder of a
dishonored check or a collection agency for the
collection of such a processing fee.
r, JIM MATTOX
- . Attorney General of Texas
JACKBIGETOWKR
First Assistant Attorney Geuersl
MARYKELLER
Executive Assistant Attornelr General
ROBERTGRAY
Special Assiatsnt Attoruey Gtmersl
RICK GILPIR
Chairman, Opinion Committee
Prepsred by Nancy Sutton
Asaistsnt Attorney General
p. 2162 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147458/ | J-S03041-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL LEE HARTLEY, :
:
Appellant : No. 1248 WDA 2016
Appeal from the Judgment of Sentence July 27, 2016
in the Court of Common Pleas of Fayette County,
Criminal Division, at No(s): CP-26-CR-0001875-2015
BEFORE: OLSON, SOLANO, and STRASSBURGER, JJ.*
MEMORANDUM BY: STRASSBURGER, J.: FILED FEBRUARY 22, 2017
Michael Lee Hartley (Appellant) appeals from the July 27, 2016
judgment of sentence imposed following his conviction for one count each of
aggravated assault and simple assault. We affirm.
The trial court summarized the facts underlying Appellant’s conviction
as follows.
[Appellant] was convicted by a jury of aggravated assault
and simple assault as the result of an incident which occurred at
approximately 2:00 A.M. or shortly thereafter on March 21, 2015
in the parking lot of the Cloverleaf Bar in Perryopolis, Fayette
County, Pennsylvania. At that time, the victim, Mitchell Davis,
was walking to his car in the parking lot when he was hit in the
head from behind by person(s) he could not see. When the
victim turned around, he saw [Appellant] and one of
[Appellant’s] friends. [Appellant] and his friend then hit and
kicked the victim in his head and his back, even while he asked
them to stop. He was on the ground, and had to raise his arms
to try to protect his head. The victim saw [Appellant] punching
and stomping him. [Appellant] and his friend were also
stomping his head and the side of his chest. Bystanders called
*Retired Senior Judge assigned to the Superior Court.
J-S03041-17
the police and an ambulance, and the victim was eventually
transported by Life Flight helicopter to [a hospital] … , where he
underwent surgery to have plates implanted in his eyebrow,
cheekbone, and upper lip. His one eye was left lower than the
other one so the victim now must wear glasses to cope with
double vision[,] which he had never had before the incident. As
part of the facial surgery, the victim underwent a tracheotomy
because his nasal passages were so damaged, he could not be
intubated. The tracheotomy was kept in place about six weeks
following the surgery.
[A] bartender at the Cloverleaf Bar, Kari Wingrove, …
observed the victim on his hands and knees, looking as though
he was already beat up because he already had a bloody nose
and was struggling to get up. Ms. Wingrove then saw
[Appellant] walking quickly toward the victim and forcefully
kicking him in the face “like he was a football.” Upon sustaining
the kick to the head, the victim reeled backwards onto his back
and started making a gurgling sound as though he was choking
on his own blood. The punches and stomping from [Appellant]
caused the victim severe pain, and has necessitated a
prescription for Zoloft to treat anxiety and depression, which he
had not needed before the incident.
The victim’s mother, Sherry Zebley, told the jury that she
arrived at the bar shortly after receiving a telephone call at 2:58
A.M. March 21, 2015, and saw her son being carried out of the
bar on a gurney, then put into an ambulance, prior to the flight
to [the hospital]. [W]hen she arrived at the hospital, she
observed that the victim’s eyes were swollen shut, his face was
swollen, and he had a pressure tube up his nose to keep the
nose from bleeding. The victim was a patient in the hospital for
ten days. He had to undergo surgery on March 26, including the
performing of the tracheotomy, the tubing for which remained in
his throat for about six weeks. Following the surgery, the victim
remained in the [intensive care unit] for two days.
Trial Court Opinion, 9/21/2016, at 1-3 (citations to the record omitted).
Having heard this evidence, a jury convicted Appellant of the
aforementioned crimes on July 7, 2016. Appellant was sentenced on July
-2-
J-S03041-17
27, 2016 to five to ten years of incarceration. Appellant timely filed a post-
sentence motion on August 3, 2016, which was denied by order dated
August 11, 2016. Appellant timely filed a notice of appeal, and both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents this Court with five questions:
[1.] Did the Commonwealth fail to present sufficient evidence to
prove beyond a reasonable doubt that Appellant attempted to
cause serious bodily injury to [the victim]?
[2.] Did the Commonwealth fail to present sufficient evidence to
prove beyond a reasonable doubt that Appellant caused serious
bodily injury to [the victim]?
[3.] Did the trial court abuse its discretion by allowing [the
victim’s] mother to testify as to the injuries allegedly suffered by
[the victim] and the impact of the alleged assault on [the
victim’s] life?
[4.] Did the trial court abuse its discretion in admitting as
evidence a close-up photograph of [the victim] in the hospital
following the alleged assault?
[5.] Did the sentencing court err in applying the offense gravity
score assigned for aggravated assault, 18 Pa.C.S.[] § 2301, with
serious bodily injury when there was no express finding that [the
victim] suffered serious bodily injury?
Appellant’s Brief at 8.
Appellant’s first and second issues challenge the sufficiency of the
evidence to support his aggravated assault conviction. We begin with our
standard of review.
[O]ur standard of review of sufficiency claims requires that we
evaluate the record in the light most favorable to the verdict
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winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
… Significantly, we may not substitute our judgment for that of
the fact finder; thus, so long as the evidence adduced, accepted
in the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant’s crimes beyond a
reasonable doubt, the appellant’s convictions will be upheld.
Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa. Super. 2016)
(internal citations omitted). Credibility of witnesses and the weight of the
evidence produced is within the province of the trier of fact, who is free to
believe all, part or none of the evidence. Commonwealth v. Scott, 146
A.3d 775, 777 (Pa. Super. 2016).
Appellant was convicted of violating subsection 2702(a)(1) of the
crimes code, which provides in relevant part: “A person is guilty of
aggravated assault if he … attempts to cause serious bodily injury to
another, or causes such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human
life[.]” 18 Pa.C.S. § 2702(a)(1).
Arguing that he did not make any statement regarding the attack and
did not escalate it despite an opportunity to do so, Appellant asserts the
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totality of the circumstances does not establish his intent to cause serious
bodily injury. Appellant’s Brief at 13-15. Appellant alternatively argues the
Commonwealth did not prove Appellant’s single kick to the head caused
serious bodily injury because there were multiple actors and the
Commonwealth did not introduce medical testimony.1 Id. at 16. He further
asserts the victim’s injuries are similar to the injuries our Supreme Court
deemed to be not serious in Commonwealth v. Alexander, 383 A.2d 887
(Pa. 1978). Id. at 17.
The Crimes Code defines “serious bodily injury” as “[b]odily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301.
Where the victim suffers serious bodily injury, the
Commonwealth is not required to prove specific intent. The
Commonwealth need only prove [the defendant] acted recklessly
under circumstances manifesting an extreme indifference to the
value of human life. For the degree of recklessness contained in
the aggravated assault statute to occur, the offensive act must
be performed under circumstances which almost assure that
injury or death will ensue.
1
Appellant’s complaint that the Commonwealth could not prove the victim
suffered serious bodily injury without medical testimony is without merit.
Appellant stipulated to the entry of the victim’s medical records. N.T.,
7/6/16, at 4. Moreover, he did not object when the victim testified about his
need for reconstructive surgery and the insertion of a tracheotomy in his
throat due to crushed nasal cavities. Id. at 13. He also fails to cite to any
authority for his proposition that medical testimony is required to prove
serious bodily injury. Therefore, he has waived this argument. Pa.R.A.P.
302(a), 2119(a); Pa.R.E. 103(a).
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Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa.Super. 2007) (en
banc) (citations and emphasis omitted).
Here, Appellant acknowledges he is larger than the victim. Appellant’s
Brief at 14. The victim testified that after he was hit on the head and
“tasered” by unknown person(s), he was “put to the ground.” N.T.,
7/6/2016, at 7-8. The victim then observed Appellant and another individual
“punching and stomping” him on his head and chest before losing
consciousness. Id. at 7-10. Kari Wingrove, a witness to the incident,
observed the victim on his hands and knees, already “beat up,” when
Appellant “kicked [the victim] in the face like he was a football.” Id. at 26.
She described the kick as forceful, “like [Appellant] punted [the victim’s]
face”, causing the victim to fly backwards on his back. Id. at 26-27. She
heard him gurgling blood as if he was choking and observed he was
“knocked out cold.” Id. at 26-28. To avoid the victim’s choking on his own
blood, Ms. Wingrove and one of the people involved in the attack sat the
victim up and rolled him on his side. Ms. Wingrove observed blood “just
draining out of his face.” Id. at 28. Appellant had to be taken by “Life
Flight” to the hospital, where he underwent reconstructive facial surgery.
Id. at 49. Due to his nasal passages being crushed so badly from the
attack, he had to receive a tracheotomy, which was left in place for six
weeks. Id. at 13.
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Thus, the victim did in fact suffer a serious bodily injury as a result of
the attack. As the trial court described, “testimony established [Appellant]
struck and kicked the victim multiple times, causing concussion-like
symptoms and facial injuries that necessitated surgery and a stay in the
[intensive care unit], and resulting in ongoing damage to the victim’s
eyesight, as well as bouts of depression and anxiety for which the victim
now must take prescription medications.” Trial Court Opinion, 9/21/2016, at
4. This is a much different situation than Alexander, where the defendant
punched the victim once in the face, causing the victim to fall to the ground.
The Alexander victim never lost consciousness and merely had to be
treated at the emergency department for a broken nose. Alexander, 383
A.2d at 888-89. Additionally, it is clear that given the evidence presented,
the jury reasonably could conclude that Appellant’s forceful kick to the
victim’s face, delivered after Appellant already had hit and stomped on the
victim while the victim was on the ground begging Appellant and the others
to stop, demonstrated Appellant’s intent to cause the victim serious bodily
injury or, at a minimum, Appellant’s extreme indifference to the victim’s life.
See Commonwealth v. Glover, 449 A.2d 662, 665–66 (Pa. Super. 1982)
(holding a jury could infer intent to cause serious bodily injury where a
group of three people hit a relatively smaller-sized victim in the head and
kicked him); Commonwealth v. Rodriquez, 673 A.2d 962, 965–67 (Pa.
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Super. 1996) (same). Moreover, repeatedly punching and stomping on a
person while he is on the ground, and then kicking that person in the face in
the same manner as one would punt a football, all but guarantees the
person will experience a serious bodily injury. See Commonwealth v.
Matthew, 909 A.2d 1254, 1259 (Pa. 2006) (noting a fact-finder is justified
in finding intent based upon the intent suggested by the conduct).
Accordingly, we hold the evidence was sufficient to sustain Appellant’s
conviction for aggravated assault.
In his third issue, Appellant argues the trial court abused its discretion
by allowing the victim’s mother to testify as to the victim’s injuries and the
impact of the assault on the victim’s life. Specifically, Appellant argues the
testimony was prejudicial and cumulative, and akin to a victim impact
statement offered improperly during the guilt phase of the trial so as to
garner sympathy from the jury. Appellant’s Brief at 19-21. However,
Appellant failed to lodge an objection contemporaneous to the testimony.
An appellant’s failure to raise a contemporaneous objection to evidence at
trial waives that claim on appeal. Commonwealth. v. Thoeun Tha, 64
A.3d 704, 713 (Pa. Super. 2013); see also Pa.R.A.P. 302(a); Pa.R.E.
103(a). Therefore, we deem Appellant’s third issue to be waived.
Even if Appellant did not waive this issue, the trial court did not abuse
its discretion in allowing the victim’s mother to testify. “Admission of
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evidence is a matter within the sound discretion of the trial court, and will
not be reversed absent a showing that the trial court clearly abused its
discretion.” Commonwealth v. Cain, 29 A.3d 3, 6 (Pa. Super. 2011). More
than just a mere error in judgment, an abuse of discretion occurs when the
judge overrides or misapplies the law, exercises manifestly unreasonable
judgment, or demonstrates partiality, prejudice, bias, or ill-will. Id. As the
trial court describes, the victim’s mother “testified of her own personal
knowledge as to the length of the victim’s entire hospitalization, his
appearance and the sounds he made while he was a patient, as well as the
number of hours necessary for his facial surgery.” Trial Court Opinion,
9/21/2016, at 4. These subjects were clearly probative of whether the
victim suffered serious bodily injury, an element of aggravated assault.
In his fourth issue, Appellant argues the trial court abused its
discretion in admitting Commonwealth’s Exhibit 2 into the record, which is a
close-up photograph of the victim in the hospital following the assault.
Specifically, Appellant argues the photograph is inflammatory and did not
offer any probative value. Appellant’s Brief at 22-23. Our review of the
record reveals that the only objection Appellant’s counsel made in response
to the Commonwealth’s attempted introduction of photographs was an
objection regarding an unspecified group of photographs taken by the
victim’s mother. However, the trial court sustained the objection and the
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group was not admitted into evidence. N.T., 7/6/2016, at 54. Thus,
because Appellant did not preserve the issue on the record to enable us to
review the claim, we deem his fourth issued to be waived. See Thoeun
Tha, 64 A.3d at 713.
Even if Appellant did not waive his fourth issue, once again we cannot
conclude that the trial court abused its discretion. The trial court permitted
the Commonwealth to enter only a single photograph out of a grouping. The
trial court determined this photograph was not inflammatory because it
accurately depicted the “nature and extent of [the victim’s] head and face
injuries.” Trial Court Opinion, 9/21/2016, at 5-6. This was probative of
whether the victim suffered a serious bodily injury as well as “the degree of
harm intended by [the] assailant.” Commonwealth v. Dennis, 460 A.2d
255, 257-59 (Pa. Super. 1983) (concluding the trial court did not abuse its
discretion by determining three color photographs depicting a victim in his
hospital bed with discoloration and swelling in his eye area were relevant
and not inflammatory).
Finally, Appellant argues the sentencing court erred in applying an
offense gravity score of 11 for the offense of aggravated assault. Citing to
Commonwealth v. Caterino, 678 A.2d 389 (Pa. Super. 1996), Appellant
argues the sentencing court should have applied the offense gravity score of
ten because neither the jury at trial nor the court at sentencing made an
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express finding that the victim suffered a serious bodily injury. Appellant’s
Brief at 26.
Appellant’s challenge is to the discretionary aspects of his sentence.2
We consider his question mindful of the following.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
2
Although he included a concise statement in his brief pursuant to Pa. R.A.P.
2119(f), as an alternative argument, Appellant argues his claim presents a
legal issue and is not subject to discretionary review, citing to
Commonwealth v. Coss, 695 A.2d 831 (Pa. Super. 1997). Coss held the
issue of the proper offense gravity score in an aggravated assault case is a
non-discretionary legal issue appealable as of right. However, Coss relied
upon Commonwealth v. Johnson, 618 A.2d 415 (Pa. Super. 1992), which
was overruled expressly by this Court on this issue. Commonwealth v.
Archer, 722 A.2d 203, 210-11 (Pa. Super. 1998) (en banc) (overruling
Johnson and holding any misapplication of the sentencing guidelines
constitutes a challenge to the discretionary aspects of sentence).
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issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted). If a claim is preserved properly, an incorrect
offense gravity score requires this Court to remand for resentencing or
amend the sentence directly. Archer, 722 A.2d at 211.
Here, Appellant filed a notice of appeal after preserving the issue by
filing a motion to modify his sentence. Appellant’s brief properly contains a
statement pursuant to Pa.R.A.P. 2119(f). Appellant’s claim regarding
misapplication of the Sentencing Guidelines raises a substantial question for
our review. Id., 722 A.2d at 210–11.
Accordingly, we shall address the merits of Appellant’s claim. Because
one may commit aggravated assault with or without inflicting serious bodily
injury, see 18 Pa.C.S. § 2702(a)(1), aggravated assault is considered a
“subcategorized” offense and is “scored by the [Sentencing] Commission
according to the particular circumstances of the offense.” 204 Pa. Code
§ 303.3(b). According to the sentencing guidelines, the court must
determine which offense gravity score is applicable for subcategorized
offenses. Id. In order to apply the higher offense gravity score of 11, the
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court “must find that the defendant’s conduct actually resulted in serious
bodily injury.” Caterino, 678 A.2d at 392. Without such a finding, the
court must apply the offense gravity score applicable to a mere attempt to
cause serious bodily injury, which currently is scored at ten. Id.; 204 Pa.
Code § 303.15.
Here, while the sentencing court noted at the sentencing hearing that
it took into consideration “the horrific injuries inflicted as a result of the
crime,” the court did not expressly state that the victim suffered a serious
bodily injury.3 N.T., 7/27/2016, at 7. However, as detailed above, there
was sufficient evidence in the record to sustain such a finding. Thus, we
discern no abuse of discretion in the sentencing court using an offense
gravity score of 11 to calculate Appellant’s sentence. See Caterino, 678
A.2d at 392–93 (holding that even though the sentencing court did not make
an express finding of serious bodily injury, it properly used an offense
gravity score of 11 because the evidence of the victim’s injuries in the record
sufficiently established serious bodily injury).
Judgment of sentence affirmed.
3
The sentencing court did not make this finding until after Appellant filed his
appeal, explaining in its initial and supplemental Pa.R.A.P. 1925 opinions its
belief that there was sufficient evidence introduced at trial to prove that
Appellant inflicted serious bodily injury upon the victim. Trial Court Opinion,
9/21/2016, at 3-4; Trial Court Opinion, 11/2/2016, at 2.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
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https://www.courtlistener.com/api/rest/v3/opinions/4147459/ | J-S72004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JODY GORDON
Appellant No. 1959 MDA 2015
Appeal from the PCRA Order October 23, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007467-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 22, 2017
Appellant, Jody Gordon, appeals from the order entered in the York
County Court of Common Pleas, which denied his first petition filed pursuant
to the Post Conviction Relief Act (“PCRA”).1 We affirm and grant counsel’s
petition to withdraw.
The relevant facts and procedural history of this case are as follows.
On July 9, 2014, Appellant entered an open guilty plea to one count of
possession with intent to deliver a controlled substance (“PWID”), in
connection with Appellant’s sale of 6.4 grams of cocaine to a confidential
informant (“C.I.”) on July 9, 2013. Appellant executed a written guilty plea
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S72004-16
colloquy confirming his plea was voluntary. The written plea colloquy made
clear Appellant was entering an open guilty plea, leaving Appellant’s
sentence to the discretion of the trial court. Appellant expressly
acknowledged that the court could impose Appellant’s sentence consecutive
to any other sentence Appellant might be serving. During the oral guilty
plea colloquy, the court recited the factual basis for the plea; and Appellant
agreed he was guilty of the crime charged. The court twice reiterated there
was no agreement as to sentencing. Additionally, notwithstanding
Appellant’s statements in some earlier proceedings that he was dissatisfied
with plea counsel, Appellant agreed he wanted to plead guilty despite any
reservations or complaints about plea counsel. At the conclusion of the
guilty plea colloquy, the court accepted Appellant’s plea as knowing,
intelligent, and voluntary. The court deferred sentencing for preparation of
a pre-sentence investigation (“PSI”) report.
On July 29, 2014, Appellant appeared for sentencing in the current
PWID case and for sentencing at docket number CP-67-CR-0005473-2013
(“docket 5473-2013”), in relation to convictions for persons not to possess
firearms and receiving stolen property (“RSP”). The Commonwealth
recommended that the court impose an aggregate sentence of 5-10 years’
imprisonment at docket 5473-2013, and a sentence of 2½-5 years’
imprisonment in the current PWID case, to run consecutively. Defense
counsel argued for concurrent sentences. The court noted Appellant was
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also serving at that time a 5-10 year sentence at a third docket number, CP-
67-CR-0001636-2012 (“docket 1636-2012”).2 The court sentenced
Appellant at docket 5473-2013, to 5-10 years’ imprisonment for the persons
not to possess conviction, plus a concurrent 1-2 year sentence for RSP. The
court imposed the sentence at docket 5473-2013 concurrent to the sentence
Appellant was already serving at docket 1636-2012. In the present PWID
case, the court sentenced Appellant to 2½-5 years’ imprisonment,
consecutive to the sentence at docket 5473-2013. Appellant did not file
post-sentence motions or a direct appeal.
On February 5, 2015, Appellant filed a timely pro se PCRA petition
alleging plea counsel’s ineffectiveness, and he filed an amended pro se
petition on July 31, 2015. The PCRA court appointed counsel on August 14,
2015 (“PCRA counsel”). On October 23, 2015, the court held a PCRA
hearing, during which plea counsel and Appellant testified. At the conclusion
of the hearing, the court denied PCRA relief. Appellant timely filed a notice
of appeal on November 9, 2015. On November 25, 2015, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b); Appellant complied.
On April 22, 2016, PCRA counsel (who is also appellate counsel) filed,
in this Court, an application to withdraw as counsel and an accompanying
____________________________________________
2
Appellant committed the PWID offense at issue while he was on trial at
docket 1636-2012.
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appellate brief pursuant to Commonwealth v. Turner, 518 Pa. 491, 544
A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
1988) (en banc). In his Turner/Finley brief, counsel raised one issue on
appeal (plea counsel’s alleged ineffective assistance for promising Appellant
a concurrent sentence if he pled guilty) and explained why that issue lacked
merit. Appellant subsequently filed a pro se responsive brief, claiming
counsel had failed to address other issues raised in Appellant’s PCRA
petition, which Appellant wanted to advance on appeal. Because counsel did
not list those issues in his Turner/Finley brief and explain why they lacked
merit, this Court concluded counsel had failed to comply with the technical
requirements of Turner/Finley. Consequently, on December 8, 2016, this
Court denied counsel’s April 22, 2016 application to withdraw and remanded
the matter with instructions for counsel to file (1) an advocate’s brief, or (2)
a compliant Turner/Finley brief, additionally addressing the other issues
enumerated in Appellant’s pro se responsive brief, with an accompanying
petition to withdraw.
As a prefatory matter, on January 9, 2017, appellate counsel filed a
new application to withdraw and a supplemental Turner/Finley brief.
Before counsel can be permitted to withdraw from representing a petitioner
under the PCRA, Pennsylvania law requires counsel to file a “no-merit” brief
or letter pursuant to Turner and Finley. Commonwealth v. Karanicolas,
836 A.2d 940 (Pa.Super. 2003).
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[C]ounsel must…submit a “no-merit” letter to the [PCRA]
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach
the merits of the underlying claims but, rather, will merely
deny counsel’s request to withdraw. Upon doing so, the
court will then take appropriate steps, such as directing
counsel to file a proper Turner/Finley request or an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (internal
citations omitted). “Substantial compliance with these requirements will
satisfy the criteria.” Karanicolas, supra at 947.
Instantly, counsel’s January 9, 2017 motion to withdraw as counsel,
and Turner/Finley brief, detail the nature of counsel’s review and explain
why all the issues raised in Appellant’s pro se responsive brief lack merit.
Counsel’s brief also demonstrates he reviewed the certified record and found
no meritorious issues for appeal. Counsel notified Appellant of counsel’s
request to withdraw and advised Appellant regarding his rights. Thus,
counsel substantially complied with the Turner/Finley requirements. See
Wrecks, supra; Karanicolas, supra.
Counsel raises the following issues in the supplemental brief filed on
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appeal:
WHETHER THE PCRA COURT ERRED IN DENYING
APPELLANT’S PCRA PETITION WHEN APPELLANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL SUCH THAT HE
UNKNOWINGLY OR INVOLUNTARILY ENTERED A PLEA OF
GUILTY?
