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https://www.courtlistener.com/api/rest/v3/opinions/4144301/ | TRE ~TT’ORNEY GENERAL
OF TEXAS
AUSTIN~S.%%XAS
Jlr. Charlen E. B6whm6n
Chief Clerk
Oplnlon loo.O-2C92
Rel Payment of Premlm on surety bond
of State orriaial.
This vi11 ac~owlt?d&e receipt OS your letter of M6rch 15,
19&O, wherein you ask the opinion of this department upon the question
whether the premium on the surety bond furnlrrhed by Charles Is.Baughnuin,
Chief Clerk, Department of'Agriculture, m6y be paid by the Dep6rtment of
'Agricultun, out 0r it6 contAngent fund.
It appear63ihat the 6ppMpHatlOn blllp~otrltl66 no 6um 0f
money 6peoIfI~lly for the payment of the bond ~remlums of employee6 of
thelbpmt-n.
&tIcle 49 Revised Civil Statutes, lm, provide6 Sor the
appointment by the Commissioner of Agriculture of one ohlei alerk.~ mlale
50r after presaribing the powers finddutie6 or the chief clerk &ate6 that
maoh chief clerk shall, befOre ~enterlng upon the duties of hi6 positIon,
tab the oath required of the ooml68Ioner, and enter Into bond ln the sum
.of three &nmand dollar8 with two or more sureties to be approved by the
Governor, and payable to.the State of Texaa, condltloned tar the falthf'ul
perfonnanae 0r hl6 duties. There l6 np provIslon of general statute or
current approprlatlon bIl1 authorizing rdmbursement to the chief clerk
for expen6e6 incurred by him In fuml6hIn$ the bond required by statute.
ft I6 the rule~thtit6n ofiaer or sgent of the State Is allowed
only 6uch cunpen6ation 6nd emolument6 &i!are expressly aonferred upon him
as remuneration ror the discharge of his 0fWaial dutlee a6 6n
the &ate. X&alla v. City of Rockdale 112 Tex. 209, 246 s.W.
iollom that 6rq public officer or agent who demtnd6 mileage,
purse6 mu6t point out 6ome statute authorizing It8 alloW6nce. Where 8 duty
mquIr&ag 6n expenditure of money I6 imposed up0n.a public offlaer or
agent, 6nd no provlulon I6 madeto def%y the 6ame, 6uah offiaer or agent
I8,deemed to be repaid for the e%penaes Incurred In the diecharge of 6uah
611ty by whateVer ColnpanSatIOnIS alloyed and paid t0 him for hl6 6erVlOeS
aa such ~ub1S.e6gent. It I6 therefore apparent that, in order for the
chief Clerk of the Department of AgrlaUlture to be entitled to relmbur6ement
for the e%pen66 InaurredbyhIm In furnI6hingthebond requircpdby statute,
there muat exist 6ome statutom provielon r0r the allowtnce and payment of
the same.
e., charie6 B. Be-, Page 2 o-2092
Slaoe there I6 no provision of the statutes or 6pealXla
item In the 6pproprlatIonbill, COntempl6ting elmbur6ementby the
State to the Chief Clerk oi the Dep6rtment of japF
laulture for the ex-
penaes Incurred by hiw In furnlshlng the oiflcl61 bond required by law,
you we advised that 6uch bond premium cannot be regarded a6 a oontingent
Item of expen6e lawfully to be inaurred by the Dep6rtment, end, there-
tore, 6uah bond premium Mayonot be paid by the D6p6rtmentotAgriculture
out of It6 contingent expentzefun&
YOU’S very truly
ATTORXEY OBNBRAL OF TEXAS
By 6/ R.W. Fairchild
R.Y. Falrohild
A66i6tiltlt
RWFapbprwc
APPROVED APRIL 1, 1949
6/ Ocrald C. &UKI
A-QBNERALoFTBxA3
Approved Opinion Conmlttee By a/ BWB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150493/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD EDELMAN,
Plaintiff,
v. Civil Action No. 14-1140 (RDM)
SECURITIES AND EXCHANGE
COMMISSION,
Defendant.
MEMORANDUM OPINION
In 2014, Plaintiff Richard Edelman filed six requests under the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, with Defendant, the Securities and Exchange Commission
(“SEC”), seeking documents related to the formation of a real estate investment trust. After the
SEC failed to produce any responsive documents, Edelman filed this FOIA action, Dkt. 1, and, in
turn, the SEC released over 2,000 pages of responsive records. The SEC then moved for
summary judgment, arguing that it had “conducted a reasonable search for documents responsive
to [Edelman’s] FOIA requests” and had “withh[eld] only information that was . . . protected by
FOIA exemptions.” Dkt. 15 at 2. Edelman cross-moved for summary judgment, asserting that
the SEC’s search for records was inadequate and that the SEC improperly withheld certain
records. See Dkt. 16.
On March 24, 2016, the Court issued a decision, granting in part and denying in part both
parties’ motions. Edelman v. SEC, 172 F. Supp. 3d 133 (D.D.C. 2016) (“Edelman I”). The
Court identified two outstanding issues, see Dkt. 25 at 1–2, and ordered the SEC (1) to “conduct
an additional search” as to Edelman’s “[C]onsumer [C]omplaints” FOIA request, Edelman I, 172
F. Supp. 3d at 156, and (2) to “search the 113 pages” of attorney notes identified as potentially
responsive to that same FOIA request; to “produce [any] pages” not subject to an exemption; and
to file “a supplemental Vaughn index,” id. at 154. The next month, the SEC filed a renewed
motion for summary judgment, Dkt. 26, and a supplemental Vaughn index, Dkt. 26-2, asserting
that, in compliance with the Court’s orders, it had produced more than a thousand additional
pages of “unredacted or partially redacted” responsive documents to Edelman. Dkt. 26 at 2.
Edelman, in turn, renewed his cross-motion for summary judgment, Dkt. 28, asserting that the
SEC did “not conduct an adequate search for additional documents pertaining” to his FOIA
request for “consumer complaints,” and did not “adequately justif[y] the withholding of certain
information pursuant to FOIA Exemptions 5 and 6.” Dkt. 28-1 at 2. As explained below, the
Court will grant in part and deny in part the SEC’s renewed motion, and will deny Edelman’s
renewed motion.
I. BACKGROUND
As discussed at greater length in the Court’s prior opinion, see Edelman I, 172 F. Supp.
3d at 138–41, “Edelman is a former investor in the Empire State Building,” and he “operate[s] a
website that provides information to investors and the public regarding the contentious process
of converting the ownership of the Empire State Building into a real estate investment trust.” Id.
at 138. On his website, Edelman “has posted documents filed with and issued by the SEC, which
was required to approve the creation of the trust, known as the Empire State Realty Trust, Inc., or
ESRT for short.” Id. “This action arises out of six FOIA requests that Edelman submitted to the
SEC in order to obtain documents about its review of the proposed transaction.” Id.
As relevant to the motions currently before the Court, Edelman submitted a “FOIA
request to the SEC on January 15, 2014,” seeking “[c]onsumer complaints.” Id. at 140; see also
2
Dkt. 26-1 at 1–2 (Second Livornese Decl. ¶ 3).1 In that request, Edelman “described a set of
complaints submitted by Empire State Building investors to the SEC during its review of the
proposed transaction,” and he “alleged that [three] SEC lawyers . . . interviewed the investors
who had submitted the complaints.” Edelman I, 172 F. Supp. 3d at 140. In particular, the
request sought “‘all notes, reports, emails or any other accounts from th[o]se interviews’ and ‘all
emails to and from the . . . SEC lawyers where those complaints and interviews [we]re
discussed.’” Id. (first alteration in original) (quoting Dkt. 15-3 at 5 (Ex. 2)); see also Dkt. 26-1 at
2 (Second Livornese Decl. ¶ 3(a)–(b)). After pursuing the SEC’s internal FOIA appeals process
without success, Edelman filed this action, and on September 30, 2014, the SEC “produced
2,034 pages of records responsive to” this request and another of Edelman’s requests, “but
withheld some material on the basis of FOIA Exemptions 5 and 6.” Edelman I, 172 F. Supp. 3d
at 140. The SEC also withheld “notes from SEC meetings” and from “calls between the SEC
and investors” created by the three SEC lawyers, asserting that, because the notes were for the
attorneys’ “personal use and convenience,” they “were not subject to FOIA.” Id. at 138–39; see
also id. at 147. Having made this production, the SEC then moved for summary judgment. Dkt.
15.
In his initial opposition and cross-motion for summary judgment, Edelman challenged the
adequacy of the SEC’s production of records responsive to his Consumer Complaints request.
Dkt. 16. He argued that “the SEC construed his request too narrowly by searching only for
documents about consumer complaints, rather than for the complaints themselves” and that “the
1
The Court’s earlier decision interchangeably refers to this request as “Request No. 14-03452”
(the “processing number” assigned by the SEC to Edelman’s request), the “Consumer
Complaints” request, and the “fourth FOIA request.” See, e.g., Edelman I, 172 F. Supp. 3d at
140, 145, 147. For the purposes of this memorandum, the Court will refer to this FOIA request
as Edelman’s “Consumer Complaints” request.
3
SEC erred in concluding that notes taken by SEC attorneys were not records subject to FOIA.”
Edelman I, 172 F. Supp. 3d at 147. The Court agreed with Edelman on both counts. First, it
concluded that the SEC unduly restricted the scope of Edelman’s FOIA request, and it thus
“direct[ed] [the SEC to] conduct an additional search in response to [Edelman’s Consumer
Complaints] request, on the understanding that . . . the request encompasse[d] not just documents
about the complaints but the complaints themselves.” Id. at 156. Second, the Court held that the
attorney notes were “not categorically exempt from FOIA,” and it ordered “the SEC to search the
11[2] pages”2 of previously identified attorney notes; to “file a supplemental Vaughn index
responsive to the considerations set out in” the Court’s opinion; and to produce any responsive
pages to Edelman, subject to any appropriate FOIA exemptions. Id. at 154–55.
In response to the Court’s order, the SEC now represents that it has “searched its record
systems for the complaints that were the subject of Edelman’s [Consumer Complaints] FOIA
request,” Dkt. 26 at 12, and has “produced to Edelman 1,446 pages of consumer complaint
documents that were unredacted or partially redacted, and [one] page that was redacted in full,”
id. at 2. In addition, the SEC asserts that it “gathered and reviewed the 112 pages of attorney
notes” and “produced [seventy-one] pages of attorney notes to Edelman, which were unredacted
or partially redacted, and withheld [forty-one] pages of attorney notes in their entirety.” Id.
Finally, the SEC explains that it has complied with the Court’s prior direction that it “produce[]
an unredacted version of [one document] to the Court for an in camera review” and has,
additionally, provided Edelman with a “partially-redacted version” of that same document,
withholding only the “names of two [SEC] staff members under FOIA Exemption 6.” Id. As a
2
As the SEC points out in its renewed motion for summary judgment, its “previous filings with
the Court . . . mistakenly stated that there were 113 pages of attorney notes” when, actually,
“there were only 112 such pages of attorney notes.” Dkt. 26 at 2 n.1.
4
result, the SEC asserts that it has complied in full with the Court’s prior ruling, and now renews
its motion for summary judgment. Dkt. 26. Edelman disagrees and renews his cross-motion for
summary judgment, arguing that the SEC’s search was inadequate and that its redactions are not
appropriate under Exemptions 5 and 6. Dkt. 28-1.
II. ANALYSIS
In its renewed motion for summary judgment, the SEC asserts that its most recent search
for and production of responsive documents has now remedied the deficiencies identified in the
Court’s first summary judgment decision and order. See Dkt. 26. In his opposition and renewed
cross-motion, however, Edelman challenges three aspects of the SEC’s search and production:
First, he alleges that the SEC’s search for consumer complaints was inadequate, as evidenced by
the fact that it failed to uncover several responsive documents, Dkt. 28-1 at 2–4; second, he
argues that the SEC has not properly invoked the deliberative process privilege pursuant to
Exemption 5, id. at 4–5; and, third, he claims that the SEC has failed to establish that it properly
“with[e]ld[] the identities of those making complaints to it about the proposed [ESRT]
transaction” pursuant to Exemption 6, id. at 5–7. The Court will address each contention in
turn.3
A. Adequacy of the SEC’s Search for Consumer Complaints
In the order accompanying its prior decision, the Court instructed the SEC to “conduct
3
In its prior decision, the Court “order[ed] the SEC to produce an unredacted version” of
“Document 1”—an “internal memo to file drafted by SEC attorneys regarding the [transaction]
review process”—for “in camera review.” Edelman I, 172 F. Supp. 3d at 158–59. The SEC’s
renewed motion for summary judgment asserts that it complied with this instruction and that, on
further review, it has now decided to provide Edelman with a version of that document that
discloses “the information [the Commission had] previously withheld under Exemption 5.” Dkt.
26 at 2. This version of Document 1 withholds only the “names of two [SEC] staff members
under FOIA Exemption 6.” Id. Edelman has not objected to that limited withholding, see
generally Dkt. 28-1, and, in any event, the withholding appears justified under Exemption 6.
5
[an] additional . . . search for any records . . . responsive to Edelman’s [Consumer Complaints]
request” and to “release any records that it determine[d] [we]re responsive” to that request. Dkt.
25 at 1–2. This task fell to the SEC’s Office of Freedom of Information Act Services, which is
supervised by John Livornese. Dkt. 26-1 at 1 (Second Livornese Decl. ¶ 1). According to
Livornese, he “determined that any [responsive] ‘consumer complaints’ would be located in the
databases maintained by staff in the SEC’s Division of Corporation Finance (‘CF’),” and he was
informed by CF staff that “any and all records of communications the CF staff received from any
outside source that commented upon, ‘complained’ about, or criticized any aspect of . . . the
proposed ESRT transaction were uploaded, by CF staff, to the Sharepoint database.” Id. at 2
(Second Livornese Decl. ¶ 4). Livornese further attests that the “Sharepoint database allows a
staff member to create a site on the server, store sensitive information at that site[,] and grant
access to that information [to] other staff or staff teams within the SEC.” Id. A search of the
Sharepoint database, according to Livornese, located “1,447 pages of documents . . . that
reflected [the] external consumer complaints” requested by Edelman, of which 1,446 pages were
produced in unredacted or partially redacted form. Id. at 2–5 (Second Livornese Decl. ¶¶ 4–8).
Edelman contends that this search must have been “inadequate” because it failed to
uncover consumer complaints from eight individuals, who have submitted declarations stating
that they have “reviewed the consumer complaints sent to . . . Edelman” and “d[id] not see [their]
complaint[s]” in the SEC’s production. See, e.g., Dkt. 28-2 at 2 (Gaskill Aff., Ex. A); Dkt. 28-1
at 2–3. In addition, Edelman argues that, by searching only the Sharepoint database, the SEC
failed to search for responsive documents in the “paper files” or email records of the SEC staff
members “who worked on the transaction.” Dkt. 28-1 at 3. Both arguments are unavailing.
6
As to the first, the mere fact that Edelman has located complainants who assert that they
made complaints that do not appear in the SEC’s production does not, on its own, cast doubt on
the efficacy of the SEC’s search. It “is long settled that the failure of an agency to turn up one
specific document in its search does not alone render a search inadequate.” Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). “After all, particular documents
may have been accidentally lost or destroyed, or a reasonable and thorough search may have
missed them.” Id. But, more importantly, it is far from clear that the SEC’s production omits
responsive records. In response to the eight declarations submitted in support of Edelman’s
opposition and cross-motion, the SEC asked a paralegal in its Office of General Counsel to
review unredacted copies of all of the consumer complaints that the SEC released to Edelman in
response to his FOIA request. Dkt. 30-1 at 1 (Barss Decl. ¶ 3). According to the SEC’s
paralegal, she “found [written] complaints about the ESRT transaction by many of the
individuals who provided” the declarations. Id. Of equal significance, moreover, the SEC notes
that most of the eight declarations do not indicate whether the declarants submitted written
complaints or, instead, lodged oral objections with SEC staff, Dkt. 30 at 3, and Edelman appears
to concede in his reply brief that some of the complaints were made orally, Dkt. 32 at 2. That
distinction would appear to explain any discrepancy between the SEC’s recent production of the
written complaints—which is what the Court ordered—and the declarants’ recollections. And,
indeed, the SEC paralegal reports that she “found references to communications from and about
all of the” declarants. Dkt. 30-1 at 1 (Barss Decl. ¶ 3) (emphasis added). To the extent that
some of the declarants made oral complaints, any records pertaining to those complaints—the
notes taken during telephone interviews and emails describing interviews between SEC staff
members and oral complainants—were (subject to other exemptions) already produced after a
7
search that this Court has previously determined was “reasonable and adequate.” Edelman I, 172
F. Supp. 3d at 156–57.
Edelman’s second argument—that the SEC failed to search the paper files and emails of
CF staff members and attorneys—also fails. Livornese asserts in his declaration that he “was
informed by CF staff that any and all records of communication the CF staff received from any
outside sources that commented upon, ‘complained’ about, or criticized any aspect of, the
disclosure or activities by solicitation participants related to the proposed ESRT transaction were
uploaded, by CF staff, to the Sharepoint database.” Dkt. 26-1 at 2 (Second Livornese Decl. ¶ 4)
(emphasis added). As a result, it was entirely reasonable for the SEC to focus its search on that
database. The SEC, moreover, went beyond the Sharepoint database and searched the emails of
the three CF attorneys who were responsible for reviewing the ESRT filings, but found no
written complaints from any of the eight declarants that had not previously been produced to
Edelman. Dkt. 30-1 at 1–2 (Barss Decl. ¶ 4). Although it is possible that responsive documents
might have been found in the filing cabinets and email accounts of other CF personnel, the SEC
is not required to “search every record system” in response to a FOIA request; it is only
obligated to “us[e] methods which can be reasonably expected to produce the information
requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Here, the SEC
used exactly the search methods that would be reasonably expected to produce the documents
Edelman requested.
The Court, accordingly, concludes that the SEC conducted an adequate search for the
consumer “complaints themselves,” as the Court directed in Edelman I. See 172 F. Supp. 3d at
156 (emphasis removed).
8
B. Exemption 5 Withholdings
Next, Edelman contends that the SEC improperly redacted “deliberative” material from
portions of the attorney notes and consumer complaints it produced to him. He makes two
arguments. First, Edelman contends that the Court should reject the SEC’s reliance on the
deliberative-process privilege because the Commission “failed to identify the actual deliberative
process . . . it [wa]s attempting to protect.” Dkt 28-1 at 4. Second, he argues that the SEC
improperly withheld “factual material” and “comments made by SEC staffers” that were
embarrassing but not deliberative. Id. at 5. The SEC responds that it provided a sufficiently
detailed supplemental Vaughn index that describes the relevant decisions the SEC staff were
deliberating over for each withholding and that it withheld only exempt material. Dkt. 30 at 5–7.
Once again, the SEC’s position is convincing.
Exemption 5 shields from disclosure “inter-agency or intra-agency memorandums or
letters that would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). The “deliberative process privilege is one of the litigation
privileges incorporated into Exemption 5,” allowing “an agency to withhold ‘all papers which
reflect the agency’s group thinking in the process of working out its policy and determining what
its law shall be.’” Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 4 (D.C. Cir. 2014)
(quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). The privilege is “limited to
documents that are ‘predecisional’ and ‘deliberative,’ meaning they reflect advisory opinions,
recommendations, and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Id. at 7 (quotation marks and alteration omitted); see
also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (“[A] document [is]
‘predicisional’ if it was generated before the adoption of an agency policy and ‘deliberative’ if it
9
reflects the give-and-take of the consultative process.”). Where records reflect such
predecisional deliberations, the privilege “protects agencies from being ‘forced to operate in a
fishbowl.’” Elec. Frontier Found., 739 F.3d at 4 (quotation marks omitted).
The SEC argues that it properly withheld portions of the attorney notes and consumer
complaints that described internal SEC “deliberat[ions] [about] how to respond to the various
issues raised in the ESRT filing” and that it adequately described those deliberations in the
supplemental Vaughn index it provided to Edelman.4 Dkt. 26 at 3, 14. Edelman does not
seriously dispute that some of the redacted material could have been properly withheld on the
basis of Exemption 5, but instead argues that the SEC’s Vaughn index lacks sufficient detail to
support the invocation of the privilege, see Dkt. 32 at 3–4 (asserting that the Vaughn index “only
discuss[es] a type of action the documents were part of, not [the] role [they] played within a
policy formulation process” or how “the documents themselves were involved” in the “actual
deliberations”). The Court has already rejected an earlier version of this same argument, see
Edelman I, 172 F. Supp. 3d at 160, and it does so once again.
Notations in the SEC’s Vaughn index like “internal predecisional deliberations about the
handling of a complaint by an investor about ESRT” and “predecisional deliberations of the
handling of financial issues raised by investors concerning ESRT filings,” see, e.g., Dkt. 30-3 at
29, 33, clearly describe the decisions that were the subject of ongoing deliberations. And,
although the Vaughn index frequently uses the less elaborate phrase “notes reflecting
4
In response to Edelman’s argument that its supplemental Vaughn index “fail[ed] to describe
what [deliberative] processes the withheld documents pertain[ed] to,” Dkt. 28-1 at 5, the SEC
filed an updated supplemental Vaughn index, Dkt. 30-3, indicating the specific “decisions staff
members were deliberating,” Dkt. 30 at 5 & 5–6 n.2. Accordingly, the Court will assess the
completeness of the SEC’s updated Vaughn index in determining whether it properly applied
Exemption 5.
10
predecisional deliberations about ESRT’s filing,” see, e.g., id. at 25, 26, when considered in
context, this notation leaves little doubt that the deliberations were focused on whether to
“approve the creation of the [ESRT] trust,” Edelman I, 172 F. Supp. 3d at 138. Although
Edelman seeks greater detail, the Court has already explained that there is “no basis to require
the SEC to specify the decisions to which each specific [document] was antecedent” because, as
the supplemental Vaughn index states, the documents were produced “in anticipation of the
SEC’s determination about whether to allow the ESRT transaction to proceed.” Id. at 160.
Greater detail is not necessary to facilitate judicial review or to promote any other purpose
embodied in FOIA.
Edelman’s additional arguments fare no better. He accuses the SEC of failing to
segregate factual material from “otherwise pre-decisional document[s]” and suggests that “many
of the withholdings are not actual deliberations but comments made by SEC staffers about the
complainants themselves” that might “cause embarrassment” to the SEC. Dkt. 28-1 at 5. But he
offers no support for these contentions, and Livornese’s declaration directly refutes them,
asserting that, “[p]ursuant to Exemption 5, [the SEC’s] FOIA Office redacted certain pre-
decisional and deliberative information,” withholding “only information that was exempt.” Dkt.
26-1 at 3 (Second Livornese Decl. ¶¶ 7-8) (emphasis added). The Livornese declaration,
moreover, goes on to offer additional detail about each of the Exemption 5 redactions currently
at issue. Id. at 3–5 (Second Livornese Decl. ¶ 8). “Agency affidavits—so long as they are
relatively detailed and non-conclusory—are accorded a presumption of good faith, which cannot
be rebutted by purely speculative claims.” Mobley v. CIA, 806 F.3d 568, 581 (D.C. Cir. 2015)
(quotation marks omitted). The Livornese declaration meets this standard, and Edelman has
offered no reason—beyond unsupported speculation—to question Livornese’s testimony.
11
The Court, accordingly, concludes that the SEC properly withheld portions of the
consumer complaints and attorney notes on the basis of the deliberative process privilege.5
C. Exemption 6 Withholdings
Finally, Edelman challenges the SEC’s decision to withhold “the identities of those
making complaints to it about the proposed [ESRT] transaction” pursuant to Exemption 6. Dkt.
28-1 at 5. “Exemption 6 protects information about individuals in ‘personnel and medical files
and similar files’ when its disclosure ‘would constitute a clearly unwarranted invasion of
personal privacy.’” Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d 253, 257 (D.D.C. 2016)
(quoting 5 U.S.C. § 552(b)(6)). “The Supreme Court has read ‘similar files’ broadly to include
any ‘[g]overnment records on an individual which can be identified as applying to that
individual,’” People for the Am. Way. Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284, 303
5
In his reply brief, Edelman argues, for the first time, that “the SEC fail[ed] to establish that it
conducted a foreseeable harm analysis on [the records redacted under Exemption 5] as now
required by the FOIA Improvement Act of 2016.” Dkt. 32 at 4. The SEC seeks leave to file a
sur-reply so that it can address this “new argument” that it would not otherwise be “able to
contest.” Dkt. 33 at 1.
The “decision to grant or deny leave to file a sur[-]reply is committed to the sound discretion
of the court,” Akers v. Beal Bank, 760 F. Supp. 2d 1, 3 (D.D.C. 2011), and “court[s] routinely
grant[] such motions when a party is unable to contest matters presented to the court for the first
time in the last scheduled pleading,” Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir.
2003) (quotation marks omitted). Here, the SEC has plainly demonstrated that it was not
previously able to address the “foreseeable harm analysis” argument which was made for the
first time in Edelman’s reply brief, and, accordingly, the Court will grant the SEC’s motion for
leave to file a sur-reply. See Dkt. 33.
Turning to the merits of Edelman’s argument, the SEC is correct that the FOIA Improvement
Act of 2016 (“the Act”) has no bearing on the Court’s analysis. See Dkt. 33-1 at 1–2. The Act,
signed into law on June 30, 2016, includes an “applicability” section declaring that it “shall take
effect on the date of enactment . . . and shall apply to any request for records . . . made after the
date of enactment.” FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 6, 130 Stat. 538
(2016) (emphasis added). Edelman made the FOIA request at issue here in January of 2014, see
Dkt. 15-3 at 5 (Ex. 2), more than two years before the Act went into effect.
12
(D.D.C. 2007) (quoting U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 601–02 (1982)),
and the D.C. Circuit has explained that the exemption can sweep in “bits of personal information,
such as names and addresses,” Judicial Watch, 449 F.3d at 152. The mere fact that an agency
file or record contains personal, identifying information, however, is not enough to invoke
Exemption 6; in addition, the information must be “of such a nature that its disclosure would
constitute a clearly unwarranted privacy invasion.” Nat’l Ass’n of Home Builders v. Norton, 309
F.3d 26, 32 (D.C. Cir. 2002). To make that determination, “the Court [must] employ[] a
balancing test, weighing ‘the private interest involved (namely the individual’s right of privacy)
against the public interest (namely, the basic purpose of [FOIA], which is to open agency action
to the light of public scrutiny).’” People for the Am. Way Found., 503 F. Supp. 2d at 304
(quoting Judicial Watch, 449 F.3d at 153). “In undertaking this analysis, the [C]ourt is guided
by the instruction that, under Exemption 6, the presumption in favor of disclosure is as strong as
can be found anywhere in [FOIA].” Nat’l Ass’n of Home Builders, 309 F.3d at 32 (quotation
marks omitted).
The SEC asserts that it withheld the personal identifying information of “members of the
public who contacted the SEC” to lodge complaints “during the ESRT review” process in order
to shield those complainants from “being harassed or ridiculed by any person they may” have
criticized in their complaints. Dkt. 26 at 10–11. According to the SEC, releasing this
information “would not shed light on how the government operates,” and, thus, the
complainants’ privacy interest necessarily outweighs the public interest. Id. at 11. For his part,
Edelman acknowledges that the third-party complainants “do have a privacy interest in their
identities and certain identifying information,” but he argues that their privacy interest is not
particularly strong because the complaints are commercial in nature and because several of the
13
complainants have, in fact, agreed to the disclosure of their identities. Dkt. 28-1 at 6–7. Against
this backdrop, he contends that the SEC failed properly to balance the complainants’ privacy
interests against the public’s right to know “[w]ho communicated to the government” and
whether “the government took those [communications] into consideration” before making any
decisions regarding the ESRT transaction. Id. at 7. The Court agrees that the SEC has not
correctly performed the required balancing and, accordingly, will deny the SEC’s motion for
summary judgment on this ground. But, because Exemption 6 implicates the interests of third
parties, and because both the factual record and briefing on this issue are incomplete, the Court
will not grant Edelman’s cross-motion at this time.
The SEC hinges its argument on the mistaken premise that publicly releasing the names
of the complainants “would not shed light on how the government operates.” Dkt. 26 at 11.
That conclusion ignores the “public interest in knowing who may be exerting influence on [SEC]
officials sufficient to convince them to” approve or disapprove a transaction. People for the Am.
Way Found., 503 F. Supp. 2d at 306; but see id. at 305–06 (collecting cases arriving at different
conclusions). It ignores the public interest in knowing whether the SEC gives “greater weight to
the comments submitted by” some complainants than others. Alliance for Wild Rockies v. Dep’t
of Interior, 53 F. Supp. 2d 32, 37 (D.D.C. 1999). And it ignores the public interest in
understanding whether particular complaints, which were credited or rejected by the SEC, were
based on personal knowledge, financial interests, or other factors.
On the other side of the balance, Edelman argues that the records at issue “concern a
commercial transaction,” as opposed to “a personal issue,” and thus do not implicate a
particularly strong privacy interest. Dkt. 28-1 at 7. In support of that proposition, Edelman cites
a decision from this Court, Washington Post Co. v. United States Department of Agriculture, 943
14
F. Supp. 31, 34–36 (D.D.C. 1996), and a decision from the district court in Oregon, Oregon
Natural Desert Association v. United States Department of the Interior, 24 F. Supp. 2d 1088,
1089 (D. Or. 1998). Neither Edelman nor the SEC, however, cite to or discuss a number of D.C.
Circuit and Supreme Court precedents bearing on this issue.
In a case much like this one, the D.C. Circuit rejected reliance by the Commodity Futures
Trading Commission (“CFTC”) on Exemption 6 as a basis for withholding from the Chicago
Board of Trade the names of those who had submitted complaints to the CFTC. See Bd. of Trade
v. Commodity Futures Trading Comm’n, 627 F.2d 392, 399–400 (D.C. Cir. 1980) (“Board of
Trade”). In reaching that conclusion, the Court of Appeals relied principally on the premise that
the reference to “similar files” in Exemption 6 applies only to files that reveal “intimate details”
of a person’s life, such as “information regarding marital status, legitimacy of children, identity
of fathers of children, medical conditions, welfare payments, alcoholic consumption, family
fights and reputation.” Id. at 399 (quotation marks and alteration omitted). Because the
complaints at issue involved “purely commercial matters,” the D.C. Circuit held that the FOIA
request did not seek “similar files” within the meaning of Exemption 6. Id. at 400. Two years
later, however, the Supreme Court rejected that narrow reading of “similar files” and held that
“similar files” include all “information which applies to a particular individual.” U.S. Dep’t of
State v. Wash. Post Co., 456 U.S. 595, 620 (1982). That portion of the Board of Trade holding,
accordingly, is no longer controlling.