WHETHER THE PCRA COURT ERRED IN DENYING
APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
INEFFECTIVE FOR FAILING TO MOVE FOR DISMISSAL OF
THE CHARGES BASED ON PREJUDICIAL PREARREST
DELAY?
WHETHER THE PCRA COURT ERRED IN DENYING
APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
INEFFECTIVE FOR FAILING TO PROVIDE APPELLANT WITH
PRETRIAL DISCOVERY MATERIAL?
WHETHER THE PCRA COURT ERRED IN DENYING
APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
INEFFECTIVE FOR FAILING TO ADVISE APPELLANT ON THE
AVAILABILITY OF AN ALIBI DEFENSE?
WHETHER THE PCRA COURT ERRED IN DENYING
APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
INEFFECTIVE FOR FAILING TO CHALLENGE APPELLANT’S
ALLEGED MANDATORY MINIMUM SENTENCE?
WHETHER THE PCRA COURT ERRED IN DENYING
APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
INEFFECTIVE FOR FAILING TO FILE A POST-SENTENCE
MOTION AND/OR DIRECT APPEAL ON APPELLANT’S
BEHALF?
(Supplemental Turner/Finley Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
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A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,
593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction
court’s credibility determination, it is binding on the appellate court.
Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues plea counsel was ineffective in the following ways: (1) plea counsel
promised Appellant the court would impose his PWID sentence concurrent to
the sentence at docket 5473-2013, which caused Appellant to enter an
unknowing and involuntary guilty plea; (2) plea counsel failed to move for
dismissal of the charges based on “prejudicial pre-arrest delay”;3 (3) plea
counsel did not provide Appellant with pre-trial discovery; (4) plea counsel
failed to advise Appellant on the availability of an alibi defense; (5) plea
counsel did not challenge Appellant’s alleged mandatory minimum sentence;
and (6) plea counsel neglected to file a post-sentence motion and/or direct
appeal on Appellant’s behalf. We disagree with Appellant’s contentions.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
____________________________________________
3
At the PCRA hearing, Appellant claimed plea counsel was ineffective for
failing to file a pre-trial suppression motion or motion to dismiss based on a
lack of evidence. Appellant did not argue pre-arrest delay.
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appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of
ineffective assistance of counsel, a petitioner must show, by a
preponderance of the evidence, ineffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.
2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner
must demonstrate: (1) the underlying claim has arguable merit; (2) counsel
lacked a reasonable strategic basis for his action or inaction; and (3) but for
the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. Id. at 880.
“The petitioner bears the burden of proving all three prongs of the test.” Id.
“Where it is clear that a petitioner has failed to meet any of the three,
distinct prongs of the…test, the claim may be disposed of on that basis
alone, without a determination of whether the other two prongs have been
met.” Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797
(2008).
“Allegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.” Commonwealth v.
Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)). “Where the defendant
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enters his plea on the advice of counsel, the voluntariness of the plea
depends on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.” Moser, supra. Pennsylvania law
does not require the defendant to “be pleased with the outcome of his
decision to enter a plea of guilty[; a]ll that is required is that his decision to
plead guilty be knowingly, voluntarily and intelligently made.” Id. at 528-
29. A guilty plea will be deemed valid if the totality of the circumstances
surrounding the plea shows that the defendant had a full understanding of
the nature and consequences of his plea such that he knowingly and
intelligently entered the plea of his own accord. Commonwealth v.
Fluharty, 632 A.2d 312 (Pa.Super. 1993). Pennsylvania law presumes the
defendant is aware of what he is doing when he enters a guilty plea, and the
defendant bears the burden to prove otherwise. Commonwealth v.
Pollard, 832 A.2d 517, 523 (Pa.Super. 2003). Mere disappointment in the
sentence does not constitute the necessary “manifest injustice” to render the
defendant’s guilty plea involuntary. Id. at 522. See also Commonwealth
v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32
A.3d 1276 (2011) (reiterating principle that courts discourage entry of plea
as sentence-testing device).
With respect to a claim of ineffective assistance of counsel for failure
to call a witness, this Court has stated:
When raising a failure to call a potential witness claim, the
PCRA petitioner satisfies the performance and prejudice
-9-
J-S72004-16
requirements of the [ineffective assistance of counsel] test
by establishing that:
(1) the witness existed; (2) the witness was
available to testify for the defense; (3) counsel knew
of, or should have known of, the existence of the
witness; (4) the witness was willing to testify for the
defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Washington, 592 Pa. 698, [721,]
927 A.2d 586, 599 (2007). To demonstrate…prejudice,
the PCRA petitioner must show how the uncalled [witness’]
testimony would have been beneficial under the
circumstances of the case.
Commonwealth v. Johnson, 600 Pa. 329, 351-52, 966 A.2d 523, 536
(2009) (some internal citations and quotation marks omitted).
An alibi is “a defense that places the defendant at the relevant time in
a different place than the scene involved and so removed therefrom as to
render it impossible for him to be the guilty party.” Commonwealth v.
Rainey, 593 Pa. 67, 98, 928 A.2d 215, 234 (2007) (internal citations
omitted). “To show ineffectiveness for not presenting alibi evidence,
Appellant must establish that counsel could have no reasonable basis for his
act or omission.” Id.
Where a PCRA petitioner claims counsel was ineffective for failing to
file post-sentence motions, the petitioner must plead and prove he asked
counsel to file post-sentence motions on his behalf, counsel refused his
request, counsel lacked a rational basis for his refusal, and prejudice.
Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119 (2007). On the
- 10 -
J-S72004-16
other hand, where a PCRA petitioner claims counsel was ineffective for
failing to file a direct appeal, the petitioner must plead and prove only that
he asked counsel to file a direct appeal on his behalf and counsel
unjustifiably refused the petitioner’s request, that is, counsel lacked a
rational basis for refusing the request. Commonwealth v. Lantzy, 558 Pa.
214, 736 A.2d 564 (1999) (holding where there is unjustified failure to file
requested direct appeal, conduct of counsel falls beneath range of
competence demanded of attorneys in criminal cases and denies appellant
effective assistance of counsel; in these circumstances, prejudice is
presumed and PCRA petitioner need not establish prejudice under general
ineffectiveness test).
Instantly, the court held a PCRA hearing on October 23, 2015. At the
beginning of the hearing, PCRA counsel conceded Appellant’s PWID sentence
did not include a mandatory minimum. Appellant testified, inter alia: (1)
plea counsel did not provide him with discovery before Appellant entered his
guilty plea; Appellant said he would not have pled guilty if he reviewed the
discovery beforehand because the discovery showed the Commonwealth had
no surveillance footage4 or pre-marked money to use as evidence against
him; (2) plea counsel failed to file a “suppression motion”; Appellant insisted
the Commonwealth had no pictures of the transaction between Appellant
____________________________________________
4
The affidavit of probable cause indicates the police physically observed the
drug transaction.
- 11 -
J-S72004-16
and the C.I., so a pre-trial motion could have secured dismissal of the case;
(3) plea counsel promised Appellant the court would impose his PWID
sentence concurrent to other sentences Appellant was serving or facing;
Appellant acknowledged the written guilty plea stating the plea was open as
to sentencing, but Appellant claimed he completed the written guilty plea
based solely on plea counsel’s representations that Appellant would receive
concurrent sentences; and (4) Appellant was somewhere else at the time of
the crime, so he is innocent of PWID. (See N.T. PCRA Hearing, 10/23/15, at
6-23).
Plea counsel testified, inter alia: (1) he made clear to Appellant the
plea agreement was open as to sentencing; plea counsel did not promise
Appellant anything in terms of sentencing; plea counsel informed Appellant
the court might run his sentences concurrently, but counsel did not
guarantee that result; (2) plea counsel did not file a pre-trial suppression
motion because it would have lacked merit; (3) plea counsel admitted he did
not provide Appellant with discovery immediately, but he confirmed
Appellant had all discovery prior to entering his guilty plea; (4) plea counsel
did not pursue an alibi defense because Appellant failed to supply him with
the names of Appellant’s alleged alibi witnesses; Appellant gave counsel only
Appellant’s wife’s contact information, but counsel could not get in touch
with her; (5) Appellant and plea counsel had a lengthy discussion about
Appellant’s decision to plead guilty; following sentencing, Appellant was
- 12 -
J-S72004-16
unhappy with his sentence and complained about his sentence to counsel;
plea counsel told Appellant that plea counsel did not believe Appellant had
any appealable issues; Appellant agreed with counsel that there was no
reason to file post-sentence motions or an appeal in this case; Appellant
asked plea counsel to file post-sentence motions and an appeal in another
case (at docket 1636-2012), but Appellant made no request in this PWID
case; and (6) plea counsel had conversations with the District Attorney
about Appellant entering a negotiated guilty plea with a concurrent sentence
recommendation but those conversations involved one of Appellant’s other
cases, not this PWID case. (Id. at 25-54).
During argument from counsel, PCRA counsel conceded Appellant’s
issue regarding the filing of a pre-trial suppression motion merited no relief.
At the conclusion of the PCRA hearing, the court stated:
Right. All right, well, [the court] listened carefully to the
testimony. The [c]ourt does recall [Appellant’s] cases, and
we’re here today on a Post-Conviction [Relief] Act petition.
The thrust of the argument is that [Appellant] was denied
effective assistance of counsel, and [the court] would note
that the Post-Conviction [Relief] Act requires that to
sustain a claim for ineffective assistance of counsel,
[Appellant] must demonstrate that [Appellant] was denied
the effective assistance of counsel to such an extent that it
so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have been
taken. That’s directly from the Post-Conviction Relief Act.
The case law further states that the presumption is that
counsel is effective and that the burden of proving that this
presumption is false rests with [Appellant].
- 13 -
J-S72004-16
The issues here are several. I think [the court] can
summarize them. The one is that a motion to suppress
wasn’t filed. [The court does not] see any indication that
there was merit to that claim and that [a motion] would
have provided a different result in the case.
There’s also the issue of discovery, and while we could
have a debate as to when that should have been provided,
when it could have been provided, it was, in fact, made
available to [Appellant]. [The court believes] the
transcript from prior court proceedings indicates that was
provided, and, again, it may not have been provided as
early as [Appellant] would have wished, but, again, [the
court does not] see that would have changed the outcome
of the case.
The main issue is the issue of his entering a guilty plea.
Clearly [Appellant] did not get the result that he was
looking for or expecting, and he is not happy about what
the [c]ourt’s sentence was. Particularly that’s the fact that
the gun charge was made consecutive. [The court thinks
it] made clear during [the] colloquy that there was no
promise for any particular sentence, either an amount or
concurrent. I can state for the record that it’s the practice
of this [c]ourt that when there are guns involved, they
typically get consecutive sentences because of what we
perceive as the threat to the safety of the community.
So the issue is, was [Appellant] denied the effective
assistance of counsel, if at all, to the extent that it
undermined the truth-determining process and that no
reliable adjudication of guilt or innocence could have
occurred. [The court] cannot find that. [The court does
not] believe that did occur. [The court is] going to deny
the motion for post-conviction relief at this time.
(Id. at 63-65). In its Rule 1925(a) opinion, the PCRA court reiterated:
[The court] did not find that [plea counsel’s] supposed
failure to file a suppression motion would have led to a
different result and so Appellant failed the third prong of
the test for ineffectiveness of counsel. [The court] did not
find that there was a substantially greater chance of a
favorable outcome for Appellant if [plea counsel] had
- 14 -
J-S72004-16
provided discovery to Appellant earlier in the process,
which necessarily meant that Appellant failed the third
prong of the test for ineffectiveness of that particular
claim. And [the court] could not find counsel ineffective
for his supposed assurances to Appellant that Appellant
would not receive a consecutive sentence where Appellant
was confronted by our thorough colloquy advising him
repeatedly that with an open plea no one could provide
Appellant assurances as to the actual sentence. Appellant,
again, failed the third prong of the test for ineffectiveness
of counsel.
(PCRA Court Opinion, filed February 4, 2016, at 5) (internal citations
omitted) (emphasis in original). The record supports the PCRA court’s
analysis. See Ford, supra; Boyd, supra. Therefore, Appellant failed to
satisfy the ineffectiveness test on his claims that plea counsel’s promise of
concurrent sentences caused Appellant to enter an unknowing plea; plea
counsel failed to file a pre-trial suppression motion or motion to dismiss for
lack of evidence; and plea counsel did not provide Appellant with pre-trial
discovery.5 See Steele, supra; Turetsky, supra.
Regarding Appellant’s claim that plea counsel failed to advise Appellant
on the availability of an alibi defense, plea counsel testified at the PCRA
____________________________________________
5
To the extent Appellant challenges on appeal counsel’s failure to move for
dismissal of the charges based on “prejudicial pre-arrest delay,” Appellant
abandoned that claim at the PCRA hearing. Moreover, the record shows
Appellant’s PWID offense occurred on July 9, 2013, while Appellant was on
trial at docket 1636-2012. The Commonwealth filed a criminal complaint
charging Appellant with PWID on September 11, 2013. Appellant’s
preliminary arraignment was scheduled for the next day. Appellant offers no
legal basis to suggest that a two-month delay in his arrest warranted
dismissal of his case.
- 15 -
J-S72004-16
hearing that Appellant supplied no contact information for his purported alibi
witnesses except for his wife, whom plea counsel could not reach.
Additionally, Appellant alleged in his pro se PCRA petition that his wife,
Quinton Jacobs, and Ryan Dell Nesbit would all offer testimony at the PCRA
hearing to support Appellant’s alibi claim. Nevertheless, Appellant presented
only his own testimony at the PCRA hearing and merely stated he was
somewhere else at the time of the PWID offense. Thus, Appellant failed to
satisfy the ineffectiveness test on this claim. See Johnson, supra;
Washington, supra.
With respect to Appellant’s claim that plea counsel failed to challenge
the mandatory minimum sentence, PCRA counsel conceded at the PCRA
hearing that Appellant did not receive a mandatory minimum sentence for
his PWID conviction. Thus, the record belies this ineffectiveness claim.
Concerning Appellant’s claim that plea counsel failed to file post-
sentence motions and/or a direct appeal on Appellant’s behalf, Appellant did
not plead in his pro se PCRA petition or in his amended PCRA petition that he
asked counsel to file post-sentence motions or a direct appeal on his behalf
or that plea counsel was ineffective for failing to consult with Appellant about
whether he wanted to pursue post-sentencing or appellate review. See
Reaves, supra; Lantzy, supra. Additionally, plea counsel testified at the
PCRA hearing that Appellant agreed there was no reason to file post-
sentence motions or an appeal in this case. Plea counsel further stated that
- 16 -
J-S72004-16
Appellant had asked him to file post-sentence motions and an appeal at
docket 1636-2012, but Appellant made no request in this PWID case. The
court’s order denying PCRA relief indicates the court credited plea counsel’s
testimony. See Dennis, supra. Consequently, Appellant’s final
ineffectiveness of counsel claim fails. See Reaves, supra; Lantzy, supra.
Following our independent examination of the record, we conclude the
appeal is frivolous and affirm; we grant counsel’s petition to withdraw.
Order affirmed; counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
- 17 - | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144194/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Mr. John It. Taylor, Chief supemlsor
Oil k 0ai1 Di~ia10~
Railroad Commlsal~n oi Texas
Austin, Texan
Dear Mr. Taylor;
9, 19&O, rsquee
or not thr Commlsolon
has the author head gar to be burned
without such gas
line Content, protidrd
plant is avallabla in
on has arisen, no doubt, by maeon
d (I), Saetion 3 cr drtiala 6006,
Tha production of natural gaa
in oxcees of transportation or market
faallltlee, or raaoonabla market demand for
the type of gaa produaed." (One of the
enumerated purposelr tor which the production
of gas is prohibited.)
Mr. John E. Taylor, pags 2
Ths aseumsd finding on the part o f the Railroad Comrsis-
sion that, as to tbs aubjsat gas, there would br no
adequate trsnaportation or market facilities, mkss it
nsosasary to deterstins whethdr them limitations operate
on production for othar purpoaes; that is, if the gas
cannot bs transported or sold, do the llmltatlone
prevent its production for othsr purposes? Othsr.pro-
visions of the aat warrant uasa of gaa by ths owner
other than for transporting or selling the sane on ths
mark&. Aocordlngly, subdsotlon (h) of Ssction 3 is
a?plicabls as a llnitatlon only whers the owuer is sn-
*aged in transporting or selling the gsa on ths market.
There can be no produotion In axcsss of ths ncsd ror
tranaport or sala except that ths sxcsss bs used ror
soms othsr lawful purposa. Tha limitation contained
in any ons subsaotlon of the act aannot reasonably be
interpreted to preoluds other lawful use and we do not
consider that the limnitation of this ssotlon operates
to pr;aoluds the manufacture of carbon black without
rirat extracting the gasoline content. Ws next sxamins
subasotlon (1) of Ssotion 3, Article 6006:
“(1) The use or natural gas ror
the manuraaturs ot carbon black without
first having extraotsd the natiral gaao-
line content from such gas.” (Ona of the
enumerated purposes for whish the produo-
tion of gas la prohlbltsd.)
WI lntsrprst this’ subsootion to smbraos a limltatlon on
produotlon of gas for a partloular ass; that like sub-
section (h), It ia not lnoluaivs of other ussa. wh6rs
ths owner puts hla gas primarily to ths use of manufaotur-
ing carbon black, the natural gasoline content mat be
flrst rsaonored.
Hers the subjeot gas Is casinghead‘ gas and
itB production i3 Only Incident t0 the production Or
oil, not primarily ror the manufacture of carbon black.
T’:e do not consider subssotion (1) of Section 3, Article
6008, as a limitation on it13 use.
’
hr. John E. Taylor, pegs 3
In examining the whole of Article 6008, ws
find other rsaaona for arriving at this conclusioa.
Casinghead gas Is by subsection (i), Section 2
of Article 6008 dsfined to be ‘*any gas and/or vapor in-
digenous to an oil stratum and pr@duced from such stratum
with 011.” Inasmuch aa br aubseatlou (d) of Ssation 2
any well producing in sxcsss of a gas/all ratio of 100,000
cubic fset of natural gas to each barrel of oruds petroleum
oil aonstltutsa a gas well, than ths prcductlon cb gas In
any well of less ratio oonstltutes an 011 well utisr sub-
-sotion (s) OS Section 2, and ths gas from an 011 well
is naosasarily casinghead gas.
Xs find in aubssation (m), Section 3, Articls
6008. by implication, gas from a well producing a gas/oil
ratlo of leas than 100,000 to 1 may be put to any use,
because it la only gaa produced in excess of that ratio
$a:sz;t be put to one or mora of the uses authorized.
:
%xctLon~ (ml.. The production of
mars than one hundred thousand ‘(1uZ:,UUoj
-cubic feet of gas to each barrel of crude
petroleum unless such gas Is put to one
or more of tbv uass authorized for the
typs of such gaB so produced under nllo-
cations made by the Commission. IQ
Thia provision Is one of a nunber defining
*waste”. By it oasinghead gas say be produced In quantltiea
of less than 100,000 cubic rest for 1 barrel of 011, and
not further utilized, without committ?ng statutory waete.
Accordingly, should we have given subsection (i) of
this section an Interpretation other than excluslvs In
ahsraatsr It v:ould hsvs bssn at variance with ths per-
mlasivs rssults of subsection (a). That gas not in ex-
CeBS of the prohibited ratio of 100,000 cubla feet of
gas to 1 barrel of oil may by virtue of subssotion (m)
be ellovsd to esaaps free into ths air without committing
statutory waste, it follovs that no reasonable li~aitation
could be placed upon the use of that gaa if not allowed
to escape. T2e prevention of waste is the foundation or
the poyrer of this governmental regulation arrd if complets
liberation of the gee withcut use is not wcste, than no
particular US4 of the gas could reasonably be determined
to be waste.
Mr. John B. Taylor, paga 4
_ For furthar light on the~. intendmant
.~. of tha
Lagialatura, we rarer to subaeation (31 of Section 7,
Article 6008, for speclrlo authorization tar tha
uses of casingheed gaa. It reads:
*Subsection (a).
Caainghaad gaa
may be used for eny benafiolal
Durpcaa,
which includes the manuracture of
nstural gasollne.w oQaphasla oura)
P;a interpret this provlalon undoubtedly to
include the sanufactura of carbon block, without the
in oaition cl the Ilaitatlons provided in subsections
(h7 and (1) of Section 3 of Article 6008.
Tour aeaond quaation 13 as ioll0ws:
aDoes the ~Conuaisslon have the author-
ity to parnit a gaaolina plant, -&lch vents
a portion of Its residue gas to the air
end operntaa iii a field which doea not
produce both sweat and 8our gas to take
Into its gathering linea and comaingle
in auoh lines and in the plant meet or
aour gas with casinghead gas if a volume
of reelduo gas eqaivalant to or in axcasa
of the total intake rrrvp gas walla, laes
shrinkage resulting rrom gasoline ex-
Lraotion, ie utilized for tha purpoa6
permitted for awaat and aour gas by Artiols
6008. ”
You hays quotad subsection (k) of Seatlon 3,
Article 6006, and aubaaotiona (1) and (2) of Saotlon
7, Article 6008. prammably‘aa provisions of the law
rafalng doubt as to the power of the Commiaalon to al-
low the venting,of dry gas, lrreapaotivs of the cir-
cumatancea sat out in your qunation. The atatad alr-
cumatanoes would indicate that aaid dry gaa would be
handled in such !na~er as aifactually to avoid waste.
It seam to us, howaver, that even though the manner
in which the dry gas may be handled would afiactually
avoid naata, yet neoerthalaaa, if in direct contraven-
tion of the provisions of the statutes, the ealaa can-
not be sanct ioaad. Subsection (k) OS Section 3 pro-
vidaa:
A!r. John l3. Taylor. pagr 5
%ubsectlon (k) . Permitting any natural
gas produced iron a gas wall to escape into
the air before or after such gas has bean
processed for its gaeolina content.* (Ona of
savaral provlslons darining mwaaten. )
Also Section 7 of Artiole 600e provides that
no gas from a gas wall shall be pemitted to escape
Into tha air, excopt that it be utilized for certain
purposes.
In the faoa of these two express statutory
prohibitions against the ralaasa of dry gas, that is,
awaet or sour gas irom a as well, wo ara of the belief
that it cannot be done. ftf there is a way of kindling
the gas so as to avoid praotioal waata with the venting
of a commingled mixture, containing in part dry gas, the
same will have to beg authorized by the Legislature.
Yours vary truly
Hugh &. Book
Assistant
RQB:BBB | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130972/ | .
The Attorney General of Texas
JIM MATTOX May 19, 1986
Attorney General
Supreme Court Suildlng Me. Peggy Rosson Opinion No. JM-495
P. 0. S,0x 12548
Austin, TX. 78711.2543
Chairman
512,475-2501
Public Utility Co~mclssionof Texas Re: Extent to which former
Telex 9101874-1367 7800 Shoal Creek Iloulevard,400N employee of the Public Utility
Telecopier 512475-0268 Austin, Texas 711757 Commission of Texas may par-
ticipate in business before
714 Jackson. Suite 700
the commission
Dallas, TX. 752024503
214f7428944 Dear Ms. Rosson:
You indicate that an employee in the Public Utility Commission's
4S24 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
engineering divis:tonleft the employ of the commission in March, 1985,
915l533-3464
for employment aith MCI Comsmnications. The employee inmoediately
thereafter became involved in a proceeding before the commission on
behalf of his new employer. Before leaving the employ of the
1001 Texas, Suite 7CU commission, the c~ployee was involved in this same .proceeding. You
Houston. TX. 77002.3111
ask whether this 'Tatternof conduct constitutes a violation of section
713l22369SS
6(j) of article Wi6c. V.T.C.S., the Public Utility Regulatory Act.