The Board of Trade Court, however, went on to consider the question whether, even if
the names at issue were considered “similar files” would “the privacy interests asserted by the
[CFTC] outweigh the public interest in complete disclosure,” and the Court held that it would
not. 627 F.2d at 400. The only interest that the CFTC identified in support of withholding the
15
information was the possibility that the Board of Trade might harass the complainants, but the
D.C. Circuit concluded that the CFTC had other tools “to prevent any improper conduct on the
part of Board representatives.” Id. There is no reason to believe that this alternative holding did
not survive the Supreme Court’s decision in the Washington Post case, and, indeed, the D.C.
Circuit cited Board of Trade with approval four months after the Supreme Court’s decision for
the proposition that the disclosure of “employment information . . . would be only a minimal
invasion of privacy.” Wash. Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252,
261 (D.C. Cir. 1982).
The Court takes from this line of precedent that personal information that relates to
commercial activity is not categorically beyond the reach of Exemption 6, but that the Court
must engage in a case-specific weighing of the interests at stake and that it is likely, as Edelman
suggests, that the names of commenters on commercial matters implicate less weighty privacy
interests than the type of information that lies at the core of Exemption 6. The Court is aware
that “a number of [complainants] communicated with [the SEC] only with the understanding that
the SEC would try to keep their comments and complaints confidential,” Dkt. 30-2 at 2 (Kluck
Decl. ¶ 5), and that “release of information provided under a pledge of confidentiality”—if such
a pledge was made here—“involves a greater invasion of privacy than release of information
provided without such a pledge,” Wash. Post. Co., 690 F.2d at 263. But that, also, is not
dispositive. Rather, as the D.C. Circuit has observed, “allow[ing] the government to make
documents exempt [from disclosure] by the simple means of promising confidentiality would
subvert FOIA’s disclosure mandate.” Id. And finally, as Edelman observes, it appears that at
least some of the complainants have no objection to disclosure of their identities.
16
Given the fact-intensive nature of the required inquiry, the Court cannot accept the SEC’s
invitation to sustain its application of Exemption 6 to all identifying information about all of the
complainants. This is not to say, however, that the SEC cannot make a sufficient showing that
the identities of some of the complainants implicate privacy interests that outweigh the public
interest in disclosure. But because the current record lacks sufficient information for the Court to
conduct the required balancing, and because the SEC (which mistakenly concluded that
providing the complainants’ names “would not shed light on how the government operates,” Dkt.
26 at 11) should conduct the relevant balancing in the first instance, the Court will deny
summary judgment at this time.6 The parties are directed to meet and confer regarding this issue
and if, after applying the analysis set forth above to the relevant facts, a dispute remains, the SEC
may file a renewed motion for summary judgment addressing solely this issue. Any such
renewed motion shall provide a detailed factual basis for the SEC’s conclusions and shall be
supported by further legal analysis of the issues outlined above.
6
The Court also notes that, even though Edelman “underst[oo]d and expect[ed] the names of
investors to be redacted to protect confidentiality” when he made his FOIA request, see 15-3 at 5
(Ex. 2), the SEC does not rely on this disclaimer to justify its withholding of the complainants’
names. Nowhere in its Vaughn index does the SEC explain that it withheld the complainants’
names “at Edelman’s request” or “consistent with Edelman’s FOIA request;” rather, the SEC
justifies its withholdings with a reference to Exemption 6.
17
CONCLUSION
For these reasons, the Court will GRANT in part and DENY in part the SEC’s renewed
motion for summary judgment, Dkt. 26, will DENY Edelman’s renewed motion for summary
judgment, Dkt. 28, and will GRANT the SEC’s motion to file a sur-reply, Dkt. 33.
A separate Order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 6, 2017
18 | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295075/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4397240/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,319-20
EX PARTE ERIC SAMUEL TUCKER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1428697-T IN THE 184TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated
assault of a family member and sentenced to thirty years’ imprisonment. The First Court of Appeals
affirmed his conviction. Tucker v. State, No. 01-15-00274-CR (Tex. App.—Houston [1st Dist.] Jun.
2, 2016) (not designated for publication).
In his present application, Applicant raises seven grounds. This application, however,
presents a more serious question. This Court’s records reflect that Applicant has filed six prior
2
applications pertaining to this conviction that complied with the Rules of Appellate Procedure and
the Rules of the Article 11.07 form. It is obvious from the record that Applicant continues to raise
issues that have been presented and rejected in previous applications or that should have been
presented in previous applications. The writ of habeas corpus is not to be lightly or easily abused.
Sanders v. U.S., 373 U.S. 1 (1963); Ex parte Carr, 511 S.W.2d 523 (Tex. Crim. App. 1974).
Because of his repetitive claims, we hold that Applicant’s claims are barred from review under
Article 11.07, § 4, and are waived and abandoned by his abuse of the writ. This application is
dismissed.
Therefore, we instruct the Clerk of the Court of Criminal Appeals not to accept or file the
instant application for a writ of habeas corpus, or any future application pertaining to this conviction
unless Applicant is able to show in such an application that any claims presented have not been
raised previously and that they could not have been presented in a previous application for a writ of
habeas corpus. Ex parte Bilton, 602 S.W.2d 534 (Tex. Crim. App. 1980).
Copies of this order shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.
Filed: May 15, 2019
Do not publish | 01-03-2023 | 05-16-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4147470/ | J-S03031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JACK EDWARD ALLEN :
:
Appellant : No. 965 WDA 2016
Appeal from the Order Entered June 22, 2016
in the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000738-1995
BEFORE: OLSON, SOLANO, and STRASSBURGER*, JJ
JUDGMENT ORDER BY STRASSBURGER, J.: FILED FEBRUARY 22, 2017
Jack Edward Allen (Appellant) appeals from the order entered June 22,
2016, wherein the PCRA1 court denied his motion to recuse. Upon review,
we quash this appeal.
On July 19, 1995, Appellant shot his wife in the back of the head in the
presence of their children and several witnesses. She later died from this
injury. Appellant was convicted of, inter alia, first-degree murder, and he
was sentenced to life imprisonment.2 This Court affirmed Appellant’s
judgment of sentence on June 3, 2008, and our Supreme Court denied
____________________________________________
1
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
2
Appellant was first convicted on April 24, 1996. On December 12, 2000,
Appellant obtained PCRA relief through this Court. A second trial
commenced on December 18, 2006, and Appellant was again convicted.
*
Retired Senior Judge assigned to the Superior Court.
J-S03031-17
Appellant’s petition for allowance of appeal on October 14, 2008.
Commonwealth v. Allen, 959 A.2d 456 (Pa. Super. 2008), appeal denied,
959 A.2d 927 (Pa. 2008).
On May 11 and June 13, 2016, Appellant filed PCRA petitions. The
case was assigned to Judge Frederic Ammerman, who had presided over
Appellant’s second jury trial.3 On June 20, 2016, Appellant filed a motion to
recuse Judge Ammerman. The PCRA court denied that motion on June 22,
2016. Appellant timely filed a notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
In considering whether an appeal from an order denying a motion to
recuse is appealable, this Court has held the following.
This Court ordinarily has jurisdiction only over appeals taken
from final orders. As defined in the Pennsylvania Rules of
Appellate Procedure, a final order disposes of all claims and of all
parties. A final order may also be defined as final by a statute or
may be made final if an order disposes of fewer than all claims
or parties if the trial court makes an express determination of
finality.
This Court has held that, pursuant to the above-mentioned rules,
a pre-trial motion seeking to recuse a judge from further
proceedings is not a final order. See Hahalyak v. Integra
Financial Corp., [] 678 A.2d 819 ([Pa. Super.] 1996); Kenis v.
Perini Corp., [] 682 A.2d 845 ([Pa. Super.] 1996). Moreover,
this Court has indicated that an appeal from a denial of a pre-
trial motion to recuse does not fit into any of the categories
____________________________________________
3
“Generally, it is deemed preferable for the same judge who presided at trial
to preside over the post-conviction proceedings since familiarity with the
case will likely assist the proper administration of justice.” Commonwealth
v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998). See also Pa.R.Crim.P. 903(A).
-2-
J-S03031-17
listed in Rules 311 and 313, and, therefore, it is not an
interlocutory or collateral order that is immediately appealable.
See Hahalyak, supra; Kenis, supra.
Krieg v. Krieg, 743 A.2d 509, 511 (Pa. Super. 1999) (some citations
omitted).4
Based on the foregoing, we quash this appeal.5
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
____________________________________________
4
We recognize that there are some circumstances where this Court has
found an order granting or denying a motion to recuse immediately
appealable. Commonwealth v. King, 839 A.2d 237 (Pa. 2003) (considering
an appeal where the PCRA court granted King’s request for recusal to
expedite the PCRA process in this capital case, and our Supreme Court
granted the Commonwealth’s petition for permission to appeal that order);
Commonwealth v. Stevenson, 829 A.2d 701 (Pa. Super. 2003)
(considering an appeal where the Commonwealth certified the order granting
Stevenson’s motion for recusal handicapped its case pursuant to Pa.R.A.P.
311(d)); Commonwealth v. White, 910 A.2d 648 (Pa. 2006) (plurality)
(considering an appeal where the Commonwealth certified the order denying
its motion for recusal handicapped its case pursuant to Pa.R.A.P. 311(d)).
5
We point out to Appellant that “[t]he denial of a motion to recuse is
preserved as an assignment of error that can be raised on appeal following
the conclusion of the case.” In re A.D., 93 A.3d 888, 892 (Pa. Super. 2014).
-3- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150508/ | ******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
PAUL T. MCDONALD v. FRANCIS
M. MCDONALD ET AL.
(AC 38289)
Alvord, Sheldon and Norcott, Js.
Argued November 16, 2016—officially released March 14, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Shapiro, J.)
Paul T. McDonald, self-represented, the appellant
(plaintiff).
John K. McDonald, with whom, on the brief, were
Hugh D. Hughes and Paul Pollock, for the appellees
(named defendant et al.).
David J. McDonald, for the appellee (defendant
David J. McDonald, LLC).
Opinion
SHELDON, J. The plaintiff, Paul T. McDonald,
appeals from the summary judgment rendered in favor
of the defendants, Francis M. McDonald, James E.
McDonald, John J. McDonald and Vincent J. McDonald,
all of whom are his brothers, and David J. McDonald,
LLC, a limited liability company organized by his
nephew. On appeal, he claims that the trial court
improperly concluded that his claim for partition of
certain real property jointly owned by all of the parties
was barred by res judicata because (1) the previous
judgment that was relied upon by the trial court as
having said preclusive effect was not a final judgment
and (2) his right to partition is absolute. We affirm the
judgment of the trial court.
The trial court set forth the following relevant proce-
dural history in its memorandum of decision granting
the defendants’ motion for summary judgment. ‘‘In his
complaint [in this action], the plaintiff, Paul T. McDon-
ald, alleges that he and the defendants . . . own, as
tenants in common, real property located in Mid-
dlebury, Connecticut, on the north side of Route 64,
known as 2328 Middlebury Road, consisting of an
unsubdivided, irregularly shaped 17.35 acre parcel of
residentially zoned land. He alleges that the parcel con-
tains an older house in poor condition, that a portion
of the parcel is leased to a swim club, and that that
portion produces income to pay the taxes and other
expenses of the property.
‘‘The plaintiff alleges that he holds a 3/21 or one-
seventh interest therein, and that the defendants own
the balance of the interests therein, in either 3/21, 4/
21, or 1/10 interests. The complaint is pleaded in three
counts, in which the plaintiff seeks, respectively, parti-
tion in kind, partition by sale, and partition by equita-
ble distribution.
‘‘In support of the[ir] motion [for summary judgment],
the defendants argue that the plaintiff’s three counts
are barred by res judicata. This argument is premised
on a previous partition action brought in this court by
the plaintiff, McDonald v. McDonald, Docket No. UWY-
CV-11-6011618 (first action). In the first action, the
plaintiff sought only a partition by sale. He did not seek
partition in kind.
‘‘The first action was tried before this court in Novem-
ber, 2012. At trial, the plaintiff and another witness
testified and exhibits were presented. The court viewed
the property at issue in that action, including the prop-
erty which is the subject of the current complaint,1 in
the presence of the parties, on December 4, 2012.
‘‘After review of the parties’ posttrial briefs in the
first action, the court issued a memorandum of decision,
dated January 28, 2013 (decision), finding that the plain-
tiff had not met his burden of proof. [The court found
that the plaintiff failed to present any evidence that a
physical division of the property was impractical or
inequitable, or that a partition by sale would better
promote the owners’ interests than a partition in kind.
The court thus declined the plaintiff’s request for a
partition by sale and judgment] was entered for the
defendants. The plaintiff did not appeal the court’s deci-
sion.’’ (Footnotes altered.)
On September 17, 2013, the plaintiff filed this action
seeking partition of 2328 Middlebury Road. In his three
count complaint, he asked that the property be parti-
tioned, in kind, by sale or by equitable distribution. He
essentially reiterated in this complaint the allegations
from his complaint in the first action, but asserted three
causes of action purporting to seek three possible alter-
native modes of partition.
The defendants moved for summary judgment2 on
the ground that the plaintiff’s action was barred by the
doctrine of res judicata because the claims asserted
herein were litigated, or could have been litigated, in
the first action. In response, the plaintiff argued that
the doctrine of res judicata did not apply because his
right to partition is absolute, the first action did not
result in a final judgment that had any preclusive effect
on this action, and the doctrine of res judicata is ‘‘not
a hard and fast doctrine but one which must give way
when the mechanical application would frustrate other
social policies.’’
On August 18, 2015, the court granted summary judg-
ment in favor of the defendants, finding that the plain-
tiff’s action was barred by the doctrine of res judicata.
In so doing, the court explained: ‘‘[I]n the first action,
the plaintiff litigated to conclusion his claims about
several parcels, including that at issue here, resulting
in a final judgment, from which the plaintiff took no
appeal. No further determination of the matter litigated
was required in connection with the first action.’’ On
that basis, the court rejected the plaintiff’s claim that
the first action had not concluded with a final judgment.
The court further reasoned: ‘‘Comparison of the oper-
ative complaint and the judgment in the first action to
the plaintiff’s three count complaint in this action
clearly shows that the transactional test for the applica-
tion of res judicata has been met. The factual underpin-
nings of the current claims and those that were actually
litigated in the first action are the same, in that the
plaintiff brought and litigated through trial and judg-
ment a prior partition action concerning the same prop-
erty. It is apparent that the plaintiff’s claims, all of which
relate to the same group of facts comprising the ‘trans-
action,’ i.e., the parties’ ownership of the property at
issue, actually were or could have been brought in the
first action. . . . While the plaintiff could have sought
partition in kind in the first action, he expressly pleaded
that it would be impractical or inequitable. In this
action, he again seeks partition by sale, which he sought
in the first action. . . .
‘‘On balance, the fact that the plaintiff had a complete
opportunity, in the first action, to vindicate his right to
partition, must be taken into account. In the first action,
he intentionally adopted a restricted strategy concern-
ing partition, both in terms of the relief he sought, and
the evidence he chose to present. The defendants went
to trial and judgment was rendered in their favor. The
fact that the plaintiff did not emerge from the first action
with a judgment of partition was entirely as a result of
his own voluntarily undertaken approach.’’ (Citations
omitted; footnote omitted.) This appeal followed.
Although the plaintiff does not challenge the trial
court’s determination that he litigated or had the oppor-
tunity to litigate his claims for partition in the first
action, he argues that the judgment rendered in that
action was not a final judgment that precludes him from
raising his claims for partition again. He also claims
that the trial court in the first action improperly
deprived him of his absolute right to partition and that
the absolute nature of that right prevents the application
of res judicata to this action. We disagree.
We first set forth the applicable standard of review
and governing legal principles. ‘‘Practice Book § 17-
49 provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. In deciding a motion for
summary judgment, the trial court must view the evi-
dence in the light most favorable to the nonmoving
party. . . . The party moving for summary judgment
has the burden of showing . . . that the party is . . .
entitled to judgment as a matter of law. . . . Our
review of the trial court’s decision to grant the defen-
dant’s motion for summary judgment is plenary. . . .
‘‘The doctrine of res judicata holds that an existing
final judgment rendered upon the merits without fraud
or collusion, by a court of competent jurisdiction, is
conclusive of causes of action and of facts or issues
thereby litigated as to the parties and their privies in
all other actions in the same or any other judicial tribu-
nal of concurrent jurisdiction. . . . If the same cause
of action is again sued on, the judgment is a bar with
respect to any claims relating to the cause of action
which were actually made or which might have been
made. . . . Claim preclusion (res judicata) and issue
preclusion (collateral estoppel) have been described as
related ideas on a continuum. . . . More specifically,
collateral estoppel, or issue preclusion . . . prohibits
the relitigation of an issue when that issue was actually
litigated and necessarily determined in a prior action
between the same parties or those in privity with them
upon a different claim. . . . An issue is actually liti-
gated if it is properly raised in the pleadings or other-
wise, submitted for determination, and in fact
determined. . . . An issue is necessarily determined
if, in the absence of a determination of the issue, the
judgment could not have been validly rendered. . . .
‘‘The applicability of the doctrines of collateral estop-
pel or res judicata presents a question of law that we
review de novo. . . . Because these doctrines are judi-
cially created rules of reason that are enforced on public
policy grounds . . . we have observed that whether to
apply either doctrine in any particular case should be
made based upon a consideration of the doctrine’s
underlying policies, namely, the interests of the defen-
dant and of the courts in bringing litigation to a close
. . . and the competing interest of the plaintiff in the
vindication of a just claim. . . . These [underlying] pur-
poses are generally identified as being (1) to promote
judicial economy by minimizing repetitive litigation; (2)
to prevent inconsistent judgments which undermine the
integrity of the judicial system; and (3) to provide
repose by preventing a person from being harassed by
vexatious litigation. . . . The judicial doctrines of res
judicata and collateral estoppel are based on the public
policy that a party should not be able to relitigate a
matter which it already has had an opportunity to liti-
gate. . . . Stability in judgments grants to parties and
others the certainty in the management of their affairs
which results when a controversy is finally laid to rest.’’
(Citations omitted; internal quotation marks omitted.)
Powell v. Infinity Ins. Co., 282 Conn. 594, 599–602, 922
A.2d 1073 (2007).
‘‘The right to partition is founded on the principle
that no person can be compelled to remain the owner
with another of real property, even if the party seeking
partition willingly entered into the joint ownership.
. . . General Statutes § 52-495 confers an absolute right
of partition upon any person holding real property as
a tenant in common with others. . . . In those cases
where the court finds that a sale of the property would
better promote the interests of the owners, the court
may order such a sale. General Statutes § 52-500 . . . .
This jurisdiction has long favored partition in kind, or
physical division, over partition by sale. . . . Because
we presume that partition in kind is in the best interests
of the owners, the burden of proof rests on the party
seeking a sale to demonstrate that it is the better rem-
edy. . . . This burden may be carried by satisfying two
conditions: (1) the physical attributes of the property
make partition in kind impracticable or inequitable; and
(2) the interests of the owners would better be pro-
moted by partition by sale. . . . A plaintiff in an action
for partition seeks to sever or dissolve involuntary joint
ownership in real property. In furtherance of that objec-
tive, a court is limited to rendering a judgment of either
partition in kind or by sale of the real property . . .
thus terminating the ownership relationship between
the parties.’’ (Citations omitted; footnotes omitted.)
Wilcox v. Willard Shopping Center Associates, 208
Conn. 318, 325–26, 544 A.2d 1207 (1988). With these
principles in mind, we address the plaintiff’s claims
in turn.
I
The plaintiff first claims that the trial court improp-
erly determined that his claims in this action were
barred by the doctrine of res judicata because the first
action did not result in a final judgment that could have
a preclusive effect on his current claims. Specifically,
the plaintiff claims that there was no final judgment in
the first action because the judgment in that action
did not settle the controversy between him and the
defendants in that it did not terminate his joint owner-
ship of the subject property. We are not persuaded.
Practice Book § 61-2 provides in relevant part: ‘‘When
judgment has been rendered on an entire complaint,
counterclaim or cross complaint . . . such judgment
shall constitute a final judgment. . . .’’
In the plaintiff’s first action for partition, the court
held that the plaintiff failed to satisfy his burden of
proof for a partition by sale and thus found in favor of
the defendants. Although the court’s judgment did not
sever the plaintiff’s joint tenancy with the defendants,
it fully and finally disposed of the sole claim advanced
by the plaintiff in his complaint, denying the sole rem-
edy that he sought therein. That ruling thus constituted
a final judgment that was immediately appealable.
In support of his claim that there was no final judg-
ment in the first action, the plaintiff cites the case of
Labow v. Labow, 69 Conn. App. 760, 765, 796 A.2d 592,
cert. denied, 261 Conn. 903, 802 A.2d 853 (2002), for
the proposition that: ‘‘Where the manner of partition
has not been determined, there is no final judgment in
a partition action.’’ In Labow, the court granted the relief
of partition, but had not yet determined the appropriate
mode of partition. Id., 763. This court held that there
was no final judgment on the ground that the rights of
the parties had not been concluded because the manner
of partition had not yet been determined. Id., 766. This
case is distinguishable from Labow in that the plaintiff
here sought only one mode of partition in the first
action—partition by sale—and he failed to meet his
burden of proving that he was entitled to that remedy
under the circumstances presented. In denying the only
relief that the plaintiff sought in the first action, the
trial court concluded the entire controversy, as it had
been pleaded by the plaintiff. The plaintiff’s claim that
there was no final judgment in the first action must
therefore fail.
II
The plaintiff also claims that the trial court erred in
concluding that his action was barred by res judicata
because his right to partition is absolute. The plaintiff’s
claim in this regard is based upon two equally meritless
arguments. First, the plaintiff contends that the trial
court erred in granting summary judgment on the
ground that his claims in this action were precluded by
the judgment in the first action because the judgment
in the first action ‘‘resulted from . . . the failure of the
[trial] court in the prior action (1) to honor the plaintiff’s
absolute right to partition, (2) to award a partition sale
under the pleadings, and (3) to award a partition sale
as consistent with statutes and case law.’’ These argu-
ments constitute an impermissible collateral attack on
the judgment in the first action, from which the plaintiff
failed to appeal. See In re Shamika F., 256 Conn. 383,
407–408, 773 A.2d 347 (2001) (collateral attack on judg-
ment is procedurally impermissible substitute for
appeal). Because the plaintiff failed to appeal from the
judgment in the first action, we can afford him no rem-
edy as to the claims of error that he has advanced
regarding that judgment.
Second, the plaintiff contends that his right to parti-
tion survives the judgment in the first action because
that judgment did not sever his joint tenancy of the
subject property, the severance of which is his absolute
right. His argument is that because his right to partition
is absolute, he can ask for it at any time, and many
times, in serial actions. Under the plaintiff’s theory, he
would be entitled to bring serial actions for partition,
even absent any intervening change in the nature or
characteristics of the subject property, until he obtains
the relief that he is seeking. In other words, the plaintiff
is claiming that the doctrines of res judicata and collat-
eral estoppel do not apply to partition actions. He has
not, however, provided any legal authority to support
his position. In the absence of any legal authority to
support his claim, we cannot conclude that the
important public policies underlying the doctrines of
preclusion should not apply to partition actions.
Moreover, although the relief sought in this action is
not pleaded exclusively as a partition by sale, the plain-
tiff stressed in his brief to this court, as well as in his
oral argument, that division of the property remains
impractical, and thus that he is still seeking only a
partition by sale. He has been unwavering in his insis-
tence that a physical division of the property would be
impractical and that a partition by sale is the only way
to terminate the joint tenancy of the parties. Unfortu-
nately for him, he did not prove that claim in his first
partition action, where he had a full and fair opportunity
to do so.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In the first action, the plaintiff sought partition of three properties,
including 2328 Middlebury Road.
2
Francis M. McDonald filed a motion for summary judgment, with which
the remaining defendants joined. | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150600/ | MEMORANDUM DECISION FILED
Mar 07 2017, 9:21 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Renee M. Ortega David P. Matsey
Merrillville, Indiana Valparaiso, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Kelley, March 7, 2017
Appellant-Defendant, Court of Appeals Case No.
45A04-1607-DR-1705
v. Appeal from the Lake Circuit
Court
Wendy Kelley, The Honorable George C. Paras,
Appellee-Plaintiff Judge
Trial Court Cause No.
45C01-1407-DR-672
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 1 of 10
[1] Michael Kelley (Husband) appeals from the dissolution court’s order dissolving
his marriage to Wendy Kelley (Wife). On appeal, Husband argues that the
dissolution court abused its discretion in dividing the marital estate.
[2] We affirm.
Facts & Procedural History
[3] On May 30, 2008—prior to the marriage—Wife received a distribution from
her grandfather’s estate in the amount of $305,865.26. Wife used the money to
purchase what would become the marital home. Although Husband did not
contribute financially toward the purchase of the home and Husband and Wife
were not yet married at the time of the purchase, both Wife’s and Husband’s
names were included on the deed. Thereafter, on September 29, 2008,
Husband and Wife were married. The parties subsequently had one child, a
daughter who was born in August 2009.
[4] Aside from the marital home, neither party brought any assets of substantial
value into the marriage, nor did the parties accumulate anything of value
thereafter. During the marriage, the parties took out a home equity line of
credit, which was used for home improvements and other living expenses. At
the time of final separation, the loan had a balance of $19,639.28.
[5] On July 28, 2014, Wife filed a petition for dissolution of marriage. An agreed
provisional order was approved on January 6, 2015, pursuant to which Wife
was awarded sole physical and legal custody of the parties’ child and Husband
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 2 of 10
was awarded parenting time and ordered to pay child support in the amount of
$51 per week. Husband was also ordered to return Wife’s jewelry in his
possession. Husband, however, failed to pay child support and he did not
return Wife’s jewelry as agreed, later testifying that he had thrown the jewelry
into a lake instead.
[6] At the final hearing on March 14, 2016, the parties submitted a partial
settlement agreement resolving issues of child custody, parenting time, and
child support.1 The agreement also provided that the parties were awarded any
financial accounts in their individual names and any vehicles in their possession
and that each party was to be responsible for any debt related to their respective
vehicles and any other debts held in their individual names. Further, the parties
were to divide their personal property “according to agreements between them”
and any items not agreed upon were to be submitted at the final hearing.
Appellant’s Appendix at 17. Thus, the only significant issues remaining for the
dissolution court to resolve with respect to property division were the
distribution of the marital home and the allocation of the debt owed on the
home equity line of credit. At the conclusion of the hearing, the dissolution
court took the matter under advisement.
1
They copy of the settlement agreement included in the Appellant’s Appendix is incomplete. Specifically,
the page reflecting the parties’ agreement with respect to custody and parenting time is missing. It is
apparent, however, that these issues were resolved by agreement.
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 3 of 10
[7] The dissolution court entered its final decree on June 27, 2016, in which it
concluded that an unequal distribution of the marital estate was just and
reasonable under the circumstances of this case. The dissolution court awarded
the marital home to Wife and also allocated liability for the debt owed on the
home equity line of credit to Wife. Father now appeals. Additional facts will
be provided as necessary.
Discussion & Decision
[8] On appeal, Husband argues that the dissolution court abused its discretion in
awarding the only marital asset of any significant value—the marital home—
solely to Wife. As an initial matter, we note that the dissolution court in this
case entered special findings of fact and conclusions thereon pursuant to Ind.
Trial Rule 52(A). Accordingly, our standard of review is two-tiered: first, we
determine whether the evidence supports the findings and, second, whether the
findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964
N.E.2d 213, 216 (Ind. 2012). We view the evidence in the light most favorable
to the judgment and defer to the court’s findings if they are supported by the
evidence or any legitimate inferences flowing therefrom. Id. at 216-17. Legal
conclusions, on the other hand, are reviewed de novo. Id. at 217.
[9] The disposition of marital assets is within the dissolution court’s sound
discretion, and we will reverse only for an abuse of that discretion. Eye v. Eye,
849 N.E.2d 698, 701 (Ind. Ct. App. 2006). In so doing, we consider only the
evidence most favorable to the dissolution court’s decision, without reweighing
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 4 of 10
the evidence or assessing the credibility of witnesses. Id. A dissolution court
abuses its discretion if its decision is clearly against the logic and effect of the
facts and circumstances before the court, or if it has misinterpreted the law or
disregards evidence of factors listed in the controlling statute. Id.
[10] Pursuant to Ind. Code § 31-15-7-5, the dissolution court is required to divide the
marital estate in a just and reasonable manner. An equal division is presumed
just and reasonable, but a party may rebut this presumption by presenting
evidence that an equitable division would not be just and reasonable, including
evidence concerning the following factors:
(1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was income
producing.
(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the
disposition of the property is to become effective, including the
desirability of awarding the family residence or the right to dwell
in the family residence for such periods as the court considers just
to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to
the disposition or dissipation of their property.
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 5 of 10
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the
parties.
Id. A party challenging the dissolution court’s division of marital property must
overcome a strong presumption that the dissolution court “‘considered and
complied with the applicable statute, and that presumption is one of the
strongest presumptions applicable to our consideration on appeal.’” McCord v.
McCord, 852 N.E.2d 35, 43 (Ind. Ct. App. 2006) (quoting DeSalle v. Gentry, 818
N.E.2d 40, 44 (Ind. Ct. App. 2004)), trans. denied. Accordingly, we will reverse
a property distribution only if there is no rational basis for the award, and
although the circumstances may have justified a different property distribution,
we may not substitute our judgment for that of the dissolution court. Augspurger
v. Hudson, 802 N.E.2d 503, 512 (Ind. Ct. App. 2004).
[11] The dissolution court in this case made several findings relevant to the factors
set forth in I.C. § 31-15-7-5. Specifically, the court found that Wife had
received the funds used to purchase the marital residence prior to the marriage
through gift or inheritance from her family, and that Husband had brought
nothing of economic value into the marriage. The court further found that the
value of the marital home was $312,500 and that the balance owed on the home
equity line of credit was $19,639.28 at the time of final separation. The court
further found that Husband had relocated to Florida, where he was working at
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 6 of 10
Hilton Resorts and making nine dollars per hour, or approximately $18,700 per
year.2 Wife was working full-time for her father’s business and earning
approximately $38,000 per year. The court also found that although Husband
had been employed since the final separation, he had made no child support
payments and no contributions toward the payment of property taxes, the home
equity loan, or maintenance of the marital home.3 In considering the impact of
these facts on the division of property, the court made the following findings:
17. Wife’s contribution of effectually of all of [sic] the marital
assets rebuts an equal division of property. Wife is responsible
for the contribution of virtually all of the marital property. The
only marital asset of any value is the Marital Home. It is
undisputed that the exclusive source of this property was the
funds provided to the Parties by Wife’s family. The extent that
the marital property was acquired by Wife through gift from her
family rebuts an equal division of property. Husband brought
nothing of material value into the marriage and, in fact, without
the gift of funds from Wife’s family to acquire the Marital Home,
the Parties would not have been able to purchase such a home.
This was not a long term marriage nor was it a marriage where
the Parties, through joint or individual efforts, accumulated any
assets during the marriage.
2
We note that Husband testified he made an hourly wage plus commission, and that with commission, he
could make as much as $2,000 per week.
3
Husband seems to take issue with the dissolution court’s finding that he made no payments toward marital
debts and obligations during the dissolution proceedings. Specifically, he notes that the provisional order did
not require him to make such payments. It should be noted, however, that the provisional order did not
allocate responsibility for these debts and obligations to Wife, either. Rather, the provisional order simply
did not address the issue.
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 7 of 10
18. The economic circumstances of the Parties at the time of
dissolution also rebut an equal division of the marital estate. An
equal division would give Husband approximately $150,000,
presumably in liquid assets, and no debt, and Wife the
uncertainty of relocating and finding new shelter for herself and
the Parties’ daughter and the payment of the debt of $19,639.28.
19. The conduct of the Parties during the marriage also rebuts an
equal division of property. Husband took and failed to return
Wife’s jewelry. Husband has not maintained regular and reliable
employment while this case was pending and failed to materially
contribute to marital debts and obligations during the provisional
period in this case.
20. Each Party’s earnings and earnings ability do not mitigate
against and support an unequal division of property. Husband
had employment provided through Wife’s Father until he was
fired. He has had short term non-career employment until the
present, where he claims he now has career opportunities with
Hilton Resorts. Wife, in the meantime, was employed part-time
with her father until the dissolution was filed and now works full
time at her Father’s business.
21. It will not be just and reasonable for Husband to be awarded
50% or any substantial portion of the marital assets when he
brought nothing of financial value into the marriage, when
virtually all of the marital assets resulted from a generous gift
from Wife’s family, when Husband contributed nothing of
economic value to the marriage while married, and when Wife
had to bear the full brunt of financially supporting herself and the
parties’ minor daughter while this matter was pending.
Appellant’s Appendix at 30-31.
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 8 of 10
[12] Husband does not appear to dispute any of the dissolution court’s factual
findings, but instead argues that the facts do not support the court’s decision to
award the marital residence solely to Wife. In support of his argument, he
relies solely on Swinney v. Swinney, 419 N.E.2d 996 (Ind. Ct. App. 1981), trans.
denied. That case, however, is readily distinguishable from this one.
[13] In Swinney, this court held that the dissolution court abused its discretion by
awarding 97% of the marital estate to the wife where the bulk of the property at
issue was acquired during the marriage and by way of gifts made by the wife’s
father to the husband and wife jointly. Id. at 997. Because the property was
given to the husband and wife jointly, they were on the same footing with
respect to the acquisition of property by way of gift or inheritance. Id. at 998.
This is unlike the situation presented here, where Wife alone acquired the funds
used to purchase the marital home before the marriage. Husband and Wife
certainly do not stand in parity when it comes to the acquisition of property
either before the marriage or through gift or inheritance.
[14] Swinney is distinguishable in a number of other ways as well. Perhaps most
notably, in Swinney, this court noted that it appeared that the dissolution court
“did not consider the family residence, which was primarily the result of gifts
from wife’s father, to be a part of the ‘marital pot.’” Id. at 999. This is clearly
not the case here, where the dissolution court expressly indicated that the home
was a marital asset. Moreover, the marital estate in Swinney included several
assets—two cars, a savings account valued at $1,010, a checking account valued
at $60, household goods valued at $2,000, and the marital home valued at
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 9 of 10
$40,000. Id. at 997.4 Nevertheless, the dissolution court awarded the husband
only one vehicle valued at $1,300 and a few items having only sentimental
value. Id. In other words, it would have been feasible for the dissolution court
in Swinney to fashion a somewhat more equitable award without forcing a sale
of the marital home the wife was sharing with the parties’ children. In this case,
however, the marital home is the only asset of any significant value, and in
order for it to be divided equally, a sale would be necessary, and the parties’
child would lose the only home she had ever known. Additionally, unlike the
husband in Swinney, Husband dissipated marital assets by disposing of Wife’s
jewelry.
[15] For all of these reasons, we do not find Swinney controlling. The dissolution
court’s findings are supported by the evidence, and the findings support the
judgment with respect to the division of property. We find no abuse of
discretion in the dissolution court’s distribution of the marital estate.
[16] Judgment affirmed.
[17] Riley, J. and Crone, J., concur.
4
We note that the electronic version of Swinney appearing on Westlaw omits this list of assets. The list can
be found in the version of the opinion appearing in the bound volume of the North Eastern Reporter.
Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 Page 10 of 10 | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144250/ | Honorable G. A. Walters
county 4ttorney
San saba county
San Saba, Texas
Dear Siri Opinion No. O-2143
Re: The gift of intoxidating
liquors to infants.
Your request for an opinion upon the above stated subjeot has been
received and aonsidered by this depal-tment. To wrreotly present your
problem, we quote as,follons from your letter:
"I desire to prosecute a bootlegger here at
San Saba for giving whiskey and beer to each of
four minor girls causing them all to get drunk.
The ages of the girls range from fifteen to seven-
teen years and I do not find but one artiole in
the Penal Code to-wit, Art. 693 makes it a penal-
ty of not lessthen #25&O nor more than #loo. . . .
"I am wondering whether Artiole 693 has been
repealed by the Texas Liquor Law? If so, can you
aite me to any statute making it a violation of law
to give intoxicating liquor to a minor?"
Article 693, Penal Code of Texas, reads as follows:
"1Layperson who shall give or deliver, orcause
tobe.given or delivered, or bs in any may concerned
.itithe gift or delivery of any spiritous, vinous.
malt or intoxioating liquors to any person under the
age of twenty-one,years, without the written consent
of the parent or guardian of such minor, or any per-
son. who, as agent for or employed by an express oom-
.prjnyor other common carrier, or who, as agent for or
employe of any other person, firm, or corporation, delivers
or causes to be delivered, any spiritous, vinous, malt
or intoxicating liquors to any person under the age of
twenty-one years, whether consigned to such person or
~to some other person, without the written oonsent of
the parent or guardian of suchminor sHal1 be fined
not less than twenty-five nor more than one hudred
dollars. Acts 1909, p. 119."
Honorable 0. A. Halters, Page 2 (O-2143)
&tide 1, Seation 49, H.B. 7'7,Aots 1935, 44th Legislature,
Second Called Session, provided that:
"Sec. 49, Chapter 7 of Title II, Penal Code of
Texas of 1925, and all amendments thereto are hereby
expressly repealed. Title 80, Revised Civil Statutes,
1925, and all amendments thereto are hereby expressly
repealed.*
Chapter 7, Title 11 of the Revised Crjminal Statutes of 1925;
related to the use and sale of intoxicating liquors and~included hrti-
clea 666 and 694. Article 693, relating to the gift or delivery of in-
intoxicants to minors, was expressly repealed thereby.
.,
'Section (b) of Artiole 666-26 provides thatr
"0). It shall further be unlawful for any person
tomklioti~nglysell any liquor to any person under tire&y-
'one (2l).years age;or to any person who'is intoxioat-
ed, or'to any habitual drunkard, or to any insane person.
Acts,.l935,44th Leg., 2nd C.S., p. 1795, ch. 467, Art. 1,
@ 26; A&s 1937,.45th Leg., p. 1053, ch. 446, g34.e
(Cnderscoring ours)
Obviously, this does not govern nor apply to the oase now before
us.
Consequently, it is our opinion, and you are respectfully advised,
that there is no express nor implied provision intie present laws of this
State whereby a county official or any person or persons charged with the
administration and enforcement of the Liquor Control Act can prosecute
ariminally those 'personsguilty of giving intoxicating liquors to ohildrsa
under age.
However, for your information and aonsideration, wa refer you
to Article 534, Vernon's Annotated Penal Code, and Artiale 1083, Code of
Criminal Procedurei' These statuory provisions relate to, and provide pun-
ishment for, those who contribute to the delinquency of a child under the
age of seventeen.
Trusting that the above satisfactorily answers your inquiry; we
remain
Yours very truly
ATTOREEYGEEERALOFTEXAS
GWXLM By s/W. J. Fanning
APPROVED APR 19 1940 X6. J. Fanning
s/ Gerald C. l"la& By s/ Grundy Wiili&ss
ATTCRERY GEXERAL OF~TEXAS Grundy Williams | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144269/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable TO;P Yaay
CountJ Attorney
Potter couatf
Amarillo, Texan
d eapplemntal latter
inion ot this dopart-
iaent the r0u0w m faotaal Etato-
aenta, whioh we
opioton x0. 1910,
tat8 -~om&roalu,
oh -0plniOa dealing
:oa..yetl by tha lhrn*~‘s Hat-
tha united sate8 or tierloa
irotlon ‘or etato and oountf
oloalng ior'yoar osamination and in-
or the rollowing laatrument6t (1) Oon-
he Farmers Nutional Grain Corp. ~6 the
rernamat~ (a) Order approvin& suoh son-
awry Dept. or the United State8 gorem-
onraganoe from Farmer8 ESational War&XI80
to the United Statea ~vsrrunant. {Note;
Bar #s~prrrpxms of the opinion requestad herain, the
Farmera Xatlonal Grain Corp. and the Farmer6 fatLonal
Warehou~o Gorge map be oonsldared as one and tha sama
organleation, one being Q eubeidiary or tha othati).
Honorable Tom iieay, Page 13
~Bridlf, the f&at8 In this aa8e are a8 fO11OW8:
On June 12, 19.956, The Farmers NatIonal Orain Corp.
entered Into a Oontraot to oonvey to thr U. 3. govern-
mont all oi It8 aeaet8, ruoh oonveyanoe to bo mado
prior to Ootober 31, 1936, (See Sec. J of Xnrtrumont
&l), and to be eubjeot to the approval of thr Soo'.
of Trea8ury (See Sea. 19 Of 8UCh iMtrUzU.nt). It
eeonm that oertain minor ohanger were mado In the
orlglnal agamtent, a8 lr ldeno ed by ~upplemntal
agraemmt8, 00plr8 of whloh we have sot been able to
obtain. However, we unduotand that ouoh aupphmnt-:
al agreesont8 do not oontaln any provI8loari altering
the origIna agree.oant a8 to any of the 188ue8 to be
dieouased herein. h8pite the iaOt that maoh a88,t8
wore to be transferred to the government prior to
October 91, l@bd, it 8eema that the Secretar of the
hOa8UI'y dib not approve thi8 agreement unti I BoIem-
bar 7, 1986, (See Instrument #S) and that no aotual
oonvepanoe 0r th6 speolfio property In quretfon Wa8
made until February 84, 1937, (SW Instrum8nt #S).
We are aoting under the a88lLoption that the ]rarmore
National Warehouse Corp. etill retained title to
this property on Januarg 1, lQS9, when the tat lerr wae
made, that the governm8nt did not.hare title at suoh
tine, and that when the oonreyanoo Wa8 made to the
~oo*ormmnt in Tebruary of lOSO, it took M 8ubJeet
to the tax lion ior t6Xe8 lMe88ed against 8ald OOrp-
oration. I lpight add that this property wa8 not ren-
der86 for taxation by 8uoh oorporatlon, but that an
arbttruy ameement wae amde by the tax oolleotof,
and that auoh aere88sent we8 probably me,de after the
a(orunment aoquired title. Wo do not olaim that the
government l8 liable ror the tax88 la question, but
do oontenb that there 1~ a lien against suoh p%Wpertf
ror unpaid taxes for the year OS 1937.
?,he government Lo threatening to rile 8uit In
Iode& Court to clear title to this property anA
denies that the State nnd CoUnty have a lien on
same r0r 1981 taxe8, for two realroas, to-wit:
"1. It is oontended that the federal governimsnt
acquire6 equitable tltls by rlrtuo o? the oontraot to
oonvey (Iurrtrumant #l), whleh oontraot beoam rrmt-
ivo on approval of the Treaeury Department before
January 1, 1937, and that even though the government
Xonorable Tom Sear, Page 3
had laerely an oqultabla title, the property waa not
aubjeot to tixatlon by the State and County. (Not.:
The U. 8. attorney ha8 agreed to turnish authorltIe8
to the effect that property ln whloh tha tadaral gov-
emugiant has un equitable t1tl.e ia not subjaot to tar-
atloll).
"2. It is rurther a0ntandad that no lien r0s 8tata
and oountp taxra attached to this property beoause the
tax88 in question wre not daa and payable until Qot-
ober 1, 1991, (ii the oorporatlon had retained title),
&ud that under our state law, no lien 18 oraated iOr
taxes until aam8 broom du8, and that sinoa the govern-
ment aoqulrad title in February, 1997, It aoqulred
legal tit18 before any tax lien W68 ore&ad or attaohad
to thir property, and that no tax lien oould b8 at-
t;;gd to the property arter the gorernmnt aoqulred
.
We will, themtore, greatly appreolate it It you
will advise UB ELI to t& rolloWing matter8t
*l. Doe8 the oontraot merked Inrtrument #l
oonref equltablo title in thi8 property to tha
redaral goverauaent? Ii ao, doe8 the raot that the
governmentha8 equitable title exempt suoh property
fcoa llabllfty ror state and oounty taxes?
w2. At what data or time doe6 the lien tot rtata
and oountf tam8 attach to property?
"3. In four opinion, la there any akarlt to tha
Sovarnsent'8 oontantlon No. 8, whloh is set out on
Page 8. of thl8 letter?”
The dotcralnatlon of whether or not “Inrtrument
No. 1" oonsidered in oonneotlon with *InInetrumentIlo. a*,
operate8 as a transfer, a88&MIe!lt or aonrefence t3t the aquit-
abla title to the pmperty involved, to the United Statate or
Amuloa, depend8 upoa tbo rule8 or oonstructlon annouaoed by
the oowts or Texas, browse it is a rundammtal prlnolpla
that raal proputf 18 exolu8lvelf subjaot to tha
orarmaut w%thln whoaa territory it la sltuat$d ii"5eF . x% .
hc.
Bonorabie Tom Leaf, Page 4
Although legal title doea not paas to a vendee or
purchaser under a oontrctot of sale, until aotual delivery
or a deed, without retention or a vendor’s lien therein,
said vendee or pumhamer, e8paolally where he goee Into
poaee88ion, la lnveeted with squitable title from date or
aontraat, or, ln any event, iron date ha takes poaaeaalon,
and any fnorment, advantage, or enhancement to the prop-
erty Inure8 to hi8 bendit, and detriment,dapraoIatlon,
or loss thereto without fault of lithar party muat bo
borne by hln. 43 Tex. Jur. 3. 241, 242; 66 C. J. 702-708;
Peters Y. Clewnte, 46 Tex. 114; ke8on v. City of fbu8toA,
(Corn.App.) 245 S.H. 485, 225 SAY. 756; DImIt Elevator Co.
Y. Garter,70 S.W. (26) f315i Ingrem v. Control Bltulithlo
co., 51 S.W. (2d) 1067; irluorth Y. Elllaon 29 S.W. (2d)
639; Willie 6: Conner Y. Turner, 25 S.W. (2J) 642s Rirer Y.
Janeb, 9 3.W. (2-d) Q&?; Fullerton Y. Sourry CO., 14s 8.W.
971; Bled808Y. Fltt8, 105 S.W. 1142; Slaughter 0. Ooka co.,
79 S.W. 863; White Y. Cole, 29 S.W. UAS; Taylor et al v.
Barrin et al., 127 S.W. (2d) 945.
It 18 6180 nettled by the deofaione’ot the Texa8
oourta and the oplnlone or thIe Department th a t,’ lxoapt In-
sofar aa the rule loay ba varied by egreeumnt batwaen tha
oontraoting parties or by a retsntlon ot poaaaa8ion b the
vendor, the purohaaer will ordInarlly b8 liable for a L t-8
aooruia& atter the ueoutioa ot the oontraot where It la of
auoh a oharaoter as to oonstltute him the equitable owner
or the property. SS ths purohoaar, titer the oontraot la
aa6e, -goes Into po8aeeelon and enJoy the uaa o$ tha prep-
ertf, he is liable tar the taxes aCtOrUN during hlr poa8aa-
alon, notwithstanding the oontraot require8the vendor to
oonvrf by warranty doed at a tutura date. 66 C. J. 1047 -
1048; Taber Y. Stat., 86 S.W. 0Sb& Harvey Y. Provldent In-
748t0ent Co., 156 S.W. 1127; Leonard t. K8tia.U. 5 S.W. (2d)
197; Attorney General*8 opinion 0-226S.
Thus, it iollows that ii the attached instant,
designated as Ynetruaent No. 1” is or form and eubatanoe,
tenor and erireot, to vest equitable title in the real eatate
eought to be talEed, in the Far0 Credit iadmlnletratlon on the
date thereor, to-wit, Juno 12, 1956, or,, am oontanded by the
admlnlstratlon, on November 7, 1996, the data of letter oi
Trearury Department approving with ohaagee noted, raid oontraot,
which letter la deslguated a8 ~In8trument No. 2-, than 8uOh
real estate would not be 8ubjeot to State end OO~tf ad Valor-
em taxes tar the year 1937; beoauee, the equitable a8 aontra-
diatlngufshed from the legal title, being eubjeot to aase68-
mnt for taxes, and said equitable title vesting In en avowed
Honorable Tom Jeay, Y&g8 5
instrunentality or agency 01 the Federal Government, prior
to January 1, 1937, there wouid probably arise an ianunity
fros &ate and county taxation under the Constitution of
the United states and iirtlcle 7150, Revised Civil titatutes
corU6rrlag eteqtion upon land
of Texas, 1925, exjmererrsly
owned by the Fader-61 government.
However, we do not find it necessary in this
opinion to detemlne the preoim question of whether ma1
estato, to which the United %&tern hea equitablr but not
legal title on January 1st of any tax year, is aubjeot to
state and oounty ad vaiorea taxes for that year; bsoause
we are aoniinoed that nInotr~nt No. I”, whether oonaidered
alone or in oonnectlon with Qmtrament Ho. 2" does not
operate to vest equitable title to the land in question in
tha United 3tates prior to January 1, 1937, bu%, on the
aontrary, both legal and equitable title on said date rostod
in tha Faraera Xctional Grain Corporation, 80 am to be aob-
joot to Stats and oounty ad ralomm taxes for ths year 1937.
To riaoh this oonoluslon it is neoeeeary to oon-
ridor qIwtruaant Ho . 1 ”in itslntlr ety a ndfr o m
its fo ur
oorneca. H4no4, it la our deelm the3 aaid l.artrumont mnaln
aa au attaohed lxhibtt to this opinion and oowlderea as a
part hor4of, booauso it is too,lon@hy to ba oopiad h4so5,n
rorbat lm. Howovor, we deem it neorseary to rsfer to and
sometimes quote pertinent portiona oi said Instrument.
La sscticn~.theroor it is 4tat4d that th4 offer or
transfer by the Faramra Rational Grain Oorporation (herein-
after rerormd to aa the Corporation) to the Farm Cmdlt
Administration (heroinafter referrod to a8 AdPliniUtratioa)
in payment of or to relleva itself of liabllltisr as OS June
SO, 1936, oontemplatsa the transfer of awsta and the reloaee
of debts of the aubsidiarlcs ae well as the Corporation, ex-
oept suoh asoets as am expmesly reeervsd.
Section 2 provides thet all aots under the ooa-
traot shall be SrSorcted on or before October 31. 1930, but
shall be nade efi”aotlve as of the olose OS busLnesa oa June
30, 1936, and the books of the Corporation and the Qat4rmla-
atioa of prorits au6 lose44 therbirom shall be aa of that
date.
section 9 atipulatea, in part, as follows:
Honorable Tom Saay, Pago 6
XB of the close of buaimao on June 30
l036,"k aotually on or prior to Ootobsr 31, l&b,
the Corporation shall transfer all of its aasota
hold June 30, 1936, or th4 proo44aa theroof, lx o o p t
for assets retained as her4lnafter provided, to tha
Mralalatratlon, or as ordorod by the Admlaletration,
and the Uminiatration shall thereupon 04no41 or N-
lI.4~4 the Corporation of all obligations of any M-
ture whatooarer of the Corporation to the Admlal8tra-
tion except obligations erldencrd by notaa or doou-
meats bearing date on or aftor June 13, 1938, and ox-
oopt obllgatloaa Sor rhloh the Gorporatloa 8hal.l ooa-
tinua to bs liable under the t4rma of this Agr4aDmAt.~
Section 4 provides that th4 Gorporatlon shall re-
tain and oontinue to be liable for the payaoat of oortaln
daacrlbtd asaeta held and owned by the Corporation at the
oloae or buaia484 oa June 30, 1936, at a dotormlr#d prlO4,
uuong whloh aaaste wem drafts for oollootLoa, aoaoanta r4-
oelvable, depoelte, adYancea on grain, lnv4ntoriaa Of grain,
aood, oto., norships ln aommodity exohangoa, offloo turni-
,ture, rlrturie and automobiles, insureno oontraota, end
open gralo.contracts, spot or tuturoa.
soctlon 5 provides tar th4 retontloa by tha Corp-
oratloa of oortaln deaoribed property, laoludlw oertiln real
e&ate, at the option either of the Atlmlai8tration o¶?the
Corporation, expreeaea in writing before Ootobor 31, 1936.
Section 6 provides for the leaelng by the Adfalala-
tratioa at the option of the Corporation, of oortala gropor-
ties owaod by the Corporation Sor a period OS oaa y4ar Oom-
nwnolng July 1, 1936, with an optloa of ronawal for a further
period of oaa year on terms and oonditioaa to \M agreed upon
aad with an option to pur~hesa+ xaoludoain thi8 property
era certain aouutrg elovatora aad 8o.m nlnoteoo ternriaal aud
eubtorminal sl4ratore located in Terse, Oklahooma, Ohio, IO-
bra&m, Illinois, Kansas, Ylnneaota, Iowa, Waehlngton and
North Dakota.
Honorable Tom Sony, Fogs 7
section 7 providee that the Corporation, In addl-
tion to the lIabllitiea acoruing after June 30, 1936, shall
oontlnuo to be liablr and in due oourse pay the balanooa due
at June 30, 1936, on All of its lIabllltlas at that date,
inoluding the indebtrdnarce to the AdminIstratloa, whleh ahell
bo roduord by the aggragato amount of oertaIn deaorlbed ltoma,
Ineludlng not.46 and grain drafts paynbla, cuetomre* oradit
ba~anoos, aooounta peyable, aocruod grain handling ahargo
payable, aooruedllablllty for tame on aeeets retained, and
llabillty on olaiaia end open grain ooatraota. AA amount was
fixed ior roaor?oa, and it was agrood that if all llabllItlee
ror whioh roaervea are set up are not soonor settled,then
col~vlanolngwith the year 1937, the CorporatIoa shall oa
July 31 of laoh year, pay to the Saoratary or the Treasury,
ao muoh of the roaemea, If AAJT, as are no longer raqulrod
to meet the maxImum liability of the Corporation for llabll-
It&esnot yet eettlea.
section 8 provides that In addition to the.amount
the Corporation will owe to the United &ate8 of rmerioa on
aooouut of faoilltIea retained by it, the Corporation shell
on or before Ootobrr 31, 1936, pay to the Secretary of the
Treasury aa amount equal to the value of alI aseeta rotaSnod
by it under paragraph 4;9saa the sum of all llabllitio8 whloh
are herein provided. to be paid by the Corporation Ander~ pare-
graph 7, and all raaervoa provided, or #2,500,000., whloihar
amount &all bo gmatar. dootfon 0 prorldaa that “the Ad-
mInlatratlon ahall on or before October 31, 1936, loan to the
Corporation, ror worklag oapltal, an amount equal to the dif-
fstent$e between the amount paid the Secretary of the Troaaury
under the romgoiag 8ootlon aad $E,500,000., plus auoh addition-
al amxtnte, if any, ae may bo aooesaar to brlAg the total
working capital of the Corporation to s 6,GOO,OOO., as of fun4
30, 19S6,4 tha amount loAnsed to bo lvlaoaaod by a new noto sf
the &%rporatIon, dated June 30, 1936, payable quarterlr, the
unpaid principal bahxe on ouch new note to finally mature
on June 30, 1946; to eocure said note a new FundingAgreemoat
is provldod for, dated as of June 30, 1936, to euporaede the
present funding agreement but alm.l.larthereto, and providing
that upon default in payment of’ Interest or prinoipal, the
AdmiAiatrutIoa ehell hare the right without notioe to acoel-
erato the maturity of the entire lndebtednees.
Honorable Tom deaf, Page 8
Section 10 provide4 that the Corporation ahall
on or b4for4 Ootob4r 31, 19116, oau44 it4 original 4took-
holder4 to oontrlbut4 at 14a4t $3,000,000.00 to the capital
stook of surplur, aooount of th4 Corporation, ths pr44mt
outetandlng rtook and new 4tock to b4 allooated arid 18eued
on a b4el4 prorid4A therein.
Loans to etook holders for th4 puroh484 Or 4uah
4took are proribed by S4otion 11 from the A~i6tratiOn,
MA prorleion 14 m4d4 for the lxeoutloa end peymnt of
notes therefor iaaturlw as late a4 1946.
Seotlon 12 provides that ths Corporation shall.
retain one-eighth oenf per bunhe out or the marketing
proaeede or grain up to end lnoludiog fun4 30, 1936g one-
fourth osnt per bunhe to and lnolading fun4 30, 194Oi end
one-hall cent per buehel to and inaludlng June 30, 1946, ~14
retain8 to be addltlonel oollatsral for the note4 of the
regional4 to the.gMnl4ttatlon, with sp44lflo prorlelon~
for the applioation of 4uoh payments.
Seotion 14 mvld44 that the AddniStratiOn will
loen the CorporationP3,000,000.00,evrfdenoeii
by no840 ma-
tUdll6 Jtdy 51, 1939, to be paid from the $3,OO0,000.00 re-
oelted from its regional atoakholder4.
84otlon 13 provide4 that the Umlnlatratlon ahall,
a4 proqtly a4 porslbla and in 6114 00~~44, re4ommnA to th4
Seantary or Treasury the 84oeptenoe by him of .th4 eettl4iwnt
and roarraugrmnt of fh4 lnAebtadne44 of the Corporation, n44-
eseary w a4 to permlt rlnal perroreanoe of 4ll of the act4
provided to be performs4 in thl4 agreenmnt, a4 of the 4lo4r
of bueine44 on June 30, 1936, but eotually on or before Oof-
ober 31, 1936, exoept a4 to aooounting end any aAj@4tnmnt4
thet may be neoeeeery in oonneotlon therewith and any other
obligation4 or undertakings whloh by their term4 extend b4-
food that date. 8eotion 16 prorid that the llablllty on
Oapital stook oontrlbutlone au4 note thueon shall oaly br-
00144 erreotioemh4n the approval or the Seoretary of the
Trea4ury is obtained, and SacMon 19 provider that the Honorable 'porn
seal, Page 9
Yeotlon 18 contain8 the agr44ment of the Corp-
oration that Vrom the date hareor to and inoludlng the Aete
that this agreement beoomee exeouted, as oontraeted rlth
being rxroutory’ ft 1~111oonduot its affairs In an erriof-
lnt buelneee-like manner and ~111 meke no ootemitm4nte or
Aiepoeition of aeeete other than in the ueoal 40~~04 of
business, without having first obtained the written ooneent
0r th4 AAminietration.
We here thus eumaerizeA the salient featuree or
the contract, dreigneted wInetruawnt No. l*, not broauw
they are germme to any questIOn Of tax liability b4for4
us, but rather, to demonstrate that it is not an lxeoutory
eontra4t of e&l4 of land, of the ordinary and u&al form
and eubet(UIoe, euoh as lnrol~4A in th4 Aealelons olted a-
bore, but on the oontrary is a detailed and Oompapnhmeive
eettlsmsnt crgr4e;arntbetween the Farmers National Grain
Corporation end the Farm Crsdlt id.mlnietratlon, whereby
the fleoal and finaubial afralre of the Corporation er4
m&late4 and rehabilitated. The lnetrument has ror Its
lubjeot metter property from th+tPenhenAle to the Dakotas,
and obligations ranging from the date thereof to 1946. It
eont4apl4t45 that the Corporation shall aontlnur es a go-
ing oonoun, in full p05548510n anb control of the proper-
ties and assets, reel, pueonel and mixed, all end eingular.
The nel estate ln oontrorerey her4 AeeorlbeA in the formal
deed of oonreyanoe between th4 part145 on February 24, 19S7,
AeelgnetaA as aInetrum4nt No. g ," Is not enywher4 mentioned
or AeeorlbeA in this oontreot. If lneluA4A, It 18 4mbraoeA
in the general term8 waeeete brld Sun4 30, 1936" whioh It
Is oontemplated by Seotlon S, shell be tranmfierred in re-
lief of outein obllgetlone owing to the AAmlnletration.
We hive found no euthoritlee in thle State (and
many ar4 existent upon tha general eubjeot) whloh hold Al-
rsctly, or by reasonable analogy, that equitable title to
real estate would pass to a rend44 or purohaeer under any
such oontraot or agresm4nt as the on4 Aesoribed ebOT4.
Without eroepCion, the oaeee Ofted ebooe and holding that
equitable title to land would test in a vendee under en
exeoutory oontract or eale, turn upon faotual eltuat5.one
611
iionorable Tom Seay, Page 10
wherein the puroheeer or Tend44went into imaediate poeaee-
elon or the land, either under a deed, with retantlon or tha
venAor*a lien, rwhioh, in lffeot, is the 8-e as an lx e o a to r y
oontraot of sale. insofar a8 title 18 0onuerneA). or under 5
whereby equltj regards that as done whioh ought to be dohe,
the vendor held legal title In trust for the Tendee, and the
vender be14 the purohaee eioney ln truet for the vendor. &oh
a oontract of sale, while ternd executory, 1s rer Alfferent
from the wholly ueoutory oontraot or eettlenmnt agrroment
In the Instant oaer, lmbraolng the entire fle4e1 set-up of
the Corporation, with future oondltlone and oontlngenolee,
and oontemplatlng that poeeeealon of the property be not
forthwith rsllnquldmd to the alleged rend44 but remelt with
‘the alleged vendor.