605 Broadway. Suite 312 As a prelimixlry matter, in opinions rendered under article 4399,
Lubbock, TX. 79401.3479 V.T.C.S., this office decides questions of law -- not disputed
SW747.5239 questions of fact. You submitted copies of a transcript of the record
in a particular administrative proceeding. We cannot comnent on
4309 N. Tenth, Suite S whether the individual in the case you present has In fact violated
McAllen, TX. 78501.1685 section 6. This kind of assessment would require a factual judgment.
512/582-4547 We can comment on:ly on the scope of section 6 and provide you with
general guidance qon what actions would, depending on proof of the
200 Main Plan. suite 4w allegations in court, constitute a violation.
San Antonlo. TX. 78205-2797
5120254191 Section 6(j) :provides:
Durin:g the time a commissioner or employee of
An Equal OpportunitYI
Altirmatlve Action Employer
the consission is associated with the commission
or at say time after, the commissioner or employee
may not represent a person, corporation, or other
business entity before the commission or a court
in a matter in which the commissioner or employee
was perzonally involved while associated with the
commis&n or a matter that was within the commis-
sioner's or employee's official responsibility
while tge commissioner or emulovee was associated
with the cormoission. (Emphasisadded).
p. 2254
Ms. Peggy Rosson - Page 2 (JM-495)
You seek guidance on whst constitutes "representing" an employer.
In specific, you ask:
[i]s it a violation of section 6(j) for a former
employee to enter an appearance on the record for
an absent attorne:rin a case on which the employee
worked while at t:he commission, if the employee
otherwise does nothing on the record for his new
employer?
You note that "the former employee did little mare than announce
present for the absent al.torney." Your question suggests a very
limited interpretation of t,heterm "represent," i.e., that it refers
only to substantive appearances on the record. -
A full understanding of section 6(j) requires examination of the
related subsection which prlxedes it. Section 6(i) provides:
No commissionec shall within two years, and no
employee shall, within one year after his employ-
ment with the colmdssion has ceased, be employed
by a public utility which was in the scope of the
commissioner's 01: employee's official responsi-
bility while thi: commissioner or employee was
associated with t'vrcommission.
This subsection restricts, for one peer, employment of a former
commission employee by a pu',:Lic
utility which was in the scope of the
employee's official responsibility. See Attorney General Opinion
JM-280 (1984). Subsection 6(i) is not Gted to "representation" of
the utility; it restricts, for one year, a11 employment by the public
utility.
In contrast, sectio~n1;l.j)applies without regard to time limits
but applies only to "representation" in specific matters before the
commission. Moreover, section 6(j) is not limited to "public
utilities" but includes ",a person, corporation, or other business
entity." Thus, the focus of section 6(j) is on all aspects of
particular matters before tha-
= commission (1) in which the employee was
personally involved or (2,) over which the employee had official
responsibility while associated with the commission.
Moreover, "represent" in subsection 6(j) is not limited to
substantive appearances on the record. We believe that the legisla-
ture intended section 6(j) t,oreach all aspects of particular matters
1. You do not ask nor do we address whether or not MCI
Communications is a "p&UC utility" under section 6(i). Our
reference to section 6(i) is for purposes of comparison only.
p. 2255
Ms. Peggy Rosson - Page 3 (34-495)
which are before the comr~ission and which the employee was either
personally involved in wh:;le associated with the commission or over
which the employee had official responsibility. Accordingly, section
6(j) reaches any aspect 09 particular matters, i.e., those requiring
any agency action, in whic'x the employee interacxn any manner with
the commission on behalf 01:his new employer. For example, subsection
6(j) applies to appearances of a former employee as an expert on
behalf of the employee'rr new employer during an administrative
proceeding before the comtd.ssion. An appearance on the record in a
formal proceeding, however, is not necessary to incur a violation of
section 6(j). Section 6(j) reaches particular "matters," not just
particular proceedings. Thus, "represent" may also reach interactions
such as letters and telep'v,ne conversations about past, pending, or
future proceedings.
SUMMARY
Section 6(j) of article 1446c, V.T.C.S., the
Public Utility Regulatory Act, prohibits a former
employee of the Public Utility Commission from
interacting with the commission on behalf of the
employee's new employer in any matter before the
commission in ,Jllich the employee was either
personally invo:lved while associated wirh the
commission or OVW: which the employee had official
responsibility.
Very truly your
l-J
JIM
.&-
MATTOX
Attorney General of Texas
JACKBIGHTOWER
First Assistant Attorney Gl~leral
MARY KELLER
Executive Assistant AttornlryGeneral
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 2256 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289311/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIAM JAMAAR SMITH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-1554
[June 28, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 16-000315
CF10A.
Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
DAMOORGIAN, LEVINE and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4131002/ | The Attorney General of Texas
M,urch31. 1986
JIM MATTOX
Attorney General
Supreme Court Building Mr. Allm Parkar. Sr. Opinion No. JM-465
P. 0. BOX 12548 Cotmnissioner
Austin, TX. 7871% 2545
5 t 2l475-2501
Texas Department cf Labor Re: Whether the Texas Department
Telex 9101874-1387 and Standards Labor and Standards may set a pay
Telecopier 512I475-0266 P. 0. Box 12157 scale for boxing officials under
Austin, Texas 78711 article 8501-1, V.T.C.S.
714 Jackson, Suite 700
Dallas, TX. 752024506 Dear Mr. Parker:
214l7428944
You ask whetker the commissioner of the Texas Department of Labor
and Standards may promulgate a rule setting a pay scale for persons
4524 Alberta Ave., Suite 160
who officiate at 'Soxlngmatches. The legislature has authorized the
El Psso, TX. 79905-2793
915l533.3464 commissioner of the Texas Department of Labor and Standards to
promulgate rules regulating the boxing~-and wrestling industry in
Texes . V.T.C.S. ,art.8501-l. The authority the legislature granted
1001 Texas. Suite 700 to the commissione:r,however, does not expressly include the authority
Houston, TX. 77OU2-3111 to set a pay scale.for persons who officiate at boxing matches.
71312295886
The legislature has authorized the commissioners of the Texas
605 Broadway, Suite 312 Department of L;lbor and Standards to "promulgate any and all
Lubbock, TX. 79401-3479 reasonable rules and regulations which may be necessary" to enforce
SW747.5238 the provisions of the Boxing and Wrestling Act. V.T.C.S. art. 8501-l.
04(b). The only provisions of that act that could even conceivably
4309 N. Tenth. Suite S serve as the basic for a rule setting a pay scale for boxing officials
McAllen. TX. 78501-1885 are the provisionr dealing with licensing of such officials:
5121682.4547
Sec. 9. (a) No person shall act as a profcs-
200 Main PIszP, suite 400
sional '>oxer or wrastler, manager of a profes-
Sen Antonio. TX. 782052797 sional boxer or wrestler, referee, judge, second,
512l2254191 timckeelar, or matchmaker until he has been
licansei,pursuant to this Act.
An Equal OpportunItyI
Affirmative Actlon Employer
(b) The application for a licanse shall be
made upc~na form furnished by the commissioner and
shall bo accompanied by an annual license fee as
follows:
(1) boxer ----- $15
(2) wrestler ----- $15
(3) manager ---- $75
(4) matchmaker ----- $75
p. 2131
Mr. Allen Parker, Sr. - Page 2 (JM-465)
(5) iudac ----- $15
(6j ;ef;aee ---- $25
17) sccoad -I-- $10
iij titikaeper ---- $10
(c) Revenue cbtained from license fees shall
be deposited to the credit of the General Revenue
Fund.
Sec. 10. (1) The commissioner is authorized
to promulgate rul.esand regulations setting forth
reasonable quallVications for applicants seeking
licenses as a promoter, manager, matchmaker,
professional boxa:r or wrestler, judge, referee,
second, or timekeeper.
(b) The commissioner may after investigation
and hearing deny an application for a license when
the applicant hall failed to meet the established
qualifications 01: has violated any provision of
this Act or any rule or regulation issued pursuant
to this Act.
V.T.C.S. art. 8501-l. 809, 10. The act also provides that the
commissioner may revoke 01: suspend the license of an official who
violates any provision of the act or any rule promulgated pursuant to
the act. -Id. 54(b).
Rules promulgated by ztnadministrative agency must be within the
granted power and may not impose additional burden, conditions, or
restrictions in excess of or inconsistent with statutory provisions.
Bexar County Bail Bond Boin:d v. Deckard, 604 S.W.2d 214, 216 (Tex.
Civ. App. - San Antonio 1985, no writ). The legislature has the power
to regulate wages paid to private employees in at least soma circum-
stences. See art. 5159d, V.T.C.S. (minimum wage law). We find no
authority,however, that would support the proposition that the
authority to regulate wages is within the scope of a legislative grant
of licensing authority to ML administrative agency. We think that an
administrative agency would need to have a specific grant of authority
to do so. See State Boari. of Morticians v. Cortez, 333 S.W.2d 839,
841 (Tex. 19m (power to l&ke rules governing funeral establishments
does not include power to license such establishments; board would
need specific authority to do so).
Therefore, the commisrl5.onar
of the Texas Department of Labor and
Standards may not promulgate a rule setting a pay scale for persons
who officiate at boxing matches.
p. 2132
I
.
Mr. Allen Parker, Sr. - Page 3 (JM-465)
SUMMARY
The commissionrr of the Texas Department of
Labor and Stand,nrds may not promulgate a rule
setting a pay scale for persons who officiate at
boxing matches.
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attornay Gtmcral
MARY KELLER
Executive Assistant Attormy General
ROBERT GRAY
Special Assistant Attoruey General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 2133 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131003/ | The Attorney General of Texas
JIM MATTOX :&arch31. 1986
Attorney General
Supreme Court Building Honorable Am Postma Musgrove opinion No. m-464
P. 0. BOX 12549 Cbildrcss County A,ttomey
Austin, TX. 7871% 2549
Courthouse Ret Whether the city of Cbildress
51214752501
Telex 910/874-1387
Childress, Texas 79201 is exempt from taxes under section
Telecopier 512/4750288 11.11 of the Tax Code, on city-owned
airport land leased to individuals
714 Jackson, Suits 700
Dallas, TX. 752024506
Dear Ms. Musgrove:
21U7428944
You ask whet,ber real property med by a city but leased to
private indlviduale is exempt from ad valorem taxation which the
4S24 Alberta Ave., Suite 180 county and a hospi,taldistrict seek to impose. You inform us that the
El Paso. TX. 79905-2793
property includes an airport operated by the city in which some of the
915/53344B4
airport facilities are leased to an individual who sells fuel to
airplane operatom. The lessee operates the facility as a commercial
91 Texas, Suite 700 enterprise but sub,jectto the direction and control of the city as
JUS~O”, TX. 77W2.3111 specified in the lease agreement. Also, the federal government
71~2235886 operates a weather station and directs flight cdntrol at the airport.
The land surround,ingthe airport is leased by the city to private
808 Broadway, Suite 312 individuals and corporations that use the land for commercial
Lubbock, TX. 79401.3479 purposes, includ,lng farming and ranching. The city receives
905,747.5239 remuneration from the individuals in the form of rental payments which
are devoted exclusively, you assert, to the use and benefit of the
4309 N. Tenth, Suits S
public, specifically including the upkeep of the airport.
McAllen, TX. 7850%1685
51216824547 We understand you to .ask whether the city is exempt from ad
valorem taxes on ,the airport operation, oo the airport facilities
200 Main Plaza, suite 400
which are leasei. to an individual who sells fuel to airplane
San Antonio, TX. 782052797 operators, and on the land surrounding the airport which is leased for
5121225.4191 private commercial.purposes. We do not understand you to ask whether
the lessees willl~c:subject to taxation oo their leaseholds. We first
address the airport facilities question and will then address taxation
An Equal OpportunItyI
of the surroundins;land.
Aftlrmatlvs Action Employer
Article VIII, section 1, of the Texas Constitution provides the
following in pertLumt part:
Taxal:l.oa
shall be equal and uniform. All real
property and tangible personal property in this
tsltate, whether owned by natural persons or cor-
porations, other than municipal, shall be taxed in
p. 2126
. Honorable Ann Postma Musgrcve - Page 2 (JM-464)
proportion to it,s value, which shall be ascer-
tained as way be provided by law.
Article VIII, section 2, of the Texas Constitution. provides the
following in pertinent part:
[Tlhe legislature my, by general laws, exempt
from taxation public property used for public
purposes. . . . (Emphasis added).
Article XI, section !):,of the Texas Constitution provides the
following in pertinent part:
The property of s:ounties, cities and towns, owned
and held only folrpublic purposes, such as public
buildings and tl;! sites therefor . . . and all
other property debvotedexclusively to the use and
benefit of the-$blic shall be exempt from . . .
taxation. . . . emphasis added).
Section 11.11 of the lax Code sets forth the following:
511.11. Public Froperty
(a) Except 811 provided by Subsections (b) and
(c) of this sectjon [which are not here apposite],
property owned b:~ this state or a political sub-
division of this- state is exempt from taxation
if the property -is used for public purposes.
(Emphasis added).-
Property of a political subdivision which would otherwise qualify
for exemption from ad valorem taxation under one of the foregoing
constitutional provisions will not lose its tax-exempt status merely
because a charge is made :Eor use of the property or a profit is
generated thereby, providei that charges are incident to its use by
the public and the proceeds inure to the benefit of the political
subdivision. Lower Colomdo River Authoritv v. Chemical Bank and
, 190 S.W.2d-48, ~50 CT&. 1945); A b M Consolidated
:hool Distrlcllv. City of Bryan, 184 S.W.2d 914, 915-16
See also City , 415 S.W.2d 902,
915 (Tex. 1967)( ,Walker, J.. dissenting); Galveston Wharf Company v.
City of Galveston, 63 Tex.. 14, 23 (1884): Cf. City of Dallas v.
Smith, 107 S.W.2d 872, 878 (Tex. 1937); SantaRosa Infirmary v. Cite
ofn Antonio. 259 S.W. 926, 931 (Tex. Ccmn'n App. 1924, judgmt
adopted); City of Palestfne v. Hissourl-Pacific Lines Hospital
Association, 99 S.W.2d 311,-314 (Tex. Civ. App. - Amarillo 1936, writ
ref'd) (cases involved not political subdivisions, but rather
institutions of purely prblic charity). The fact that the city
receives compensation for +le lease of its property will not deprive
p. 2127
.
Honorable Ann Postma Musgrove - Page 3 (JM-464)
the city of its tax-exanpt status on the property if it would
otherwise be tax-exempt.
But this discussion, of course, does not end our inquiry. The
Texas Supreme Court has consistently raafflrmed the principle that, in
order for public property to be exaupt from ad valorem taxation, it
rrmstbe held onlv for oub1.j.cDumoses and devoted exclusivelv to the
use and benefit df the bub:.ic.'Satterlee v. Gulf Coast Waste Disposal
Authority, 576 S.W.2d 773, 778 (Tex. 1978); Leander Independent School
District v. Cedar Park Watsr Supply Corporation, 479 S.W.2d 908, 912
(Tex. 1972); Daugherty v. Thompson, 9 S.W. 99, 102 (Tex. 1888). The
test for determining whethP:cuublic orooertv is tax exemDt is whether
it is used for the health, &fort. 'andweifare of the niblic. It is
not essmtial that it be used for "governmental" purposes. Lower
Colorado River Authority 12 Chemical Bank and Trust Company, supra;
Corporation of San Felipe I$ Austin v. State, 229 S.W. 845, 847 (Tex.
1921). It is sufficient t,hat it be used for "proprietary" purposes.
A 6 M Consolidated Independent School District -v. Cit; df Bryan,
supra. It is imaterial whether only residents of the district are
benefitted or whether others benefit as well; the fact that property
is owned by the public ctnd is used for the health, comfort, and
welfare of the public of gnomeportion of the state is sufficient to
entitle such property to tre:-exemptstatus. State v. Houston Lightins
-. & Power Co., 609 8.W.2d :!63, 270 (Tex. Civ. App. - Corpus Christi
1980, writ ref'd n.r.e.). See also Attorney General Opinions MW-430
(1982); IN-391 (1981).
We have no difficulty in statlng as a matter of law that the
city's airport and airpor,t facilities, Including those leased to a
private individual, are impressed with a public purpose sufficient to
meet Texas constitutional .and statutory tests regarding ad valorem
taxes. The Texas Legislature has specifically authorized all cities
and towns. including home rule cities, to build and purchase airports
and to mortgage or otherwillsencumber airports, as well as the land on
which they are situated. See V.T.C.S. art. 1015~; see also V.T.C.S.
arts. 126921;1269j; 46d-1 t!t:scq.("Municipal AirpOrtB Act"). Article
46d-16, V.T.C.S., specificcillyprovides %n relevant part:
Any property in this [sltate acquired by a munici-
paltry for airport purposes pursuant to the pro-
visions of this [slct [articles 46d-1 to 46d-221,
and any income derived by such municipality from
the ownership, operation or control thereof, shall
be exempt from taxation to the sane extent as
other property uc;edfor public purposes.
In fact, municipal airports constructed with public funds have been
said to differ In no water:lal element from other public facilities,
such as a public auditorium or a municipal hospital. Hayden V. City
p. 2128
Honorable Ann Postma Musgroyre- Page 4 (a-464)
of Houston, 305 S.W.2d 798, 802 (Tex. Civ. App. - Fort Worth 1957,
writ ref'd n.r.e.).
We mw turn to the iswle of taxation of the surrounding land. In
City of Abilene v. State, 113 S.W.2d 631 (Tax. Civ. App. - Eastland
1937, writ dism'd), real ,-.
113 S.W.2d at 633. The court assumed that the leasing of such lands
for a purpose unrelated to ithe operation of the municipality did not
constitute a public purpose?.,It relied upon the fact that there had
been no abandonment of the public purpose for which the property was
purchased by the city in the first place and concluded that, in spite
of the fact that there was 'uo actual public use of the property then
involved, "public use" did not require continuous, uninterrupted, or
unranittent use.
It is, therefore, our view that when the facts of
a giveu case establish the ownership of property
by a municipal corporation, which has been
acquired for an authorized public purpose, and the
purpose for which it is owned and held has not
been abandoned, such property is to be regarded as
used for public purposes, and the Legislature has
the power to p,covide by general law for its
exemption from taxation.
113 S.W.2d at 635.
In City of Beaumont v. Fertitta. 415 S.W.2d 902, 912 (Tex. 1967),
however, the court expre&ly disapproved the holding in City of
Abilene. The continuing v;%:lidityof Fertitta is itself doubtful, due
in no small measure to 1:hLenovel legal analysis employed in the
majority opinion. See LellrtderIndependent School District v. Cedar
Park Water Supply CGoG?on --' 479 S.W.2d 908, 911-912 (Tex. 1972);
p. 2129
Honorable Ann Postma Musgrme - Page 5 ,(X+464)
I
,-
Attorney General Opinion MW-430 (1982). That notwithstanding, it is
clear that the court in both Fertitta and Leander construed the Texas
Constitution to require acwal , exclusive use for a public purpose in
order to qualify for exenlption from ad valorem taxes.
State v. Bouston Lighting k Power Compan& 609 S.W.2d 263,=F266 Tex.
Civ. App. - Corpus Christi 1980, writ ref'd n.r.e.1.
In order for property to be exempt from ad valorem taxation, such
property must be exempt under both the applicable Texas statutory
provisions and the Texas Constitution as well. Normally, such a
determination involves reso:lutionsof factual matters upon which this
office is not empowered t'3 rule. However, in light of the express
disapproval of the City of Abilene case by the supreme court and the
requirement of actual, exclusive use for a public purpose in order for
public property to be held ‘tax-exempt, we conclude as a matter of law
that, in the instance you #describe,the city is not exempt from ad
valorem taxation on the city-owned land surrounding the airport which
is leased for commerctal and agricultural purposes.
SUMMARY
In the fact s,ituation herein described, the
city is not exempt:from ad valorem taxation on the
city-owned land surrounding the airport which is
leased for commercial and agricultural purposes.
Very ruly your,
.
d-b
JIM MATTOX
Attorney General of Texas
JACK HIGETOWKR
First Assistant Attorney Gtxvral
MARY KELLER
Executive Assistant Attonwy General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Comnittec:
Prepared by Jim Moellinger
Assistant Attorney General
p. 2130 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144206/ | GERALD C. MANN
AUHTIN 11.TRKAe
Honorable John Atchison Opinion No. o-2187
County Attorney Re: Situation resulting from
Gainesville, Texas an independent school dis-
trict election for two
trustees, when one candi-
date receives 74 votes,
two others 70 each and a
Dear Sir: fourth 41.
In your letter of April 8, 1940, you advise US of
the following facts:
"Valley View Independent School District of
Cooke County is located south of Gainesville and
comprises the unincorporated town of Valley View
together with one or more communities outside said
town. It has less than 500 scholastics.
"An election was held in said Independent school
district on Saturday, April 6, 1940, for the purpose
of electing two school trustees. There were four
candidates whose names were regularly carried on the
ballot. One received 74 votes, two received 70 votes
each, and the,fourth received 41 votes."
You request our opinion as to whether (1) the man
receiving 74 votes has been elected, (2) in what manner
should the still remaining vacancy or vacancies be filled,
that is whether by appointment or special election, and
(3) if a new election is to be held whe%erthe names of
new candidates should be permitted on the ballot.
Article 2746a, Vernon's Civil Statutes, reads in
part:
"All of the,ballots for the election of a school
trustee in common school districts and in independent
school districts having fewer than five hundred (500)
scholastics as shown by the last preceding scholastic
census roll approved by the State Department of Educa-
tion and exclusive of transfers shall be printed with
black ink on clear white paper of sufficient thickness
to prevent the marks thereon being seen through the
paper.,and be of uniform style and dimension; at the
top of the ballot, there shall be printed 'Official
Ballot, Independent School District,'
the number or name of the school district in which the
Honorable John Atchison, Page 2 (O-21.87)
election Is to be held to be filled in by the judge
of'the county when he orders the ballots printed.
Any person desiring to have his name placed on said
official ballot, as a candidate for the office of
trustee of a common school district or of an inde-
pendent school district as herein provided shall,
at least ten days before said election, file a
written request with the county judge of the county
in which said district islocated, requesting that
his name be placed on the official ballot, and no
candidate shall have his name printed on said ballot
unless he has complied with the provisions of this
Act; provided that five or more resident qualified
voters in the district may request that certain
names be printed. The county judge, upon receipt
of such written request, and at least five days
before the election, shall have the ballots printed
as provided in this Act, placing on the ballot the
name of each candidate who has complied with the
terms of this Act, and deliver a sufficient number
of printed ballots and amount of supplies necessary
for such election to the presiding officer of the
election at least one day before said election is
to be held, said election supplies, ballots, boxes,
and tally sheets to be delivered by the county judge
by mall or In any other manner by him deemed best,
to the presiding officer of said election in sealed
envelopes which shall not be opened by the election
officer until the day of the election. . . .I
_. , The
. , statutes
.. relating specially
.. .to. trustees.for
.
such aistrlcts as tne one in questlon contain no provlslons
covering the first and second questions. Hence the problem
will be controlled by the general election laws. Scherz
vs. Telfer, 74 S.W. (2) 327.