It le -such a oontract as the Comleelon of AppeaZe
wee epeaKlng about in the Ohm of Sendereon T. Sandereon, 109
S.W. (24) 744, at page ~748;
-. . .DefurAant in error takes the porritlon
that the rules govuning suite for epeolflo perfor-
nun04 ha*4 no applloation to the eulf vhloh, she
submits, is ror the reooruy or the ,proputy In
virtue or squftablr title given hrr by the oontraot.
Tim authorltlre relied upon 4r4 there holding that
the vendee ln the ordinarf lxeautory atntreot for
the sale of real eetate aoquiree at the Oh the
eontraot is exeouted the equitable title to the
property, eubjoot to lien securing the pur4haee
prlae. Tompkins v. Broooka (TeX. Clv. ~pp.) 45
S.W. 70, (applloation for writ of mror nfueed);
Ruaeell end 2WefalA v. Kirkbride, 63 Tex. 436.
Thin ohange In the beneflolal title results from
the applioatlon of the Aodtrine of equitable oon-
version, equity regarding as done that whloh ought
to be done. Poemroy's Bqnlty 3urlepruAenor (4th
&A.) TOl. 1, # 108, pp. 117-119; a 368, pp. 688,
686. But the Aootrlne of equitable oonverrrlon la
not applicable to a oontra4t like that here under
oonsideration. Upon the rxeoutlon of thle oontraot
normthing other then the paymnt or money remelned
Honombla Toa day, Peg4 11
to be done. The p4reonal eervlaee yet to be
rendered by We. Sendereonthmughout the re-
rmrlndsror ‘&a. K4lton'elife oould not b4 r4-
garde4 a4 perrorsmdat the exeoutlon of the
oontraot . The ageement eontemplate the re-
tentlonby A&e. Keltonof the full title to the
property until her death. Under euoh oontraot (
the equitabletitle 4r right te th4 property
would not peer poti Mrs. K41ton1edeath. . .*
Again, In the oaee of Gosrle t* Burgess, et al.,
l;eo S.W. (24) 988, the Oomalu~lonoi Appeals, in oon4tm-
w3 a oontraot or agreezumt*oh etronmr thur th4 lastant
on4 for the applloatlon of the rule of equitable oonvuelon
statedabove, h414 that neitherthe leg41 nor - l
- ouitrhla
l_-_-_-_
title passed thereby, In the following lan&u age I
(at page 990)
"We anewu the first queatloa5.nthe
afrlrm4tire. The eontraoteet out 18 N.aia-
ly only an eueutory agreementto esnri* It
15 not a 4ontraat or sale. It passe6 n4lthG
the legalnor the rqultabh title. It 4045
not even reel84 that the r4nAer h4d agreed
to sell aatll one hn3.fof the agroodpurehaee
money was paid, at whleh time he was to 424-
oat4 a14 44liTrr a elliilOl4& deed, *&rating
end oonveyla# the property to the r4nA44. It
1s olmr that no rqultabletitle was to rest
unti1.hal.f the ~noneywa8 paid. lweau44, in
0484 or 44faultprior te that time, thm paymnte
were to be forfeit& as llqulA4teAAemg48,
ann,e oontraetwould be of no form and
This appearsto hare bemn the prao-
tloal ketructlon whloh th4 partlee'thomeelvtre
ph44d upon th4 eontraot, for it is lh4n4 that
Jermoa tinally abandonedthe pr~puty end turned
it baok to burgeee: no 444A ever hevln6 been
AellvueA.a (Emphaeleours)
L-m.-
613
Konorable Tom deey, Page 13
Theretort we say that the aontract or agree-
ment, AeelgueteA aa wInatrumnt No. 1," is, at meet, only
anLx40utory agreement to 40nvey, and not a oontraot of
Being dependent or oonAltlonal upon some eontln-
gene; or future aot of .the partlee, end oontemplatlng
that poeereelon or end Aomlnlon end control over the
property remeln with the Corporation, rather than the
kdmlnlatratlon, it does not pass equitable title to the
&im.inietratiOn. Nor le this effected by WInetrwa4nf No.
glW whloh la a mere letter of approval, with ohengee
noteA, of this oompromlee or settlement agreeant by the
tieoretary of the Treasury. Legal title to oortaln dr-
scribed property rested in the Farm Credit AAmlnlstratlon
on February 24, 1937, by virtue of lxeoutlon of the form-
al deed of.oonveyanoe, without rrtrntlon of rendor~e lien,
byethe Corporation. But prior thereto, both legel am!
equitable title rested ln the Oorporatlon, eo as to make
it personally liable for etute and aounty ad TelOMm
taxes for the year 1937. The Fara Credit Administration
is not pereonallr liable ror euoh~taue. Maters v. In&e-
pendent Sohool District of chant, eo8 8.01. S74, Childreee
Oounty T. State, 137 Texas, 343, 93 S.W. (3A) loll.
Thle oonelaelon requlrer oonelduation of your
second end third questlone regarding the effeotlre date of
aoorual of the State and oounty aA talomatax lien opm
the land eon~eyed, ror taxes for th4 peer 1931. If eald
lien brome fixed upon the real estate in question as of
January 1, 1937, then the Farm Credit Adminirrtration would
take luuh property on February g4, 1937, nubJrot to said
lien but without any personal llal$llty for eald texee.
On the other hand, it this tax lien 414 not beoolsr a
oharge upon the property until the aeoreement of the taxes,
or, as 4ontenAeA by the Govunment, until euoh taxer should
beooma Au4 and payable on Oatob4r 1, 1937, th4n no lien
would exist to 840~~4 these taxes, beoaoee legal title ~
vested ln the United states, through ite agenaire, admlt-
tedly prior to these dates and 000ur%?45044, dth a 4oneo-
quent lmmnlty. In the latter lnetauoe, only a pereunal
llablllty would rest upon the lrermerte #atlonal Wein
Corporation for the 1997 taxes.
kionoreble Tos 6eay, Page 13
xrtlole 8, section 16, Conetltutlon or T4xae.
provides ror the rollowing lien:
*The annual aseeee:>ent ma44 upon lenA4A
property shnll be a epeoiaf lien thereon; and
all property, both real and p4reona1, belonging
to any delinquent taxpayer 4hell be liable to
seizure and sale ror the payment of all the tax-
es end panaltlee due by euoh delinquent; and such
property nay be sold for the paymnt of the taxes
and psnaltlee Au4 by such delinquent, under euoh
regulation8 a4 the Legielature &my prOTlA4.~
(jSmpheele Ours)
ArtiOle 7172, RevleeA Civil Statutes of Texas,
1925, la Aealaratory of this oonetltutlonal lien, and
prov1488:
"All taxes upon real property shall be a
lien upon euoh property until the earn4 shall
have been paid. end should the aeeeeec~ fall
to ee4eee any real estate ror any on4 or more
years, the lien shall be good for every y4ar
that he should fall to aeeeee for; and he'may,
in llatlng property ror tax48 any year there-
atter, aeeeee all the beok tuee due thereon,
aocordlng to the provisions of this title."
&tlolo 7151, K.C.8. of Texas, 1923, proTlA4e
in pert as roilowe:
*All property shall be listed for taxa-
tion between January 1 and April 3(i of eaoh
year, when required by the ameasor, with r4f-
erenoe to the quantity h414 or own44 on the
.flret day of January in the year for whloh the
property le required to be lleteA or rendaml."
No eyeoiflo tlrue being fixed in the Constitution
or 4tututae ror the attaohment of the ad valorem tax lien
on land, resort muet be ha6 to oeee law for the 4OlUtlOn
or thle oontrolllng faot.
Honorable Tom Seay, Page 14
The curly o&se of Cruger v. Clnzuth, 3 Willson, Tex.
ir. Clv. Cas. Section 24, under oonstitutlonhl and etatutory
provlslons substantially similar to the ones now govsrnlng,
ha16 a8 follows with rererenoe to the time for the aoorual
of this lien:
RUnquestloneblp under th@ provisiona or the
laws olted, appellant, being the owner of the land
on the 1st day or January, l&32, was liable person-
ally for the tars6 thereon Zor that year, though t&e
amount of suoh taxes wa8 to be subsequently asoer-
talned, and though oolleotion oould not be made
thereof before October; for the law expresely pro-
vides that the taxes shall be oharges against the
person owning the property on January 1st. From
thle it follows that appellee Mnnuth was not lla-
ble personally for the said taxes, he not having
beooma the owner of the land until after January 1,
1222. This being true, we think the lien provid&d
by the Constltutlon attaohee at the time the lla-
blllty 1s rlxed by the statute, and la an lnoumbranoe
upon the land though the amount or the taxes 18 not
then fixed an d determined. . . .
Under our eystem the tax is levied on the 1st
day of January of laoh year, and the assessment 1s
made as of that date, although the rendering or
listing and valuatlon ot the property 18 in fact
subsequently made. The evtdenoe ln thls aase shows
that the etate and oounty taxes wsre an lnoumbranoe
upon the land when oonveyed by appellant."
This deolelon is followed in the oase of Carswell
& Co.mpany '1. Habberzsttle, 87 3.W. 911, wherein the court
said:
"All property owned by a person in this state
on the 1st day or January cruet be lleted ror taxe-
tion between that date and June 1st of eaoh year;
ad, notwlthatandlng tho taxes do not bsooa due
until the 1st day of October following, he is
personally liable for the taxes. of that year, though
he sells~the property before the amount of euoh
Honorable Tom Seay, Page 16
taxes has been ascertained, an4 before the paysent
thereof becomes due. Ii not paid on or before
the 31st day of January of the suooeedlng yesr,
a penalty of 10 per oent on the entire ampunt of
suoh taxes aoorues. To meoure the payment of
taxes and penalties, the Constitution provldee
that ‘the annual assessment made upon landed
property shall be a speolal lien thereon, and
aLl property, both real end personal, belong-
ing to any delinquent taxpayer shall be liable
to seizure and sale for the pay;;lentof all the
taxes an4 penalties 4ue by such 4eiinquent.’
Article 8, 1 15. This lien attaohes and ths
taxes beoome an lnoumbranoe on the land from
the date llablllty is fixed on the owner, which
1s the 1st bay of January oi the year, although
the aluount of said taxes is not fixed and de-
termined until txolas tirW subsequent thereto. It
tollows that the tax88 due by apjellee@s lntest-
ate for the year 1900 on the land sold aypellsnts
were an lnoumbranoe on said land when oonveyed,
and remained suoh until paid off by them, ln June,
1901. Cruger v. Cinnuth, 3 Allison, Clv. Car.
Ct. App. 1 84; Almy v. Hunt, #S Ill. 451 Rundell
v. Lakey, 40 N.Y. 614.’
In the oase of Sate v. Barmer, 59 S.W. 541, the
8uprems Court of Texas, ln construing this constitutional
lien held, at first view, oontrary to the above deolslons,
in stating:
“The state olalao no personal llablllty on the
part of the detsndant, Farmer, for the taxes, but
asserts that Farmer bought it subieot to the tax
lien on the state, and seeks to onforoe the llen
upon the land itself. Artiole 7, I 15, 0r the
oonstitutlon reads as follows: *The annual assees-
ment made upon landed property shall be a spealal
llan thsreon, and all property, both real and personal,
belonging to any delinquent taxpayer shall bo liable
to seizure an4 sale for the pay.xent of all the taxes
and penalties due by suoh delinquent ; end suah prop-
erty may be sold for the payment of the taxes and
penalties 411s by such delinquent, under suoh regu-
lation as the legislature may provide.’ The lien of
the state, under the provisions of the Constitution,
Honorable Tom Seay, Page 16
arfses out or the assessment of the property,
an4 does not exist until that assessment Is
made. It 1s the assessment made annually by
the offloers of the state, un4er and in aooord-
anoe with the law, which holds a lien upon the
land. The word ‘assessment,’ as here used, evl-
dently means the sum wbloh has been ascertained
as the apportioned part of the tax to be charge6
against the partloular pleoe of property; but
under our oonstitutlon, an4 the provisions of
our statute, the word embraces more than s,lmply
the amount, and inoludes the procedure on the
part of the offlolals by whloh the property is
listed,valued, and finally the pro rata de-
olared. Clegg v. State, 42 Tex. 610; . . .v
However, the ‘issue before the court in State
.v. Farmer, supra, was the exlstenoe of this lien, under
an assessment, invalid because of a defeotlve desorlDtlon
of property, rather than the time for the attaohment-of
suoh liens. Therefore, we 4o not believe the quote4 1
uage shouf4 be extended to mean that the lien does not?:-
taoh until such t&w as all ttatutory duties of the assess-
or are performed and the anmunt of the tax rlna.lly oomputed.
The oourt was merely holding that.8 lawful and valid assess-
ment was a prerequisite to the existence of a lien but was
not passing upon the time for the aoorual thereof. That it
was not the intention of the Suprems Court to overthrow the
deolslons hereinabove discussed, holding that the lien at-
taohes as of January 1st of the tax year, rather than on.
the date of the aotual vassesament,w 1s lodloated by the
approved judgment of the Commlsslon of Appeals ln the oaso
of ~lsslon Independent Sohool District, et al v. Al?UstrOng,
222 S.K. 201, wherein sol4 oases were olted with approval,
in determining the time of attaohment of the lien to se-
oure taxes of an independent sohool district.
It 1s our oplnlon’that the Farm Credit Admlnlstra-
tlon did not eoGuire title to the land in question, either
legal or equitable until February 24, 1987, and that said
property was oharged with an4 subjeot to a oonstltutlonal
lien to secure state and oounty a4 valorem taxes for the
year 1937; an4 that said lien attached on January 1, 1937,
Honorable Tom tieay, Page 17
despite the foot that the assessment of such taxes was made
subsequent to the aoquisltlon of title by the Farm credit
Admlnlstratlon and did not beoome due an4 payable until
Ootober 1, 1937.
Trusting the foregoing fully snarers your lnqulr-
lea, ws are
Yours very truly
Al'TORNfsyQENmL OF T&ICAS
BY | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131130/ | . \
- .
The Attorney General of Texas
Aupmt 14. 1985
JIM MAl-lOX
Attorney General
5u~mm Cewl Building Ronorable Bob Bullack Opinion No. Jn-337
P. 0. Box 12543 Comptroller of Public AcconlltE
*u*in, TX. 75711-254s L.B.J. State Office Building Re: Whether a state employee is
5lW75-2501 Auetin, Texar 18774 entitled to paternity leave
Telex Ola57~lJB7
wecoviw 512l4750265
Hr. James Ilambletow
Director
714 Jackson.Sulle 700 State Law Library
cle1111.
TX. 75202-4505 P. 0. Box 12367, Upitol Station
2W742-5544
Austin, Texu 78:ll.l
a4 Aibma Ave.. sulto ((IQ Gentlemen:
ElPuo.lx. 79K627w
91%3%3434 You inqeire uhether the General Approprietione Act entitlea ule
employee0 to peternity leave.
1001T~Xse.suite 700
Nuuelon. TX. 77002.3111 Mr. Bullock elks the following questions:
7tSrZ235fJm
1. Does the General Appropriations Act entitle
mele employeee to six weeks pregnancy leave?
9W Bmedwy. SUNS312
LubboclsTX. 794013479
8w7476235
2. Does thm Pregnancy D%scrlminatlon Act
cnntainrd in Title VII of the Civil glghtr Act of
1984 reciuiire M to grant male aployeea six weeks
43W N. Tenth. BuNa B *. of pre6mmcy leave?
NcAem, TX 7B501-le95
5lm524547
Hr. Bdleton inquires about tba interpretation of 6lck leave
prodeioua fonnd jLr~article V. section g of the General Appropriationr
97 &et fur 1903-8s. me ads:
1. Ilay l male take sick leave uuder 8.~. vhen
bir parum ia pregnent?
2. 'If l ule wanted to t&e some 'paternity
luve' Cleave without pay) under eectlonr8.g. and
a.m., would thet male employee exhaust sick leave
u well. aa rscatlon leeve before going on leave
tithaut p8y?
Mr. Eambl~too all*, ub ma to addxass rh questlon of maternfty or
patenitty leave for adoptive parentr.
p. 1534
,
Waorablr Bob Bollock
nr. Jues RaBbleton
rage 2 (JnaX’)
We will address tlr. Bulltxk’ s first qucstlon.
The relevant sick leave provisions in the Generel Appropriations
Act are ae follow:
c. Employees ftonorable Mb Sallock
Mr. Jama Uambletoa
?ego 3 m-337)
on employee vacations and leaves, snd shall report
to the governor end the Legislsture any exceptions
practiced by the verious entities of the atate
government.
. . . .
I. Agencies my grant employees leave vithout
psy or leave of absence without pey subject to the
following provisianr:
(1) All accumulated paid leave entitlements
must be exhausted before granting euch leaves.
with the sdditioncll. prwlsion that sick lesve must
be exhsusted or:Ly in those cases where the
employee is ali~;i.ble to tske sick lesve. as
provided in Sectitm 8.~. abwe.
(2) Such leavlca till be llmlted in duration to
twelve (12) rDnth)B,.
(3) Subject t,D fiscel constreints. approve1 of
such leaves constitutes a gusrantee of employment
for s specified period of time.
(4) The edmirl~.etretive head of an agency may
grant exceptions to there limitatlonr for such
reasons as intersgency egreements or educational
pwpoae~. (bphmis added).
General Appropriations Act. Acts 1983. 68th Leg., ch. 1095, art. ‘1.
.
18, at b204-07.
SectioD 8g establieber the pregnancy leave eatltlemeat of a
pregnant employee. See At.torney General Opinion g-1036 (1977). The
firet sentewe refer570 “~e]mployeestaking leave due to pregnancy”
and, read in isolation,. WLght suggest that an employee could take
laave due to the pregnancy of another pereon. Rmmvar, elaeuhere.
aaction8g referr to “a pr~qnant employee” in stating the terma of the
leave entitlement. Tha legislature used the phrase “pregnent
employee[s]” interchaagealdy vitb “[e]mployeea taking leave due to
pwm-9.~ gorewer. tbo atate auditor’s office. which is respon-
sible for giviag l u nifo nr interpretation of the leeve provision, has
pointed out vlth respect j:o the prwislon for six weelm’ leave after
delivery thst the final postpartum medical exam osuelly ie scheduled
for a* weeks after daliveq. See J.A. Pritchard A P.C. MacDonald.
Ullliama Obstetrics, ‘457 (16th x 1980). 8.1. Dep. No. 948, 95th
coo&* 2d Sees. S (1978). xe tinted in 1978 U.S. Code Gong. & Ad. tkve
4749, 4753 (te8timony thel, -+in 95 o EMU, time lwt from work due to
p. 153b
gowtsble Bob Bulloak
Mr. James Rubletoo
Pago 4 (Jn-337)
pregasncy 6 weeks or less:),
la Tbe length of the pregnancy lsavc
entitlement reflecta it8 purhoee: to allou the pregnant asployee a
reasonable tioc to recoverph:roically from childbirth before returning
to vork. We conclude that thlc pregnency leave prwiaion in erticle V,
section 8a of the General Al?proprietions Act does not entitle me18
employees to take six veeks' 'pregnancy leave.
We vi11 next eddrers nr. Fiembleton's first question -- vhether A
mele mey take sick leave rnder section 8c uhen his pertner la
pregnant. Article V, rection 8c of the General Appropriations Act
authorizes employees to take sick leave
vhen sickneae, injury. or pregnency and confine-
nent prevent the eurployee'r performance of duty or
vhen a member of his hedieta foxily is sctually
-ill. (Emphaals ad&d).
Stste employees may use sick leave when they are unable to perform
their duties beceuae of aicknesa. injury. or pregnancy end confia-t
or uhen a member of the employee's imediete really is "ectually ill."
%a circumstsncea under uhlc:h an eaployee xay uae sick leave vhan A
faaily member ia Ill are suggested by the follwing language of
section 8c:
For purposes relating to regular sick leave,
iwediete family :la deffned ss those individuals
releted bv kinal&,,, adoution or merriene uho are
living in-the asx&ouaehold or if not G the aaae
household ere totrllly dependent upon the cqloyea
for personal cart[ or semicea on a continuing
bsais. (IImpbesia edded).
A state eaployee ny, in our opinion, take sick leave under
section 8c to taks care of (UL imediate fsxily aesber uho is ao ill he
cannot take care of himself. An eaployee'a door children, toward
vhoa he has legal duties of care, vi11 ordinsriIy reside is his
household. See Iemily Cods: (12.04. Other imediste femily aembers
residing iax household uould probably look to hiu for care and
i assistance if ao ill as to be uneble to take care of themselves. The
"imadiate family" member not residing in hia hcuaehold =st be
totslly dependent oo the ap:loyee for persons1 care or services. This
requlrexent ala0 atrougly au;ggests the lagislature'a intent th a t ltete
employees be llloued to uao sick laeve to provide ure for ralativea
too ill co take care of themselves.
i
In our opfnion, the requireuent that the aployee'a family aember
be "actually ill" does not eutoutiully exclude conditiona lttribut-
ii
able to pregnancy, childbirth, or postpartum recovery. A Texas court
her said thet chlldbirth is not "8 disease, deformityor infury,"
if
i
1. p. 1537
. 1
loaorableBob bullock
?I?. Jamer Iladletoe
rosa s (311.3937)
within the prohibition sgsin:~r practicing medicine without a license.
&anti V. State, 289 S.W.Zd 244 (Tcx. Crio. App. 1956). See V.T.C.S.
art. 4495br 111.03(8) * 3.C17(a) (prohlbltlce l
galnat~nllcen~cd
practice of eadlclne); V.‘LC.S. art. 45121 (regulation of lay
mldvlves) .
The General Approprlatl~ms Act provision, however, uses the term
“111,” vhlch has been defined as follow:
affected with maa ailment: ladleposed: not
bclng in good becrlth: ail%, UUSUSlly
elck. . . .
Webster’o beu International Dlctloaa
-+; ;=“d Es “,; y6;; y”rz
capitals changed to lover case .
techalcal eeaulag. sod the dictlooary defleltlou surely can include
ailments and lndleposltloas associated with pregoaucy. When a eymptom
or compllcatlon of pregnancy, childbirth. or postpartuo recovery
causes an employee’s lemedlote family member to be so 111 as to need
the care and services of anclther person, the employee uy use his sick
laave to take care of her. Appllcatlono to use sick leeve for this
purposa should be evaluated cm a case-by-case baals.
Hr. Barableton’e second question concerns vbether a mele employee
vho taken unpaid “paternlt:y leave” under sactlorm 0g and &a must
exhaust sick leave and vaca’tlon leave before going on leave vlthout
pay. We have determined in. anever to I4r. Bullock'e flrat question
that the aectlon gg pregnawy leave is provided for pregnant employees
and does not entitle W.le eqployecs to take paternity 1UVC.
Article V. section 8m of the General Appropriation6 Act allows
agencies to grant unpaid leave under stated eoadltlone. The follwing
conditions are particularly relevant to your question:
(1)All lccaaulated wid leave eetltlaents
ust be ahauatd before grant- sach leavee,
vlth the addltiorsl provlolon tlmt sick leave ust
be exhausted on2.y In those cases where the
employee Is eligible to take sick leeve. as
provided in Section 8.~. above.
. . . .
(4) Tbe‘ndmlnLstratlve head of an agency may
grant exceptlow to these lleltatious for such
reasons 80 fnteragency agreements or educetioaal
purpoee8.
p. l538
Ronorable Bob Bullock
Hr. Jm5 Eambletou
?age 6 (m-:L37)
Section Em(l) providea for exhaustion of paid leave entltleacnts
before receiving unpaid leave:. Sick leave need be 5xbauated only vhen
the employee seeks unpaid leave for reasons that would entitle him to
use sick luve mder section 8c.
The agency head oay except an employee from the requirement that
he exbaust unpaid leave “for such reason aa interagency agreements or
educatloual pufposea.” General Approprlatlone Act, mr at art. V.
18m(4), at 6207. These stated reasons exemplify purpose5 for vhlcb
the agency head may lllw cxemptiona; they do not list the purposes
exhaustively. See generalIE, Ervln v. Steele, 228 S.Y.2d 882. 885
(Tex. Clv. App. - Dallas 1950. writ ref’d n.r.e.1.
The term “paternity leave” does not state the reasons for seeking
leave speclflcally enough to enable us to apply sectlos 8n(4) to your
queatlon. “Paternity leave’ eight encompass laave ao the employee can
provide childcare as the tu:clualve caretaker. or to enable him to
5pend extra tiw ultb his frafly. Individual requeeta for “paternity
15ave” should be evaluated os a case-by-came bari5, subject to any
lnterpretatlona by the atam auditor. See-~General Appropriations Act.
Act6 1983. 68th Leg., ch. 113!)5, art. V,xj. at 6206.
Pou also inquire about vatetalty and pateralty leave for adoptive
parents. The Geaeral Appropriations Act provlalona do not directly
address this question. We have concluded that the legislature
authorized pregnancy leave under section 8g to allou the employee tine
to recover fron childbirth and that thla provision applies only to the
pregnant enployees. Leave under section 88 la therefore not available
for an employee vho becomsa a parent by adoption. Such persona could
apply for leave under rctlon 8n of article 0. But see General
Appropriation6 Act, Acts 1085, 69th Leg., ch. , 6rt.f. at 38
(leave provlalon for adopt:Lon of a child undertbtee years of age).
Comptroller Bullock lmk whether
s the Pre@ancy Dlscrlmlnatioa Act
contained in Title VIII of the Civil Pigbra Act of 1964, 42 U.S.C.
l2OOOe et. eeq. (1982). requires him to grant male employee6 llx weeka
of pregmency leave.
Section 2OOOr2 of Tftle 42 D.S.C. provide6 as follmra:
(a) Employer pmctices
It shall be ru~‘unlavfu1 erploywwrt practice for
an employer -
(1) to tall Ior refuee to hire or to dfacharge
any lndlvldual, or otherwise to diurlmfnate
ageinst any lmilvlduel with respect to h%o
compensation. terns, conditions, or privjlegee of
p. 1539
ilooorable Bob Sullock
.
Mr. Jn55 Rubletoa
Page 7 (Jn-337)
employment, becsurw of such Indlvlduel’ a rsce,
color, religion, acx or rmtlonal origin; or. . . .
The Pregnancy Dlacrlmlnation Act of 1978 added the following
deflnltlon to the 1964 Civil Rights Act:
(k) The terms ‘because of sex’ or ‘on the
basis of sex’ lncbude. but are not llmlted to.
because of or on cbe basis of preguancy. cblld-
blrtb, or related medical condltlona; and vomm
affected by prego~ancy, childbirth. or related
madlcal coudltlonr~ shall be treated tha saw for
~11 eaployment-rel.a.ted purpoaas. including receipt
of benefits under fringe benefit programs. as
other persons not so Affected but similar In their
ability or 1nabllLt.y to work. . . .
42 U.S.C. IZOOOe(K) (1982). Congress enacted this provision to
overrule the Suprema Court decision in General Electric Co. v.
Gilbert. 429 U.S. 125 (1971ijl; sea il.&, Rep. Ilo. 948. 95th COng., 2d
Seas., B. Gilbert held thiithe exclualou of pregnancy coverage
from Callfornla’s dlaablllty insurance plan did not constitute
sex-baaed amployment dlacrirLnatlon under Title VII of the 1964 Civil
Rights Act. Mr. Bullock raiser the applicability of tha 1978
amendment to msle employees vho become parents - whether they are
entitled to the same leave ,r:lghts as preguaut employees.
The Pregnsncy Dlacriaiamtlon Act requires tbat voom disabled due
to prewmncyr childbirth. or other related wdlul .condltlona be
provided the same benefits as those provided other vorkera disabled by
other medical conditions mmder any sick leave plan available ln
connection with crploymant.. 29 C.T.P. )1604.10(b) (1984); R.P. Rep.
lo. 948, B, at 5. lk regulation or case suggests tbet a ule
vorker should be entitled KC, leave on account of blo uife’a pregnancy
on the aaaa terma that a faule vorkar receives laave for her wn
pw-~. The ati weeks leave allows the feule vorker to recover
from the dlaabilltlea of her pregnancy and delivery. The 1978
amendmnt doer not entltl~! rle employees to leave to recover from
anotherperson’sdisability,. Section 2OOOeB states that
vomen affected by pregnancy, cblldblrtb, or
related mdlcal %ndltlons ahall be treated the
Mme for 011 employmsnt-related purpoaee .
Including receipt of benefits under frfoge benefit
prograan. aa othw persona not so affectad. . . .
The House Report on the 19X1 amendmentstates that
p. 1540
HonorableRob Rullock
Hr. Jeer Uamblaton
?age 8 (JR-337)
the bill is Intended to be limited to effects upon
the voasn vho is herself preguant, bearing A
child, or h55 a related aedlcal condition.and not
to include my effect upon oue uoasn due to the
prqaancy of another.
0.R. Rep. No. 948 -. at 5’.
The Supreae Court has hc1.d that ‘a dependant health insurance plan
violated Title VII because it Save less coapletr borpltallzatlon
benefits for pregaanciea of employee’s spouses than it did for ot!her
apouasl disabilities. ert -N&a Shipbuilding 4 Dry Dock v. EEOC,
462 U:S. 669. 77 L.Fd.2d S’T (1983). In the words of the Court of
Appeals, under the eaployee ‘5 plan, “a aale eaployee receives less
coaalete cwermte of saousal dlsabllltles than does a female
empioyee.”Navp&t News~Sbipbulldlng 6 Dry Dock v. EEOC, 667 F.2d
448. 449 (4th Clr. 1982) quoted la Supreme Court opinion, 462 U.S. at
673). The discrialnatlon agslnat feaale spouses in prwiding fringe
baueflta constitutes sex discrimination agalnat ule employees
prohibited by Title VII. 4CQ U.S., at 684.
The Newport Revs case does not aupport a clala that aale
employees receive paternity leave. The dlacrlalnatlon found in that
’ case related to the health insurance benefits available to a male
amployee on account of his, vlfe’s prega4ncy. As the court pointed
out, en eaployer need not ~?mvide dependent aedlcal coverage at all.
462 U.S., at 684. n. 25. The state of Texas proolder, and can
provide, leave of ebsence 1roa vork only to lte employees. It cannot
provide such beaafits to ~nsployees’ 5pouae5 abo are not theaselves
employed by the state. Thu5. the state’s leave of abseace prwlalona
include no dependant benefits anslagoua to those at laaue in Newport
w. Tke 1964 Civil Eights Act doea mot require state agencies to
provide ala reaka l paternity leave” to aale, aaployeea.