Article 2953 and the first section of Article 2953a,
Vernon's Civil Statutes, read as follows:
"At any election, if there be an equal number
of votes given-to two or more persons for the same
office, except executive offices as provided in the
Constitution, and no one elected thereto, the officer
to whom the returns are made shall declare such elec-
tion void as to such office only,md shall immediately
order another election to fill such office; and notice
shall be given, and such other election sh$ll be held
in the same manner as the general elect+ Acts 1876,
p. 3lO;,G.L. vol. 8, p. 1146; P.D. 3606.
Honorable John Atchison, Page 3(0-2187)
"Sec. 1. Where special elections are author-
ized by this Act,the officer authorized by law to
order elections shall make such order, fixing the
time of the election not less than twenty nor more
than nine+ days after the first public notice of such
order."
It is noted that there were two offices to be
filled by the election just held. In one of them there was
no tie. The man receiving 74 Woteswas duly elected. As
to the other office there was a tie, two men receiving 70
votes each. As to that office the election was void, under
Article 2953. Under that~statute anobher election should
be ordered. Article 2953a requires tha time of such special
election to be fixed at not less than twenty nor more than
ninety days after the publication of the order. Such minl-
mum time thus allows for the ten days to file application
for a place on the ballot as provided in Article2746a,
and we are~of the opinion that such applications, if season-
ably filed, should be accepted and the names of such new
applicants placed on the ballot for the special election.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/ GLENN R. LEWIS
Glenn R. Lewis
Assistant
APPROVED APR. 15, 1940
s/GERALDC.MANN
ATTORNEYGENERAL OF TEXAS
GRL:ew/amm APPROVED Opinion Committee
By B.W.B. Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144219/ | Bonorable W..P. Sexton Opinion Number O-2174
County Attorney Re: Construction of the word "majority"
Orange County in Article 2007, Vernon's Annotated
Orange, Texas Civil Statutes
Dear Sir:
This acknowledges receipt of your opinion request and we quote from
your letter as follows:
"I am asked for a construction of some of the language
in Article 2807 ofvernon's Texas Civil Statutes, to the
tenor following:
'If a majority of said voters should vote at either
of said elections to assume and pay off said bonded
indebtedness then said bonded indebtedness shall be-
c:~.~'+
come valid, etc. '
"Briefly,the facts are that an election is to be held
for the purpose of consolidating the Orangefield Independent
School District and the Winfree Common School District. The
latter has no indebtedness of any kind and has some money
in its treasury. The former, the Orangefield Independent
School District, has a bonded indebtedness. At the time of
or after the consolidation of these two districts, if by
vote they are consolidated, an election will be held on the
question of assuming the outstanding bonds of said Orange-
field Independent School District. In view of the foregoing,
facts, does the language heretofore quoted mean a majority
of the voters in said district as consolidated or does it
mean a majority of the voters in either of said school dis-
tricts. In other words, if there should be a majority of
the voters in said Orangefield Independent School District
voting for an assumption of said bonded indebtedness and
said majority should not be a majority of the voters in the
two school districts, would this meet the definition in the
statute of the word 'majority' as heretofore quoted, or if
there should be a majority of the voters in the Winfree Com-
mon School District voting for an assumption of the indebted-
ness, would this be a majority within the meaning of the
above provision?"
Honorable W. P. Sexton, page #2
Article 2807, Vernon's Annotated Civil Statutes, provides, in part,
as follows:
"If at the time of such proposed consolidation there are
outstanding bonds of any such districts, then at an election
held for that purpose on some future day, there shall be, or at
the election held for the purposes of consolidation, there may
be, submitted to the qualified tax paying voters of such pro-
posed consolidated district the question as to whether or not
the said consolidated district shall assume and pay off said
outstanding bonds and whether or not a tax shall be levied there-
for. If said election on the question of assuming said outstand-
ing bonds is held on the day upon which the election on the 'ques-
tion of consolidation is held, there shall be separate notices,
ballots, and ballot boxes and tally sheets for the two separate
elections. If a majority of said voters should vote at either
of'said elections to assume and pay off said bonded indebtedness
then said bonded indebtedness shall become valid and subsisting
obligations of said consolidated district, ***"
In a bond assumption election the voters in all districts affected
by the consolidation vote as a unit, and in determining whether or not the
assumption election has carried, you do not consider whether or not the voters
of one district or another have voted for or against the assumption of the out-
standing indebtedness, but it is the total vote of the entire district as con-
solidated, or to'be ~consolidated,that determines whether or'not the election
has carried.
It is the opinion of this department that the word %iajority", as
used in Article 2807, Vernon's Annotated Civil Statutes, means the majority
of all of the qualified voters voting at the assumption election, regardless
of whether they vote at two separate elections held on the day upon which the
election on the question of consolidation is held or whether they vote at one
election on some future date in said district as consolidated.
Trusting that this answers your question, we are
AppRovm my 23, 1940 Very truly yours,
GERALD c. ,MANN
ATIORNEYCENERALOFTEXAS AlTOP.NEYGERERALOFTEXAS
APPROVED OPINION COMMITIEE
BY RWF CHAIRMAN By s/ Claud 0. Boothman
THIS OPINION CONSIDERED AND Claud 0. Boothman
APPROVED IN LIMITED CONFERENCE Assistant
COB-s:hep _’ | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7606068/ | Affirmed. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4150544/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Russell and Malveaux
PUBLISHED
Argued at Richmond, Virginia
GREGORY A. RICHARDSON
OPINION BY
v. Record No. 0051-16-2 JUDGE MARY BENNETT MALVEAUX
MARCH 7, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Paul W. Cella, Judge
Joan J. Burroughs (The Law Office of Joan J. Burroughs, PLC, on
brief), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Gregory Richardson (“appellant”) refused to participate in the colloquy during his
arraignment for felony indecent exposure in the Circuit Court of Nottoway County. The trial court
interpreted his silence as both a waiver of his right to be tried by a jury and an acquiescence to being
tried by the court. Appellant argues here that the trial court’s actions violated his rights under the
Constitution of Virginia. We agree.
I. BACKGROUND
Appellant resides at the Virginia Center for Behavioral Rehabilitation (“VCBR”), to
which he was committed for treatment as a sexually violent predator. In March 2015, appellant
exposed his genitals to one of VCBR’s employees. Appellant, who had been convicted twice of
exposing himself to another person within a ten-year period, was indicted for felony indecent
exposure in violation of Code §§ 18.2-387 and -67.5:1.
At trial, appellant took issue with the performance of his court-appointed counsel. He
alleged that despite numerous letters sent to his attorney, the two had not met to discuss the
“logistics” of the case until a couple of days before trial. He said he had “no way of knowing
how to make the correct decision and how to pursue this matter” because he felt he had not been
properly assisted by counsel. Appellant’s trial counsel expressed his belief that he could capably
defend his client; however, he conceded that he had failed to subpoena videotape from VCBR
showing the circumstances surrounding the indecent exposure. The trial court denied both
appellant’s request for new counsel and his attorney’s request for a continuance to subpoena the
video footage.
After the court denied these motions, appellant became noncompliant. Appellant refused
to stand for his arraignment, prompting the court to find him in contempt. After bailiffs lifted
appellant up, he refused to respond when asked for his plea. The court interpreted his silence as
a plea of not guilty.
When appellant continued to refuse to participate in the colloquy, the trial court
announced that it would interpret his silence as assent to a number of statements. The last of
these statements was the court’s assumption that appellant intended to waive his right to trial by
jury:
THE COURT: All right. Then what we are going to do is this.
I’m going to read through the questions and assume that unless you
speak up you agree with me.
I’m going to assume that you are Gregory A. Richardson,
date of birth January 19th, 1968, and that you are the person
charged in the indictment; that you fully understand the charge;
that you’ve discussed it with your lawyer; that you’ve had enough
time to go over any defenses you may have; and that you have all
of the witnesses, if any, here today that you need for trial; that you
are entirely satisfied with the services of your attorney; that you
are pleading not guilty freely and voluntarily; that you are not
under the influence of any drugs or alcohol; that you are ready for
trial today; that you have discussed the advisability of trial by
-2-
judge or trial by jury, and that you’ve chosen to waive your right to
trial by jury.
Neither appellant nor his counsel responded to the trial court’s questions.
The trial court, sitting without a jury, heard the case and found appellant guilty. The trial
court entered two, identical conviction orders, which recited that neither appellant nor his trial
counsel had “demand[ed] trial by jury.” Appellant filed a pro se motion to vacate and set aside
the trial court’s finding of guilt. Among other issues, the motion asserted that the trial court
improperly conducted a bench trial in violation of Article I, Section 8 of the Constitution of
Virginia.
Appellant timely noticed his appeal to this Court. His sole issue on appeal is “The Court
failed to properly ascertain a plea of not guilty and want for a trial by judge.” This appeal
follows.
II. ANALYSIS
On appeal, appellant contends that he never knowingly and voluntarily waived his right
to a jury trial. The Commonwealth does not dispute this assertion; indeed, the Commonwealth
concedes that “there is a ‘presumption against [a] waiver of fundamental constitutional rights.’”
Instead, the Commonwealth’s nuanced position is that while appellant’s silence was not a
waiver of his right, it was a waiver of his opportunity to object to its violation. As the
Commonwealth points out, Rule 5A:18 ordinarily permits review of an error only if “an
objection was stated with reasonable certainty at the time of the ruling.” Because neither
appellant nor his counsel stated any objection to the trial judge’s decisions during the colloquy,
the Commonwealth reasons that appellant is barred from raising the issue on appeal. And even if
we reached the merits, the Commonwealth argues, we must afford a trial judge some discretion
in dealing with an uncooperative defendant during colloquy.
-3-
There are two problems with these arguments. First, contrary to the Commonwealth’s
assertion, appellant did object to the denial of his jury trial rights by filing a motion to vacate
after his trial. We previously have permitted criminal defendants to preserve an objection to the
erroneous denial of a jury trial by filing a motion to set aside a verdict. See McCormick v.
Virginia Beach, 5 Va. App. 369, 371, 363 S.E.2d 124, 125 (1987) (observing that the defendant
“filed a motion to set aside the verdict and requested a new trial on the grounds that: (1) he had
not waived his right to a jury trial, and (2) neither the prosecutor nor the trial court had stated
their concurrence in a jury waiver”). We see no reason why a motion to vacate cannot be used
for the same purpose.1
The second and more fundamental problem is that the trial judge’s actions did not
implicate merely his discretion but also his jurisdiction under the Constitution of Virginia.2
1
While it is unclear from the record whether the trial court ruled on appellant’s motion,
we do not believe that this ambiguity operates as a procedural bar under these circumstances. In
McGee v. Commonwealth, 4 Va. App. 317, 321, 357 S.E.2d 738, 740 (1987), the record
similarly did “not indicate whether the trial judge ruled on the motion” to set aside the verdict.
We nevertheless concluded that “where, as here, the appellant has made specific objections . . .
to enable us to attain the ends of justice, we will consider [the issues raised] on appeal.” Id. at
321-22, 357 S.E.2d at 740. We also note that while appellant does not concede any procedural
bar, he has alternatively invoked the “ends of justice” exception to Rule 5A:18.
2
As previously has been observed, “‘[j]urisdiction’ is a word of many, too many,
meanings.” Ghameshlouy v. Commonwealth, 54 Va. App. 47, 57, 675 S.E.2d 854, 859 (2009)
(Haley, J., dissenting) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).
In Virginia, “[t]he term . . . embraces several concepts including subject matter jurisdiction . . .
territorial jurisdiction . . . notice jurisdiction . . . and the other conditions of fact [that] must exist
which are demanded by the unwritten or statute law as the prerequisites of the authority of the
court to proceed to judgment or decree.” Porter v. Commonwealth, 276 Va. 203, 228, 661
S.E.2d 415, 426 (2008) (quotations omitted) (quoting Morrison v. Bestler, 239 Va. 166, 169, 387
S.E.2d 753, 755 (1990)).
We here use the word “jurisdiction” in its broadest sense: “the power to adjudicate a case
upon the merits and dispose of it as justice may require.” In re Vauter, ___ Va. ___, ___, 793
S.E.2d 793, 797 (2016).
-4-
A. Standard of Review
This case requires us to analyze the Constitution of Virginia as well as the scope of the
trial court’s jurisdiction. Both issues present questions of law, which we review de novo. See
Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005); Holland v.
Commonwealth, 62 Va. App. 445, 451, 749 S.E.2d 206, 209 (2013).
B. Under the Constitution of Virginia, a Circuit Court Cannot Try a
Criminal Defendant without a Jury Unless It Enters the Defendant’s Consent in the Record
Virginia long has guaranteed criminal defendants “the right to a speedy and public trial,
by an impartial jury of his vicinage, without whose unanimous consent he cannot be found
guilty.” Va. Const. art. I, § 8. This is the default form of a criminal trial in Virginia’s circuit
courts; although the accused may waive his right to trial by jury, he has no corresponding right to
be tried by a judge. See O’Dell v. Commonwealth, 234 Va. 672, 689, 364 S.E.2d 491, 501
(1988).
Our Constitution specifies when a court may try the accused’s case without a jury:
If the accused plead not guilty, he may, with his consent and the
concurrence of the attorney for the Commonwealth and of the
court entered of record, be tried by a smaller number of jurors, or
waive a jury. In case of such waiver or plea of guilty, the court
shall try the case.
Va. Const. art. I, § 8 (emphasis added).3
“Compliance with the mandatory provisions of Section 8 of the Constitution is essential
to the jurisdiction of the court to try an accused without a jury.” Cunningham v. Smith, 205 Va.
205, 208, 135 S.E.2d 770, 773 (1964). “In those cases where the jurisdiction of the court
depends upon compliance with certain mandatory provisions of law, the court’s order, spread
3
While appellate courts and practitioners sometimes refer to the joint appendix or trial
transcript as the “record,” our Supreme Court explained in Cunningham v. Smith, 205 Va. 205,
208, 135 S.E.2d 770, 773 (1964), that the record to which our Constitution refers is the “order
book,” in which a court of record’s “proceedings, orders and judgment” must be kept. For sake
of clarity, we will use the word only in this narrow sense here.
-5-
upon its order book, must show such compliance or jurisdiction is not obtained.” Id.; see also
Cave v. Cunningham, 203 Va. 737, 738-39, 127 S.E.2d 118, 119 (1962) (holding that a trial
court lacked jurisdiction to conduct a bench trial because the Commonwealth attorney’s
concurrence in the waiver was not entered of record); Catlett v. Commonwealth, 198 Va. 505,
507-08, 95 S.E.2d 177, 178-79 (1956) (same).
This Court similarly observed in Wright v. Commonwealth, 4 Va. App. 303, 308, 357
S.E.2d 547, 550 (1987), that the trial court’s failure to enter the accused’s consent and the
required concurrences in the record was an independent basis for setting aside the appellant’s
convictions. In that case, the conviction order “merely recite[d] that the ‘court proceeded to hear
and determine the case without a jury.’” Id. Because “[n]othing further . . . establishe[d] that
Wright’s consent and the concurrence by the Commonwealth’s attorney and the court were
entered ‘of record’ as constitutionally mandated,” we concluded it was necessary to set the order
aside. Id.
C. The Record Does Not Indicate on Its Face that Appellant
Expressly Consented to a Bench Trial
As appellant notes on brief, the conviction orders in this case do not recite his express
waiver or consent. The orders state:
The Court entered a plea of not guilty on behalf of the defendant.
After being first advised by his counsel and by the Court of his
right to trial by jury, the defendant, nor his counsel, did not
demand trial by jury and with the concurrence of the Attorney for
the Commonwealth and the Court, here entered of record, the
Court proceeded to try this case without the intervention of a jury
as provided by law . . . .
These orders make apparent that the trial court deemed appellant’s failure to demand a jury trial
as constitutionally sufficient to manifest his consent. The waiver provision in the Constitution of
Virginia, however, does not require a criminal defendant demand a jury trial. Rather, our Bill of
-6-
Rights requires some deliberate manifestation of the accused’s “express and intelligent consent.”
Jones v. Commonwealth, 24 Va. App. 636, 639, 484 S.E.2d 618, 620 (1997).
“In construing constitutional provisions, the Court is ‘not permitted to speculate on what
the framers of [a] section might have meant to say, but are, of necessity, controlled by what they
did say.’” Blount v. Clarke, 291 Va. 198, 205, 782 S.E.2d 152, 155 (2016) (quoting Harrison v.
Day, 200 Va. 439, 448, 106 S.E.2d 636, 644 (1959)). “It is elementary that unless the context
suggests otherwise, words in the Constitution are to be given their usual plain or ordinary
meaning.” Harrison, 200 Va. at 451, 106 S.E.2d at 646. With that in mind, we examine the use
of the words “consent” and “waive” in Article I, Section 8 of the Constitution of Virginia.
The noun “consent” ordinarily means “compliance or approval esp[ecially] of what is
done or proposed by another.” Webster’s Third New International Dictionary 482 (2002). The
idea of consent is necessarily both intentional and affirmative, entailing a “capable, deliberate,
and voluntary agreement to or concurrence in some act or purpose implying physical and mental
power and free action.” Id.
The meaning of the verb “waive,” by contrast, is more nebulous and does not necessarily
reflect an intentional or affirmative act. Particularly in the context of legal rights, the word
“waive” often means “to relinquish voluntarily.” Id. at 2570. But it can also mean “to neglect to
take advantage of.” Id.
Our Constitution resolves this ambiguity by making the accused’s affirmative consent a
necessary condition for the waiver of his right to a jury trial. “If the accused plead not guilty, he
may . . . waive a jury” only if “his consent” is “entered of record.” Va. Const. art. I, § 8.
Moreover, the fact that our Constitution requires the accused’s “consent” but only the
“concurrence” of the trial court and the Commonwealth’s attorney suggests the accused must
-7-
initiate the waiver. Thus, it is not enough that the accused neglects to demand a jury trial; his
waiver must reflect a deliberate, affirmative act.
Both Article I, Section 8’s history and our precedents analyzing its language further
reinforce our analysis. Well into the nineteenth century, Virginia courts could not recognize a
criminal defendant’s express waiver of a jury trial under the common law. See Mays v.
Commonwealth, 82 Va. 550, 551 (1886) (“[I]n the absence of [statutory] authority the court has
no jurisdiction to try the accused on a plea of not guilty, otherwise than by jury; and consent
cannot give jurisdiction.”). Beginning in 1902, our Constitution modified this rule, permitting
some criminal defendants to waive a jury trial by affirmatively consenting to a bench trial.4
Virginia’s appellate courts have since interpreted the constitutional waiver provision as
requiring an express manifestation of the accused’s consent. In Boaze v. Commonwealth, 165
Va. 786, 183 S.E. 263 (1936), our Supreme Court observed that the precise form of the accused’s
consent was not jurisdictional—it was sufficient, for instance, if the consent took the form of a
motion for a bench trial by the defendant. See 165 Va. at 791-92, 183 S.E. at 265 (discussing
Cobb v. Commonwealth, 152 Va. 941, 146 S.E. 270 (1929)). But the Court also noted that “it is
still necessary that [the accused’s] consent be in some manner made manifest. Something more
than simple silence must appear.” Id. at 792, 183 S.E. at 265. This Court also has observed
repeatedly that “[t]o waive trial by jury, the accused must give express and intelligent consent,
and that consent . . . must be entered of record.” Jones, 24 Va. App. at 639, 484 S.E.2d at 620
(emphasis added) (citation omitted); see also McCormick, 5 Va. App. at 372, 363 S.E.2d at 125
(“[B]efore waiver of a trial by jury can be effective, the accused must give his express and
intelligent consent.”).
4
The waiver provision in Article I, Section 8 of the 1902 Constitution applied only to
“offense[s] not punishable by death, or confinement in the penitentiary.” It was amended in
1928 to extend to both felonies and misdemeanors. See A.E. Dick Howard, 1 Commentaries on
the Constitution of Virginia 145 (1974).
-8-
In this case, we cannot reasonably infer from appellant’s conviction orders that he
expressly and intelligently did anything. At most, they suggest that after he was informed of his
right to a jury trial, he failed to make a decision. We cannot infer that appellant affirmatively
consented to a bench trial from his mere participation in the proceedings. Cf. Catlett, 198 Va. at
508, 95 S.E.2d at 179 (noting that while “[i]t may be conceded that the Commonwealth’s
Attorney concurred in the waiver” in fact, “[t]he only question . . . [was] whether such
concurrence was ‘entered of record’”). And while the transcript indicates that the trial court
warned appellant that it would interpret his silence as affirmative consent, that is not similarly
reflected in the order book. “A court speaks only through its orders,” Smith, 205 Va. at 208, 135
S.E.2d at 773, and our interpretation of these orders is limited to their own language, cf.
Robertson v. Superintendent of the Wise Corr. Unit, 248 Va. 232, 235 n.*, 445 S.E.2d 116, 117
n.* (1994) (declining to consider the transcript of the trial court’s sentencing proceeding in
interpreting a facially unambiguous sentencing order).
We find that the trial court’s conviction orders do not reflect that appellant consented
either to a waiver of his jury trial rights or to a bench trial, as required by our Constitution. We
therefore hold that the trial court did not have jurisdiction to proceed with appellant’s bench trial.
We recognize that the trial court had the unenviable task of conducting an orderly trial despite
appellant’s stubbornness. But we also recognize that “[u]nder the scheme mandated by our
constitution . . . circuit courts must assume that trial will be by jury unless and until the accused
knowingly and intelligently waives that right.” Wright, 4 Va. App. at 309, 357 S.E.2d at 551.5
5
The record is silent as to why this case was originally docketed as a bench trial.
However, the fact that it was scheduled as such has no bearing on the question of whether
appellant waived his right to a jury trial. Even if appellant’s counsel’s had predicted that he
would waive his right to a jury trial, that would not relieve the court of its obligation to find that
appellant himself waived that right. “Because waiver of a constitutional guarantee requires
express and intelligent consent by the accused, a trial court may not rely on a defense attorney’s
waiver of an accused’s right to a jury trial, by itself, as a de facto manifestation of voluntary and
-9-
“Where, as here, a trial court fails to enter of record the accused’s consent . . . the conviction
must be set aside.” McCormick, 5 Va. App. at 373, 363 S.E.2d at 126.
III. CONCLUSION
For the foregoing reasons, we reverse appellant’s conviction and remand the case for a
new trial, if the Commonwealth be so advised.
Reversed and remanded.
intelligent consent by the accused.” Jones, 24 Va. App. at 641, 484 S.E.2d at 621 (citing Norton
v. Commonwealth, 19 Va. App. 97, 99-100, 448 S.E.2d 892, 893 (1994)). See also Va. Legal
Ethics Op. 1823 (2006) (advising that a unilateral action by an attorney waiving his client’s right
to a trial by jury without consent of the client is outside the scope of the attorney’s authority and
thus violates Rule 1.2 of the Rules of Professional Conduct).
- 10 - | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289305/ | Cite as: 585 U. S. ____ (2018) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
MICHAEL SEXTON, WARDEN v.
NICHOLAS BEAUDREAUX
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 17–1106. Decided June 28, 2018
PER CURIAM.
In this case, the United States Court of Appeals for the
Ninth Circuit reversed a denial of federal habeas relief, 28
U. S. C. §2254, on the ground that the state court had
unreasonably rejected respondent’s claim of ineffective
assistance of counsel. The Court of Appeals’ decision
ignored well-established principles. It did not consider
reasonable grounds that could have supported the state
court’s summary decision, and it analyzed respondent’s
arguments without any meaningful deference to the state
court. Accordingly, the petition for certiorari is granted,
and the judgment of the Court of Appeals is reversed.
I
Respondent Nicholas Beaudreaux shot and killed
Wayne Drummond during a late-night argument in 2006.