Article v, section 8g of the 1983 Cenerel
Appropriatioaa Act does not entitle rule srployaea
to sit make’ paternity leave follmiry the blrtb
of s child. The PreRasacy Dlecrialaatlon Act of
1978. 42 U.S.C. SZOOCe(k); 20OOr2 (1982). does
mot require atata 6gcnclea to grant ule eaployees
aueb leave.
A ule ewplqgee say take sick laave under
article V, eectl:m EC of the Appropriatloae Act
when a Vader o:this Wdlate faally. as &fired
In tbat prwiaica., 15 so disabled due to pregnancy
or childbirth 5:s to need the care of another
p. 1541
. . .
,' .. EonorablrBob Bullock
Mr. JIva samblocoe
PABe 9 (Jn-337)
person. Applicatlxls for sick leave for this
purpose should be evaluated on a case-by-case
basis. If a rale weks to take unpaid sick leave
under article 0, scxtion Sm of the Appropriations
Act. be must first exhaust his vacation leave.
Whether he oust fil,st exhaust his sick leave is to
be determined in accordance with article V,
section Sm(1). The Appropriations Act does not
address the quest!.on of maternity and paternity
leave for emplo:wes who become parents by
adoption.
JIM MATTOX
Attorney General of Texas
Ton GREEN
First Assistant Attorney General
’ DAVID B. RICSARDS
Executive Assfstant Attornag General
ROBEBTGRAY
Special Aeslstant Attorney General
RICK GILPIN
Chairman, Opinion Comnlttee
Prepared by Suean L. Garrison
AaairtantAttorneyGeneral
APFROVED:
OPfRIOIl
CCWlITTEE
Rick Gilpin. Chairman
Susan Garrism
Jim noellinger
Jennifer Riggs
Nancy Sutton
Sarah Uoelk
p. 1542 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131141/ | The Attorney General of Texas
JIM MAlTOX June 13. 1985
Attorney General
Supreme Court Building EonorableJames A. Rasmussen opinionNo. at-326
P. 0. Box 12548 Uichita,Couuty Attomey
Austin. TX. 7871% 2548
512l4752501
Wichita County Courthouse Re: Whether a commissioners
Telex 9101874-1357 1 th 6 Lamar. Suite 207 court may reduce a county
Telecopier 512/4750288 Wichita Falls,Texas 76301 attorney's salary after the
annualbudget has been adopted
714 Jackson. Suite 700
Dallas. TX. 75202-4506 Dear Mr. gamussen:
214l742-89u
Pou have requested an opinion from this office regarding the
authorityof the cnnmissionerscourt to reduce the salary of the
4824 Alberta Ave., Suite 160
county attorney.afc:e!r
the annual budget for the county has been
El Paso. TX. 799052793
915l-
approved..Specifically,you ask the followingquestions:
1. Doee a comDiesionerscourt have authority
1Ml Texas. Suite 700 to reduce lthe salary of a county attorney after
Housion. TX. 770025111 the annual budget hearing and budget adoption
713/223-5888
proceedinge?
806 Broadway. Suite 312 2. Is the county attorney estopped from
Lubbock, TX. 79401-3479 claiming hwk salary by subsequently accepting
8W747.5238 less than the salary set pursuant to article
3912k..V.T.C.S.?
4306 N. Tenth, Suite B
MeAllen. TX. 78501.1685 To assist ue in renderingour opinion,you have suppliedthe following
51s82.4547 facts:
200 Main Plwa Suite 400 1. On Sleptember12, 1983, after the annual
San Antonio. TX. 782G52797 budget hewing. the final budget of Wichita
512Q25-4191 County, TaBa for the year of 1984 vae certified
by the county judge and filed with the county
clerk of Wichita County, Texas.
An Equal Opportunltyl
AffirmalIve Action Employer
2. The salary of the county attorney in said
budget.waeIretat,a sum of $38.919.00per annum.
.3.,;On:Jcamber 31, 1983, the incumbentcounty
attorneyraraigned
from office.
4. On January 9, 1984, I was appointedcounty
attorney by tbe ctissioners court of Wichita
County,Texas.
p. 1489
.
. .‘,,
EonorableJames A. Rasmussen'-Page 2 (JM-326)
5. On the same date (January 9. 1984) the
commissionerscourt entered an order reducingthe
salary of the cowty attorney to the sum of
$30.312.00 per annum. This is the salary
currentlybeing paid.
6. Ho noticeva6 providedby the commisaloners
court aa to the proposedsalary reduction.
In most counties,the commiaalonerscourtmust approvethe yearly
operatingbudget for the county at an annual budget hearing and may
amend the budget to allow emergency expendituresin times of grave
public necessity. V.T.C.S.art. 689a-11. The commisa*onera court may
also make "changesin the budSet for county purposes." V.T.C.S. art.
6898-20.
The generalrule derivei,from the aforementioned
authoritieswas
summarizedin Attorney GeneralOpinion E-11 (1973):
In most situations amendments to a county
budget will have I:O mset the requirementsof
Article 6898-11, V.'T.C.S. Whether circumstances
exist which will warrant an amendment to the
budgetwill be a questionof fact in each case.
This rule, however, assumes a different tenor when applied to the
salaries of county officere and employees contained in the annual
countybudget:
[Als to salariesof county officersand employees,
the rule has been :hnpliedlyamendedby the enact-
\ Pent, in 1971, of Article 3912k. . . .
AttorneyGeneralOpinionE-11 (1973).
\ Article3912k.V.T.C.S.,establishesguidelinesto be observedby
the cormnissionera
court vher setting the salariesof certain county
!\ officials and employees. tt contains the following pertinent
provisions:
Section 1. Except as otherwise provided by
this Act and subject to the limitationsof this
Act, the conmissiorters
court Aof each county shall
fix the amount of compensation,office expense,
travel expense, and all other allowances for
county and precinct officials and employeeswho
are paid wholly frcm county funds.but in uo event
shall such aalarielr be set lover than they exist
*t the effectivedate of this Act.
p. 1490
RonorableJames A. Rasmussen- Page 3 (JM-326)
. . . .
Sec. 2. (a) The!salaries,expenses,and other
allowancesof --
elected county and precinctofficers
shall be set each year during the regularbudget
hearing and adoptio,;proceedingson giving notice
as providedby this ?,ct
--* (Emphasisadded).
In AttorneyGeneralOpinion II-11(1973),it was stated that section2
"applies only to elected county and precinct officers,[and] requires
that their salaries be set during the regular budget hearing."
(Emphasisadded). Tbe opinion furthernoted that because section1 of
article 3912k imposes no similar limitationon the authorityof the
commissionerscourt to fix salaries of non-elected employees and
officials.these salaries
nay be fixed at times other than during the
regularbudget hearing. To the extent that this
is inconsistent w:Lth Article 6898-11, Article
3912k furnishesan :tnplied
exceptionthereto.
AttorneyGeneralOpinionH-11 111973)(citationsomitted). It is clear
that since the county attorney?
is an electedofficial,see Tex. Const.
art. V, 521, the salary for that office nay be considea and adopted
only during the regular, ar.nualbudget hearing and adoption pro-
ceedings. V.T.C.S. art. 391;!k,12(a). -Cf. Attorney General Opinion
JM-313 (1985).
One of the establishedmles of statutoryconstructiondecrees
that when two statutes affec:tthe same general subject matter, the
more specific of the two is controlling. See Sam Bassett Lumber Co.
v. City of Eouston, 198 S.W.Zd 879 (Tex. 19m; East Texas Oxygen Co.
v. State, 681 S.W.2d 741, 745 (Tex. App. - Austla 84, no writ). In
this instance. both articles 6898-11 and 3912k deal nenerallvwith
county budget matters and th.ecommissionerscourt's discretion in
creatingthe budget. Article 3912k, however, deals in particularwith
the salaries of county and precinct officialsand employees.subjects
that would otherwisebe guided by article 6898-11. Accordingly,we
believe that article 3912k, and the interpretations of the statuteby
the courts and this offi,ce,control the outcome of your inquiry.
Thus, in Attorney General Cplnion R-643 (1975) this office concluded
that the comuissioners'court may not reduce the salary of the county
attorney below the amount fixed at the annualbudget hearinguntil the
follovingfiscal year. This opinionnoted that althougharticle3912k
deals generallywith salary-- in'-reases.
[i]mplicit in thie conclusion is the corollary
that the salaries of these [elected county and
precinct]officialsuay not be decreaseduntil the
next fiscalyesr. ('Emphasisin original).
p. 1491
,A Y.‘,
HonorableJataesA. ~asmusaen- Page 4 (JH-326)
It appears. then. ~that the conmissionerscourt is not accorded the
discretionto "make changes in" or to amend the salaries of elected
county and precinct officialspursuantto article 689a-11 and 689a-20
after approval at the regular’ budget hearing. We therefore ansver
your first questionin the negative.
Your second question aska vhether the acceptanceof a salary in
an amount less than that set :Lnaccordancewith article 3912k estops
the county attorney from claisrtng
the avount he is entitledto receive
by lav. The mle vhicb ansvera your inquiry vas first announcedin
Morrison v. City of Fort Worth, i55 S.Ui2d 908. 910 (Tex. 1941) and
most recently affirmed in --
Brow v. Tyler County CommissionersCourt,
560 S.W.2d435, 437 (Tex. Civ. App. - Beaumont 1977. no vrit):
[W]e think it is the lav in this State that a
public officer cannct estop himself from claiming
his statutorysalary 'by agreeing to accept, or by
accepting,less than the salary providedby law.
Your second question, accordi&y. is answered in the negative. We
caution that our answers here should not be read to divest the
cotmissionerscourt of its discretionto fix salaries in accordance
vith the lavs of the state.or to reauire the court to award anything
rsorethan vhat it considersto be a reasonable salary. See V.%.C.SY
art. 3912k. Cf. Vond v. Cotmlissioners Court of Uvalde~unty, 620
S.U.2d 104. 108 (Tex. 1981 .
-----r-
The commissionerscourt may not reduce the
salary of the count:gattorney,or any salary set
pureuant to section2.of article 3912k. V.T.C.S.,
from the amount arsprovedat the annual budget
hearing and budget adoption proceedings. The
county attorney is not estopped from claimingthe
amounts he is entit,l.edto receive under article
3912k by accepting a salary less than the sum
originallyapprovedpursuantto article3912k.
L-&g+ AttorneyGeneralof Texas
TOM GREEN
First AssistantAttorney General
P. 1492
HonorableJames A. Usmussen - Page 5 (m-326)
DAVID R. RICHARDS
ExecutiveAssistant AttorneyGweral
ROBERTGRAY
SpecialAssistantAttorneyGewsal
RICK GILPIN
Chaiman, OpinionCommittee
Preparedby Rick Gilpin
AssistantAttorneyGeneral
APPROVED:
OPINIONCOMHITTRE
Rick Gilpfn,Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Noellinger
JenniferRiggs
Nancy Sutton
p. 1493 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131144/ | .
The Attorney General of Texas
JIM MATTOX my 31, 1985
Attorney General
Eonorable William I?, Robby Opinion No. J'M-323
supremeCourtBUlldhlQ Lieutenant Goverao,r of Texas
P. 0. Box 12549
Austin. TX. 79711. 2548
P. 0. Box 12068, C,q?itol Station Re: Whether interest on non-
5121475-2591 Austin, Texaa 781’11 constitutional funds in state
Telex 9101574.1367 highvay fund may be appropriated
Telecopier 5t 21475-0255 Honorable Gib Lewis. Speaker for general revenue purposes
Texas Rouee of Repr'esentatives
714 Jackson. Suite 700 P. 0. Box 2910
Dallas. TX. 75202-4505 Austin, Texas 787 69
2141742.8944
Bonorable Grant JOnaB, Chairman
Senate Finance Committee
4824 AIberIa Ave., Suite 180
El Paso, TX. 789052793
Texas State Senate
915l533.3494 P. 0. Box 12068, Cepitol Station
Austin, Texas 78711
1001 Texas. Suite 700 Eonorable Jim Rudd, Chairman
Houston. TX. 77002.311 ,l
Rouse Appropriaticns Committee
71312236996
Texas Rouse of Representatives
P. 0. Box 2910
006 Broadway. Suite 312 Auetin, Texas 7t769
Lubbock. TX. 79401.3479
505/747-5239
Gentlemen:
4309 N. Tenth. Suite B You ask whether interest on non-constitutional funds in the state
McAllen. TX. 79501-1595 highway fund may be appropriated for general revenue purposes by rider
51215S2-4547 to the General Applwopriations Act.
200 Main Plaza. Suite 400 Article VIII, section 7-a. of the Texas Constitution dedicates to
San Antonio. TX. 782052797 highway purposes
51212254191
all net revenues remaining after peymsnt of 811
An Equal Opportunity/
refunds allowed by law and expenses of collection
Attirmrtive Action Employer derived :Erom motor vehicle registration fees, and
all taxlra, except gross production and ad valorem
taxes, on motor fuels and lubricants used to
propel wtor vehicles over public roadways. . . .
The interest on the motor vehicle registration fees and fuel taxes
dedicated to highcap purposes by article VIII, section 7-a. must also
be used for highuay purposes. A diversion of that interest to other
ournoses vould vialate
S~.~~~
article VIII. section 7 of the Texas Constitu-
tion. Lavson' V. baker. 220 S.W. 260 (Tex. Civ. App. - Austin 1920.
vrit ref'd); see ,?m.T.C.S.
--- art. 2543d.
p. 1477
Bonorable William P. Robby
Ronorable Gib Lawis .
gonorable Grant JOneB
Ronorable Jim Rudd
Page 2 (JM-323)
Article VIII, section 7-a. of the TeXBB Constitution does ‘not
actually establish a state highway fund , or refer to the fund by name.
T’he fund was created by statutes which predate the adoption of article
VIII, section 7-a. in 194(i., See Tex. A.J.Res. 49. 49th Leg., 1945
Tex. Gen. Laws 1049. Art:Lcle6694, V.T.C.S., which derives from a
1917 statute, provides that
[a]11 funds coming into the hands of the Com-
mission derived :Erom the registration fees or
other sources prcvided for in this subdivision, es
collected, shall be deposited with the State
Treasurer to the credit of a special fund desig-
nated as ‘The Sta,te Highway Fund’. . . .
Acts 1917, 35th Leg., ch. ‘l!)O, 423, at 424. Sections 153.503 through
153.505 of the Texas Tax Code allocate motor fuel taxes to the state
highvay fund. These provtsions are the current codification of
statutes enacted in 1941. Acts 1941. 47th Leg., ch. 184. art. XVII,
525 at 330. The approval of article VIII, section 7-a. in 1946 gave
constitutional status to d.edications of funds already required by
statute.
There are statutory tledications of monies to the state highway
fund vhich do not have constitutional status. Article 6673a,
V.T.C.S., requires funds ilerived from the sale of excess land to be
placed in the state highwy fund. Federal aid money and county aid
money is deposited in the !state treasury to the credit of the state
highway fund. V.T.C.S. erl:. 6674e. Article 6674f. V.T.C.S.. provides
for certain transfers of general revenue to the state highway fund.
The state highway fund therefore is not a constitutional fund in
its entirety. It consists of funds dedicated to highvay purposes by
the constitution as veil 81) funds statutorily required to be placed in
the highway fund. It thus can be described as a collection of consti-
tutional and non-constitc,tional funds. Only the constitutionally
dedicated registration fees and motor vehicle fuel taxes are subject
to the rule that Interest must be spent for constitutionally
authorized purposes. See ‘I.T.C.S. art. 2543d; Lawson v. Baker, supra.
The interest on statefunds dedicated by statute to highway purposes
may be legally severed and placed in the general revenue fund. See
Gulf Insurance Co. v. Jamek, 185 S.W.2d 966 (Tex. 1945) (article VIII.
section 7, of Texas Conetitution applies only to special funds created
by the constitution, not by statutes); Attorney General Opinion w-338
(1981); see also Bra206 Rbrer Conservation & RBClBBiBtiOn District V.
HcCrav. 91 S.W.2dmji. 1936) (article VIII, sectlon 7, of the
Texas Constitution does no,t apply to general revenue funds).
Article 2543d. V.T.C.S., severs the interest from the principal
of non-constitutional funds placed in state depositories.
p. 1478
Rooorable William P. Bobby
Honorable Gib Leuie .
lionorable Grant Jones
Ronorable Jim Rudd
Page 3 (JM-323)
Section 1. hterest received on account of
time depositB of ‘mneye in funds and accounte in
the charge of the State TreeSUrer shall be allo-
cated es fOllW6: To each constitutional fund
there shall be credited the pro rata portion of
the interest rece,lved due to such fund. The re-
mainder of the iwerest received, with the excep-
tion of that powion required by other statutes to
be credited on a pro rsta basis to protested tax
payments, shall be credited to the General Revenue
Fund. The intewst received shall be allocated on
a monthly beBiB.
Interest on constitutional funds must be credited to the constitu-
tional fund and interest on trust funds must be credited to the trust
fund. See Attorney Genewl Opinions J&306 (1984); MW-82 (1979);
E-1040 (1977); M-468 (196’):). Attorney General Opinion M-468 (1969)
held that certain federal. grant funds vere trust funds, end that
interest on them could not be transferred to general revenue but
remained part of the trust fund.
Article 2543d, V.T.C.S., placed In the general revenue fund
interest on certain monies in the state highway fund, &, those
which are neither truBt funds nor constitutionelly dedicated revenues.
The legislature may appropriate by rider interest vhich article 2543d.
V.T.C.S., placed in the general revenue fund, so long as the rider is
not inconsistent with general lav. The validity of’ a particular rider
depends on its only appr’opriatlng funds or limiting an item of
appropriation. Sea Tex. Ctmst. ert. III. s35; JeBBeU ABBOCietBB, Inc.
v. Bullock, 531=.2d 593 (Tex. 1975); Moore v. Sheppard, 192 S.W.2d
559 (Tex. 1946).
SUMMARY
Interest earned on non-constitutional funds in
the state highuay fund may be appropriated for
general revenue purposes.
J
Very truly yours,
A
JIM UATTOX
Attorney General of Texas
TOU GREEN
First Assistant Attortiey General
p. 1479
Aonorsble William P. Robby
Honorable Gib Levis
Ronorable Grant Jones
Honorable Jim Rudd
Page 4 (a-323)
DAVID R. RICE&S
EXeCUtiVe ABBiBtaUt Attorrwy &Ueral
ROBWT GRAY
Special Assistant Attorney General
RICR GILPIN
Chairman, Opinion Cownittelr
Prepared by Susan L. Gerrilwn
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpia. Chairman
Colin Carl
SuBan GerriBon
Tony Guillory
Jim Hoellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood
p. 1480 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131153/ | The Attorney ,General of Texas
JIM MATTOX May I,, 1985
Attorney General OVERRULES IN PART MW-382
Supreme Cowl Building Mr. R. K. Procunier opinion No. m-314
P. 0. Box 12548 Director
Austin, TX. 78711. 2549 Texas Department of Corrections Re: Whether article 6184f,
512/475-2591 P. 0. Box 99 V.T.C.S.. prohibits classifica-
Telex 910/874-1367
Teleco~ler 512l475026S
Huntsville, Texas 77340 tion of an inmate as a trusty
for the purpose of article
6181-1, V.T.C.S.
714 Jackson. Suite 700
Dallas, TX. 752024506
Dear Mr. Procunier:
ZlU742-SQ44
You have asked ahether article 6184f, V.T.C.S..
4824 Alberta Ave., Suite 160
El Paso, TX. 789052793 prohibits the Texas Department of Corrections from
91~533.3464 classifyin@,an inmate returned due to revocation
of his parc'leor mandatory supervision as 'trusty'
1001 Texas, Suite 700 for the putpose of earning good conduct pursuant
Houston, TX. 77002-3111 to article 6181-1, section 3(a)(3), V.T.C.S.
713/223-5SSS
You note your agency '8 "strongly held opinion that it does not, but
because of Texas Att,xney General Opinion MW-382 (1981)" you feel
806 Broadway, Suite312
Lubbock, TX. 7Q401-3479
compelled to make th:is opinion request. The second question dealt
80617476238 with in MU-382 asked the following:
Does the Tmas Department of Corrections have the
4309 N. Tenth. Suite B
discretion to classify an inmate who is a parole
McAllen, TX. 79501-1885
5121882-4547 violator or mandatory supervision returnee as a
state appmved trusty. . . ?
200 Ma,” Plan, suite 400 The opinion based i&e answer to this question on article 6184f,
San Antonio. TX. 78205.2797
V.T.C.S., which provjdes as follows:
5121225-4191
Whenever a convict violates his trust or his
An Equal Opportunltyl conduct is ,such that he makes himself objection-
Affirmative Action Employer able to tht?citizens of the comunity in which he
is located,,and complaint is made to the Board of
Prison Coamissioners, or to any officer having
charge of said convict by two or more good and
reliable cl.t:izens,
and it is found upon investiga-
tion by the Prison Commission that the complaint
is well founded, such convict shall not thereafter
be eligible!to appointment as a trusty for twelve
p. 1441
Mr. R. K. Procunier - Page 2 (JM-314)
months. It shall be the duty of the Prison
Commissioners to sze that the warden and farm
managers faithfully carry out the provisions of
this Act. (Footnote omitted).
Relying on this provision, Attorney General Opinion MW-382 concluded
that
the Texas Board of Corrections does not have the
discretion to class,l:lyan inmate who is a parole
violator or mandatcry supervision returnee as a
state approved trusty until at least twelve months
after the inmate's :returnto the Texas Department
of Corrections.
On reconsideration of this question, we have determined that article
6184f, V.T.C.S., does not address violations of parole or mandatory
supervision conditions.
Article 6184f was enactec,in 1925 as section 6 of a bill entitled
"An Act to regulate and more definitely prescribe the mauner of
handling trusties around the penitentiaries and penitentiary
farms. . . .u Acts 1925, 317th Leg., ch. 19, 96, at 46-7. The
prohibition by that section 6, which has remained unchanged as article
6184f, of an inmate being classified as a trusty for twelve months
after violating "his trust" by objectionable conduct obviously
pertained to the inmate's blzhavior outside the prison while in a
"trusty" status. It is appc.rent that the only purpose of article
6184f was to prevent the prison from allowing an inmate returned to
the prison for misbehavior while outside the prison from being
appointed a "trusty" with freedom to be unguarded outside the prison.
The legislature did not winIt an inmate who was returned for
objectionable conduct while in the community in a "trusty" status to
be allowed back in the communLl:yas a "trusty" for at least one year.
However, article 6184f does not have any bearing on an inmate's
ability to earn good conduct t:Lme. Article 6184f should therefore be
limited to the evil it was intended to remedy: prohibiting certain
inmates from being allowed to be at large in the community for a
certain period of time. We therefore conclude that the answer to the
second question in NW-382 was incorrect insofar as it purported to
proscribe prospective classi:~ication of a parole or mandatory
supervision returnee as a trus,ty.
We believe that article 6181-l. V.T.C.S., controls the provision
of good conduct time to irnates. Section 2 of article 6181-1,
V.T.C.S., requires the department to classify all inmates upon arrival
and to reclassify them as warranted. Section 3(a) establishes the
amount of good conduct time atxrued by inmates in the following three
classifications: Class I, Cle.ssII, and trusty. No good conduct time
p. 1442
Mr. R. K. Pracunier - Page 3 (JM-314)
accrues while an inmate is a C,lassIII inmate or is on parole or under
mandatory supervision. V.T.C.S. art. 6181-1, )3(b). Section 4 of
article 6181-1, provides as fc,llows:
Upon revocation of parole or mandatory super-
vision, the inmate . . . upon return to the
department may accrue new good conduct time for
subsequent time served in the department.
(Emphasis added).
Thus, the legislature has exllresslyprovided that an inmate released
on parole or mandatory supervj.sionwho has been thereafter returned to
the Texas Department of Corrections accrue new good conduct time. The
intention of the legislature as reflected in the whole statute, and
especially section 4, is to make an inmate eligible to earn good
conduct time credit even upon return to the Texas Department of
Corrections from parole or mard.atorysupervision. The construction of
article 6184f, V.T.C.S., set out in Attorney General Opinion t$7-382is
inconsistent with this intent.
For the foregoing reasons we conclude that article 6184f has no
bearing on the discretion of the Texas Department of Corrections to
classify an inmate returned for violating his parole or mandatory
supervision as a "trusty" fo:r the purpose of receiving good conduct
time credit under article 6'1111-1,section 3(a)(3). Hence, to the
extent that Attorney General Opinion MU-382 holds otherwise, it is
hereby overruled.
SUMMARY
--
Article 6184f, V.T.C.S., does not prohibit the
Texas Department of' Corrections from classifying
an inmate returned due to revocation of parole or
mandatory supervision as a "trusty" for purposes
of good conduct ttme under section 3(a)(3) of
article 6181-1, V.T.C.S.
J k
Very truly yo
rfrv\
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney Gene:ral
p. 1443
. .
Mr. R. K. Procunier - Page 4 (JM-314)
DAVID R. RICBARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney Gereral
RICK GILPIN
Chairman, Opinion Cofmnittee
Prepared by Colin J. Carl
and Susan L. Garrison
Assistant Attorneys General
APPROVD:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1444 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144281/ | 531
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
gmrPblc FreC Harris, Pa&e
amy w&l or d28por8 of
wtjIwsw w
ATTORNEY GENERAL | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144291/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
EoonorablsJulian &ontgomery
state Klghway Engineer
Auntin, Texas
zmar sir:
er of Earoh e0,
1040, in whloh yo y Departaept ha*
determined that s may ragirter
its buses only n rach faot, you
request our an out
llet ln y o u r
letter le.
to ll
that the All Amerlean Bus Lines
e prinoipal 0frh in tbts other
knowing that no aotor bgr company
egal residenoe or prinoipal orribe
r oounty, is it the duty of the El@-
at, undar suoh siroumstances, to sup-
ply the Tax Oolleotor or thfs other oountr with
bus plates for the All Amerloan Bus Lines oimplr
beoauca a request has been made of the Qepartamnt
bg the Tax Colleotor of this othsr oountg iOr
such plates in order to register the busee of the
All Amerioan Bus Linea:
Honorable fulian t:ontgoaory, page 2
"(0) Ii your answer to question (b) 18 in
the affirmtire, then what is the duty of the
Highway Department should still another ooonty
regueat bus plates in order to register the buss8
of the All Anerioan 31s Lines? Alao lniom us
as to the duty oi the Highway Department should
every county in Texas request an unllmlted aup-
ply or motor Im~iplatee.-
In oplnlon NO. O-SOW, addressed to yoqyi3u will
reoall our m~ling as follows, in ooanection with the au-
thority of the Highway Department:
"'9. what, 1.t.any, la the authority or the
Righwar Department to determine d.lrputedolasel-
rlcatlons or rahloles and other quwtlonr ln-
volrlng aonstruotion of the re&stratlon lawa
which arlae tram time to time?*
wArtlale 66OSa, Vernon'a Annotated Civil
Statutes, places the datr of motor vehlele reg-
lstration 'upon the state Iil@tuy Department.
When the oounty tax oolleotor aot8, he aotr only
a8 agent of raid Department. Article Q678a-8,
mwra, prorlder, in partr
‘I . . #hall apply each Jbar to the State
Wgl~y Depament through the cocnty tax eol-
. . . •.~.
*Artlole 6675a-12, Vernon*6 Annotated Civil
Statuter, prorldea, in part3
WiThe Dq?artment 8hall lame, or cause to be
lsmue6, to the owner or laoh rehlole reglstereQ
tut4erthe prorieio~ 0r t&26 Aef a liaame re-
aelpt whleh aha&& lndleate. . f
*Article bWSa-13, Vernon's Aanotated Civil
Statuter, yroridee, in part:
"'The Departlnent8hall isrue or 06we to be
lasued, ene lioenae number plate for saoh aotor
OJOlC),road tnotor, trailer or eeml-txaiSer, and
two lloense aumber plates for any other rehl6le
registered under this Aot. . . .*
474
gonorable Julian koutgomry, Sage 3
"The Aot also provide4 for the applleatlon
to be Lade to the oouuty tax oolleotor who Is
the ouly one authorleed to reoelve the lloense
fees provided in the Aot.
*It may be seen iron the above quoted pro-
visions of the A!otorVehlole Registration Aot
that the-;qppfIoatfonIs made to the State Filgh-
way Departzstik who I4 to 14aue a license reoelpt
and lloenee plates. Nowhere in the AOt 1s it
provided whose word 16 to be final in case of
disputed cla66ItioatIon of vehioles. From the
above Quoted statutes which plaoe the duty on
the State Highway Department to reoelve the ap-
plioation and to lasue the license plates and
the license receipts, w6 are of the opinion that
the State Highway Department 1s the proper au-
thority to detemlne disputed clasalrlcatIon of
vehicles. It I# evident throughout the Aat that
the tax collector 1s merely aotlng as agent for
the State HIghway Department. Your attention Is
further oklled to the faat that the ouly tIn6
that It beoomee neoe44ary ror the applloatlon to
be subxltted to the state Highway Department for
said Department*8 approval before lloense plates
may be Issued I4 in on48 of vehicles nhloh are
the property of the United States (;overnmentor
the State of Texas or any oounty or olty thereof.
Artiole 6675a-3aa 40 spealfloally provides.
=@hlle the Aot taksn aa a whole probably
oontemplates t&et the county tax oolleotor 1s
to issue the licenee reoelpt upon applloatlon
reoelved by hIa, the Act plaoes the duty of the
enforoemnt of the sahe upon the State El&may
Department which Depart&e& should be the final
aut.horItyIn the settlessnt of dlsputsd olassl-
floatIons.
"The authority disoussed ln oonneotlon with
this question 1s a8 between the state Highway
Department and the oounty tax oolleotor. hothing
herein shall be oonatrued as $rohlblting an ap-
peal by a motor tiehloleowner from a ruling OS
the Highway Department to the courts of this State."
In amswer to your question (a) it 1s our opinion
that the Highway Departaertthaving deterazlnedthat the buses
475
Honorable Julian ~ontgomarj, mge 4
of the All A&erican Bue L1n.m should be registerad in Dall~~e
county, it then brooms the duty of raid Departstentto uup-
ply the Tax colh4atorof Dallas County with licemm plats8
for the regis:ratlon of 8UOh boaam.
In answer to your qued.ion MO. b you am advised
that based upon the foot8 8tated, it 1s not the duty OS
rour Departmoat to 8ead motor buo ~lodnae plates to this
other county for the reglrtratlon of the buaea la question
in said county, which regirtratlon would be, am you state,
rmsuthorliteaby law.
Aa wa here atUiw8red your quartioa 100. b in tb
Itire your queatioa No. o door not need to be amwerd.