Dayo Esho and Brandon Crowder were both witnesses to
the shooting. The next day, Crowder told the police that
he knew the shooter from middle school, but did not know
the shooter’s name. Esho described the shooter, but also
did not know his name. Seventeen months later, Crowder
was arrested for an unrelated crime. While Crowder was
in custody, police showed him a middle-school yearbook
with Beaudreaux’s picture, as well as a photo lineup in-
cluding Beaudreaux. Crowder identified Beaudreaux as
the shooter in the Drummond murder.
Officers interviewed Esho the next day. They first
spoke with him during his lunch break. They showed him
2 SEXTON v. BEAUDREAUX
Per Curiam
a display that included a recent picture of Beaudreaux and
pictures of five other men. Esho tentatively identified
Beaudreaux as the shooter, saying his picture “was ‘clos-
est’ to the gunman.” App. to Pet. for Cert. 4a. Later that
day, one of the officers found another photograph of
Beaudreaux that was taken “closer to the date” of the
shooting. Record ER 263. Beaudreaux looked different in
the two photographs. In the first, “ ‘his face [was] a little
wider and his head [was] a little higher.’ ” Id., at ER 262.
Between four and six hours after the first interview, the
officers returned to show Esho a second six-man photo
lineup, which contained the older picture of Beaudreaux.
Beaudreaux’s photo was in a different position in the
lineup than it had been in the first one. Esho again identi-
fied Beaudreaux as the shooter, telling the officers that
the second picture was “ ‘very close.’ ” Id., at ER 263–ER
264. But he again declined to positively state that
Beaudreaux was the shooter. Esho was hesitant because
there were “a few things” he remembered about the shooter
that would require seeing him in person. Id., at ER
283–ER 284. At a preliminary hearing, Esho identified
Beaudreaux as the shooter. At trial, Esho explained that
it “clicked” when he saw Beaudreaux in person based on
“the way that he walked.” Id., at ER 285. After seeing
him in person, Esho was “sure” that Beaudreaux was the
shooter. Ibid. At no time did any investigator or prosecu-
tor suggest to Esho that Beaudreaux was the one who shot
Drummond. Ibid.
Beaudreaux was tried in 2009 for first-degree murder
and attempted second-degree robbery. Esho and Crowder
both testified against Beaudreaux and both identified him
as Drummond’s shooter. The jury found Beaudreaux
guilty, and the trial court sentenced him to a term of 50
years to life. Beaudreaux’s conviction was affirmed on
direct appeal, and his first state habeas petition was
denied.
Cite as: 585 U. S. ____ (2018) 3
Per Curiam
In 2013, Beaudreaux filed a second state habeas peti-
tion. He claimed, among other things, that his trial attor-
ney was ineffective for failing to file a motion to suppress
Esho’s identification testimony. The California Court of
Appeal summarily denied the petition, and the California
Supreme Court denied review. Petitioner then filed a
federal habeas petition, which the District Court denied.
A divided panel of the Ninth Circuit reversed. The
panel majority spent most of its opinion conducting a
de novo analysis of the merits of the would-be suppression
motion—relying in part on arguments and theories that
Beaudreaux had not presented to the state court in his
second state habeas petition. See App. to Pet. for Cert.
1a–7a; Record ER 153–ER 154. It first determined that
counsel’s failure to file the suppression motion constituted
deficient performance. See App. to Pet. for Cert. 3a. The
circumstances surrounding Esho’s pretrial identification
were “unduly suggestive,” according to the Ninth Circuit,
because only Beaudreaux’s picture was in both photo
lineups. Id., at 4a. And, relying on Ninth Circuit prece-
dent, the panel majority found that the preliminary hear-
ing was unduly suggestive as well. Ibid. (quoting Johnson
v. Sublett, 63 F. 3d 926, 929 (CA9 1995)). The panel ma-
jority next concluded that, under the totality of the cir-
cumstances, Esho’s identification was not reliable enough
to overcome the suggestiveness of the procedures. App. to
Pet. for Cert. 5a. The panel majority then determined that
counsel’s failure to file the suppression motion prejudiced
Beaudreaux, given the weakness of the State’s case. Id.,
at 5a–6a. After conducting this de novo analysis of
Beaudreaux’s ineffectiveness claim, the panel majority
asserted that the state court’s denial of this claim was not
just wrong, but objectively unreasonable under §2254(d).
See id., at 6a–7a. Judge Gould dissented. He argued that
the state court could have reasonably concluded that
Beaudreaux had failed to prove prejudice. Id., at 8a.
4 SEXTON v. BEAUDREAUX
Per Curiam
The State of California petitioned for certiorari.
II
Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), a federal court cannot grant habeas
relief “with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudica-
tion of the claim . . . resulted in a decision that was con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by” this Court,
or “a decision that was based on an unreasonable determi-
nation of the facts in light of the evidence presented in the
State court proceeding.” §2254(d). When, as here, there is
no reasoned state-court decision on the merits, the federal
court “must determine what arguments or theories . . .
could have supported the state court’s decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of this Court.” Har-
rington v. Richter, 562 U. S. 86, 102 (2011). If such dis-
agreement is possible, then the petitioner’s claim must be
denied. Ibid. We have often emphasized that “this stand-
ard is difficult to meet” “because it was meant to be.”
Ibid.; e.g., Burt v. Titlow, 571 U. S. 12, 20 (2013). The
Ninth Circuit failed to properly apply this standard.
A
To prove ineffective assistance of counsel, a petitioner
must demonstrate both deficient performance and preju-
dice. Strickland v. Washington, 466 U. S. 668, 687 (1984).
The state court’s denial of relief in this case was not an
unreasonable application of Strickland. A fairminded
jurist could conclude that counsel’s performance was not
deficient because counsel reasonably could have deter-
mined that the motion to suppress would have failed. See
Cite as: 585 U. S. ____ (2018) 5
Per Curiam
Premo v. Moore, 562 U. S. 115, 124 (2011).1
This Court has previously described “the approach
appropriately used to determine whether the Due Process
Clause requires suppression of an eyewitness identifica-
tion tainted by police arrangement.” Perry v. New Hamp-
shire, 565 U. S. 228, 238 (2012). In particular, the Court
has said that “due process concerns arise only when law
enforcement officers use[d] an identification procedure
that is both suggestive and unnecessary.” Id., at 238–239
(citing Manson v. Braithwaite, 432 U. S. 98, 107, 109
(1977), and Neil v. Biggers, 409 U. S. 188, 198 (1972);
emphasis added). To be “ ‘impermissibly suggestive,’ ” the
procedure must “ ‘give rise to a very substantial likelihood
of irreparable misidentification.’ ” Id., at 197 (quoting
Simmons v. United States, 390 U. S. 377, 384 (1968)). It is
not enough that the procedure “may have in some respects
fallen short of the ideal.” Id., at 385–386. Even when an
unnecessarily suggestive procedure was used, “suppres-
sion of the resulting identification is not the inevitable
consequence.” Perry, 565 U. S., at 239. Instead, “the Due
Process Clause requires courts to assess, on a case-by-case
basis, whether improper police conduct created a ‘substan-
tial likelihood of misidentification.’ ” Ibid. (quoting Big-
gers, supra, at 201). “[R]eliability [of the eyewitness iden-
tification] is the linchpin’ of that evaluation.” Perry,
supra, at 239 (quoting Manson, 432 U. S., at 114; altera-
tions in original). The factors affecting reliability include
“the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the
accuracy of his prior description of the criminal, the level
of certainty demonstrated at the confrontation, and the
——————
1 Judge Gould found that the state court could have reasonably con-
cluded that Beaudreaux failed to prove prejudice because the weight of
the evidence against him—even without Esho’s identification—would
have been sufficient to ensure his conviction. See App. to Pet. for Cert.
8a. We need not reach that issue.
6 SEXTON v. BEAUDREAUX
Per Curiam
time between the crime and the confrontation.” Id., at
114. This Court has held that pretrial identification pro-
cedures violated the Due Process Clause only once, in
Foster v. California, 394 U. S. 440 (1969). There, the
police used two highly suggestive lineups and “a one-to-
one confrontation,” which “made it all but inevitable that
[the witness] would identify [the defendant].” Id., at 443.2
In this case, there is at least one theory that could have
led a fairminded jurist to conclude that the suppression
motion would have failed. See Richter, supra, at 102.3
The state court could have reasonably concluded that
Beaudreaux failed to prove that, “under the ‘totality of the
circumstances,’ ” the identification was not “reliable.”
Biggers, supra, at 199. Beaudreaux’s claim was facially
deficient because his state habeas petition failed to even
address this requirement. See Record ER 153–ER 154.
And the state court could have reasonably concluded that
the totality of the circumstances tipped against
Beaudreaux. True, Esho gave a vague initial description
of the shooter, see Manson, supra, at 115 (noting the
detailed physical description the witness gave “minutes
after”), and there was a 17-month delay between the
shooting and the identification, see Biggers, supra, at 201
(determining that “a lapse of seven months . . . would be a
seriously negative factor in most cases”). But, as the
——————
2 In the first lineup, the suspect was nearly six inches taller than the
other two men in the lineup, and was the only one wearing a leather
jacket like the one the witness described the robber as wearing. Foster,
394 U. S., at 441, 443. Police then arranged a “one-to-one confronta-
tion” in which the witness sat in the same room as the suspect and
spoke to him. Id., at 441. And in the second lineup, the suspect was
the only one in the five man lineup who had been in the original lineup.
Id., at 441–442.
3 Because our decision merely applies 28 U. S. C. §2254(d)(1), it takes
no position on the underlying merits and does not decide any other
issue. See Kernan v. Cuero, 583 U. S. ___, ___ (2017) (per curiam) (slip
op., at 7); Marshall v. Rodgers, 569 U. S. 58, 64 (2013) (per curiam).
Cite as: 585 U. S. ____ (2018) 7
Per Curiam
District Court found, Esho had a good opportunity to view
the shooter, having talked to Beaudreaux immediately
after the shooting. See App. to Pet. for Cert. 66a. He also
was paying attention during the crime and even remem-
bered Beaudreaux’s distinctive walk. See id., at 64a, 66a.
Esho demonstrated a high overall level of certainty in his
identification. He chose Beaudreaux’s picture in both
photo lineups, and he was “sure” about his identification
once he saw Beaudreaux in person. Record ER 285; App.
to Pet. for Cert. 63a–64a, 66a. There also was “little pres-
sure” on Esho to make a particular identification. Man-
son, supra, at 116. It would not have been “ ‘ “objectively
unreasonable” ’ ” to weigh the totality of these circum-
stances against Beaudreaux. White v. Woodall, 572 U. S.
415, 419 (2014).
B
The Ninth Circuit’s opinion was not just wrong. It also
committed fundamental errors that this Court has repeat-
edly admonished courts to avoid.
First, the Ninth Circuit effectively inverted the rule
established in Richter. Instead of considering the “argu-
ments or theories [that] could have supported” the state
court’s summary decision, 562 U. S., at 102, the Ninth
Circuit considered arguments against the state court’s
decision that Beaudreaux never even made in his state
habeas petition.
Additionally, the Ninth Circuit failed to assess
Beaudreaux’s ineffectiveness claim with the appropriate
amount of deference. The Ninth Circuit essentially evalu-
ated the merits de novo, only tacking on a perfunctory
statement at the end of its analysis asserting that the
state court’s decision was unreasonable. But deference to
the state court should have been near its apex in this case,
which involves a Strickland claim based on a motion that
turns on general, fact-driven standards such as sugges-
8 SEXTON v. BEAUDREAUX
Per Curiam
tiveness and reliability. The Ninth Circuit’s analysis did
not follow this Court’s repeated holding that, “ ‘[t]he more
general the rule . . . the more leeway [state] courts have.’ ”
Renico v. Lett, 559 U. S. 766, 776 (2010) (brackets in origi-
nal). Nor did it follow this Court’s precedents stating that,
“because the Strickland standard is a general standard, a
state court has even more latitude to reasonably deter-
mine that a defendant has not satisfied that standard.”
Knowles v. Mirzayance, 556 U. S. 111, 123 (2009). The
Ninth Circuit’s essentially de novo analysis disregarded
this deferential standard.
* * *
The petition for a writ of certiorari and respondent’s
motion to proceed in forma pauperis are granted. The
judgment of the United States Courts of Appeals for the
Ninth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
JUSTICE BREYER dissents. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4147462/ | J. S10020/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BYRON DESSISO, :
:
Appellant : No. 1096 EDA 2015
Appeal from the Judgment of Sentence February 27, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0003526-2010
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 22, 2017
Appellant, Byron Dessiso, appeals from the Judgment of Sentence
entered following the revocation of his probation. Appellant’s counsel filed
an Application to Withdraw as Counsel and a Brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), stating that the appeal is wholly frivolous. After
careful review, we grant counsel’s request to withdraw, vacate Appellant’s
Judgment of Sentence in part, and affirm Appellant’s Judgment of Sentence
in part.
The facts, as gleaned from the certified record, are as follows. On
March 7, 2010, police arrested Appellant after police recovered a loaded .22-
caliber firearm from his jacket pocket. Following a bench trial, the trial court
convicted Appellant of Persons Not to Possess Firearms, Carrying a Firearm
J. S10020/17
Without a License, and Carrying a Firearm in Public in Philadelphia. 1 On
August 13, 2010, the trial court sentenced Appellant to concurrent terms of
six years’ probation for two of the offenses, but imposed no penalty for
Carrying a Firearm in Public in Philadelphia, 18 Pa.C.S. § 6108.
On February 27, 2015, Appellant entered two open guilty pleas on
unrelated charges, which constituted probation violations. The trial court,
also sitting as the violation of probation (“VOP”) court on the same day,
found Appellant had violated his probation and revoked his probation. The
court resentenced Appellant to an aggregate term of 2½ to 5 years’
incarceration, as follows: (1) 2½ to 5 years’ incarceration for Persons Not to
Possess Firearms; (2) a concurrent term of 2½ to 5 years’ incarceration for
Carrying a Firearm Without a License; and (3) a concurrent term of 2 to 4
years’ incarceration for Carrying a Firearm in Public in Philadelphia.
Appellant filed a timely Notice of Appeal. Appellant filed a statement
pursuant to Pa.R.A.P. 1925 as ordered.2 On September 22, 2016,
Appellant’s counsel filed a Brief pursuant to Anders and Santiago, supra,
which included a request to withdraw.
Before we address the merits of this appeal, we must determine
whether counsel has complied with the procedures provided in Anders and
1
18 Pa.C.S. § 6105; 18 Pa.C.S. § 6106; and 18 Pa.C.S. § 6108,
respectively.
2
The trial court did not file a Pa.R.A.P. 1925(a) Opinion.
-2-
J. S10020/17
its progeny. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). Counsel who wishes to withdraw must file a petition to
withdraw stating that he or she has made a conscientious examination of the
record and determined that there are no meritorious issues to be raised on
appeal. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Also, counsel must provide a copy of the Anders Brief to the appellant and
inform him of his right to proceed pro se or retain different counsel. Id.
See also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).
The substance of the Anders brief must “(1) provide a summary of
the procedural history and facts, with citations to the record; (2) refer to
anything in the record that counsel believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous. Counsel should
articulate the relevant facts of record, controlling case law, and/or statutes
on point that have led to the conclusion that the appeal is frivolous.”
Santiago, 978 A.2d at 361.
Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous. See Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.
-3-
J. S10020/17
Super. 2007) (en banc); Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (footnote and citation omitted).
Counsel in the instant appeal has complied with the above
requirements. We, thus proceed to conduct an independent review to
ascertain if the appeal is indeed wholly frivolous.
Our review of the record indicates that there is one issue of merit not
raised by Appellant or his counsel in the Anders Brief. As the
Commonwealth has noted, the VOP court “did not have authority to impose
a new [VOP] sentence on the conviction for carrying a firearm on public
property or public street in Philadelphia because it had originally imposed ‘no
further penalty’ for that offense.” Appellee’s Brief at 9 (citing
Commonwealth v. Williams, 997 A.2d 1205, 1208 (Pa. Super. 2010)).
“Revocation of a probation sentence is a matter committed to the
sound discretion of the trial court and that court's decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
discretion.” Williams, supra at 1208. “An appellate court may affirm,
modify, vacate, set aside or reverse any order brought before it for review,
and may remand the matter and direct the entry of such appropriate order,
or require such further proceedings to be had as may be just under the
circumstances.” 42 Pa.C.S. § 706. However, “a probation revocation court
does not have the authority to re-sentence an offender on a final guilt-
-4-
J. S10020/17
without-punishment sentence after the period for altering or modifying the
sentence has expired.” Williams, supra at 1209.
After reviewing the record and the relevant case law, we agree with
the Commonwealth that the VOP court imposed an illegal sentence of 2 to 4
years’ incarceration for Carrying a Firearm in Public in Philadelphia. Because
the trial court had originally imposed a sentence of no further penalty for the
violation, and the 30-day period for altering or modifying a sentence had
elapsed, the VOP court was without authority to impose a term of
incarceration for that conviction.
We also agree with the Commonwealth that correction by this Court
will not disturb the trial court’s overall sentencing scheme. See Appellee’s
Brief at 9-10. The VOP court sentenced Appellant to an aggregate term of
2½ to 5 years’ incarceration, which included the improper concurrent term of
2 to 4 years’ incarceration for Carrying a Firearm in Public in Philadelphia.
Since vacating the concurrent illegal sentence would not change the length
of Appellant’s incarceration or disturb the trial court’s overall sentencing
scheme, we need not remand this case for resentencing. See
Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006).
Judgment of Sentence imposed for violation of 18 Pa.C.S. § 6108
vacated. Judgment of Sentence affirmed in all other respects. Application
to Withdraw as Counsel granted. Jurisdiction relinquished.
-5-
J. S10020/17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
-6- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144205/ | OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AtJsTlN
Honorable Me 0. Flower8
swretary Of stat3
Austin, Tsxae
Dear Sirt Opinion No. lh4!~8S
Rot Is the Eleoreta
authorlied to
on the ballet
We: have pour reque
Honorebl@ 15. 0. Flowere. Page S
TXmgroes ehall make no law . . . ebrid&ing
the free&m of speeah, or of the pressi or the
right of the people peaoeably to aseemble, and
to petition the Government for a redress of
their grievenoes.W
Seotlon XI of the Bill of Rights of the Texaaer
constltutlon deolarent
'*All free men when they form a sooial oom-
paot, gave equal &hte and no man or set of
men, ie entitled to exoiuslve @?pe,&te public
emoluments, or prlVlleSes, but in consideration
of public servloea.W
The princlplee announced and rights guaranteed by
these constitutional provision8 apply to all oitisene re-
garblesa of polltfoal faith. These prlnomes were foroe-
fully Illustrated in Jefferson*e preamble to the Virginia
Aot for establishing Relf,glous Free66mc Ris words apply as
well to politioal a5 to rellglou~ freeuom.
To suffer the cifilmagle~rate to intrude
hia power intothe field of op%nion, and to re-
strain the profeaal.on or prcipa ation o$ prinoi-
ples on suppo6itQui of thefr i& tendenoy, is a
dangerous fal.Q.oy; whioh at once destroys all
religioue liberty, be&xiae he being of oour8e.
jud,-;eof that tendewy,:.willmake hia opistf6n
the rule of judgmen$, and approve or oonbemn the
sentiments of otheas only a8 they shall square
w%th or differ from his own.*
spoaklng over one h&e& years later, Idr, Juatiae
Rolmee reaffirmed th& a&nti'philoe6phy whM he ealds (P&a-
senting in Abram6 vs, U.S.., 850 0,s.~ Sl6,),
u . , . Vie~ehould be etbrnally vi$lZant
against attempt8 to oheok the expression of
opinions that we lciathe and believe .to be
fraught with de&h,,unlesa they 80 imminently.
threaten immediate interference with the lawful
and preesing purposes of the law that W Ike-
diate check fs requ'irea to Bleve the oountryrU
these same pr$noiples have been repeatedl an-
nounoed by'the caurte of Texas, but never more WOO % 6tly
then by Nr, Justtee Gains&!, apeal&& f6r the Supreme Court
of Texas In Steusoff vs. State, 80 %& 4S8r
Honorable M. e. Flowers. page 3
When a oonstitution has been framed whioh
contains no provleion~deffning in terms who shall
b,e eligAble to'offioe, thereis strength in the
argument that then intention wa6 to confide the
seleetfon to the untrammeled will of the eleo-
tort3. Emperienoe teaches us that in nodular elea-
tions only thoae are ohoeen who are &iympathy
tith-the people both in thought and aspiration
. . . 1
With these general irinciples in mFnd let ua turn,
to a oonsideration of the- speoifio question before'w, i.e.,
the powers, duties and dieoretion relating to eleotione
vested by the Constitution and law8 of the State in the Sea-
rotary or State.
.Section 3 of Art&ale IY of the Oonetitution pro-
vldea thatt
*Theereturn of every 8leOtiOn for 6Uld
executive offiotws, unti.1 otherwise provided by
law, shall be made out, aealed,up, and trans-
mitted by the returning offi.oere~ preagribed by
laws, to the seat of government, directed to the
Seoretery of State, who shall deliver the same
to'the speaker of the Houue of Bepresentatlvee
*
. * l
Seotion 21 of Artiole Iv dfre0ta the Secretary of
State to *p&form suoh other duties as may be requirea of,
himbylaw". ZIISOfar as these duties relate t0 eleOtiOne,
thsse duties are enumerated in the 8tatUte8 oompriaing Title
6G of the Bevtsed Civil Statute8 and Title.6 of the Penal
Coda. Artiole.2923, Bevised glvil Btatutea; dlreetehim to
"prescribe formsof all blank@~for.ball.ote, eta., *and fur-
nish sarse to each oounty judge*. lirtlolee 2920 and 2999 pro-
vide that the death of any state or dietriat Offleer or nom&
we shall be ?ertified bo.,the,Seoretary of Statei Art&&e
2928 hrohibitathe 'Secretary of State.from fsaulng certifi-
Bates of sleetion.or appoointment to anyone %ho is'not eli-
glble to hold aueh offiae'under the Oonstitutlon . ; *
&tiole 2982 'requirea the searetary of State to ,hold (: draw-
ing to determi?W;ths'order In ah&h proposed cronatttutionaX,
amendments shalL appear on the ballot. drtiete 2991a did
recta the Seoretary of State to exemlne and approve votfng
maohines. Artitslee 3026a and~3933direoC Bounty judges%6
mall election returns to ~the EWretary of State, and Article
3034 rovf.ak3 ~that,hs shall e n and oounttha returns of
ons, Artirli DXSf3 reqtt
elebt f. z ea state acnnu&tteea .ef poSLt-
iual partlee whaee neminee .for gooertror'pellad between 10@0
Honorable Bs. 0. Flaurers, Page 4
and 100,000 votes at the last eleation to oertify to the
Seoretary of State whether they will nbminate their oaadi-
date by oonvention or prfieary elecrtion. Artlole 3157 re-
quires suoh nolninationa~to be oertified to the Secretary of
State, By Artlale’ 3139, non Wartlsan or independent caudl-
dates are direated to make applloation to the Seoretary of
State to have their manes placed oh the ballots, .end Arti-
cle 9161 direete the.Searetary of State to ,relag the names
to the oouhty Olerrlce. Artioles WMi84Xl73. :provide ror re-
ports.of campaign expenditure8 to be made to the Searetaoy
of State.
This ~enmeration of.the statutory dut$e.s of the
Seoretary of State relatlng~to eleatione Indicates #at all
OS his said dutiee are minister’ial in ~oharaater* Nowhere ds
we find any dim~etionary. pow& loagctd #q~t&e Sewqtary ot
State to authorize hipl,to rsfuee.~t pIaeo:on. the, baUot to
the duly dealgneted.rymhees of any p@Qioal party,
!Ch%a .proaiae~+estl6n was *before yt,heAustin Clourt
ai Civil Appeals in Morris vs. M&us, 894 8.8. 587* Suit was
brought to reetrain the Seoretarp of State ~from certifying
the nominees of’ the Azneridan party, -to the eleotlon ofi%-
oers. In. denying the ‘relief s@ght, the court in a per
cmriam opinion de.olareda
TChe Legi~elattie:wkJrinake reuhondble regula-
tions as. to ,kow sominatlone iaay be made, but If
cannot prohlbft suoh no&nati.ons, whether by a
new-party or anyold one jQllmare ~8. Wapleo, 108
Ter. 267, l&3 S,W. lQ39); and.it oannot nullify ’
the effect of such nominatfons, when legally made,
by prohib,i%ing the printing of the names of such
nominsesuu$on the ofrinial ball.ot,,the se&e be&kg
the only’~baI~et that can be legally voted.
RTPhe statute preocrib~ei no ‘method by whioh
a n8W party Hhay Wke, 5otixiatbnsr Such being the
ease ;-iiCnew party has ~the,right to pursue any
reasonable method in .mki.?igits ntiIIat;lonS, not
prohibited by., l,aw, AS the Awerloan party pursued
one of the methoda preeorgbed by statute Zor mak-
i.ngnomQaatle~@ by pre-existing ptles , we hold
thst such rr;e$hcidwa&ireasonable, apd, aa there is
no law .fol’bbtl@ng3.t to pursue such nethod, owe
hola that ‘ftanoa~inatione of the candidates mused
Honora,ble 1;. 0. Flower~s. Page 5
printed the names OS suuh~candidates on the ofi&-
i 1 balldts as ~the nominees OS ,the American Far-
&B” (Bnphasis ours)
That it is not within the dl%or%tion OS the Se%-
retary of State to reSuse to place upon the ballot ant a gen-
eral eleatlon the dul certified candidates oS.a..politleal
party was ltkewise he 9d by fhs.Supr%m% Court of T%xa%‘u
Sterling vs. Ferguson, 122 Tex. 122, 53 S.W, (2d) 753. ‘The
opinion whioh was signed by all three justiocs (Oureton,
Greenwood and Ficrson) quoted with emphasis ,the following
statement from 9 i?uling Case Law, p. 1090; Sec. 100:
n . where provision is made for the is-
ou&no%*&‘a nomination certifiahta, and on% Is
issued, the holder is entitled*to’have hi% n%m%
prInted. on the ofiioial ballot, at least until *
it is set aside in proper prooeedings.*
The opinion quotes Artiole ,230 OS ~th%’
P6nal Coder
?Lsy.judge, clerk, ohaPh;~or manrbgr~ OS an
executive aoam&ttee,’ oolle,o’j;b;r’ of tares; ~ourrty~
clerk, she.rfSS county, judge.or judg%~,of. an &.%I%-
tloni pr%sid%n&r’, membef OS a~~tate'Gomrentfm~
or Seoretary OS .Sta$e, who will+~y ~Saee: or ‘re-
fuses to disaharge.:any duty impoe~ti,on-hit1~6i.uIel
the flaw; eh.sll.be Slned not to eqeed'ii~e hunk
ared dollars unless. the ptitioular aat under so&s
ether, law is-made a Sel,ony,*
and declares s~ignifibantlyt
‘2lO$eolcn:,~.fdll a ‘will& failure, to osrtify
. . .
*It is ~clear, $v%think, that these etatuteu
(r%lating~to’ballots at general election%) are
mandatory, in the s.enab thatthe oandidate and .
the citieens have rights to b% subserved thereby,
which may’~be~enSor.ced, and the statutes should
be obeyed,.%.
It is our sonsldered opinion,, that under ‘ths fore-
going authorities the Seatietary of State of Texas i% but a
....,
902
ministerial offlcer,with raspeot to the oonduct of ela@t&,C+ns,
and he may not in his disoretion refuse a plaoe on the bgd-
lot at a general election to the ~minees~ of airy politioal
party \rho have'been duly nominated and certiiied to him ae-
cording to law.
It follows, therefore, that the Secretary of State
fs not authorized to.deny a place eon the ballot in-the gen-
era1 eleotfon to oandidates of .the Comguni8t Party.
Yours ,veri truly
ATTOT?.NlX
G?tNlRALGF TFXAS
APPI?CWZ:I.JU~
28, 1940
ATTORNEY
GENERAL
OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144211/ | OFFICE OF THE A’ITORNEY GENERAL OF TEXAS
AUSTIN
DearNr. Jams4
you requeot the
not araaoa iflver
Befuading Borden
tory &au, au co
ier of Btate fun&a. FJU Treat-
1 reqdre eueh bmk 80 de&g-
Qu8li.Q 98 h w&d r.MpoSlW~
before the with flay of #oveuber
Iby (a) &qoelting a depository
aignea lay some surety oonlpaq
authorieed~to Bo bud.nes~ la Bmau,
in an asmmt equal to not lee9 than
&n&lb the amount of &Rate fuxle al-
lotted, em!& bond to be parYobl0to
the freaaurerunfito be in ma& Porn
au rubybirpoorribed by the Board end
877
lttbea tto'the~apprmalof mmhBoard;
tb )by pled@agtiththe beasumr
Ey seouritles OS the following klndet
Bonds and cer@floetee and -other ti-
demo08 of indebtbdtm88 of. the United
6tstos, sad all other box&s -oh are
@laranteed as to both @nQipal and in-
terest by the Unfted Stster ; boodeof
thl6 state b0xls ad other obligations
lesped by the Uxtivet-olty of Text&s,ear-
mute dravn on tho State Trsam agalast
the General Ro~snue of the St&et bond6
issued by the Federal.Farm Ucwtgage Cor-
por-atitm~orlded both pri.noip~%l and in-
terest of sold ‘bonds are &g&ta.ufeo8 by
the United Btat&Govermmnt$ BorneOwn-
em Loam Corporatioa Bonds, ,protied both
pslmiprrl and interest~ot mid boqU8 we
@aranteedbytheUnitod StatesGovern-
tmnt and 8uoh osburitles 8hdl be acoept-
ed~theBoanLin,aa,~tnotlessthan~
five (a) r cent greaterthsathe 8umm*
d State ru&s which they 8sm.u-e~w&d,
that Texas &Wiof mrds uay.be ~nccrOpted at
ffme value atxlnlthont~mrr@.n ior the
t6amtttttSBtste fwm%s allotteU, Ffo+ide~I,
atteh State Relief Bond8 hare all rniEIkpsd
00upoM tittaeaed bonds of 0ounflelB 1oQated
In Texaas; roud d Lt tr*ot8 oi aounttett,in
TeJIps j inaepetatentsad comma *c&o01 die-
triCtslosstediIi~sxas) ana'bondeZe8usd
by tinntcL* oorporatlons b Tow; ~* + lm
Ccm8ematlon aul'k&sat~o.on bietrlots are pm110
OOt'QO~8tiOM OuthOrieed outaFt3@Utad w Chapter 8 Of Title
la of the llerisedCivil Stututeo. Braxott Bi+er Ceneervo-
tion and Real~tion Distriot *as ersated by eat of the Clst
'beglslature, 8octd called seesion, -specialUivs, page 22,
Chapter 13. The Aathasbeenssmmaltimec amended, the
last one be%ng tliatof lQ3!S,44th Legislature, first called
SOPSIO~, page 1627r Cht3pter868.
Artlele 2628 o? the ctatuteo de-8 tie olasses
of eligible beouritieo ior public depositories. 'If the
bonds arler oon8iderat3anare tobe condder ed elle;ibl+ %t
xttst'ba~bemu8e taey belong ta thd alask llsrmsd by .mrrmigi-
pal corprstlons,~ for, clearly, they do not fall within auy
other olass~ezamertatedby the statute.
Bozloreble Jooee Jame - paF;o 3
The torm*mn%uipal eorporafitm~ Is osmlln
fro differentsenses in otettttee md in detcbions, adl,
lllmvias, in comlon lance of tiaeneiel circles.
Pirst, it is ueod ea eynollymua aith publzc
oorporlrtions au aontra-dlstinguiehod fram prltntocor-
etiom, esl in thet eonee it would lnclnde State
r OXiS, COUttt~ bO?ldB, Oity bOlit8, SChOObdthtdCt bonds,
saqmYenr3ntdstriot bonds, and pgp other bog2 Issued
bJooergordioIlServiago
eoeote pleao, the torn
rover aud tmro speol.fic twauseat3roferrizg to oitios,
tovM aud vllleg0s only.
billon on Uaniclpel Corporations (6th editbn)
sajrst
•Uuni.c~paloorporetians am2 in&i-
tutlonttdeuigned for the looal gmern-
taantof towns a& cities; or, mre ec-
eumtel.y townsand aitieo dth their
Sult&iteutsare for pwpo600 of iiubordi-
nete local a&idnkstrotian ismeet@ 01th
a oorpor~te &ereeter.~ (vol. 1 rsw .ls).
A&n, the sspc authorltydaclarost
cuillltp,
00 vcll OS oity, ICIa gubllc cor-
porstiOll; bat
th0 Bob001 diStriCti Or
county, jroporly epeuking, is not, while
the city is, a gunicivo~ corporation. All
rslnicipal~corporatfons.ere gxttalio
b0dief3,
oraetod for cirL1 or political purpeee~
but all aivil, political, or p&lie cor-
.I379
Honor8blo J0s8s Jams - page 4
contenmletlon of this treatise. has
roferenoe
s-
to lncorooreted wi
touns, and cities, rlth potter of lo-
CC1 adlli338~tl. 88 diOtiMUfShOd
from other public iorpmatic& auah
as oouuties cud guesi oorporet~oua.~
(6348 P* 452)
To the sme general effoot are the following
stcmderd srlterer Fletcher on Corporetious, YO 1,
sf!67 to 66; Thompson on Corporotio 8, vol. 1, ifiM-26;
lWuillian hunicipal Corporation8, ii% 133-13y.
In Opinion X0. o-U52, applying thoeo priuei-
ples end construiug Article 2629, se held that the r&tnd-
ing bot8l.sof a w seter-lmprwosmt district were not
sllglblo es muicipal bonds. That opinion 8hould be fol-
loood not only upon Lpecedent but upon sound reasonlugas
roll.
It hae boen suggested that tho mordlug of the
statutes creating the Brasos airer Consenatiw and Reole-
mation District is such en to constitute the district a
suudcipslity sit&W the euaning of Artiole 2S29, the par-
ticular lenguege rsfsrrsd to being es 2ollosat
*she BraSOB River ConaerYatlou axl
Reclamation dietriet ie oreatedan a
gwenmrsntel agomy, a pmicipelitp, body
politlo end corporate, rested tifb all
the eutbority as an& under the Consti-
tution aad leas of this State.. (B 2 of
tho original Act).
We outmot adopt this suggestion. Tho rord
lsunloipalit~ $31Seotion 2 is usod In the general all-
coszprehonsiresanse of public corporations, as oontrn-
dfBtiUgUb%hea fmtu private Corporation. In this sense
the word is apt and it is In thin sense the I4egislattme
Used It3 ObYiOUSl~, the LegislatUre did riot use the TOrd
Qunicipality~ in its smo speclfio sense -- that of city,
town or Yillage - for the consorYation and reclaxatlon
district was not at the time and cannot be, arrlsas nwer
ihteuded by the Act to be, a olty, tow or rlllage.
Wreovec, the faat that Article 2620, occordiug
to the latest smmdment thereof'(1039) In enumBretfug the
Honorable Jesse Jams - pace 5
olasses of securities &a eligible named lr o sil
diStriot6,'
s&ndepsxIont axl oomxm school dietristan, a talrmniclpal
corpr;Ltlons,* thus iadicsted lndiaplteblg that smnmicipl
corporations9 as a alas6 was used in the epacoifio ssnse of
cities, tow mcl rillagcs, rather than in its uxmt gener-
al 68063 -- that of publio COrpOrRtiOM -- for rood din-
triots and COEWP school distriots and independent school
districts are publia corporations, and in the broadest'
sense nunLeipa1 corporations , so that their enumratlon
tould hmo bean use1086 if lnunAcipalitieew Included
thoui.
If tho Loglslature had intended that consanatlon
and reclamation district bonds should bs eligible, undor
Article 262~~ it oould easily have included them in its
amx&mntOP1939.
We therefore hold that the refumling bonds of
Brazes River Conservation and BecloEation districta are
not sligible as eoouritiss SOr public depoetteries, under
Article 2620 of the Revised CiHl Stat&es.
Very tmly yours
ATTORWEiXGEBEULOFT~
t
&G
wie
ABSi6ee
ls
OS-UR
APPROVEDAPR25, 1940
/izkL&u*w
ATTORNEYGENERALOF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144307/ | OPFICL OF THE ATTORNRY QRNERAL OF TRXAR
AUSTIN
HoaorabloWaUer Caraon
county Attornry
EudapothCounty
81Orr4 Bhnoa, Toxra
War sir:
Will failure andananotice
ln a ault for ht 3x1tbo
neme of the s ju&mnt ren-
dorbtl in auoh t 4 purohaaer
whc e0qu after the suit
wae tile rendsradin
SUOh au%
Wo assum tha rtion is l*nd, ana that
th is la a lui
taxea and penaltloaduo by luOh drllnquent,un-
de* auoh regulationsas the teglalaturemay pro-
Yld4.~
.
416
Bmeroblo Walker Carson, pago I!
utiole 7172 or the IiwlatiCivil Statutsaof Texas lay8:
-411 tfice*upon rod propertyabull bt43
lien npoa such property tmtll the saw shall
h4rs bubm paid. ad should tho eaaeaaorrdi
to ~88980 aa r44l utata ior any on0 or more
yeera, thr An 8hall be 6004 for e7ory par
that he 8honld fell to asaw for; and ho ~IW,
in li8tiagpropertyCar tuor any yearthoro-
a fto r ,
la8eaa all the bark tax- dur thereo~~,
4ooortllng to the provisIon or this titlr.w
It la a well known rule cU law In Tom that
evuy puroharor
of l(md U ohugad 81th notlor of tax08
dU OIL 84id land 4Ad the tW UOll8 thereon. 14 th. 04U
of Taxas 9nnk WI Truab Goapny vs.’ Bankera~Lifo Company,
(ct. clv. .kpp.)
43 3. w. (Ed) 63l, the oourt aeid:
"+ a a Beotibn l6 utiala 6 of tha Con-
8titiMon rovidsa thei tuO8 on iaad shall be
a rtpeolal Pion thereon. ,wtlols7172 of the
Revised statuteaprovidesthat taxor upon real
propertyshell be a lion until 84414 lr4 p&I.
our oourtahold that 136ona oan be au iMocent
-rohaser of fund as agai&at tha lien held by
4 stateor city for tax48 duo. city of San
21;
Aatoaiov. Terrill (9'0~. Cit.App.)ZOE 8. 6.
Wl (errorref.);stat0Mortgage Corpar4tlon
Thwefoto, tho person who rottased the lcindin quS8tion
had notice that the Stat0 ci a a llra on sAti 144d to se-
ow paymentof the taxes.
It is a well knowa rule of l&w that “tax for@-
0108ur4~.84188 4~4 governed by the mama rules otexnlut:
Judloidlsales gemrallp. Lcwe tl. R. 3. x9 duy su3p1y
coppatty; (Tex. CRY. .;pp.)106 5. a. (Zd) 630. Snob la tho
rule aooordln&to Artlolis 7588, R. 0. S., whloh is in FB-
gUrd to tu suits, and which road8'i.n partaa follwa:
*The properporua8, lnoludingall reooxd
lion holdera,shall be n;\dopartiredotandaat
la such suit, nnd shall be ae~~d dth p’rooeaa
aad other prooeadlngahd thrmin as prwidai
EtnorabltWslker Carson,past S
b lsw in ordinaryfortol#wt suits in the
d I Strkt oourtrof thl5 *t&o: and in 0560
of foroolo5uro an ora& of salt shall i86ut
and the land e&t tmreunaor ls m other
&it ZIltr
be505 or rortarosuro; r * All 1
tbmploteahbrbln 5 bb Lit
prsborlbtdtar the sale of real e5tattunder
artoution.* (undbrsooring our8).
Rar ooms to the oo6ohasion that the tax foro-
olosur6proote % 586 la thI6 0850 ar5 gmm5U by the sams
rules as In ordinaryforeolosure suits,we beliersthat
your questionIs an6w6re&by Artisle2219, 8. c. s., whloh
readr as follomsr
Vihon an order foroolorl
real bstatt Is made in a
Its obitot tho forscloosuro
&oh order 8hufiShaooall the foroe ind'tf-
prorIdIngfor thb i66uanoeOS suo&osder.++I;”
(urulor5eorIng
ours).
That Statutespeciilo~y 6oYer6this o&se by virtue of the
provisionwbioh says that the gordor (of salt) shall have
all the for05 and effoot of a writ of pos5es6lonas between
the parties * + * and any psrson olaIti~n~5r thi drftnd-
ant to suoh 6.ultby asy r-t aaquired w suoh suit.*
In the oaas you ask about, thb p~shast~,@qu%ras Ned rl%ghts
IJlthb la&! aura the psadetloy Of the suit.
law suit, rroa alienat
ldrtrsslyeffsot the
Thomar, (Tex.CIT.
bboaosethe Stats osn fsrtolosaits lien and hare the pro-
trty sold, If nt@etsaw, in th e lmt manneraa if no On0
Lad purohastdIt dr;rIng tht pondbaby31 the 6Uit.
Honorablewalker Carson,pag6 4
oar att5uer to your Inquiryis that r0im0 to
file a 116 poad6n6notloe In 6 sult by tha ntrrtofor ad
ralorem taxss doaa not ruk8 a judp6nt renderudIn suah
suit intelida6 6.gaInst a purcbaror who aOquIrc4the pro-
pmty by deed after suit ~8 filed and before judpnt
~08 rsnder&
Toure very truly
cowtjr
AP~ROVEII~~ 2, lg40 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144315/ | ..
ia* “
0..,.*
OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
gononblr F. 8. Oaodlo
county At*mby
rrallltlin
county
Mt. Vernon, Tour
Dear SirI
ad under thr dl-
l o o ur t,is a
to th e oourt ro-
hi8 offlolal fee8
8am time llablr
the rubstltute re-
pfnion or thir Depart-
ub8titute 8tenographor 18 U8Od under
e Court, 18 a COOnty liablr t0 the
for hi8 otfloial iSo8, and at tho
0 for fero to the rubetitutr Reporter?
of explanation ror the above question,
er hr0mfai0n. The judldal DirtriOt 18
oompored of more than one County. Tou unbrrtand that
the fee ir didad tor monthly paynmt8 in pro rata
ror oaoh oounty. The ofilolal Court Reporter ha8
been unable to attend the lart ternuof the Di8triot
Honorable F. 8. Caudle, Page Z
Court, and a rubatltute Raporter used. Both
Sfle alai08 for the time. The county objeota
to paying both olalms."
Art1010 Z3.23,Vernon’s Annotated Civil Statutes,
reads a8 follows:
*In oa8e OS Illnerr, pre88 of offlolal mrk,
or rrnavOI4ableai8Sbiiity or the orrI0Ial 8hortA
hand reporter to psriom~ bI8 dutlea In reporting
prooea4lnga la court, the judge of the oourt may,
In hlr alroretlon, authorlze a deputy 8hOrtbaDd
reporter to aot during the absenoe of raid oificlal
shorthand reporter and 8afa deputy 8bOrthaM report-
er rball raoelve, Uurlng the tIae b e lot8 tar 8Sia
offlolal shorthand reportar, the salary and fee8
a8 the oftIola1 rhorthand reporter of raid oourt,
to be paid In the manner provided for the oitlolal
rhorthant? rbporter; but the raid ofiIoIal rhorthand
reporter shall also reetdre hi8 relary in full dur-
ing raid temporary 4IrabllIty to aOt. The oeoesalty
for a deputy OffIoIal rhorthand reporter shall be
left entirely within the 41eoretIon of the Judge of
the oourt . .
Under the abort quote4 8tatute, the neoessfty for
a deputy 0rrf0m 8borthand reporter I8 hit eutlraly rt?tbln
the UI8oretIon oi the judge o? the oourt. :?hena deputy oourt
reporter 18 appointed by the oourt 8aid depaty reporter 8hall
reoelre during the time ha aotr ror 8ald ofilolal shorthand
reporter thm 8eme ralary en4 fee8 a8 the OfrlOIti 8horthan4
reporter of the ooart to ba pal4 In the manner provided for
the orri0i0i rhorthand reporter. Al80 the orrf0fai rhorthand
reporter rhall reoelre hi8 rralary In ruii during hi8 temporam
alaablllty to aot.
Tharerore, you are raa?sotfully adrlaed that it Is
the OpInIon Oi thI8 Dewrtmnt that your question 8bOdd be
answered in the afrlznatIre end Is 80 anlrwerad. The salary
of the doguty rhorthand reporter must be paid in the manner
pmrlded for the ottlola 8hbrthan4 reporter. Both tha OHI-
olal shorthand reporter and the deputy shorthand reporter are
entitled to the oompennatlon provided by law.
371
Honorable F. 8. Caudle, Page 3
Trusting that the foregoing tally enmera your
Inquiry, we remain
Your8 very truly
ATTCRlV3Y OFNERAL OF TEXAS
By -u&
Ardell WIllla~~
A88f8tCat
AiT:BBB
Gl’4d
ATTORNEY GEl?E3ALOF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147467/ | J-S03003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW KEITH BYARS
Appellant No. 1740 WDA 2015
Appeal from the PCRA Order September 28, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009814-2011
CP-02-CR-0009815-2011
CP-02-CR-0009816-2011
CP-02-CR-0009817-2011
CP-02-CR-0009824-2011
CP-02-CR-0009825-2011
CP-02-CR-0009826-2011
CP-02-CR-0009827-2011
CP-02-CR-0011638-2011
CP-02-CR-0011639-2011
CP-02-CR-0011640-2011
CP-02-CR-0011641-2011
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2017
Appellant, Matthew Keith Byars, appeals from the order entered on
September 28, 2015 in the Criminal Division of the Court of Common Pleas
of Allegheny County. We affirm.
The trial court summarized the relevant procedural history in this case
as follows:
[Appellant] was charged with 74 offenses[] at 12 separate
[c]riminal [i]nformations in relation to a series of assaults on
boys at a local day care center and in his home. [Appellant]
* Retired Senior Judge assigned to the Superior Court.
J-S03003-17
appeared before th[e trial c]ourt on January 30, 2012 and,
pursuant to a plea agreement with the Commonwealth, pled
guilty to all charges in exchange for a term of imprisonment of
35 to 70 years. [Appellant] was also found to be a Sexually
Violent Predator. No [p]ost-[s]entence [m]otions were filed and
no direct appeal was taken.
No further action was taken until May 14, 2014, when
[Appellant] filed a pro se Post Conviction Relief Act1 [(PCRA)]
Petition, which he captioned “Amended Petition.” Scott Coffee,
Esquire, was appointed to represent [Appellant], but he later
filed a [no-merit letter under Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988)] and sought permission to withdraw.
After granting Attorney Coffey’s withdrawal and giving the
appropriate notice of its intent to do so, th[e trial c]ourt
dismissed [Appellant’s] pro se [PCRA p]etition without a hearing
on July 16, 2014. On August 11, 2014, [Appellant] filed a pro se
“Motion and Order for Extension of Time to File Appeal to
Dismissal of PCRA Petition” with th[is C]ourt, which [we] denied
[] on August 20, 2014. [Appellant] eventually perfected a
[n]otice of [a]ppeal which was initially docketed at 1557 WDA
2014, but which was later quashed sua sponte by th[is] Court as
untimely on December 5, 2014.