Your8 very truly
ATTORBXY CXNrtHALOF TEXASJ
*G,-
ATTOFSEY GENERAL OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144352/ | OFFICE OF THE ATTORNEY GENERAL OF TRXAG
AUSTIN
Bon. B. 8. Wyohe
county Auditor
ansg coontl
Uwvlm, Terse
OQlalon at thl8
II ha8 been re~elved.
a& 2S25-BAppleto Oregg
r ep a r lter
evl4 sin the l24th
lrtrlat Court an6 the SgsalalDim-
triatcourt?=
&Male SS25b, Yema* CM1 ¬ated ~tetutri'~
reada a8 tollm8r
Vh8 i1al8~ of tha offlahl rharthud
reporter ia~aohJuUloklMmtrlotl,amy
Hon. RI se Wyohe, Page 2
oountyof thisStateuhlohaloneoon8tltute8
two or mom Judlalal Dlatrlots,ln addltlon
to the ccapemation for tran8orlptfem a8
pra~lded by law ahall be $2,000.00 per ~IIJUUD,
to be paid aa the ralary of other aourt re-
porter8 are paid, out of t&s general fund or
the'aountp.’
HouseBillNo. 225,Chapter 4 Aotsof the 44th
amendlw Seotlon124 of
Iagle&ature, 199, Retieed
Artfole
Civil Statute8 oreated the One Hundredand I%?enty-fourth
Judlolal Dirtdot to be ooaetdtutml OS Gregg County, Texae,
only. It alro oreated a dlstriot oourt to be held in
Oregg County, Texas, to be oalled “the Speolal Dlrtrlot
COIU’tOf Gregg COO&J',TcUa8.”
The above mantloned aot oreatlne the Speolal
Dletriot coort ror oregg county Texas, conferm3d upon
fmld Speoial Pi&riot Court, and upon the judge theroof,
all of the right& power8 prl~ileges and dutle8 thatare
glmn by law to the dbtrfet oourte and the dlatrlat $~dgee
of thla State, and all law8 of the State of mxaa with re-
ferenor to the dlrtrlot oourto and dlatrlot j ea were
deemed equally applicable to the raid Special ‘ds:
D strlot
Court of oregg County, Texas, and the judgethereof.The
aot oreatln the above msatlonsd SpoolalDlstrlotCourt
did not llmft it8 jurl8dlotlon80 aa to prevent lt rrom
doinS anythfn2 whloh any otherdintrlat oourt oould do.
You are respeotful.ly advieed #at it la tlm
opinion of thb department that Gregg County alom ooneti-
tUtO8'frro jUUiCiti df8triOt8 tiiihh the aCab& Of A&iOld
2225b, 8upz-a. end that 8ald artlole applier to C&eggCountg*r
oourt roportera senlng la the One Hundredand Twenty-rot&h
Jullolal
DietriotCourta&l in the SpeolalDlrtrlotCourt
or 8Eid oounty and the 0rriddl aborthand nporter of each
aourt-la emtltlsd to the oompenoatlon protided in Artlole
2226b, aupra,
Truatfng that the roregoing fully anmen your
lnqulry, we remala
Yel’y’ tl'tIly yOUZ’8
ATTOFEEY OENERAL OF TEXAS
APPRCVSD:bfAR.l.S,194C
oeraldC. Mann BP
AttorneyGeneral0r,Tara8 A!!%%lUll8
h8i#taat
AWaAW
ApprmOd: .-
Oplalon Commlttpo.
mr m . . - | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288741/ | Fourth Court of Appeals
San Antonio, Texas
June 20, 2018
No. 04-16-00589-CR
Anthony George NELSON,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR2179
Honorable Steve Hilbig, Judge Presiding
ORDER
Appellant has filed a motion to vacate, challenging, again, his conviction. However, our
opinion and judgment in this appeal issued on June 11, 2017. A motion for rehearing was
therefore due fifteen days later, and a motion for extension of time to file the motion for
rehearing was due within fifteen days of the deadline for filing the motion for rehearing. See
TEX. R. APP. P. 49.1, 49.8. Because no timely motion for rehearing was filed, our plenary power
to change or modify our opinion and judgment expired sixty days after we issued our opinion
and judgment. See id. R. 19.1(a), 19.3. The motion for rehearing was not filed until June 14,
2018. We lack jurisdiction to consider the motion for rehearing. Accordingly, the motion for
rehearing is dismissed for want of jurisdiction. See Sanchez v. State, 376 S.W.3d 767, 769 (Tex.
Crim. App. 2012) (op. on reh’g) (dismissing out of time motion for rehearing for want of
jurisdiction).
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 20th day of June, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court | 01-03-2023 | 06-26-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4131187/ | The Attorney General of Texas
.JIM MAlTOX December 28. 1984
Worney General
;u~mexcooBulldln9 Mr. Philip F. Rickett 6 Opinion No. ~~-280
Chairman
A~&. TX. 78711. 254S Public Utility Comhsion of Texas Ret Whether section 6(i) of
51214752501 7800 Shoal Creek Boul.evard article 1446~. V.T.C.S.. pro-
~0IOX91olS7ClM7
Suites 400-450N hibits former members and
elecopier 5W475.0288
Austin, Texas 7875i’ employees of the Public Utility
Commission from serving a
‘14 Jackson, Suite 700 public utility as an outside
IalIas. TX. 75202-4506 consultant or attorney during
2141742.8944
the stated time period
~824 Alberta Ave.. Suite 180 Dear Chairman Rickettc;:
El Paso. TX. 799052793
915/533-3484 You ask the following question about section 6(i) of article
1446~. V.T.C.S.. the Public Utility Regulatory Act.
t Texas, SuIta 700
I ,ouston. TX. 77002.3111 Does s8zctlon 6(i) of the Public Utility
lU223aSS Regulatory Act, article 1446~. V.T.C.S.. prohibit
a member or employee of the Public Utility
Conusission from representing or performing work
808 Broadway. Suite 312
.ubbock, TX. 79401.3479
for a publ:Lc utility in the capacity of an outside
1W747.5239 consultant or attorney during the perfod of time
set forth ::u the section?
,309 N. Tenth. Suite S Section 6(i) of artic1.e 1446~. V.T.C.S., provides as follows:
u(cAllsn. TX. 79.50%1685
5121882.4547
(I) No commissioner shall within two years,
and no employee shall, within one year after his
200 Main Plaza. Suite 4W employment with the commission has ceased, be
San Antonio. TX. 78205-2797
amoloyed by a public utility which was in the
51212254191
scope of the commissioner’s or employee’s official
responsibi:l:ity while the conrmissioner or employee
An Equal Opportunity/ was sssocl.e:ted with the commission. (Emphasis
Alfirmative Action Employer added).
You specifically inquire whether the phrase “be employed by a public
utiliey” includes s,e:rving the utility as an outside consultant or
attorney.
Section 6(i) WILE;enacted by Senate Bill No. 232 of the Sixty-
eighth Legislature rMch amended the Public Utility Regulatory Act.
p. 1238
Mr. Philip F. Ricketts - Page :! (JM-280)
Acts 1983. 66th Leg., ch. 274. at 1270. The same enactment amended
section 6(b) which formerly prohibited Public Utility Commission
officer5 and employees from having “any pecuniary interest . . . in
any public utility or affiliated interest” while with the commission
and for two yaars thereafter. Acts 1975, 64th Leg., ch. 721. at 2331.
The 1983 amendment deleted the post-employment prohibition from
section 6(b), quoted below with the deleted language shown in
brackets.
(b) No commiss:toner or employee of the com-
mission may do any of the following during his
period of services with the coresission [and for
two years thereafter]:
(1) have any pecuniary interest, either as an
officer, director, partner, owner. employee,
attorney, consultant:, br otherwise, in any‘public
utility or affiliared interest, or in any person
or corporation or csher business entity a signifi-
cant portion of whose business consists of
furnishing goods or services to public utilities
or affiliated inte,cests. but not including a non-
profit group or association solely supported by
gratuitous contributions of money, property or
services. . . . (Hmphasis added).
Acts 1983, srrpra, at 1268.
Section 6(b)(l) prohibilx s current commissioner or employee from
having certain business rr!l.ationships with a public utility, an
affiliated interest, or a business entity, a significant portion of
whose business consists of Eurnishing goods or services to public
utilities or affiliated interests. Section 6(i) applies the post
employment restriction only to employment by a public utility within
the scope of the individual ‘5 official responsibility while with the
commission.
The conference committee report on Senate Bill No. 232 indicates
the legislature’s intent in enacting section 6(i). The House version
of the bill provided a new Wo-year rule for former PUC commissioners
only. The report stated as f,ollows:
Under this prorision. commissioners could not
go to work for a regulated utility for a period of
two years after the termination of employment with
the PVC. However, unlike current law. a commis-
sioner could go to work for an affiliated interest
or a firm that does substantial business with a
regulated utility 5.5 long as the commissioner was
p. 1239 .
.
Mr. Philip F. Ricketts - Page! 3 (JM-280)
not involved in suc'h transectjons for a period of
two years. (Emphal3:Lsadded).
The Senate version applied e one year prohibition to employers and a
two year prohibition to cosm~i,ssioners. administrative law judges, the
general counsel, or chief hearing examiner. The conference committee
combined the Senate and Aous8:
to restrict post employment of commissioners to
two years and employees to one year. Neither can
work for a public ,xtility. (Emphasis added).
The conference coarmittee report distinguishes between work for a
regulated utility. which is not permitted during the statutory post-
employment period, and work for an affiliated interest or a firm that
does substantial business w:.r:h a utility which is not so prohibited.
We believe this report exprc!c;ses the legislature's intent to continue
a broad prohibition against isork for a public utility while removing
the former prohibition against work for affiliated entities or
entities that contract with public utilities. In our opinion, the
section 6(i) restriction pr8~hibits a commissioner or employee of the
Public Utility Commission f:rom representing or performing work for a
public utility in the capacity of an outside consultant or attorney
during the statutory time period.
SUMMARY
Section 6(i) of article 1446~. V.T.C.S..
prohibits a former member or employee of the
Public Utility Ccmmission from serving a public
utility as an 'outside consultant or outside
attorney during c,h.e time period stated in that
provision.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney GeuPmral
I,AVID R. RICHARDS
Executive Assistant Attorne:r General
p. 1240
Mr. Philip P. Ricketts - Peg{, 4 (JM-280)
RlCK CILPIN
Chairman, Opinion Committee
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim ~oellinger
Jennifer Riggs
Nancy Sutton
p. 1241 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4174722/ | FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 6, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MICHAEL DAVIS BRYANT,
Petitioner-Appellant,
No. 16-1500
v. (D.C. No. 1:16-CV-01952-LTB)
(D. Colo.)
MOSES STANCIL, Acting Warden,
FCI Florence,
Respondent-Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
Mr. Michael Davis Bryant is a federal prisoner who sought habeas
relief under 28 U.S.C. § 2241. The district court dismissed for lack of
statutory jurisdiction, reasoning that Mr. Bryant had failed to show that the
remedy under 28 U.S.C. § 2255 was inadequate or ineffective. Mr. Bryant
*
We conclude that oral argument would not materially help us to
decide this appeal. As a result, we are deciding the appeal based on the
briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
appeals and seeks leave to proceed in forma pauperis. We affirm and grant
leave to proceed in forma pauperis.
The Unavailability of Relief Under § 2241
Mr. Bryant moved to vacate his sentence under 28 U.S.C. § 2255 in
the Eastern District of Washington, and the district court denied the
motion. Mr. Bryant then unsuccessfully asked the Ninth Circuit Court of
Appeals to allow the filing of a second or successive § 2255 motion.
Unable to file a second or successive § 2255 motion, Mr. Bryant
initiated the present case, filing a habeas petition under 28 U.S.C. § 2241
in the District of Colorado. The district court dismissed for lack of
statutory jurisdiction, concluding that Mr. Bryant had failed to demonstrate
that the remedy in § 2255 was inadequate or ineffective.
Mr. Bryant argues that his sentence should not have been enhanced
under the Armed Career Criminal Act. The sole issue is whether this
argument could be entertained through a habeas action under 28 U.S.C.
§ 2241. The district court answered “no,” reasoning that the sole remedy in
this case was a motion to vacate the sentence under 28 U.S.C. § 2255. We
agree.
The typical remedy for a challenge to the validity of a federal
sentence is vacatur under 28 U.S.C. § 2255. Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996). If this statutory remedy is otherwise available,
it would authorize vacatur of the sentence if it had been unconstitutional,
2
unlawful, or imposed without authority. 28 U.S.C. § 2255(a). But vacatur
of the sentence entails restrictions on timeliness and the filing of second or
successive motions. 28 U.S.C. § 2255(e)-(f), (h).
An alternative remedy is sometimes available through a habeas
petition under 28 U.S.C. § 2241. But § 2241 cannot ordinarily be used to
address the validity of a sentence because of the availability of a remedy
under § 2255. Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965) (per
curiam). An exception exists, allowing a prisoner to challenge the validity
of a sentence under § 2241 when the remedy in § 2255 is “inadequate or
ineffective to test the legality of his detention.” Prost v. Anderson, 636
F.3d 578, 584 (10th Cir. 2011) (quoting 28 U.S.C. § 2255(e)).
To determine whether the remedy in § 2255 is “inadequate or
ineffective,” the court focuses on “process” rather than “substance.” Id.
The test is whether the petitioner had an opportunity to present and argue
his claim under § 2255. Id. If the claim could have been presented in the
initial § 2255 motion, the remedy in § 2255 is neither inadequate nor
ineffective. Id.
Mr. Bryant makes three arguments:
1. He cannot file a second or successive § 2255 motion.
2. The Ninth Circuit Court of Appeals erred.
3. He did not realize the need to make certain claims until the
Ninth Circuit issued its decision.
We reject each argument.
3
First, Mr. Bryant argues that the remedy under § 2255 was
inadequate or ineffective because the Ninth Circuit would not permit him
to file a second or successive § 2255 motion. But his inability to file a
second § 2255 petition “does not establish that the remedy in § 2255 is
inadequate.” Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999).
Second, he argues that the Ninth Circuit erred on the merits. But,
even if true, a § 2255 remedy is not inadequate or ineffective “simply
because a court errs in rejecting a good argument.” Prost v. Anderson, 636
F.3d 578, 590 (10th Cir. 2011).
Finally, Mr. Bryant argues that he did not realize the need to present
certain arguments until he saw the Ninth Circuit’s opinion. But even if Mr.
Bryant had not realized the need to make an argument, he could have made
it. Thus, the remedy in § 2255 was not inadequate or ineffective. Id. at
589.
* * *
The district court correctly concluded that Mr. Bryant could not
obtain relief under § 2241. We therefore affirm.
4
Leave to Proceed in Forma Pauperis
Mr. Bryant also seeks leave to proceed in forma pauperis. The Court
grants this request.
Entered for the Court
Robert E. Bacharach
Circuit Judge
5 | 01-03-2023 | 06-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154042/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
ERVIN NOLT, ALT., : No. 11 MM 2017
:
Petitioner :
:
:
v. :
:
:
GARY MARTIN, KENNETH SCHEAFFER :
AND AMOS SEIDERS, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 20th day of March, 2017, the Application for Leave to File
Original Process is GRANTED, and the “Writ of Mandamus/Prohibition” is DENIED. | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150496/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-354V
Filed: February 8, 2017
* * * * * * * * * * * * * UNPUBLISHED
DUFHANE HYDE, Sr. as parent and legal *
representative of the estate of his son *
DUFHANE HYDE, Jr. deceased, *
*
Petitioner, * Special Master Gowen
*
v. * Joint Stipulation on Damages;
* Diphtheria, Tetanus, Acellular
SECRETARY OF HEALTH * Pertussis (“DTaP”);
AND HUMAN SERVICES, * Haemophilus Influenzae
* Type B (“Hib”); Inactivated Polio
Respondent. * (“IPV”); Encephalopathy; Death
*
* * * * * * * * * * * * *
Andrew P. Garza, Law Offices of Andrew P. Garza, L.L.C., Glastonbury, CT, for petitioner.
Voris E. Johnson, United States Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On March 18, 2016, Dufhane Hyde, Sr. (“petitioner”) filed a petition on behalf of his
deceased son, Dufhane Hyde, Jr., pursuant to the National Vaccine Injury Compensation
Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). Petitioner alleged that as a result of receiving
diphtheria, tetanus, acellular pertussis (“DTaP”), haemophilus influenzae type B (“Hib”), and
inactivated polio (“IPV”) vaccines on March 20, 2014, Dufhane Hyde, Jr., suffered a Table
encephalopathy and died on March 21, 2014, as a result of his vaccine-related injury. Petition at
1-2.
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
days within which to request redaction “of any information furnished by that party: (1) that is a trade
secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§
300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the
Vaccine Act are to 42 U.S.C.A. § 300aa.
1
On February 8, 2017, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation. The stipulation acknowledges that Dufhane, Jr.
sustained the first symptom or manifestation of the onset of an encephalopathy within the time
period set forth in the Vaccine Injury Table for the DTaP vaccine, and states that “[t]here is not a
preponderance of evidence that Dufhane, Jr.’s encephalopathy or death was due to factors
unrelated to the DTaP vaccine . . . [a]ccordingly petitioner is entitled to compensation under the
terms of the Vaccine Program.” Stipulation at ¶¶ 6-7. The parties agree to the joint stipulation,
attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as
the decision of the Court in awarding damages, on the terms set forth therein.
The parties stipulate that petitioner shall receive the following in compensation:
a. A lump sum of $360,000.00 in the form of a check payable to petitioner as legal
representative of the estate of Dufhane Hyde, Jr. This amount represents
compensation for all damages that would be available under 42 U.S.C. § 300aa-
15(a).
Id. at ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms
of the parties’ stipulation.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2 | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150580/ | United States Court of Appeals
for the Federal Circuit
______________________
INTELLECTUAL VENTURES I LLC,
INTELLECTUAL VENTURES II LLC,
Plaintiffs-Appellants
v.
ERIE INDEMNITY COMPANY, ERIE INSURANCE
EXCHANGE, ERIE INSURANCE PROPERTY &
CASUALTY COMPANY, ERIE INSURANCE
COMPANY, FLAGSHIP CITY INSURANCE
COMPANY, ERIE FAMILY LIFE INSURANCE
COMPANY, OLD REPUBLIC GENERAL
INSURANCE GROUP, INC., OLD REPUBLIC
INSURANCE COMPANY, OLD REPUBLIC TITLE
INSURANCE GROUP, INC., OLD REPUBLIC
NATIONAL TITLE INSURANCE COMPANY,
Defendants-Appellees
______________________
2016-1128, 2016-1132
______________________
Appeals from the United States District Court for the
Western District of Pennsylvania in Nos. 1:14-cv-00220-
MRH, 2:14-cv-01130-MRH, Judge Mark R. Hornak.
______________________
Decided: March 7, 2017
______________________
2 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
CHRISTIAN JOHN HURT, Nix Patterson & Roach LLP,
Dallas, TX, argued for plaintiffs-appellants. Also repre-
sented by DEREK TOD GILLILAND, Daingerfield, TX.
GREGORY H. LANTIER, Wilmer Cutler Pickering Hale
and Dorr LLP, Washington, DC, argued for defendants-
appellees Erie Indemnity Company, Erie Insurance
Exchange, Erie Insurance Property & Casualty Company,
Erie Insurance Company, Flagship City Insurance Com-
pany, Erie Family Life Insurance Company. Also repre-
sented by RICHARD ANTHONY CRUDO, JAMES QUARLES, III;
MONICA GREWAL, Boston, MA; DAVID CHARLES MARCUS,
Los Angeles, CA.
VERNON M. WINTERS, Sidley Austin LLP, San Fran-
cisco, CA, argued for defendants-appellees Old Republic
General Insurance Group, Inc., Old Republic Insurance
Company, Old Republic Title Insurance Group, Inc., Old
Republic National Title Insurance Company. Also repre-
sented by ALEXANDER DAVID BAXTER; ERIK JOHN CARLSON,
Los Angeles, CA; RUSSELL E. CASS, Chicago, IL.
______________________
Before PROST, Chief Judge, WALLACH and CHEN, Circuit
Judges.
PROST, Chief Judge.
Intellectual Ventures I LLC and Intellectual Ventures
II LLC (collectively, “IV”) appeal from a final decision of
the United States District Court for the Western District
of Pennsylvania finding all claims of U.S. Patent No.
6,510,434 (“’434 patent”), U.S. Patent No. 6,519,581 (“’581
patent”), and U.S. Patent No. 6,546,002 (“’002 patent”)
ineligible under 35 U.S.C. § 101, and dismissing IV’s
infringement claims of the ’581 patent for lack of stand-
ing. For the reasons discussed below, we affirm-in-part,
vacate-in-part, and remand-in-part.
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 3
I
IV sued Erie Indemnity Company, Erie Insurance Ex-
change; Erie Insurance Property & Casualty Company;
Erie Insurance Company; Flagship City Insurance Com-
pany; Erie Family Life Insurance Company (collectively,
“Erie”); Old Republic General Insurance Group, Inc.; Old
Republic Insurance Company; Old Republic Title Insur-
ance Group, Inc.; Old Republic National Title Insurance
Company; Highmark, Inc.; Hm Insurance Group, Inc.; Hm
Life Insurance Company; Highmark Casualty Insurance
Company; and Hm Casualty Insurance Company (collec-
tively, “Appellees”), alleging infringement of the ’581
patent, the ’434 patent, and the ’002 patent (collectively,
“patents-in-suit”) in the United States District Court for
the Western District of Pennsylvania. In response, Appel-
lees moved to dismiss IV’s ’581 patent infringement
claims under Rule 12(b)(1) for lack of standing. Appellees
also moved under Rule 12(b)(6), arguing that the claims of
the ’581, ’434, and ’002 patents are directed to ineligible
subject matter under 35 U.S.C § 101.
After concluding that IV did not own the rights to the
’581 patent, the district court granted Appellees’ motion
under 12(b)(1) for lack of standing. In reaching this
conclusion, the district court found that a particular
assignor did not assign any rights in or to the then-
pending application to the ’581 patent, thus breaking a
chain in ownership of the patent. J.A. 24. Moreover, the
district court dismissed IV’s infringement claims under
Rule 12(b)(6), finding that all claims of the three patents-
in-suit were ineligible under § 101. J.A. 77. In its appeal,
IV argues that the district court erred in dismissing its
claims under Rule 12(b)(1) and 12(b)(6). We have juris-
diction under 28 U.S.C. § 1295(a)(1).
II
On appeal, IV raises a number of issues regarding the
proceedings below: (1) IV appeals the district court’s
4 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
dismissal of its infringement claims of the ’581 patent for
lack of standing and its determination that the ’581
patent is directed to ineligible subject matter under § 101;
(2) IV appeals the district court’s determination that the
’434 patent is directed to ineligible subject matter under
§ 101; and (3) IV appeals the district court’s determina-
tion that the ’002 patent is directed to ineligible subject
matter under § 101. We take each issue in turn.
A
1
First, we consider the district court’s dismissal of IV’s
infringement claims under Rule 12(b)(1) as they relate to
the ’581 patent. Our review of the district court’s dismis-
sal for lack of standing under 12(b)(1) is de novo. Abbott
Point of Care Inc. v. Epocal, Inc., 666 F.3d 1299, 1302
(Fed. Cir. 2012). We apply state law to contractual dis-
putes and interpretations of the parties’ patent assign-
ment agreements. 1 Semitool, Inc. v. Dynamic Micro Sys.
1 We note that there are certain instances where
Federal Circuit law is intimately bound up in the contract
interpretation issue. For example, we have held that
“[t]he question of whether or not an agreement provides
for automatic assignment is a matter of federal [patent]
law.” SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d
1319, 1326 (Fed. Cir. 2010). “Although state law governs
the interpretation of contracts generally . . . the question
of whether a patent assignment clause creates an auto-
matic assignment or merely an obligation to assign is
intimately bound up with the question of standing in
patent cases. We have accordingly treated it as a matter
of federal law.” Abraxis Bioscience, Inc. v. Navinta LLC,
625 F.3d 1359, 1364 (Fed. Cir. 2010) (quoting DDB Techs.,
L.L.C. v. MLB Advanced Media, L.P., 517 F.3d 1284, 1290
(Fed. Cir. 2008); see Speedplay, Inc. v. Bebop, Inc., 211
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 5
Semiconductor Equip. GmbH, 444 F.3d 1337, 1341 (Fed.
Cir. 2006). For this particular dispute, California law
applies. See Erie Resp. Br. 6 (noting that the parties
executed the agreement underlying this matter in Cali-
fornia); Appellants’ Br. 18 (recognizing party agreement
that California law governs). Because contract interpre-
tation is a legal determination, the parties’ contract
dispute is reviewed without deference on appeal. Semi-
tool, 444 F.3d at 1341.
The ’581 patent issued from a continuation patent ap-
plication of U.S. Patent No. 6,236,983 (“’983 patent”). 2
After a series of assignments, the rights to the ’581 patent
(then, a pending application) and the ’983 patent were
assigned to AllAdvantage.com. J.A. 837–54. This as-
signment agreement expressly assigned the ’983 patent
and any continuation of that patent to AllAdvantage.com.
The parties do not dispute that this assignment covered
the then-pending application to the ’581 patent and that
AllAdvantage.com owned both that application and its
parent (the ’983 patent) upon execution of this agreement.
See, e.g., Erie Resp. Br. 5–6. Less than six months later,
F.3d 1245, 1253 (Fed. Cir. 2000) (stating that while the
ownership of patent rights is typically a question exclu-
sively for state courts, the question of whether contractual
language effects a present assignment of patent rights, or
an agreement to assign rights in the future, is resolved by
Federal Circuit law). As explained below, however, IV
has not persuaded us that this case implicates such
exceptions and indeed, admitted that California law
governs the contract interpretation inquiry. Accordingly,
we analyze the contract interpretation issue under Cali-
fornia law.
2 Because we do not reach the issue of patent-
eligibility of the ’581 patent, we did not include a sum-
mary of the technology of the patent in this opinion.
6 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
AllAdvantage.com assigned various patents (including the
’983 patent) and certain pending applications to Alset.
J.A. 805–06 (“the Alset Agreement”). Although this
agreement expressly identified the various patents and
pending applications subject to assignment—including
the ’983 patent and several of its pending foreign patent
application counterparts—it did not explicitly list the ’581
patent’s then-pending application. Id.
In addition to its express identification and assign-
ment of particular assets, this agreement included a more
general grant clause: “Assignor, does hereby assign unto
Assignee, all right, including common law rights, title and
interest in the United States of America . . . in and to said
patents together with the goodwill of the business symbol-
ized by said patents and applications and registrations
thereof.” J.A. 806. Approximately one year after the
execution of this agreement, the U.S. Patent and Trade-
mark Office (“PTO”) issued the ’581 patent. Several years
later, Alset assigned the ’581 patent to an IV entity that
later recorded that assignment with the PTO. J.A. 862–
64. In light of this framework, the district court held that
Alset did not convey title to the ’581 patent. J.A. 24. We
conclude that the Alset Agreement did not include an
assignment of rights to the ’581 patent and therefore
affirm the district court’s Rule 12(b)(1) dismissal on that
ground.
Under Title 35, only patentees and their successors in
title to a patent may bring an action for infringement. 35
U.S.C. §§ 261, 281. IV argues that although the Alset
Agreement did not expressly identify the ’581 patent’s
then-pending application, the agreement transferred title
because the parties intended for the assignment to cover
this asset. To demonstrate intent, IV identifies two
portions of the agreement’s general grant clause it be-
lieves support its positon (reproduced below with empha-
sis added to the two areas of IV’s focus): “Assignor, does
hereby assign unto Assignee, all right, including common
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 7
law rights, title and interest in the United States of
America . . . in and to said patents together with the
goodwill of the business symbolized by said patents and
applications and registrations thereof.” J.A. 806. Specifi-
cally, IV argues that the “in and to said patents” and
“goodwill of the business symbolized by said patents”
portions of this clause each—individually and inde-
pendently—support its position. We disagree.
Under California law, “[a] contract must be so inter-
preted as to give effect to the mutual intention of the
parties as it existed at the time of contracting, so far as
the same is ascertainable and lawful.” Cal. Civ. Code
§ 1636 (West 2016). “The language of a contract is to
govern its interpretation, if the language is clear and
explicit, and does not involve an absurdity.” Id. § 1638.
When (as here) “a contract is reduced to writing, the
intention of the parties is to be ascertained from the
writing alone, if possible.” Id. § 1639. A court also may
consider evidence extrinsic to a contract under certain
circumstances. See, e.g., Wolf v. Superior Court, 8 Cal.
Rptr. 3d 649, 656 (Cal. Ct. App. 2004) (citing the Califor-
nia Supreme Court).
At the outset, first we must determine whether and to
what extent the parties’ extrinsic evidence affects the
meaning of these two portions of this clause. “Where the
meaning of the words used in a contract is disputed, the
. . . court must provisionally receive any proffered extrin-
sic evidence which is relevant to show whether the con-
tract is reasonably susceptible of a particular meaning.”
Id. at 655 (citation and internal quotation marks omitted)
(citing the California Supreme Court). Thus, contract
interpretation under California law is a two-step process.
“First the court provisionally receives (without actually
admitting) all credible evidence concerning the parties’
intentions to determine ‘ambiguity,’ i.e., whether the
language is ‘reasonably susceptible’ to the interpretation
urged by a party.” Id. at 656 (citation omitted). “If in
8 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
light of the extrinsic evidence the court decides the lan-
guage is ‘reasonably susceptible’ to the interpretation
urged, the extrinsic evidence is then admitted to aid in
the second step—interpreting the contract.” Id. (citation
omitted).
IV identifies extrinsic evidence that it contends
shapes the meaning of the “in and to” and the “goodwill of
the business symbolized” language and demonstrates that
the parties originally intended to assign the ’581 patent.
Specifically, IV observes that upon execution, Alset rec-
orded the assignment at the PTO and represented in its
terminal disclaimer that it owned all the rights to the ’581
patent. Moreover, IV notes that Alset filed updated power
of attorneys and paid the ’581 patent’s issuance fee.
Upon provisional consideration of the extrinsic evi-
dence IV proffered, we agree with the district court’s
conclusion that there is no ambiguity within the Alset
Agreement that could render it reasonably susceptible to
IV’s interpretation. The assignment itself expressly listed
the seventeen patents and applications that the parties
intended to transfer, with clear language that conveyed
the rights, “in and to,” and “goodwill of the business
symbolized by,” those explicitly identified assets.