On March 30, 2015, [Appellant] filed a “Motion to Have
Appellant’s Appeal Rights Restored[.]” That motion was denied
on April 10, 2015.
No further action was taken until May 11, 2015, when
[Appellant] filed a “Motion to Have Appellant’s Appeal Rights
Restored ‘Nunc Pro Tunc[.]” After reviewing the record, th[e
trial c]ourt denied [Appellant’s m]otion on September 28, 2015.
This appeal followed.
Trial Court Opinion, 6/23/16, at 1-2.
Although Appellant lists 17 issues for our consideration, we note
initially that his petition sought nunc pro tunc reinstatement of his right to
____________________________________________
1
See 42 Pa.C.S.A. §§ 9541-9546.
-2-
J-S03003-17
appeal from the denial of his first PCRA petition. Such a claim falls under
the auspices of the PCRA and, thus, is subject to the timeliness requirements
of that statute.2 See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (claim seeking reinstatement of PCRA appeal rights nunc pro tunc
constitutes cognizable claim under the PCRA and is therefore subject to
applicable statutory time constraints). Accordingly, we shall treat
Appellant’s May 11, 2015 request for restoration of his PCRA appeal rights as
a petition for collateral relief.
We conclude that the trial court properly denied relief on Appellant’s
untimely filing.
[T]he timeliness requirements of the PCRA are
jurisdictional in nature….
A petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the
date the judgment becomes final unless the petition
alleges, and the petitioner proves, that an exception to
the time for filing the petition set forth at 42 Pa.C.S.A. §
9545(b)(1)(i), (ii), and (iii), is met.[ ]
____________________________________________
2
The trial court in this case does not appear to have examined Appellant’s
current filing within the context of the PCRA, including its attendant time
restrictions. We respectfully remind the court that it is well-settled that the
PCRA offers the sole means for obtaining collateral relief on cognizable
claims, 42 Pa.C.S.A. § 9542, and that, as a result, all claims for relief lodged
after a judgment of sentence becomes final, in the vast majority of cases,
must be considered under the PCRA’s statutory scheme.
-3-
J-S03003-17
Commonwealth v. Harris, 972 A.2d 1196, 1199-1200 (Pa. Super. 2009)
(citations omitted). In this case, Appellant’s petition was clearly filed outside
the one-year time limit found in the PCRA and he failed to invoke a statutory
exception to the limitations period. In his brief, Appellant alleges, without
citation to the certified record or to pertinent authorities, that his petition
should be reviewed because of unspecified interference by government
officials, his ignorance of the facts upon which the petition was predicated,
and since the right he asserts is one that would have been recognized by the
Supreme Court of the United States or the Supreme Court of Pennsylvania.
See Appellant’s Brief at 8b-8d. These generic contentions are woefully
inadequate to invoke the PCRA’s timeliness exceptions and compel our
conclusion that Appellant waived appellate review of his assertion that his
second petition was timely under one of the exceptions set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), or (iii). See Commonwealth v. Briggs, 12
A.3d 291, 342-343 (Pa. 2011) (appellate filings must cite and discuss
pertinent authorities). Thus, Appellant’s request for nunc pro tunc
reinstatement of his PCRA appeal rights was untimely and the PCRA court
lacked jurisdiction to address his claims. See Commonwealth v. Moore,
937 A.2d 1062, 1073 (Pa. 2007) (appellate court may affirm a valid
judgment based on any reason appearing as of record).
Order affirmed.
-4-
J-S03003-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
-5- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144229/ | ., “.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTlN
Honormblo I..A. Woo&m
Stat. Su~mrlntmn&.rnt
of Publlo Inmtruotioa
Aumtio, Tmxmm
wo lra in rmomlpt 0
1940, rmqommting thm opini
OH 80 Or the
r8880n or
th thim emotion ai
ng thm prorimionm of
at a lomm to know
odure for the dim-
6lmtrlotm having
lrrrmity land.
plmamm a&rime III. when and how
above mmntioned mohool dfmtriotm
undmrmtand your pummtion you rlmh to know
whether gantm under Smotioa 80 of li.Be #or 939, Aotm 46th
t@& , 1939, lhould bo prorated,and paid along with salary
aid grant8 allooatmd on the bamim of budgmtmry nmmd or
mhould br olammirie4 am an eroeption and paid am provided
in sootion 88.
Y91
EWI. La A.WWdkS,pa&8Z
SeatlO8i820 and 28 or H. a. wo. 933, 44th tag.,
reed aa rollowat
"SEC11010SO. ?BDBRAL 00Vi4lRLiWTLAND PU'RCE&3ES.
The State Superintendent,mubjeot to the approval
Of the Joint Le&lslatlv3 Adv~moryCommittee,shall
take into eonsl4eratlon, in ri* mllowanomm to
mohool 4lmtrlotm any 1088 mumtalne4by arah dlm-
triotm by reamon of the Federal oovmmment buylq
lm!Ulm iOr ItatiOml iOre@t@, and by reason at the lo-
oatlon ln lmld 4lmtriotmof Univtmity hn4m and
the stata SuperlntwUlsnt,am sioreaaid,l h& be
authorized to make allooations to ma14 dimtrimtm by
virtue of lommem mumtalned by maid dimtrlats by rea-
eon 0r Fe&oral purmhase or land8 the amounts to be
rlxed by the St&r Superlntendmn~ as aforemald
bmsed upon exlmtlng famtm and oir&mstanmes ap ii-
oablm to all other mohool dirtriots, aa4 la a s ex-
oeptlona prorlded herein the oonmentor the Jous
tegimlative uviao commuttee ahall me rirmt nab
Rna obtal ea Pz adtht ao1m8tit
mustal& i~mmmm feamot o?tht’l$ation ~"ma.i4
blstriot of university lands, mhall be held to be
in aotual need. The State Superintendent,mm arore-
add, 8#allmake alloaatlansto maid dlstrlotm by
virtue or lommem so sustained by maid reasons,a&l
the amount8to be fixed by the State Superintendent,
as mforemmld, ehmll be on the amount or
loemem mo sumtained, baa1 d hem on the rate
of tax and valuation umed n said oounty ior State
and oounty purpomem. It Is expressly undermtood
that any remme received by meld mohool dietriots
by virtue or this seotion rnumtbe inoluded as reve-
nue in the budget before oaloulatinga budgetary
nee4 ror mohoolm applying for malary aid.*
“SBCTIOW 22. ALLOCATIOR3 Il?FATCR OF EXOEP-
TIOWS TO TEE OY!Z?X?AL FROVISIONS ALLOCATING AID.
al applieatlonm for salary aid oomlllg tithln the
general provimlonm0r thlm Act, ap lloatlonm.ror
high mohool tuition aid coming witE in the general
prorislonm0r seetlon 9 or this Aot, and all appll-
omtlonmror transportationaid ooming wtthln the
general provisions 0r Seotlon 10 0r thin Aot ah6311
rlrst be oonsldered,an4 ii approved in the manner
authorized and dlreoted herein, mhalliirmt be pkid
out or the appro rlatlon rrulde ior each of the years
of the current bPennlum in the mennor and method
herein dlreoted, and maid aid, Ii mo granted, @hall
, -
792
Bon. L. A. Too48, page 3
be rlrmt pal4 out o? the appropriationsan&
allooatlonsherein made to cm amount not a-
oeeding one hundred per oant (lOO$) dr the
approved grant themror and all exceptions to
the general law penit& and granting ai4 to
the several mohool 4lmtrlote of this State
@hall be paid only if and when those approved
applloationmooming wlthin the general prori-
slonm or thim Act hate rirmt been paid, and
muoh exeeptlonm @hall then be allowed sn4 ad-
mitted am approved,and upon approval they @hall
be paid out of muah alloeationm remaining unex-
pended and then upon a pro rata psi aa ita bamim
out of the fundm'remalnlng unexpended Pn eaoh or
the allooationm herein made and not otheruime.
And it shall be the duty of maid Joint Legfmla-
tire .44rimory commsittmeto alasairy all appllaa-
ttonm whioh are exoeptlonato the general pro-
~lslons allowlng aid In this Lot.*
The Rural Aid l5qualimationLaw la designed to
equalize e4UOatlO~l opportunitiesthroughout the state, by
sup~lesaentingthe inoome or aohools coming within the pro-
visions of the ,wt, baaed upon the need oi dimtriota as
shown by budgeted reoel ta and expendlturam. This was
pdinted out in our don Wo. O-334 (Conterenoa Opinion
x0. 3040). m audit Ofon to the general prorislons r0r grant-
ing aid, the sot provides for rarioum exoeptlons not neoes-
sary to be enumerated.
titer proriding for grants baaed upon the budgeted
needs of school 418trletm provision is made in Seotlon 20
for granting aid based upon lommee sustained by reason of
university lands or yederal tweet lands being loaated in a
distriot. Mot only la the provision ror allocations based ;
upon the location of suoh lands within a dlstrlot in the
nature ot an exoeptlon rmm the general provisions based up-
on budgeted need, but the Legislature axpremely recognized
it e4 much by providing in seotion ZXJr"and in all uxaep-
tlons provided herein the eonmeantof the Joint Legislatfre
2idvisoryConauitteeshall be ffrst had and obtained.* Thfs
provision olearly relates to allocations by virtue of losses
sustained by reason of the Federal Government buying lands
for National rorastm, and the looation of vnlteraity lands
in such distrlots.
793
Boo. L. A. Woods, page 4
SectIon 22 provides that all allooationsror
aid under the general provisions or the Aot shall rirst
be paid “and all exoeptions to the generallaw permitting
and granting aid to the several mohool districts of this
State shall be paid only If and when those approved appli-
oationm ooming within the general prorimlonm of this Act
have first been paid, and such exceptions shall then be
allowed and admItted 58 approved, and upon approval they
shall be paid out of suoh allocations remaining unexpended
and then upon a pro rata per oapita basis out of the funds
rexalning unexpended In eaoh of the allocations herein mmide
and not otherwise.W
Having determined that alloaatlom provided by
Seotion 20 are exceptionswithin the meaning or Seotion 22,
it Is our opinion that such allocations should not be ap-
proved and paid until approved applicationsooming within
the general provisions of the act based upon budgeted need
have first been paid; money remaining unexpended may then
be used to pay approved exceptions.
Yours very truly
aTi’- O- CF TZXAS
By A5lL-r#d-d-
Cccl C. cammaok
Assistant
ccc:Jm
APPROVEUMAY 2, 1940
f6iLLum
ATTORNEY GENERAL OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131107/ | The Attorney General of Texas
JIM MAl-TOX Oc:t,ober 18, 1985
Attorney General
suprrnw court sulidlwJ Ur. Robert 0. Vitcrma Opinion NO. JM-360
P. 0. Box1254s Executive Director ,
Austin.TX. 78711-2542 Texas Comieaion on Jail Stsodards UC: Detention of pcrsoos in
512/47w5o1 P. 0. I)or 12985 county jail under articles 5115
1u.x 91011)1*1s7
1ekwpler SI21475ae8
Austin. Texae 78711 and X47-26, V.T.C.S.
Dear Mr. Viterna:
714Jackam.Sulta700
0811*1,Tx. 752024506
You request an opinion construing aevcrel ltetutee vith respect
ZIu142am44
to vbao a ~lptally Hl person may be detained in the county jail. YOU
first aak whether article 5115. V.T.C.S., conflicta with lrticle
4lt24Albwt4*w.suit*Iw 5547-26, V.T.C.S. Article 5115 provides in part:
Elkso,lx.7wos27w
SIY53344M The ~Cc~missiooers Court shall provide safe
and suitable jails for their respective
1aJ11*rrr,Sul14700 countlea. . . .
Houuon. TX. 77002-5111
712l2295Ba6 . . . .
SUITABLESISGREGATION
es5 Bm4ow4y,sun~~I2
Luotack,lx. 7Mo1-2472
208l747-5238 The ten1 ‘ufe cod suitable jails.' as uwl in
thie Act, 11hel1be constroed to mu jells which
: ~.. provide c.r’deqaate ugreytion facilitiee . 1 .
U00N.TWth.SUtUB 8epar8tS.q; ritoeeum from all ela~sificatiow of
wcAltm.lx. 78sol-lam
s12m2-4547 .. prim&i; :and.ulem from feaaleo. . 1 . '
L: (:.;:~?,~~.
. . . a
200 MSh Plaza,Suit*400
&nAntonlo,TX -2727
S1;e~l~;~~:suapectcd of insenitr. or ubo has
51?J2254191
m k dB&W itmner @hall be houred or
~bold in:~>~ailv except that e&h a person vbo
:~. ~t~al~i.bafc'i&l~t~cllcieo.~a~ who awt be
r~rtrdnetl from comittiug act8 -of violence
againet oILbar parmona. uy be held in a iail for a
period of ,tlme mt to exceed l ~total of tventy-
,.i . four.~24)~llhoura,:,duf~g vhici; period be o&l1 be
kept unde:~'obscrvetioa continuoumly. At the end
of the twenty-four (24) hour period. much Denon
Shli be ri:lused or teken to a hornpita or uotal
hospital. Furthetmre. for ouch temporary holding
p. 1645
. .
Mr. Robert 0. Viteras - Psge i! (J?l-360)
of each person swpected of inssnity. or who has
been legslly sdjl*lged insane, there ehsll be
provided [e padded cell]. (Emphseis sdded).
The last parsgrsph quoted does not relate to the ordinsry county
jell prisoner who hns been mrested for violating s criminnl law. IO
our opinion it mesns thet s jell shall not be used to house persons
solely on the ground that ,theysppeer to be insane or have been
adjudged insana. An axcq~tiw is ude for soy such person who
“deuonstrates hoaicidel teodmcies” en4 has to be rertreinad from acts
of violence sgainst others,, The requirements of article 5115 are
npproprinte for dealing vitll insure persons who are iocercernted for
the purpose of restraining th,smfrom cowittiog acts of violence; they
aeke little aeose vhen sp?:Lied to priroaers lrrested on criminal
cherges. since iocarceretiom asp last no wre thso 24 hours end aust
be follwed by the iodividusl’s release or hospits1ization.
IO our opioioo. the qwted paragraph de~lr vith insane persons
placed io jail to reotraio (them~fraa acta of violeoca and oot with
persons jailed for criainal charges. Only the formar cetegory of
persons are required by art:Lcla 5115 to be held in a padded cell.
LOZNO V. With. 718 P.2d ‘756,..759 o. 6 (5th Cir. 1983) (diets)
(article 5115 d-6 not reqwlte release or transfer of persons held on
cricainal charges who are c:oiocideqtally insane); contrs Wright v.
Wagner, 641 P.2d 239 (5th c:!lr. 1981) (dicta) (article 5115 requires
padded cell for prisoner legally adjudged insane or suspected of
1ns401ty). The standards prescribed in article 5115 “are minImum
stsndsrds only.” The Taxes C&ssion on Jail Stsoderds is smpovered
to establish %inimn stamdards for the construction, equipment,
asiotenaoce, and oparntion of .county jails” and “for the cuntody.
~cara, aod treatment of -pri~ooars.* V.T.C.S. art. 5115.1. )9(s)(l),
(2). The cowi~i+ ho -ratluirad that a jail have one or aore padded
calls “foi.tamporary halding of rialaot persoos or parsuos suspected
of 1nDNity.~ 37 T.A.C. --Wig.66 -:<19gO). The ccnnission has in
addition required aach l htriff to davalop a plan for classifying
imnates, vhicb must prwido for
[t]ha .raparate b~~iog of persc+ suopectad of
iosa+ity or tio.ht~a be&o lagally Cdjudged insane,
:. a@ .p+rsaor-%he . . ; krt be restrained from
comittinJ l.;aCtm roof ViOlSUN againrt other
parsons. .~...
37 T.A.C. :271.2(g) (1’jgO:s. Thus. aoy .violaot prisoner. iosene
primmer,. or prironar .~auspBctod of insanity” .wBt be placed in e
paddad cell.
I.
Article 5547-26; V.T.C.S.. was anactod as psrt of the 1983
revirioo to the Taxas Xaotrl Health Cads. Actr 1983. 68th Leg., ch.
p. 1646
Mr. Robert 0. Viteroe - Page '3 (a-360)
47, at 211. It la awog th#: Haotal Raalth Code prwirioos easoded in
1985 by Rouse Bill No. 1256. Aeta 1985. 69th Lag., ch. 70. nt 281.
Articles 5547-26 through 5547-30, V.T.C.S.. prwide for the
emergency detention of a patron believed to be mentnlly ill. Article
5547-26(a) prwidas ls follolrs:
Aoy peace offic:er. vhe has remon to believe
aod does believe upon the reprasentntion of A
credible persoo, or upeo the basis of the conduct
of a pereoa, or the circumstnocer under uhich the
person is found, l:bmt the person IO uentslly ill
lnd'because of ruclr mot.1 illness represents A
lubstnotial risk I,:[ sarieuo hera to hfmself or
othere uolaes imwdiataly rertrsinad. vhicb hnru
uy be deaooetrctad either by the person’8
behavior or by rvidenca of aavare eaetiooal
distress aod deter:;aratioo in his uental condition
to the extent that the perooo caooot reusio at
liberty, sod who-believes there im not nufficieot
time to obtain a vnrraot. ray, uithaut first
obtnioiog a warrant, take Ncb person into custody
aod imediately woosport the person to the
oaua8t Spproprist~s in-pAtiNt mento health
facility and &al:1 fmuedintely file lpplication
vith the facility Eor the pertwn'~ detention. If
facility shall be kept eaparata from those parroor
chuged tith or convicted of ~a~.crime. (Raphesis
added).
V.T.C.S. lr t.5547-26(n). A '"aaotnl haalth authority" is the ngeocy
desigoatad by the ccmiasiaoer of the Texn~ Departnot of Ueotnl
Eenlth lnd Uaotnl Retardation to direct.oparate, fncilitate and/or
coordinete sarviceo in the vrriour service nraas of the stnte.
Article 5547-26(c),.V.T.C.S ., requires a physicisn to ammine the
person vitbio 24 hour6 of lpprehNrieo. Uoless the physicleo asker,
the nittN ltataaent raqufred by lrticla 5547-27 thnt emergency
detNtioo IO oecassnty, the' person wet be rclensed. A perron
nppreheodad under article 55M’-26 , asy be detnined PO longer than 24
hours nftar ha IO presantad to the facility unless he is takan into
custody after noon eo Friday or 00 a Sbturdsy. Sun&y or legal
Nr. Robert 0. Viterns - Pnge 4 (J&360)
holiday. lo that came, the :I~Ihour detention period begins lt 9 0.0.
on the firmtNccaading bu.1cul.s dny. V.T.C.S. lrt. 5547-26(f).
The 1983 ravimioa of the Mental Eultb Code vam uodartakanportly
in rasponaato a, fedora1 court ruling thmt existing prwioions for
detention in protective custody violntad due proce... Dix, -1983
Revision of ihe Tub. Uentnl- Health Code, 16 St. Mary'. L.J. 41
(1984); mea Luna v. Van ZantF554 P. Suvu. 681 (S.D. Tu. 1982). Lun.
V. VN 1,
i%ii held thnt tbe.mtntaamy mot ho.pitmlire no iodivi~
plodlog a!n involuotnry civil. cdtment hamring for more than three
&ym u&e.a a neutrnlfactf:Lnder ukam a probnble csuse deteraiontion
at A hemring tire the potlent im present.
Article 5547-26, V.T.C.S.. rats out in detnil circmstances thmt
nuthorire the varrantlas. dotantion of a aentally ill or apparently
maotnlly ill person; it 81~ indicntem uban detention in A jail is
permitted. Article 5115 in oontrnst, priaerily establishes require-
aeot. for phymical conditioutr of a county jnil, but it refers in on
lmhiguoumand i~,oapleta vcby to the jailing of 4 mentblly ill or
presuambly aentally ill pawm vho dancmmtrntambaicidal tendencies
nnd aust be restraioad frolr hnraiog others. Article 5115 does not
stnte who la nuthorizad to ~?:Lnce Nch A parson in jail, nor who must
tnka hia to a hompital or raL.ame hia at the Nd of 24 hours. It does
not stbte vhd ehall brraqge for the iodividual's ndmission to A
hoepitnl or untal hospital.
NAN thio prwision wm rddad to article 5115 in 1957. it
permitted a 7-&y detantion,. Acts 1957, 55th Leg.. eh. 277, lt 637.
A 1975 enmctmentcraatad the Comimmion on Jail Standard. lnd mmeodad
lrticle 5115 to reduce the detenti& to 24 hoarm. Actm 1975, 64th
Leg.. ch. 480, at 1278. Article 5115. in our opinion, reflects an
early le8imlativa l ffort~:to dul with the urgency deter&ion of
parmonm&c-had n&t comitttrd a criaa, but vhome mat81 illnams or
appbraot laotal illnasm .utlo thea dan8erNs to others. The period
betveen 1957 mad 1983 ~%av:;B'significaat incruse in concern for the
lag81 interests of involuntc.ry mental pbtients. Dir, m at 43.
Article 555736 :raprasm~tm tlu later nod lore datniled lagisln-
rive lffott 20 prwida for the eaergancy detention of mentally ill
permons or permonm.rumonab1.y balievad~to be uotnlly ill.. It nppurs
in A coaprmhanmivocoda.dasLgnad to prw1da~icea.m to humane care and
treataent for permonm muffarlng from severeaentbl illoems. V.T.C.S.
art. -5547-2. Awq..othar purposu. the code mats out to safegumrd
X!dxr i.vgS’+ aY&ts. - ~3.3.%:ir.~ aft. %t3VZiYz,. is our oplnlon, lrtl&e
5547-26 gwanii. the aarSency detanticm of parwns vhome amntal
ill.namo reprueota l mariournthrut.of hmn to tbeamelves or others,
and-itorevails wer 8rticLi 5115 to the utmot of aw conflict. See
Stnta v: h&y. 404 8.U.2d :!96 (Tax. 1966); Pncific Pkoductm, Inc.7
Grant WesternPlywood. Ltd,!, 528 S.U.2d 286 (Tu. Civ. App. - Fort
p. 1648
?lr. Robert 0. Vitcrna - Page S (Jh-360)
Worth 1975, no vrit); Robsrtmn v. State, 406 S.Y.Zd 90 (fex. Clv.
APP. - Fort Worth 1966,-3,t ref’d n.r.c.). The requirements 10
article 5115 ao to a padded cell and other Jail cmditiono have not
been impliadly repealed, but they are miaLur ltandards which have
baen aupplamted by rule of the Comieaion on Jail Standerda.
Article 5547-26(a), V.T.C.S.. otatea th a t l 1jail or similar
detentlou facility shall ‘not be deemed suitable for emergency
detention except in au extrew emergency. IOU ask vhat constitutes an
“extreme emergency” under this statute.
Article 5547-26 requiruo thst even s person uho “represents a
substantial risk of meriom hara to himself or other6 unless
imediately rxainad” ahou1.d be taken to a mental health facility
rather than to jail if at al:1 possible. The 1985 amendmentto article
5547-26 provides that the pc’rson shall be traarportad to a facility
deeaad suitable by the ment,r:Lhealth authority for the county if no
appropriate in-patient manta1 haalth fscility is available.
What constitutes an “extrame emergency” tbat would permit
detention of the person la a :jail depends upon the facts of each case.
Factors to be considered vou’ld include the tiinance of the risk of
harm, the severity of the harm threatenad. and the availability
of appropriate mental health facilities. * V.T.C.S. art.
5547-27(a) (l)-(4). Cases ,ihich discuss the standard for actual
cosaoltmant provide tome guidance. For -la, in Taylor v. State,
671 S.W.id 535, 538 (Tax. App. - Eouston [lat Dist.] 1983. no urit).
the court held that to comply with standards of due process required
by the Texae and Federal Couotitution a person may not be deprived of
hia liberty by a temporary involuntary comitment unless the ltate
eatabliahes by clear and convincing evidanca that there exists a
aubatantlal threat of harm to himsalf or othara. Moreover, the court
stated tbat the “showing .auat be found[adI upon actual dangerous
behavior manifested by aoae wert act or threat in the recent past.”
Article 5547-26 “~alloua an l.ndividual to ba, placed in jail vithout a
magiatrate’m determination tbat ‘detention is necessary; therefore. the
risk of haa that invokes ltr procedures is graater and more Wdiate
than that required under involuntary comitment procedures. -See
V.T.C.S. arta. 5547~SO. 5541~,S1.
You .aak whether a pe::son tsken into. protective custody under
article 5547-36, V.T.C.S.. q ny be detained in jail. A Motion for an
Order of Protective Custody suy be filed only in the court in which an
Application for Court-Ordsrad Mental Eulth Services lo pending.
V.T.C.S. art. 5547-36(a). The judge may ishue the order if he
detarm.inas ..
p. 1649
ttr. Robert 0. Vitarna - Page 6 (m-360)
(1) that a phyr.ician haa etatad him opinion
and the detaflad basis for his opinion that the
paroon la sentally 01; and
(2) the perron proeanta a lubetaotiel risk of
lerioue haa to hfmself or othera if not
immediately rartrain~ad pending the hearing; ruch
harm may be demonlrtreted either by the peraou’a
behavior or by widtnca of savere emtional
diatrasm and deteria~ration in him mental condition
to the extent that the parson cannot remain at
liberty.
V.T.C.8. art. 5547-36(c). k~ order of protective custody directa that
the mentally ill person be cxken to “an appropriate in-patient mental
bealth facility or other suitable place” and detained pending a
probable cause hearing. V.T.C.S. art. 5547-36(d). Article 5547-39,
V.T.C.8.. prwides for the place and term of dcteation in protective
clmtody:
(a) The head of a facility in vhich a person
is detained pursuant to an Order for Protective
Cuatody or his dedgnae shall detain the perruo
pending an Order ,for Court-Ordered Pfental Easlth
Services issued ‘7nrsuant to Section SO or 51 of
this coda, exceptse provided in thir section.
(b) The person detained in protective curtody
lhall detainr~d in an appropriate in-petient
be
mental health fircility . If there is no appro-
priate in-patiart mtal health facility avail-
able, the perrot shall be detained in a facility
deeacd mitabla 'bytha untal health authority for
extrens Getthe; e&gencias daciarrd to
Subwction (a) of .~Section 38 of this coda.
Persona detained in a aonnedicdl facility ahall be
k a pl aparate firom those peraono charged uith or
t
convicted of a crima.
(c) Zf thtr parson is datainad during en
emergency In a. oonudical facility, the county
health officer shall tat that proper care and
madical attentLon are made evailable to the pernon
p. 1650
?lr. Robert 0. Viterns - Page 1 (JH-360)
held in protective custody. . . . (Pkpharls
added).
Thue, article 5547-39 apraooly provides tbat a parson detained in
protectivecustodymay be placed in a jail only in case of an extreme
emergency and for no wre than, the tims period described in subsection
&I. As uith an "extreme emergency” under erticle 5547-26, m
"extremeemergency” under 554,7-36 dependsupon the facts in escb case.
Pou finallyask vhathar a.person chargedvith a crime may be bald
in jail vhile a datarmiuatioli of his mantel capacity is msde pursuant
to article 46.02 or articla M.03 of the Code of Criminal Procedure.
Article 46.02 of the l:oda provides for determining whether a
dafendaot is competent to stand trial. “A defendant Is presumed
competent to stand trial and aball be found competent to stand trial
unless proved incompetent b7, a preponderance of the evideoca." Code
Crlm. Proc. art. 46.02, 61 lb). The Issue of competencymay arise
before or during the trial ou the merits. Id. 52. When this issue is
raised, the court uy appoi.nt experta toxuine the defendant and
testify about his competency to stand trial. Id. 13(a). If the court
finds that there it evidence! to support a fiodiog of incompetency, a
5ury la impaneled to decide ,this question. Id. 14(a). Until the jury
finds him incompetent based on a prapooder= of the evidence. the
defendantla presumed compatmt under section l(b) of article 46.02 of
the Code of Criminal Procedure. Sea Graham v. State, 566 S.W.2d 941
(Tex. Grim. App. 1978); -- Cross v. State. 446 S.W.2d 314 (Tex. Grim.
App. 1969).
While the question of defendant's cowpetancyIs being determined,
ha remains in custody pursuant to criminal charges. Be has been
detained because of theta charges, not because he appeared to be
mentslly ill. l'be terma of energancy detention and protective custody
prescribed by lrticlao 5115, 5547-26. and 5547-39. V.T.C.S., do not
apply to custody for crimiwl charges.
A criminal defendant free on ball may be ordered to submit to a
mental examination under lectlon 3(b) of article 46.02 of the Code of
Criminal Procedure. If he refuses to, the court may order him into
custody for examination "f,xra reasonable period not to exceed 21
days." Code Grim. Proc. art:. 46.02, 13(b).
Article 46.03 of the Code of Criminal Procedure governs the
Insanity dafenre, an lffiru~t:iva defense which defeodant muat raise in
the trial on the merits and lprwe by a prepond&rance of the evidence.
Code Crlm. Proc. art. 46.03; tee Penal Code 512.04, 8.01. The
defendant must also file notice This intent to raise this defense
before the trial. Code Cria. Proc. art. 46.03. 12. The court ray
order a defendant to sublsit to examination vith respect to the
p. 1651
Hr. Robert 0. Vltarna - Page 8 (m-360)
insanity dafenre. If he is free on ball and refuaas to eubmit to
examination, the court uy ordlar him into custody for axaminatioo "for
a reasonable period not to exceed 21 days." Coda Grim. Prof. art.
46.03, 13(b). Othenrisa, th#c defendant remalas in custody or free on
bail, just as if ha had not rslaed the inaanity dafenae. The Insanity
defense conceras defendant's rwntal status when he cllttad the crime
and doas not necassarily in&ate present mental illnaaa. See Code
Grim. Proc. art. 46.03, !Iri (procedures for determining whether
defendant is mentally ill fo:L:Lou detarainationof not guilty by reason
of iosanlty). The prwiaionr for detaining lomaonein jail because he
appears mentally ill do not become applicable to a criminal defendant
on trial merely because ha rs:Loed the Insanity defense.
The provisions lo article 5115. V.T.C.S., on
holding.an apparer~tly insane person lo jell, have
been fmpliadly rapcaled to the extent of incon-
sintancy by artt::Le 5547-26. V.T.C.S. Article
5547-39. V.T.C.S,, prwider the circumstancaa
under which a person detained in protective
custody pursuant ta article 5547-36, V.T.C.S., may
be held in jail. A defendant in a criminal case
remains a prisoner lo jail or free on bail while
his competency ‘to stand trial is determined
pursuant to artie:le 46.02 of the Coda of Criminal
Procedure or xhile the insanity defense under
article 46.03 of'the Code of Criminal Procedure is
decided in the tr:tal on the merits.
Very I truly yours
JIU MATTOX
Attorney General of Texas
TOMGRXRN
Pirat Assistant Attorney General
DAVID It. BICBASDS
gxacutive Assistant Attoraey General '
.
ROBERTGRAY
Special Asslstsnt Attorney.G~aneral
p. 1652
’ ,
- . nr. Robert 0. Vitarna - Past 9 (Jn-360)
” .
Rx8 GILPIll
Chairman. Opinion Cowittoe
Preparad by Suaan L. Garrison
Araiatant Attornay Ganaral
APPBDVIZD:
OPINIOII COMITTPZ
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim lloallingar
Iaocy Sutto8
Sarah Uoalk
p. 1653 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131116/ | The Attorney Geneyd of Texas
JIM MATTOX SepFember 3,'i985
Attorney General !
Supreme Cowl Bulldin
Honorable Tim R. Ta:r:Lor Opinion No. .JM-351
P. 0. BOX 125d9 Titus County Attorney
Austin. TX. 7971% 2549 P. 0. Box 862 Re: Whether a comissioners court
512,4752501 Mt. Pleasant, Texas 75455 may bar video cameras from a public
Telex 91W57C1357
meeting held under article 6252-17,
Telecopier 51214750255
V.T.C.S.
714 Jackson. Sulle 7WJ Dear Ur. Taylor:
Dallas, TX. 75202.4509
21417428944
Pou ask whethter article 6252-17. V.T.C.S.. the Texas Open
Meetings Act, requires the commissioners court of Titus County to
4924 Alberta Ave.. Suite 180 allow videotaping of its meetings.
El Paso, TX. 79905.2793
915/533-3494 The Open I4eetin:gs Act provides in part:
All OX any part of the proceedings in auy
I Texas. Suite 700
Houston, TX. 77002-3111 public meeting of any governmental body as defined
71312236999 hereinabow may be recorded by any person in
attendance by means of a tape recorder or any
other means of sonic reproduction.
806 Broadway, Suite 312
Lubbock, TX. 79401.3479
909/747-5239
V.T.C.S. art. 6252*-1~7. CZ(1). This provision first appeared in the
1973 revision of the Open Meetings Act. Acts 1973. 63rd Leg., ch. 31,
12(i) at 46. The 1967 version of the Open Meetings Act did not
4309 N. Tenth, Suite S expressly permit a,%youe to tape-record public meetings. Acts 1967,
McAllen, TX. 79501-1595
60th Leg., ch. 271 at 597. A 1968 Attorney General Opinion considered
51219524547
whether the act required a cormPissioners court to allow its meetings
to be broadcast ljve over the radio and taped for later broadcast.
200 Maln Plaza. Suite 400 Attoruey General Opinion M-180 (1968) determined that the phrase "open
San Antonio. TX. 792052797
to the public" in section l(a) of formar article 6252-17, V.T.C.S.,
51212254191
did not require the? connissioners court to permit the live broadcast
of its meetings or the taping thereof for later broadcast. See
An Equal OppOrtunilYl V.T.C.S. art. 62 5:2-17, 52(a) (present codification of quoted
Aflirmstlvs Action Employer language). The cowissloners court had authority to mske reasonable
rules and regulations for %ts meetings and could prohibit the
broadcast or tape-recording of Its meetings. Attorney General Opinion
n-180 (1968).
A Texas court has considered whether a school trustee had a
statutory right to tape-record executive session proceedings of the
board of trustees. In Zsmora v. Edgewood Independent School District,
p. 1602
Honorable Tim R. Taylor - Paglt 2 (JM-351)
592 S.W.Zd 649 (Tax. Civ. Al~p. - Beaumont 1979, writ ref’d n.r.e.).
the court determined that thtc trustee had no right to tape-record
those proceedings over the objection of a majority of board.members.
The court stated as follows: i.
We are of the opinion that significance should
be attached to the fact. that the Legislature
specifically authorized the use of tape recorders
at public meetings while it made uo similar
provisions for use-at executive sessions of the
same public body. Lacking any definitive or
helpful interpretations of the statute, we Invoke
one of the maxims of statutory construction.
(Footnote deleted).
592 S.W.Zd at 649. The cot,xt stated the rule expressio unlus est
exclusio alterius: The exprEssion of a specific llxitatiou excludes
all others. It continued as follows:
Having speclfic~illy approved the use of the
recording devices :Ln the public meetings, the
Legislature necessnrily denied the use of such
devices in executive sessions.
-Id. at 650.
Attorney General Opinion M-180 and Zamora v. Edgewood Independent
School District support the proposition that the Open Meetings Act
includes uo implied right to tape-record meetings. Any such right
must be based on express legislative authorization. These authorities
also support the conclusior. that the Open Meetings Act does not
lmpliedly permit a member of the public to videotape public meetings.
The 1973 addition of scmtion 2(i) to the act expressly granted
members of the public the right to record meetings by a means of sonic
reproduction. The dictionary, defines “sonic” as follows: “utilizing,
produced by, or relating t13 sound waves.” Webster’s Third Nev
International Dictionary 2 173361). (Emphasis added). This
provision does not give mevimra of the public a right to videotape
meetings. In the absence of :%specific provision permitting a member
of the public to record its meetings by videotape, the comuissloners
court may prevent the videotqing of its meetings held pursuant to the
Open Meetings Act. See gt,nerally Attorney Generals Opinion R-188
(1973). The commissioners ctxrtrtmay allov its public meetings to be
videotaped, but the Open Hee,c:Lngs Act does not entitle members of the
public to videotape the meetj.n.gs over the objections of the court.
p. 1603
Honorable Tim R. Taylor - Page! 3 (JM-351)
jiU M M AR Y
Article 6252-17, V.T.C.S.. the Texas Open
Meetings Act, does not require the commissioners
court of Titus County to allow videotaping of its
meetings.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICBARDS
Executive Assistant Attorney &neral
ROBERTGRAY
Special Assistant Attorney Gewral
RICR GILPIN
Chairman. Opinion Committee
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gllpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
Bruce Youngblood
p. 1604 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144276/ | HonorabLe C. Woodrow Laughlin .'
County Attorney
Jim Well@ County
Allae, Texas
Dear Sir: OP~IIIOII NO: o-2116
Be: (1) May the board.~oftrustees,
of an independent a~hool~dls:-
trlat,~hlrea searet&ry,~who
ls.not a trustee, and.pay,hlm
a~salmy?
(2) May th&,kssesioiof,taxes
for ap lndepandentachbol d&s-
trFot~legallybs-paid more
.than tvo (2).per oent of the
taxes'+messed?' If m, under
'what~alroumstanae~?
Ue have ~oa&fully oonsldered yonr~~requesd
for:
the opinion of thls'departmen$touching the questions
stated above.
In discussingyour first question, Ve shall first
analyze the opinion ih the aase of-Board of Trusteee of
IndependentSchool Dlstz$ct of Houston v. Dow, 63 3. W.
1027, (writ of error denled). !
This case Involved a s~ultlnatltuted.agalnstthe
Board of Trustees of the IxidependentSchool District of.
Houston (appellants)to restraln~themfrom paying a salary
to tuo niembereof ths Board w&o ue~e~servingaa~secretarg
and treasurer,respeatively,thereof. It was agreed that
If suah members aould be legally pald compensationas such,
the salary fixed was reasonable forth? services incident
to the poaltlons.
For the statutory background to the .dealslon,
we uote as follows from the opinion of the court at page
1028 :
Honorable C. Woodrow Laughlin, Page 2 (o-2116)
"The appellants were elected and hold their
offices as sahool trustees In accordancewith an
act of the legislatureapproved February 21 1900
(Gen. maws 1st Called Sess. 26th Leg. p. 181;
Section 1 of the act provides that seven trusteea
shall be elected, who .lsballconstitutethe school
board of such independentdistrict,and all of
whom shall serve without compensation.' Section 4
provides that: "The trustees chosen under this
act shall meet wlthln.twentydays after their
election, or as soon thereafteras possible; for
the purpose of organlzlng. A majority of said
board shall constitutea quorum to do business,
and they shall choose a president, secretary,
treasurer and other necessary officers and committees
By section 6 the board Is vested with the power to
adopt such rules, regulations,and by-laws as they
may deem proper, and the public free schools of the
district are placed under their control, and they
are given the exaluslve power to manage and govern
the schools.~By an act approved June 23, 1897 (Gen.
Laws. Sp. Seas. p. 48 ,-amendedby the act of June
6, 1899, (Gen. Laws 1899, p. 329), to regulate and
limit the expendlture~of state, county, and local
school funds, the.loaal sohool fund may be used in
addition to the purposes enumerated for state and
county funds; also for 'purchasingappliancesand
supplies,for the payment of ,lnsurancepremiums,
janitorsand other employes, for buying school sltes,
buying, bnlldlng, and rephrlrlngand renting sehool
houses, and for other purposes necessary in the icon-
dn,ptof the publla schools to be determinedby the
board of trustees.1 . . ."
The court held that the salaries could'not be legally
paid and we quote the following excerpts from the opinion which
demonstratethe reasoning of the oou%?t:
"It Is clear from the language of the law that
the secretaryand treasurer must be members of the
board. . . . Their duties as officers cannot be dlf-
ferentlatedfrom their general duties as trustees, so
as to entitle them to compensation. . . . There Is no
speclfla provision of~law fixing salaries to the offices
of secretaryand treasurer of a board of school trustees,
and if the secretary and treasurer of the appellant board
are entitled to receive salaries, authoritymust be found
Honorable C. Woodrow Laughlin, Page~3 (O-2116) .L ::=;...,
In the law for the board.:to.fix:them. Looking:!tothe
statutes, no express autbority"ls'found,butonfthe
contrary, there is an-express.prohlbltlon~of.:comptn-
sation to all the members:@ the-Board,of~.truatees:
It would be against-.%well-settled -ru1e..of.
.$lic policy to.allow~it..to ,pay,monkyto~:itsOwn
~membersunder .theguise of:compensatlon~:for extra-~
official duties. w . ~Buti even if,the#dutlesof the ,,
secretaryand treasurer should be regarded as distinct:
from their duties as trustees, what authority has th(;
board for allowLing,them .salarles.out .of-the:school
funds? Such authority must be 'foundin~the:plalnpur-
,poseof the law. 1stmust-be granted.. It,.cannot be.
lmpll.ed from general language gFvlng.t~e,trustee,s.~ ..
exclusive power to manage and govern the..schoolfl. i,.!.
?'~
The only slgnlficant~ohangd-In~t.~~s~.atut?;relat~:sg.:.
to the subject at band pertains to the chooeing:ofthe ~tifficers
of the board; the powers~lnvestedIn the boardj,!with.-reference.
to -theezcpendltureof school .funds,are -essentially-the
,~same,~$n
the statut.estoday.. : .. '~
The statute as~ektcted ln.1900, pertalnlngto the
-choosingof :the of!fiaers .of the board, (shown in..tbee quoted ex-
cerpt from tlrr,opinion of.the court),.read: "A.~maj.orlty.of said
board shall.constitute,a quorum to do busLn&sa, and they..shall
choose a preside&j. secretary, treasurer~.and.other;n~cessary of-
ficers and coma%~te~.s".;.:.whereasi
~the~atatutenow read,st !':. . .
They shall.c.boose,--fromtheir .humber~a~.president;and'they shall
choose:a~eecretary~.a,~treasurer, asseas~or-and.colisc~~;or!o~ taxes,
and'otlrlinedessa~'offi~erskirdabmmittees"..(Aat?;;i905,.29th
Legislatiire;,‘-oh.'124.,:
par..165, .p.~306;:~~~til~~.27~~~Revl~ed
_~_ ,_. ._. ~..
Civil Statutes).
Xt will be obserked that the &atu&aaiiti formerly.read,
and 8~sbefore the eourt.ln the-,case~under~discusslon,required,the
officers of %he board,,lncludlng+he secretary to be .members.-there-
of;.,whereas;the.statute as it now reads, while requiring,the~,:
president to-bea member of the board,-does not spealfioallgrequire
the secretary,and other,.offFcers named,~~tobe a member. .The
adoption of the new terml.nology~wouldseem.to establish a clear
legislativeIntent not ,to..thereafterrequire the secretary,and
the other ,oPflcersnamed.,to be members of the board ~of trustees:
Mating from ~thlsproposition;namely, that k.he.sta&te
does not now requFre.the secretary of the board to be a member
thereofi~wefurther analyze the cited case under discussion to
ascertain If.this .caseis',-nottithstandlng~.the
statutory~change,
still determinativeof the questionbefore us.
Honorable C. Woodrow Laughlin, Page 4 (O-2116)
The opinion, as shown by the quoted excerpts, was ground-
ed primarily on the propositionthatthe secretary was a member of
the board, his duties in fllling such offke of secretary could not
be differentiatedfrom his general duties as a trustee, and it
would thereforebs opposed to public policy to allow payment of
money to a member of the board under the guise of compensationfor
extra-officialduties; seaondarily,on the propositionthat, none
the less, no authority for paying such salary Is found In the stat-
utes.
A thoughtful study of the case compels the oonclasion
that the controllingpropositionIn the mind of the court; from
which,the oplnlon cannot be divqrced, was that to Lmply~~the' power
of the board to compensate its member-secretary(dr treaiwi-or)
would be violative of the express statutory prohibitionagainst a
membersof the board receiving oompensation,as well as contraryto
public policy. The case is not, in our opinion, authority for the
proposltlon,when the statutorybasis of this propositionhas been
removed, that the authority of the board to compensateits non-
member secretarymay snotreasonably be implied from the--grant of
power In Article 2827, Revised Civil Statutes, which reads, in part:
11
. . . Loos1 schooi funds from district taxes,
tuition fees of pupils not entitled to free tuition.
and other local sources.may be used for.the purposes
enumeratedfor state and county funds and for puraka&=.
lng appliancesand supplies, for the payment of Insnr-
ante premllums,janitors and other eaployees, for buy-
ing school sites, buying, building and repairing and
renting school houses, and.for other purposes nedessary
in the conduct of the public schools to be determihed
y the board of trustees.~. . ." (Emphasis ours)
It is observed that the court did not discuss the broad
grant of power appearing In Article 2827,~ supra, underscoredabove.
Moreover, we are constrainedto the opinion that this department
cannot rule, categorically,under the language of this statute,
that under no state of facts would .theemployment of a non-member
secretaryby the board of trustees of an independentschool district
be legally allowable under this broad grant of power. Rather, lt~
is our opinion that facts may exist rendering it reasonable,proper
and necessary, in the conduct of the sbhools, for the board of
trustees to choose a non-member secretary;and provide oompenaation
for such offlaer In a sum oommensuratewith the duties incident
thereto. We partioularlyemphaslee, however, that, In our opinion,
the courts of Texas would carefullg,protectthe people from an
abuse of this implied power of the board, and would sanction no
such expenditure of school funds except upon a clear showing of the
reasonablenessand neoesslty therefor.
Honorable C. Woodrow Laughlin, Page 5 (0-2116)
Your second question, we believe, is,resolvedby Article
2791, Revised Civil Statutes, which reads, In part, as follows:
II
. . . It shall be wlthin the discretlon.ofthe
board of trustees of any Independentschool district
to name an assessor of taxes who shall assess the
taxable property wlthin the limits of the Independent
school district within the time and in the manner pro-
vided by existing laws, In so far as they are appllca-
ble, . . . the said assessor of taxes shall receive a
fee or two per cent of the whole amount of taxes assessed
by him and as shown by the completed certifiedtax rolls."
We know of no statute that would allow an assessor of
taxes of an Independentschool district, as distinguishedfrom
the district assessor and collector of taxes, to receive a fee In
excess of two per cent of the whole amount of taxes assessed by
him, as provided In the foregoing statute. Your second question
is therefore respectfullyanswered In the negative.
Trusting that we have satisfactorilyanswered yourin-
quiry, we remain,
Yours very truly,
ATTORREYCERERALOFTEXAS
By /s/ Zollle C. Steakley
Zollle C. Steakley
ACS:IX:mjs Assistant
APPROVED APR 17; 1940
APPROVED OPIEIOR COMMITTEE | 01-03-2023 | 02-18-2017 |
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