J.A. 806. In the context of this agreement, IV’s proffered
evidence neither resolves any ambiguity nor shapes the
meaning of the words contained within the general grant
clause. Although this evidence may lead one to reasona-
bly conclude that Alset believed it owned the ’581 patent
at some later point in time, it would be error for us to
rewrite the parties’ agreement to include that which was
plainly not included. Indeed,
[i]f the plain language of the instrument is unam-
biguous, a court may not “read into” the document
additional terms in order to conform its meaning
to what the court’s “intuition” tells it the parties
must have intended. Rather, the court “is simply
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 9
to ascertain and declare what is in terms or in
substance contained therein, not to insert what
has been omitted, or to omit what has been in-
serted . . . .”
PV Little Italy, LLC v. MetroWork Condo. Assn., 210 Cal.
App. 4th 132, 135 (2012) (citing Cal. Civ. Proc. Code
§ 1858 (West 2016)). Taken together, the Alset Agree-
ment is not reasonably susceptible to IV’s proffered inter-
pretation and, thus, we need not consider the extrinsic
evidence advanced by IV. 3 See Producers Dairy Delivery
Co. v. Sentry Ins. Co., 718 P.2d 920, 925 (Cal. 1986)
(explaining that a court should not consider extrinsic
evidence “if the evidence offered would not persuade a
reasonable man that the instrument meant anything
other than the ordinary meaning of its words” (alterna-
tions, citation, and internal quotation marks omitted)).
Because we conclude that IV’s extrinsic evidence does not
lend this clause reasonably susceptible to IV’s interpreta-
tions, we move to IV’s two specific arguments applying a
plain meaning interpretation to the contract. See Wolf,
114 Cal. App. 4th at 1356.
First, regarding “in and to said patents,” IV argues
that the agreement automatically incorporated rights to
3 Even if we considered the extrinsic evidence, we
agree with the district court that the evidence “speaks to
Alset’s belief in its ownership” of the ’581 patent and
Alset’s actions holding “itself out as the owner of the ’581
patent after executing the Alset Agreement,” but it says
nothing about “AllAdvantage’s intent aside from its
decision to do nothing to assert further ownership inter-
est.” IV, 134 F. Supp. 3d at 894. Indeed, some of the
extrinsic evidence demonstrates that, when the other
parties in the chain-of-title wanted to assign continuation
applications like the application leading to the ’581 pa-
tent, they knew how to do so. See id.
10 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
the then-pending ’581 application because as a continua-
tion, it is necessarily bound to the same inventive subject
matter of its parent. IV predicates its argument on the
patents’ familial relationship because the grant clause
conveyed rights “in and to” the subject matter of the
parent patent (not simply just title to it). We conclude
that the “in and to said patents” language does not sup-
port IV’s position. Patents, applications for patents, or
any interest therein, must be assigned by an instrument
in writing. 35 U.S.C. § 261. In assigning ownership
rights here, the parties limited their written instrument
to the seventeen patents and applications expressly listed
in that agreement. J.A. 805–06 (including the ’983 pa-
tent, but not the then-pending ’581 patent’s application).
It does not mention either the application that led to the
’581 patent or the ’581 patent itself, J.A. 805–06, a point
that IV concedes, Appellants’ Br. 22. It does not disclose
that continuation applications or other family members of
the enumerated patents are assigned. J.A. 805–06. That
several patent applications appear in the Alset Agree-
ment suggests that, if AllAdvantage intended to convey
the application leading to the ’581 patent to Alset, it knew
how to do so.
Turning to the broader language of the agreement, IV
has not demonstrated that the rights “in and to” a partic-
ular patent automatically include its child applications.
Rather, IV seems to conflate the meaning of the word
“patent,” as used in the agreement, with “invention”; the
latter which we held conveyed rights to continuation
applications. See DDB Techs., 517 F.3d at 1290. Thus,
this language did not convey any rights, and a conclusion
otherwise would directly conflict with the plain language
of the agreement. For example, if the “in and to said
patents” language automatically conveyed the rights to all
applications within the family of those expressly identi-
fied, the agreement need not list the ’983 patent’s foreign
counterpart applications either. But as Erie correctly
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 11
observes, the agreement listed three of the ’983 patent’s
foreign applications. J.A. 805; Erie Resp. Br. 31. The
agreement did not, however, list the then-pending ’581
patent application. J.A. 805–06. We thus conclude that
the “in and to said patents” language did not convey any
rights to the ’581 patent.
Second, regarding the “goodwill of the business sym-
bolized by said patents and applications” portion of the
agreement, IV argues the goodwill assigned here includes
the right to commercialize or license the patented inven-
tion through the expiration of the ’983 patent as part of
its patent monopoly. To support this contention, IV refers
again to the terminal disclaimer Alset filed and cites Scott
Paper Co. v. Marcalus Manufacturing Co., 326 U.S. 249
(1945). IV relies on this case to support its position that
the exclusion of the ’581 patent would necessarily devalue
this goodwill if it were unable to commercialize the inven-
tion without risk of infringing the ’581 patent. IV main-
tains if legal title to the common inventive subject matter
were severed, Alset could not receive the goodwill relating
to the enjoyment of the patent monopoly in the ’983
patent unless it received rights to the ’581 patent as well.
Similar to the “in and to said patents” portion dis-
cussed above, we conclude that the agreement’s “goodwill
of the business symbolized by said patents and applica-
tions” portion did not transfer title to the ’581 patent as
well. IV largely predicates its arguments on the assump-
tion that the agreement assigned the goodwill of the ’983
patent itself. It did not. Rather, the plain language of the
agreement assigned the “goodwill of the business symbol-
ized by [the ’983 patent].” J.A. 806 (emphasis added). At
best, this portion of the Alset Agreement assigned the
goodwill of the resulting commercial exploitation of the
patent. Indeed, IV’s citation to Scott Paper actually
supports the conclusion that goodwill is something other
than the patent instrument itself. In that case, the Su-
preme Court referred to the goodwill in the context of “the
12 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
patented article or product.” Scott Paper, 326 U.S. at 256.
In other words, goodwill here refers to the goodwill result-
ing from the commercial exploitation of the products
covered by the ’983 patent. But IV’s commercial exploita-
tion of the ’983 patent bears no relevance to the ’581
patent instrument itself. Because goodwill cannot sweep
in patents not expressly listed in the parties’ agreement,
this portion of the grant clause did not transfer any rights
in the ’581 patent either. 4
Because we conclude that the Alset Agreement did not
convey any rights to the ’581 patent, IV lacked standing to
bring suit on that patent. Accordingly, we affirm the
district court’s Rule 12(b)(1) dismissal for lack of stand-
ing.
2
In addition to finding that IV lacked standing to as-
sert infringement of the ’581 patent against Erie and Old
Republic, the district court concluded that the ’581 patent
is directed to an abstract idea and otherwise lacks an
inventive concept, such that it is patent-ineligible under
§ 101. See IV, 134 F. Supp. 3d at 909–17. We must
vacate this aspect of the district court’s decision.
Because IV lacks standing to assert infringement of
the ’581 patent, we may not address that patent’s validity
under § 101. When the party that filed suit is not the
“patentee” under § 281 and otherwise fails to join the
patentee to the suit, we dismiss all claims based on the
subject patent. See, e.g., Diamond Coating Techs., LLC v.
4 Because we do not subscribe to IV’s interpretation
of the assignment, i.e., assigning goodwill to the patent
instrument itself, we express no opinion as to whether the
assignment of goodwill of a patent itself would have been
effective in transferring the rights to the parent’s uniden-
tified child application.
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 13
Hyundai Motor Am., 823 F.3d 615, 618–19 (Fed. Cir.
2016). And when the patentee has not joined the action,
we may not consider the merits of an affirmative defense
directed to the patent in question, such as patent-
eligibility under § 101. See, e.g., Bd. of Trs. of Leland
Stanford Junior Univ. v. Roche Molecular Sys., Inc., 583
F.3d 832, 848–49 (Fed. Cir. 2009) (“Stanford . . . lacks
standing to assert its claims of infringement . . . . Thus,
the district court lacked jurisdiction over Stanford’s
infringement claim and should not have addressed the
validity of the patents. . . . The district court’s grant of
summary judgment of invalidity is therefore vacated, and
the case is remanded with instructions to dismiss Stan-
ford’s claim for lack of standing.” (citation omitted)).
Without the patentee joining suit, courts may not make
findings about the ’581 patent against which the patentee
has had no opportunity to defend. We therefore vacate
the district court’s summary judgment order of invalidity
as to this patent and remand with instructions to dismiss
all claims based on the ’581 patent.
B
Next, IV appeals the district court’s dismissal of its
patent infringement claims relating to the ’434 patent for
reciting ineligible subject matter under § 101.
We review the district court’s dismissal under Rule
12(b)(6) according to the law of the regional circuit.
Content Extraction & Transmission LLC v. Wells Fargo
Bank, Nat’l Assn., 776 F.3d 1343, 1346 (Fed. Cir. 2014).
The Third Circuit applies a de novo standard of review to
motions to dismiss under Rule 12. Sands v. McCormick,
502 F.3d 263, 267 (3d Cir. 2007). Patent eligibility under
§ 101 is an issue of law to which we review without defer-
ence. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d
1359, 1362 (Fed. Cir. 2015).
Section 101 of the Patent Act defines patent-eligible
subject matter: “Whoever invents or discovers any new
14 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
and useful process, machine, manufacture, or composition
of matter, or any new and useful improvement thereof,
may obtain a patent therefore, subject to the conditions
and requirements of this title.” 35 U.S.C. § 101. In
interpreting this statutory provision, the Supreme Court
has held that its broad language is subject to an implicit
exception for “laws of nature, natural phenomena, and
abstract ideas,” which are not patentable. Alice Corp. v.
CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014).
To determine whether the exception applies, the Su-
preme Court has set forth a two-step inquiry. Specifical-
ly, a court must determine: (1) whether the claim is
directed to a patent-ineligible concept, i.e., a law of na-
ture, a natural phenomenon, or an abstract idea; and if so,
(2) whether the elements of the claim, considered “both
individually and ‘as an ordered combination,’” add enough
to “‘transform the nature of the claim’ into a patent-
eligible application.” Id. (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1297–98
(2012)). Applying this two-step process to claims chal-
lenged under the abstract idea exception, we typically
refer to step one as the “abstract idea” step and step two
as the “inventive concept” step. Affinity Labs of Tex., LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016).
Under the “abstract idea” step we must evaluate “the
‘focus of the claimed advance over the prior art’ to deter-
mine if the claim’s ‘character as a whole’ is directed to
excluded subject matter.” Id. (citation omitted). If the
concept is directed to a patent-ineligible concept, we
proceed to the “inventive concept” step. For that step we
must “look with more specificity at what the claim ele-
ments add, in order to determine ‘whether they identify
an “inventive concept” in the application of the ineligible
subject matter’ to which the claim is directed.” Id. at
1258 (quoting Elec. Power Grp. v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016)).
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 15
Turning to the invention, the ’434 patent contains
twenty-eight claims relating to methods and apparatuses
that use an index to locate desired information in a com-
puter database. According to the patent, prior art data-
base searching methods were inefficient and often
returned many false positives. ’434 patent col. 1 ll. 40–44.
The patent explains that a prior art database search for
records containing the term “Ford,” for example, may
return hits related to the Ford Company, Ford Theatre
and the Ford brand of trucks. Thus, a searcher interested
only in information related to Ford trucks would need to
sift through a potentially large number of false hits to
locate the desired information.
The ’434 patent proposes to search the database using
an index, which “is essentially a guide to the records of
the database.” Id. at col. 2 ll. 39–41. According to the
’434 patent, every record in the database is associated
with one or more descriptive terms. For example, a
database record for a restaurant that serves Chinese food,
accepts AMERICAN EXPRESS and offers valet parking
could be associated with the terms “Chinese,”
“AMERICAN EXPRESS,” and “valet parking.” Id. at col.
7 ll. 46–55. The database index in turn organizes this
information using a series of “tags,” notably category tags
and domain tags. The “category” tags comprise a group-
ing of similar terms. For example, a “Cuisine” category
tag could include the terms “Chinese,” “Mexican,” and
“American.” And the “domain” tags describe a grouping of
similar categories. A “Restaurant” domain tag could
include categories such as the “Cuisine” category, as well
as other categories relevant to Restaurants, such as
“Payment Option” and “Amenities.” Each record in the
database includes an index component that identifies the
category and domain tags associated with that record. In
the preferred embodiment, each tag is written in the well-
16 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
known eXtensible Markup Language (XML). 5 Id. at col. 9
ll. 14–17. Each tag also has an associated metafile that
provides additional information about the tag, such as its
relationship to other tags and its place in the index’s
hierarchical structure.
When the system receives a search request, a set of
tags that corresponds to the request is somehow identified
by the system. And the system uses that set of tags to
search for records that have an index component identify-
ing the same set of tags. In other words, if the user
looking for a restaurant searches for “American with valet
parking,” the claimed system would identify and return
database records having both “Cuisine” and “Amenities”
tags in their associated index component. If those tags
have associated metafiles, the system may utilize the
available metadata to help refine the search. The system
may, for example, determine that the term “American” is
also associated with other category tags, such as “Brand,”
“Language,” and the like. The system may then attempt
to resolve the ambiguity by querying the user to choose
cuisine or brand before returning the database records.
IV identifies independent claims 1 and 19 as exempla-
ry methods of creating and searching a database, respec-
tively. Claim 1 provides:
1. A method for creating a database and an index
to search the database, comprising the steps of:
creating the index by defining a plurality of XML
tags including domain tags and category tags;
5 We provide a more detailed summary of XML in
our opinion in the companion appeal. Intellectual Ven-
tures I LLC v. Capital One Financial Corp., Nos. 2016-
1077, slip op. at 10–11 (Fed. Cir. March 7, 2017).
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 17
creating a first metafile that corresponds to a first
domain tag;
and creating the database by providing a plurality
of records, each record having an XML index com-
ponent.
Id. at col. 15 ll. 38–45. Claim 19 provides:
19. A method for searching a database of infor-
mation, comprising the steps of:
receiving a request for information from a client,
the request having a first term;
identifying a first XML tag that is associated with
the first term;
determining whether a first metafile corresponds
to the first XML tag;
if the first metafile corresponds to the first XML
tag, then transmitting the first XML tag, the first
metafile and query code to the client;
once the client conducts a query by executing the
query code using the first XML tag and the first
metafile, then receiving query results including a
first set of XML tags from the client;
combining the first set of XML tags into a key;
using the key to search the database to locate rec-
ords including the first set of XML tags; and de-
livering the records.
Id. at col. 17 ll. 43–63. Thus, IV contends “[t]he heart of
the ’434 patent is improved computer database search
technology that utilizes an index constru[ct]ed of tags and
metadata to facilitate searches.” Appellants’ Br. 46–47.
18 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
1
Under step one, we agree with the district court that
the invention is drawn to the abstract idea of “creating an
index and using that index to search for and retrieve
data.” J.A. 63. As the patent itself observes, the inven-
tion relates to “locating information in a database, and . . .
using an index that includes tags and metafiles to locate
the desired information.” Id. at col. 1 ll. 24–26. This type
of activity, i.e., organizing and accessing records through
the creation of an index-searchable database, includes
longstanding conduct that existed well before the advent
of computers and the Internet. For example, a hardcopy-
based classification system (such as library-indexing
system) employs a similar concept as the one recited by
the ’434 patent. There, classifiers organize and cross-
reference information and resources (such as books,
magazines, or the like) by certain identifiable tags, e.g.,
title, author, subject. Here, tags are similarly used to
identify, organize, and locate the desired resource.
We have previously held other patent claims ineligible
for reciting similar abstract concepts that merely collect,
classify, or otherwise filter data. For example, in In re
TLI Communications LLC Patent Litigation, we conclud-
ed that the concept of classifying data (an image) and
storing it based on its classification is abstract under step
one. 823 F.3d 607, 611 (Fed. Cir. 2016). In Content
Extraction, we similarly held that the concept of data
collection, recognition, and storage abstract as well. 776
F.3d at 1347. More recently, in Bascom Global Internet
Services, Inc. v. AT&T Mobility LLC, we held that a claim
to a “content filtering system for filtering content re-
trieved from an Internet computer network” was directed
to an abstract idea. 827 F.3d 1341, 1348–49 (Fed. Cir.
2016). Here, the claimed creation of an index used to
search and retrieve information stored in a database is
similarly abstract.
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 19
IV argues that the claims of the ’434 patent are drawn
to a specific search architecture that improves how com-
puter databases function, just like the self-referential
table claims at issue in Enfish, LLC v. Microsoft Corp. 822
F.3d 1327 (Fed. Cir. 2016). In support of its argument, IV
relies heavily on the fact that many of the claims, includ-
ing representative claims 1 and 19, are directed expressly
to building an index using XML tags. IV’s reliance on this
known markup language to tether the claimed invention
to a specific type of database architecture, however, is
unavailing. As an initial matter, not all claims recite
these XML tags. Independent claim 7, for example,
recites a method of searching a database of records using
an index without the need for this XML-based tag. ’434
patent col. 16 ll. 10–23. And the patent itself recognizes
that the invention is not necessarily limited to XML
language. See id. at col. 15 ll. 19–23 (“Although the
present invention has been described in connection with
the XML language, those skilled in the art will realize
that the invention can also be practiced using other
languages that use tags and support the association of a
file . . . .”).
Moreover, even if all the claims were so limited, mere-
ly using XML tags—as opposed to other kinds of tags—to
build an index is still abstract. The claims are not focused
on how usage of the XML tags alters the database in a
way that leads to an improvement in the technology of
computer databases, as in Enfish. Instead, the claims
simply call for XML-specific tags in the index without any
further detail. The patent concedes that the XML tags
were previously known in the art. Id. at col. 8 l. 67–col. 9
l. 4 (observing that “XML is a syntax for creating a
markup language that uses a set of tags” that comprises a
standard that is maintained by the World Wide Web
Consortium). The focus of the claims, therefore, remains
at a high level on searching a database using an index.
20 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
The inclusion of XML tags as the chosen index building
block, with little more, does not change that conclusion.
Because we agree with the district court that the
heart of the claimed invention lies in creating and using
an index to search for and retrieve data, we conclude that
the claims here are directed to an abstract concept under
Alice and its progeny and, thus, move to step two.
2
In applying step two of the Alice analysis, we must
“determine whether the claims do significantly more than
simply describe [the] abstract method” and thus trans-
form the abstract idea into patentable subject matter.
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed.
Cir. 2014). We look to see whether there are any “addi-
tional features” in the claims that constitute an “inventive
concept,” thereby rendering the claims eligible for patent-
ing even if they are directed to an abstract idea. Alice,
134 S. Ct. at 2357. Those “additional features” must be
more than “well-understood, routine, conventional activi-
ty.” Mayo, 132 S. Ct. at 1298.
Evaluating the representative claims 1 and 19, we
agree with the district court that they lack an “inventive
concept” that transforms the abstract idea of creating an
index and using that index to search for and retrieve data
into a patent-eligible application of that abstract idea.
J.A. 66–67. IV again argues that the claimed contribution
lies in the utilization of an index constructed of specific
XML tags and metadata to facilitate searches. But the
recitation of an index employing XML tags to navigate a
computerized database is simply not enough to transform
the patent-ineligible abstract idea here into a patent-
eligible invention. See Alice, 134 S. Ct. at 2357 (“[C]laims,
which merely require generic computer implementation,
fail to transform [an] abstract idea into a patent-eligible
invention.”).
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 21
The patent admits that an index is simply “a guide
that is used to locate information stored in a database.”
’434 patent col. 2 ll. 39–41. Furthermore, we fail to see
how the patentee’s use of a well-known tag, i.e., XML
tag—to form an index—sufficiently transforms the claims
into a patent eligible invention. While limiting the index
to XML tags certainly narrows the scope of the claims, in
this instance, it is simply akin to limiting an abstract idea
to one field of use or adding token post solution compo-
nents that do not convert the otherwise ineligible concept
into an inventive concept. See Bilski v. Kappos, 561 U.S.
593, 612 (2010). Similarly, the metafiles associated with
these tags do not transform the claim into something
beyond a conventional computer practice for facilitating
searches. Indeed, the ’434 patent describes these meta-
files as mere indicators that provide additional infor-
mation about the tags hierarchical structure in the index.
Id. at col. 2 ll. 60–62. The use of metafiles to build the
claimed index is yet another natural consequence of
carrying out the abstract idea in a computing environ-
ment and is, therefore, also insufficient to transform a
patent-ineligible abstract idea into a patent-eligible
invention. In this case, the claims do not sufficiently
recite how the inclusion of XML tags or metadata leads to
an improvement in computer database technology
through some “non-conventional and non-generic ar-
rangement of known, conventional pieces.” Bascom, 827
F.3d at 1349–52.
Moreover, the remaining limitations recite routine
computer functions, such as the sending and receiving
information to execute the database search, e.g., receiving
a request for information and delivering records. These
are no more than the “performance of ‘well-understood,
routine, [and] conventional activities previously known to
the industry.’” Content Extraction, 776 F.3d at 1347–48
(citation omitted). Thus, while the claims necessarily
cabin the idea of categorical data search and retrieval to a
22 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
computer environment, the claimed computer functionali-
ty can only be described as generic or conventional.
Accordingly, evaluating these claimed elements either
individually or as an ordered combination, we conclude
that claimed steps recite no more than routine steps
involving generic computer components and conventional
computer data processing activities to accomplish the
well-known concept of creating an index and using that
index to search for and retrieve data.
C
Third, and finally, IV appeals the district court’s dis-
missal of IV’s claims relating to the ’002 patent for recit-
ing ineligible subject matter under § 101.
The ’002 patent contains forty-nine claims relating to
systems and methods for accessing a user’s remotely
stored data and files. The inventor of the ’002 patent
perceived a need to improve the accessibility of data
stored across a user’s disparate electronic devices. The
specification explains “[i]t is not uncommon for many
users to have multiple computers, PDAs, and other com-
puter-related devices. Each individual computer or PDA
may include specific menu items and bookmarks that do
not exist in another computer or PDA.” ’002 patent col. 2
ll. 35–40. “For example, a computer used at work may be
the only device that includes a spreadsheet program while
a computer used at home may be the only device that
includes bookmarked URLs. Thus, the user will not have
access to the bookmarks from the user’s work computer
and likewise, will not have access to the spreadsheet
program from the user’s home computer.” Id. at col. 2
ll. 40–46.
To solve this problem, the ’002 patent discloses a “mo-
bile interface” that can be called up on the user’s comput-
er or mobile device. That mobile interface displays a
plurality of pointers to user-specific resources and infor-
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 23
mation stored on the user’s various devices. These point-
ers, “similar to bookmarks used in web browsers,” ’002
patent at col. 8 l. 34, purportedly allow the user to re-
trieve and access remotely stored documents, applica-
tions, images and the like, irrespective of the user’s
location or device. 6 Claim 40 is representative:
40. A system for storing and accessing user specif-
ic resources and information, the system compris-
ing:
a network for accessing the user specific resources
and information stored in a network server;
and a local device communicating with the net-
work and having a local memory and a mobile in-
terface, wherein the local memory also includes
user specific resources and information, and the
mobile interface includes pointers corresponding
to the user specific resources and information that
are stored either on the local device or the net-
work server, wherein the pointers provide links to
access the corresponding user specific resources
and information.
Id. at col. 19 l. 47–col. 20 l. 6. In other words, the claimed
invention is directed to a “mobile interface” on a user’s
device that is capable of accessing the user’s data stored
anywhere, whether on the user’s device or elsewhere on a
remote network server.
6 Broadly speaking, in object-oriented program-
ming, pointers are objects that point to a particular value
stored in memory by referencing its memory address. In
the context of the invention, a pointer includes a reference
to a type of menu item that a system can access on a
computer, handheld device, or a server. ’002 patent
col. 1 ll. 36–38.
24 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
1
In analyzing the claims under step one, the district
court determined that the invention is drawn to the idea
of “remotely accessing user specific information.” J.A. 72.
We agree with this conclusion. As the patent itself ob-
serves, the invention provides “a system and method that
allows a user to access specific documents, files, programs
. . . from any computer device located in a geographic
location.” ’002 patent col. 3 l. 66–col. 4 l. 4. Remotely
accessing and retrieving user-specified information is an
age-old practice that existed well before the advent of
computers and the Internet.
IV argues that the claimed mobile interface is a par-
ticular software-driven machine that performs specific
operations to solve a problem unique to the field of com-
puter networks. Yet the claimed invention does not recite
any particular unique delivery of information through this
mobile interface. Rather, it merely recites retrieving the
information through the mobile interface. Nor do the
claims describe how the mobile interface communicates
with other devices or any attributes of the mobile inter-
face, aside from its broadly recited function. Thus, the
mobile interface here does little more than provide a
generic technological environment to allow users to access
information. And as we have previously observed, “[a]n
abstract idea does not become nonabstract by limiting the
invention to a particular field of use or technological
environment, such as the Internet.” Intellectual Ventures
I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1366
(Fed. Cir. 2015) (“Intellectual Ventures I”). We conclude
therefore that the ’002 patent’s concept of remotely ac-
cessing user-specific information is abstract, and thus
fails under step one.
2
Under step two, we conclude that the claims recite no
“inventive concept” to transform the abstract idea of
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 25
remotely accessing user-specific information into a patent
eligible application of that abstract idea. Rather, the
claims merely recite generic, computer implementations
of the abstract idea itself.
IV places great emphasis on the claims’ recitation of a
mobile interface and its associated pointers. IV argues
that the ’002 patent overrides the routine use of pointers,
e.g., in the context of a local system, by intelligently
accessing and combining them through the mobile inter-
face to retrieve remotely-stored data. See, e.g., Appel-
lants’ Br. 62 (“All of the claims are limited to a specific
use of multiple pointers to retrieve the user-specific data
via a mobile interface in a network with a server and local
de[v]ice.”). According to IV, this provides users with
access to their files and data from any location irrespec-
tive of the device used.
We, however, conclude that the claims do not suffi-
ciently recite an inventive concept that transforms the
abstract idea into a patent-eligible invention. The recited
use of a mobile interface and pointers to retrieve user
information evidences nothing more than a “generic
computer implementation” of the abstract idea that is
insufficient to transform a patent-ineligible abstract idea
into a patent-eligible invention. Alice, 134 S. Ct. at 2357.
The ’002 patent does not provide an inventive solution to
a problem in implementing the idea of retrieving user-
specified information; it simply recites that the abstract
idea will be implemented using the conventional compo-
nents and functions generic to electronic mobile devices.
These recited features are simply “conventional steps,
specified at a high level of generality.” Ultramerical, 772
F.3d at 716 (citation omitted).
The claimed mobile interface is so lacking in imple-
mentation details that it amounts to merely a generic
component (software, hardware, or firmware) that per-
mits the performance of the abstract idea, i.e., to retrieve
26 INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO.
the user-specific resources. Further, this interface pro-
vides no more than similar user interfaces recited in
claims that we have previously held ineligible. See, e.g.,
Intellectual Ventures I, 792 F.3d at 1369–70; Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343,
1344–45, 1348–49 (Fed. Cir. 2015). As in those cases, the
’002 patent’s interface merely provides a generic, func-
tionally recited component “tasked with tailoring infor-
mation and providing it to the user.” Intellectual Ventures
I at 1370–71. And the mobile interface’s incorporation of
pointers is not sufficient to transform the abstract concept
either. The mobile interface relies on these pointers to
retrieve user resources and information over the network
so that a user may view them. But receiving transmitted
data over a network and displaying it to a user merely
implicates purely conventional activities that are the
“most basic functions of a computer.” Alice, 134 S. Ct. at
2359. As the ’002 patent observes, pointers themselves
are conventional, as is the manner in which the claims
employ them in conjunction with the mobile interface.
’002 patent col. 1 ll. 34–38.
Finally, we find unconvincing IV’s argument that the
claimed mobile interface and pointers carry out more than
their routine functions because they allow users to re-
trieve previously inaccessible information, regardless of
location or format. Nowhere do the claims recite elements
or components that describe how the invention overcomes
these compatibility issues. Although the patent itself
describes in general terms the ability to access user-
specific resource and information from any computer, e.g.,
’002 patent col. 3 l. 66–col. 4 l. 4, neither the specification
nor the claims cabin the invention specifically in terms of
solving these compatibility issues. Rather, the systems
and methods recited merely relate to obtaining remote
information by displaying a mobile interface at the local
device and retrieving the user-specific resources and
information using pointers. See, e.g., id. at col. 17 ll. 9–
INTELLECTUAL VENTURES I LLC V. ERIE INDEMNITY CO. 27
21. Without an explanation of the “mechanism” for “how
the result is accomplished,” this purported feature of the
invention cannot supply an inventive concept. Internet
Patents, 790 F.3d at 1348; see also Elec. Power Grp., 830
F.3d at 1356 (noting that claims that are “so result-
focused, so functional, as to effectively cover any solution
to an identified problem” are frequently held ineligible
under § 101). In short, the ’002 patent identifies a need,
but the claims fail to provide a concrete solution to ad-
dress that need.
Accordingly, these claims fail under step two as well
and are thus ineligible under § 101. 7
CONCLUSION
For the foregoing reasons, we affirm the district court.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED-IN-PART
7 Although we only address representative claim
40, we have reviewed the remaining claims and conclude
nothing in addition to the elements recited in claim 40
transforms the abstract idea into patentable subject
matter. | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154047/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 791 MAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
ELSWART RICHARD BODDEN, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 20th day of March, 2017, the Petition for Allowance of Appeal is
DENIED. | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144292/ | 468
OFFICE OF THE A-ITORNEY GENERAL OF TEXAS
AUSTIN
Bon. Ralph L. Suell, Chief
Csrtlfioate of Title seotlon
riepartment or TublIe sarety
Auatln, Texas
Dear sir:
fn which you request an o
proper action to be takan
0r Title or the Klttre11 the motor rehiolo
it purebased froa t
ter the 0orsplete ril6
or qorreepondenc ots a@ we hare thenr
boforr u6 rho 0 motor rehicla in
ror his loss
and the ln-
er any aalvago by virtue
0r OS
oh oorered the motor vehiole.
ary 3, 1940 Klttrell .iutoCoxpany purohassd
u from the oily ot Dallas. On Fabruary 6,
rd Insurrtnoe Company of m&York aotiiiod the
city or Dallar of tts claim to the rotor vehiols in qwstion.
On the 7th of Pebruary Jams 3'. ?&ton, oity nanager of'Dalla6,
exeouted a bill oi sale to the Kittrell Auto Conpany.
On T,@Oh 7, 1040, the tollowIng order wild entered
by the City Council of the Olty Of Dall_cia:
Ron. Ralph L. Btiell, Chief, 3~6 2
*Claim ot Standard Insurvnoe Company of
?lew York, through C-eorge Z. ~smay, for the
return oi a 1934 Ford Tudor Sedan aold by the
City at public auot1on on ysbruary 3, 1940,
was reported upon by the City :!anacer, and It
was mved, seconded and carried that the claim
be denied.”
AU the abow lnforrnatlon h.zs been furnIshed your
a6p+3TtCW~t. You have also been furnished with an affidavit
s&ned by or. J$oksoa, to the eireot that st no tiae did he
ever have notIce oi the car having been reoovered by the
City of Dallas, nor has he ever been asked for the payment
or uny storage oharges against the aar. iJ%r.Jackson further
states that he reported the theft to the City ~011~s an&
also to the county authorities.
The application for Certifioate OS Title is avf-
dently .aedaby the tittrell Auto Company under the authority
oi SUCtion 36 of Artiale 1436-1 of +JBmon@~ ,;ncotatcd Fenal
Code, coznonly oalled “The Cartificatti of Title .<ot*. Said
Seetlon reads a8 r0il0ws:
"seation 36. Whenever the ownership of a
motor vehicle registered or licensed within
this State Is transterred by operation or law,
as u?on Inheritrinoe, devise OF bequest, bank-
ruptcy receIvershIp, dudlola sale, or any
other &luntary divesture oc ownership, the
Cepartment shnll Issue a new oertIfIcate oi
title ,upon being provided with uertlried copy
of the probate procraedlngs, If any (If no ad-
ministration Is neoe33ary, than up03 urridavit
showing such fact and all of the heira at law
and rpeoIiIoatIon by the heirs as to In whose
name the e6rtIfIOute shall issue), or order, or
bill or sale rroia the sffloer zaking the judl-
ala1 8ale, exoe=t however, that where foreolos-
ure is had under the ter?as of a llan, the aifi-
davlt 0r the perBon, rim, associstion, or
carporationor authorized @gent, of the faot of
repossession and dIvaatIture of tltlb in accord-
ance xlth the terns 0r the lien, shall ba sum-
elent to euthsrlze t2.e isiiwince 0r 3 new Oertiii-
aate or title In the rxir.~ ;;f t&s Turchaser at
such sale, und ercspt rx-tter that in the oaae
or the roreclosure or any Constltutlonal or
statutory llen, the ~rrldr~vlt of 2ho holder of
such lien, or ir a oorporation, its agent, 0r
.~- the fsat or the creation of suah lien snd the
470
Ron. Ralph L. Buell, Chloi, pago 3
divestiture of title by reason thereof In
aadordanos rfth 1~1, shall be suffIoIent to
authorize the Issuanaa of a new oertlrloate
or title in the nnme 0r the purohaser."
It my be readily men that your Departmat does
ILethave aufiicient inforrtetIon to determine that legal title
has been divested by operation or law or otherwIse. The Kltt-
roll Auto Cornpay stands In the shoea of the City of Dallas
as tar a8 It6 right tc the motor tehiale Is comerned. We do
not have any informationa6 to the type of statutory lien the
City of Dallas attempted to roreolose. Won It the city had
a valid statutory lien that was subje-ot to ioreoloaure, orI-
denoe or uhioh we do not have before us, it would still be
neoessary for the City of Dallao to furnish the afridevlt
provided ior In Section 35, suwa. The authority or your m-
partmint In suoh a case Is outlined by Section 38 of the
Certificate or Title Act, which reads aa rollows~
"Seation 36. The Depart,mnt shall re-
me Issuance 0r a certificate or title, or
having Iseued a certirioate 0r tttle, suspend
or revoke the .sme, won any or the rollowIng
graulldsr
*(a) That the apglicatfon contzlns any
falae or fraudulent rrtatemnt, or that the appll-
cant ha8 railed to furnish requImd information
requested by the Department, or eat the a?pll-
oant is not entitled to the iesuance of a osrtt-
rlcste or title under this Act.
r(b) That the Department has reaeonable
pund to believe that the vehlale is a stolen
or comerted vehlale as hereln defined, or tbat
the issuance or a certiiloate 3r title would
oonstitute a rraud sgalnst the rightful cwner
or a nortgugse.
"(Q) That the roglrtratlon of the vehlole
standa suspended or revoked.
m(d) Thut the required fee has not baen paid.”
It is the opinion of this 3epartment, therefore,
that the proper prooedure Is for you to refuse Issuance Pi
a Certificate of Title on the ground S.hst pmr Apartment
,. . .
471
Hon. Ralph I..3uell, Chief, pwe 4
has railed to reoeive the InfOnnatIonneoessary to 8atIsiy
you that a CertifiCate or Title should be Issued to the
Kittroll Auto Company on the motor rehlale in qiestlon.
Yours very truly
.':TTQP2?;‘41
czm.ti OF ?xc+s
Billy GoldberG
BIXBBB
APPROVEDAPR
1. 1940
A.TYZRNEY
GENERAL
OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131207/ | The Attorney General of Texas
JIM MAllOX Demmber 21. 1984
Attomoy Qolle7al
-r&lo Ifike Driacoll Opinion No. ~~-260
lIarria County Attormy
1001 ?reetm, Suits 634 Rer Availability of inforutioa
sourt00, Texas 77~302 froo mental health recordr
Deer lb. Driacoll:
You have requcated our opinioo regarding the availability to the
public of inartrumaatr filed in l mentally ill docket in the office of
thm county clerk.
4824Abula*va..sunela The Opy Recorda Act. article 6252-17a, eection 3(a)(l).
uR8e,m.7mb27s2 V.TX.8. .’ provider that:
*1-
(a) All informetion collected, assembled. or
ml Tun. Ml@ 70s rintained by governmental bodice purauant to lav
l4Wslm. TX. ms2.2r11 .or ordinance or in connection'vith the traneactiom
71- of offic:M buoineea ia public informetion ind
available to the public during normnl buoineaa
hoorm of my governmental body, uith the follarfnl
ass Dloadww. aella 2l2
~vwoclc DL miws acnptionr only:
2w7474222
(1) information deemed confidential by lav,
either Corutitutional, etatutory, or by judictil
UON.lUllh.(uu~
MIAsen,TX. 7sml.le4w
decision. : . .
Slm22447
Art&lee 5547-11 end 5547-12, V.T.C.S., provide:
All qplicationa, petition., certifiutea. and
lll~her'papera permitted or required to be filed
in the county court by thir code &all be filed
uith’thi county clerk of the proper county who
lball fil,e the ~mameand ladorae .oo each paper the
dete filtid and the~docket number and hir offichl
rQputur4.
Each emd> every atatemeot of factm. together
with r~et: and every other writing which dieeloaee
intiuto d.etaila of the personal and privite, life
of the llxueed or the patient or vhich diecloaea
intiute detaila of the pereooal life of any and
p. 1158
Honorable Mike Drlscoll - Page 2 (JM-260)
all membera of the family of the accused or the
patient, in a mentally ill docket in the office of
the county clerk are hereby declared to be public
records of a private nature which may be used,
inepected. or copied- only by a written order of
the county judge, r-probate judge, a court of
domestic relations j;dge, or a district judge of
the county in which &e docket la located, and no
such order ehall isac;;! until the issulng judge has
determined fnformall,y to his satiafactioo that
aaid use. inepection, or copying is juetified and
in the public intererlt:. (Emphaaia added).
Section 3(a)(l) excepts :Irom disclosure under the Open Record8
Act all informetioo made confi,dential by law. Article 5547-12 makes
confidential certain records filed in connection with any proceedings
under the Mental Health Code. The cltatemeot of facts io every such
proceeding is clearly excepted from dieclosure. Other material ia
excepted only if it “disclosejs intimate details of the personal and
private life of the accused” or of a member of his family. 10 our
opioion. the county clerk. in consultation with the county attorney,
muat make the initial detJ!l-mination as to whether particular ..
informetioo satisfies these cr:iteria.
(
The test imposed by arti’::le 5547-12 is similar to that used by
tbe Texas Supreme Court in detwmininn whether Information is exceoted
from disclosure by e co-n Iav. r<ght of privacy. 10 Indu&isl
Foundation’of the South v. Tems Industrial Accident Board, 540 S.W.Zd
668, 603 (Tex. 1976), the cori:t said that material ia protected by
c-n law privacy if it coot,tios “highly intimate or -embarrassing
facto” whose disclosure would be “highly objectionable to a person of
ordinary seoslbilitles.” Lo Open Recorda Decision No. 262 (1980).
thie office said that medical ioformetloo ordinarily satisfiee this
teat if it relates to
a ‘drug overdose,’ ‘.acute alcohol intoxication.’
‘obstetrical/gyoecol~~gical’ illness. ‘convulsions/
sciruree.’ or ‘emotional/mental distress.’
Furthermore. loy ioformation “‘created or maiotaioed” by a physician
under section 5.08 o,f article 4495b. V.T.C.S., or by e “professional”
as defined lo article 5561h. V.T.C.S., may not be released except aa
iodicated in those etatutee.
Thlo standard vi11 providsr some guidelines for the county clerk’n
‘decieioo lo determining uhct:her to withhold ioformation in a
particular iostaoce. We note, however, the likelihood that much or
all material relating to a pewon Buffering from mental or emotional
illoese may be excepted uncle:r this standard. If the clerk is
3
‘2. 1159
Honorable hike Driecoll - Psgc! 3 (JM-260)
uncertaio about whether particular information "discloses intimate
detail0 of the peraonal and private life of the accused,u or of a
member of his family, the material in question should be submitted to
this office as a request uodel: the Open Records Act.
ii’] M I4 A R Y
Acounty clerk may disclose to the public
ioformation filed :ln connection with a mentally
ill docket only if such loformatioo does not
"disclose intimate bdetaila of the personal and
private life of thl? accused," or of a member of
his family, pursuan: to article 5547-12. V.T.C.S.
J~I Fl UATTOX
Attorney Genera1 of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICBARDS
Executive Assistant Attorney 'General
RICE GILPIN
Chairman, Opinion Conauittee
Prepared by Rick Gilpin
Assiataot Attorney General
APPROVED:
OPINIONCOPBIITTEE
.Rick Cilpio. Chairman
Jon Bible
Co110 Carl
Susan Gerrieoo
'Tony Guillory
Jim Noellioger
Jennifer Riggs
Nancy Sutton
0. 1160 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147471/ | J-A01025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DARLENE M. CHIZMAR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RONALD L. CHIZMAR,
Appellee No. 1089 WDA 2016
Appeal from the Order Entered June 27, 2016
In the Court of Common Pleas of Crawford County
Civil Division at No(s): FD 2013-191S
BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2017
Appellant, Darlene M. Chizmar, appeals from the order entered on
June 27, 2016, granting exceptions filed by Ronald L. Chizmar (Husband) to
a master’s recommendation regarding equitable distribution. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. The parties married in July 1998, have no children, and separated
in April 2013. Appellant filed a complaint in divorce on May 15, 2015. The
trial court appointed a master, who held a two-day hearing commencing on
September 10, 2015 to determine, inter alia, equitable distribution, alimony,
and alimony pendente lite. Relative to this appeal, the parties provided
testimony that during the marriage Appellant inherited a one-sixth interest
in real property in Encinitas, California and a one-third interest in real
property in Cardiff, California. Appellant presented county assessments in
*Retired Senior Judge assigned to the Superior Court.
J-A01025-17
support of her property estimations, showing the total value of the
properties was $131,480.00 and $59,054.00, respectively. Husband offered
residential housing listings, from the real estate website Zillow.com, showing
comparable properties in the area. He estimated Appellant’s properties were
worth $950,000.00 and $600,000.00, respectively. The master filed a
report and recommendation on February 4, 2016. On February 24, 2016,
Husband filed timely exceptions to the report, objecting to: (1) the amount
and duration of the alimony award, arguing that the master did not give
proper consideration to Appellant’s property ownership interests and
potential for rental income; and (2) a $500.00 monthly award of alimony to
be paid from his military retirement account without accounting for the tax
consequences to Husband. By order and opinion entered on June 27, 2016,1
the trial court granted Husband’s exceptions and entered a divorce decree.
This timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
I. Whether the trial court abused its discretion and/or
committed an error of law in drastically reducing the
term of [Appellant’s] award of alimony, where
____________________________________________
1
The trial court issued an amended decree on August 8, 2016.
2
Appellant filed a notice of appeal on July 25, 2016. On July 26, 2016, the
trial court issued an order pursuant to Pa.R.A.P. 1925(b), directing Appellant
to file a concise statement of errors complained of on appeal. Appellant
complied timely on August 1, 2016. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on August 8, 2016. In that opinion, the trial
court relied on portions of its earlier opinion filed on June 27, 2016.
-2-
J-A01025-17
[Appellant] is permanently disabled, Husband is
gainfully employed, there is a marked disparity in the
parties[’] income, the uncontroverted evidence is that
[Appellant’s] reasonable expenses exceed her monthly
income even with the award of alimony, and where
the court assumes values and disposition of
[Appellant’s] inherited property which require the
court to assert factual assumptions and legal
assumption[s] not of record and[,] in so doing, [to]
fashion an award which will ultimately fail to meet
[Appellant’s] basic needs?
II. Whether the trial court abused its discretion and/or
committed an error of law when refashioning and
reducing the master’s suggested award to [Appellant]
of Husband’s military retirement benefits based upon
the trial court’s errant belief that [Appellant] would
receive the reduced payment going forward as a tax
free gift, which is an impossibility under both the
Internal Revenue Code and the Treasury regulations
thereto, and/or was not appropriately set forth as any
other type of award which [Appellant] could receive
tax free?
Appellant’s Brief at 11 (complete capitalization and suggested answers
omitted).
In her first issue presented, Appellant argues, “the trial court abused
its discretion in changing [the master’s] award of alimony from indefinite, to
two years[.]” Id. at 18-27. Appellant asserts she is permanently disabled
and her expenses substantially outweigh her income. Id. at 23-24.
Regarding her interest in the California properties, Appellant argues that the
master properly determined “that an actual market value for the propert[ies]
[were] not ascertainable and even if market value[s] [were] ascertainable
that any future expectancy for [Appellant] was uncertain, given the joint
-3-
J-A01025-17
land holdings” and because Appellant “has no ability to buyout her co-
tenants[.]” Id. at 15. In sum, Appellant argues:
Despite recognizing the disparity in income, the various
factors considered by the [m]aster, and the fact that the
[m]aster could not find that there was an actual fair market
value or any promise of realization relative to value of the
California properties, the trial court rejected the
recommended award of alimony. Instead, the court limited
the alimony award of $1,500.00 per month, to two (2)
years, despite [Appellant’s] total and ongoing disability
which arose during the marriage. While the trial court
recognized that the purpose of alimony is to provide a
receiving spouse with sufficient income to obtain the
necessities of life, it seems to completely ignore that even
with the award of alimony, [Appellant] does nothing more
than almost meet her basic monthly needs. Despite having
been disabled since three (3) years into the marriage, the
trial court has no explanation as to how [Appellant] will pay
for her reasonable needs after two (2) years and gives
[Appellant] no recourse to have the [o]rder reviewed or
modified. The trial court simply seems to proffer that
[Appellant] will magically realize some type of monetary
benefit from the properties in California, despite having no
competent evidence, besides [Appellant’s] testimony as to
what the value of the property in its entirety may be. The
trial court seems to ignore the fact that [Appellant] would
be in an utterly impossible situation were she to file a
partition action, in as much as one of the siblings and/or
their co-owners to the property may off the highest bid, a
relatively de minimus figure to buy [Appellant’s] share at a
judicial sale, with [Appellant] having the inability to outbid
the co-owners, in as much as she does not even have
enough income to meet her basic needs. The court also
leaves it to our imagination to suppose that [Appellant]
could possibly sell her one-sixth and/or one-third interest in
the real property to a bona fide purchaser of value, but
failed to take into account that residential property has little
value to a bona fide purchaser of value in an arm’s length
transaction where the property is owned by joint family
members who have no intent of allowing the property to be
further marketed or used for some type of rental value.
-4-
J-A01025-17
[Appellant] received ownership in the real property during
the marriage and for the many years after she received the
property realized no value or profit from the same and it is
an abuse of discretion for the court to cut short
[Appellant’s] award on the basis of some imaginary scheme
where [Appellant] will profit from the aforesaid properties.
Relative to the California homes, it is acknowledged that
[Husband] has attempted to make a compelling argument
that the [] [m]aster should have found a different value or
outcome relative to [Appellant’s] one-third and one-sixth
interest in property situate in California. Unfortunately for
[H]usband, if [H]usband desired for the court to give those
properties consideration with a firm set value it was
imperative upon him to offer competent evidence
supporting the same. While it is true that [H]usband
attempted to proffer Exhibit B as some evidence to value,
upon inspection of that exhibit it is noted that the values of
the homes in the area as set forth by the online search
through Zillow are homes listed for sale and do not list
actual sale prices of those homes. Moreover, the Zillow
print offs in Exhibit B specifically refer the user to ‘get a
professional estimate’ through a ‘premier agent,’ thus
indicating that the estimates set at Zillow are not by a
professional and should not be relied upon. Moreover, there
is no actual estimate as to either property in question. To
the contrary, Exhibit B sets forth several actual estimated
values as to the properties that were previously on the
market, but are now noted as ‘off market.’ Husband’s
Exhibit B did not provide proof of sale of any home in the
area in California where [W]ife holds partial interest. It is
not a market analysis by a professional realtor, broker, or
appraisal by a certified and/or licensed appraiser. Without a
professional opinion of the value, [H]usband failed to
support his burden, which he has attempted to assert
thereafter. [The Superior Court] has made clear that any
party may give an opinion as to the value of assets in which
they as the party have ownership interest because of the
presumption of special knowledge derived from ownership.
[Appellant] is a title owner. [Appellant] gave an opinion of
value. Husband is not a title owner of either property and is
not deemed competent under the [relevant] law [] to
provide an opinion of value. Moreover, [H]usband admitted
-5-
J-A01025-17
on cross-examination that he has no specialized experience
or credentials to provide a value of an opinion.
Id. at 25-26 (emphasis in original).
Our standard of review regarding questions pertaining to the award of
alimony is
whether the trial court abused its discretion. We previously
have explained that the purpose of alimony is not to reward
one party and to punish the other, but rather to ensure that
the reasonable needs of the person who is unable to
support himself or herself through appropriate employment,
are met. Alimony is based upon reasonable needs in
accordance with the lifestyle and standard of living
established by the parties during the marriage, as well as
the payor's ability to pay. Moreover, alimony following a
divorce is a secondary remedy and is available only where
economic justice and the reasonable needs of the parties
cannot be achieved by way of an equitable distribution
award and development of an appropriate employable skill.
In determining whether alimony is necessary, and in
determining the nature, amount, duration and manner of
payment of alimony, the court must consider numerous
factors including the parties' earnings and earning
capacities, income sources, mental and physical conditions,
contributions to the earning power of the other, educations,
standard of living during the marriage, the contribution of a
spouse as homemaker and the duration of the marriage.
Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (internal
citations, quotations, brackets, and original emphasis omitted); see also 23
Pa.C.S.A. § 3701. Pennsylvania law provides for indefinite, also referred to
as permanent, alimony where the marriage was lengthy and the statutory
factors warranting it have been met. See id. “The Divorce Code does not
specify a particular method of valuing assets. The trial court must exercise
discretion and rely on the estimates, inventories, records of purchase prices,
-6-
J-A01025-17
and appraisals submitted by both parties.” Smith v. Smith, 904 A.2d 15,
21–22 (Pa. Super. 2006) (emphasis added). An alimony award “is subject
to further order of the court upon changed circumstances of either party of a
substantial and continuing nature whereupon the order may be modified,
suspended, terminated or reinstituted or a new order made.” 23 Pa.C.S.A.
§ 3701(e).
In this case, the trial court determined that Husband’s three years of
prior alimony payments enabled Appellant to maintain the status quo, but
the master’s recommendation of permanent alimony “would simply continue
the current arrangement indefinitely, without [Appellant] ever having to
draw upon such available resources as her ownership interest in the
California properties – one of which she even now apparently has the right
to occupy.” Trial Court Opinion, 6/27/2016, at 5. While the master found
that Appellant “need[ed] to put together a plan to address the assets in
California as well as to address her budget shortfall[,]” the trial court
determined that “by awarding alimony indefinitely, [the master] gave
[Appellant] no incentive to do so.” Id. at 4. The trial court further noted
that Appellant “as the party requesting alimony, would appear to have the
burden of proving its necessity by establishing that her resources – including
the California properties – were inadequate for her support.” Id. at 4 n.6.
Upon review, we discern no abuse of discretion or error of law. The
trial court carefully considered the numerous factors to determine alimony
and properly determined the master improperly gave little to no weight to
-7-
J-A01025-17
the California properties in making his recommendation and report. In fact,
the master rejected both parties’ valuations of the properties. Thereafter,
the trial court did not adopt either party’s valuation of the properties. We
conclude, however, that the trial court was allowed to consider that the
California properties had some value. Furthermore, we reject Appellant’s
suggestion that only her evidence regarding the value of the properties
required the lower tribunals’ consideration. The trial court was permitted to
consider the evidence of the estimated value of the properties as presented
by both parties. While Appellant argues that her partial ownership interest
reduces her ability to control the sale of the property, or to rent the property
for income, as an owner those properties have value to her, which the
master did not properly consider. Finally, an alimony award is always
subject to modification upon changed circumstances under Section 3701(e).
Hence, we conclude that Appellant is not entitled to relief on her first claim.
Next, Appellant argues the trial court abused its discretion or
committed an error of law by reducing the master’s recommended award of
$500.00 per month from Husband’s military retirement account to $400.00
per month to account for tax consequences to the parties. Appellant’s Brief
at 27-29. Appellant admits “the [m]aster did not take into consideration
that in as much as the parties were married for less than ten (10) years of
[H]usband’s military service, that [H]usband would need to directly deduct
the $500.00 from his monthly pay, pay taxes on the same, and forward the
same to [Appellant], for which she would then need to pay taxes.” Id. at
-8-
J-A01025-17
27. She argues that “[a]n award of non-modifiable alimony would have
appropriately addressed not only the payment of tax, but also [Appellant’s]
tax liability” but, “[i]nstead, the [trial] court arbitrarily reduced [Appellant’s]
award to $400.00 averring that the same is ‘a gift’ and thus ‘ tax-free’ to
[Appellant].” Id. at 28.
Here, there is no dispute that the master failed to consider the tax
consequences of Appellant’s receipt of a portion of Husband’s military
retirement benefits. Moreover, the trial court recognized that “no one []
anticipated at or prior to the hearing that payments could not be made
directly to [Appellant] from the Secretary of Defense.” Trial Court Opinion,
6/27/2016, at 7. This aspect of the claim is, likewise, not in dispute. The
trial court “rejected [Appellant’s] proposal that the suggested $500[.00]
(actually $467.41) be allocated as ‘non-modifiable alimony,’ because the
payments were in distribution of marital property and thus [does] not meet
the definition of alimony.” Trial Court Opinion, 8/8/2016, at 2, citing 26
U.S.C.A. §§ 71, 215(b), 23 Pa.C.S.A. § 3701. The trial court determined
that because payments out of Husband’s pension qualified as a distribution
of marital property subject to equitable distribution, as opposed to alimony,
“[t]he basic tax ramifications” were “fundamentally a matter of tax law and
mathematical calculation” which did not require additional testimony or
evidence. Trial Court Opinion, 6/27/2016, at 7. By reducing the master’s
award to Appellant to $400.00, the trial court accepted Husband’s proposal
that he “would pay all income taxes, without a corresponding tax deduction
-9-
J-A01025-17
(to which he would be entitled if the payment were characterized as
alimony), and [Appellant will] receive, as a gift, the $400[.00] tax-free.” Id.
The trial court later clarified its decision in its Rule 1925(a) opinion.
Therein, it noted that payments from Husband’s military pension account
qualified as an interest in the marital estate, not alimony. Trial Court
Opinion, 8/8/2016, at 2. The trial court recognized, and there is no dispute,
that the master “neglected to adjust for [a] reduction in the pension amount
resulting from the ordered election [that Appellant retain] the survivor
benefit.” Id. When the trial court accounted for this error and recomputed
the amount due, it determined that Appellant was entitled to $467.41 per
month from Husband’s retirement account. Id. However, the trial court
also realized that “[h]ad the pension been subject to a qualified domestic
relations order” as part of equitable distribution, Appellant “would have paid
the tax on [her] portion of the pension distributed to her.” Id. Thus, in
reducing Appellant’s monthly award to $400.00, the trial court concluded
restructuring the payments was de minimus, resulting in a total monthly
reduction of $67.41. Id. at 4. The trial court further clarified, “Husband will
not incur gift tax liability of the $400[.00] transfers, nor will Wife incur an
income tax liability.” Id. at 3. In its amended decree, the trial court
specified that payments to Appellant from Husband’s retirement account did
not qualify Husband for a deduction from his gross income nor was the
amount to be included in Appellant’s gross income. Amended Decree,
8/8/2016, at n.1, ¶ 10.
- 10 -
J-A01025-17
Upon review, we discern no abuse of discretion or error of law.
Appellant concedes that the master’s recommendation and report neglected
to consider the tax ramifications of Appellant’s receipt of a portion of
Husband’s monthly military pension. The trial court did not order the
$400.00 monthly payments as a gift as Appellant suggests. Instead, the
trial court reduced the amount to Appellant, to account for income tax to be
paid by Husband, noting that Appellant would then receive the benefit tax-
free. We agree. The trial court provided an equitable solution to the
master’s failure to account for taxes. Appellant does not challenge the
mathematical calculation of the award. For all of the foregoing reasons,
Appellant is not entitled to relief.
Order affirmed.
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/4154043/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
DAVID C. KLING, : No. 17 MM 2017
:
Petitioner :
:
:
v. :
:
:
BRIAN V. COLEMAN, COMMONWEALTH :
OF PENNSYLVANIA, AND JUDGE :
THOMAS H. KELLEY, VI, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 20th day of March, 2017, the Petition for Leave to File Petition
for Allowance of Appeal Nunc Pro Tunc and the Petition for Extraordinary Relief are
DENIED.
The Prothonotary is DIRECTED to strike the name of the jurist from the caption. | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154045/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 13 MM 2017
:
Respondent :
:
:
v. :
:
:
IFEANYI NWANI, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 20th day of March, 2017, the Application for Leave to File
Petition for Allowance of Appeal Nunc Pro Tunc is DENIED. | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131205/ | The Attorney General of Texas
“H MAlTOX Decenlher 21, 1984
I
torney General
: proms cowl Bulkmg Eonorablc Mike Driscoll Opinion Ho. JM-262
0.Box12s48 Rerrir County Attonwy
4uetln. lx. 78711.2s4e 1001 Prceton, Suite WI Re: klaximum bond which a county
jl2/47.MSO1 may require of subdividers for
Rouaton. Texas 7700:!
1.x 010@7+1a7
IkopiU s12147saw
the construction and/or main-
retieace of roadr
Dear Hr. Driecoll:
You have requested an opinion from this office on the following
qu&tioa:
What 1; the maxicnm emouht of bond that . . .
[Harris] Cwnty may require of subdividere for the
proper construction and/or mainteoance of roads?
In the brief preparr,d by your office, you inform us that your inquiry
arises from an apparent conflict among four statutes -- erticles
6626a. 6626a.l. 670:!-1, V.T.C.S.. and the Rarria County Road Law, a
Specie1 Law ,of the Zbirty-third Legislature. Acta 1913, 33rd Leg.,
P-4 Bm4dwy. Bull4 312
44lcock.TX. 7mc14479
Local 6 Special Laws, ch. 17, et 64.
,An47.5230
Articlea 6626a and 6626a.l. two of the statutes forming the basis
of your inquiry, were! repealed in whole by the legisletura during the
m N. Tsnlh. SW9 B
CAllen. lx 7Mol.lMs
special sesrioa of 1984. Act6 1984. 68th Leg., 2nd C.S., ch. 8,
512m24!547 )2(b), et 145. The language of these articles, however, was reenacted
as aectione 2.401 and. 2.402 of the revised County Road and Bridge Act
(article 6702-1). Acts 1984. at 73-78. Consequently, the
conflict betveen‘artlcles 6626e. T 6 26e.l. end the forncr version of
sectloo 2.401 of tL! original County Road sod Bridge Act is oo longer
a matter of concern. The issue that does r-in for our consideration
is whether revised article 6702-l or the iierris County Road Lav
controls in this incltancs.
The Harris County Road Law ves enacted by the Thirty-third
Legislature pursuan(: to itr authority granted by article VIII, section
9 of the Texa.r Conrtltutiw to pass local laws for the maintenance of
public reeds and hi:ghwaya. Special law eoaeted uader this constitu-
tional provieion supersede conflicting general laws. at least with
respect tb the county designated by the special law. Bill County v.
p. 1165
Honorable Hike Driscoll - Page 2 (JM-262)
Bryant 6 iiuffman. 16 S.U.2d 513 (Tu. 1929). Section 33 of the Aerris
County Road Lav achowledger thir rule:
The provisions of ,this Act are, and shall be,
held and construed ta be cumulative of all Ceneral
Laws of thia State, tm the subjecta treated of in
this Act, when not in conflict therewith. but in
case of such conflict this Act &all control as to
Rarris County.
In our opinion. however. where there is no conflict between e general
and a special lav, or where the special law la rilent on a rubject
treated explicitly by the gene:ral law. the general la? should not be
displaced.
Purthemore , special laws enacted under article VIII. section 9
of the Texas Constitution grent the comissionera court not only
control over the maintenance c’f cxiatian uublic roads. but also over
the laying out and constructim of new &lic roada by the county as
vell. Dallas County v. Plownq 91 S.W. 221. 222 (Tu. 1906). Public
roads are those roedr cst,ablished by the authority of the
comissioners court. by prascrl~ption, or dy dedication and-acceptance
by the county. Attorney Ceaerrk:L Opinion Jl4-200 (1984) and casee cited
therein. These principles. too. arc incorporated into relevant parts
of the Harris County Road Law:
Sec. 1. That. stibject to the provisions of
this Act. the Comis~~ioners Court of Hart18 County
shall have cootrol of all roads, bridges, draiae.
ditches, culverts end all vorkr and constructions
incident to itr road,, bridges, and drainage, that
have been heretofore! laid out or conetructed, or
that mey hereafter 1~: laid out or constructed by
Harris County, or undm its direction.
Sec. 2. Subject t.o the provisions of this Act,
the Comissioners Cclurt of Harris County shall
have the power aad right to adopt such rules and
regulations for: (I,) the proper construction aad
maintenance of ita wads, bridges and draioage as
it may see proper. . . .
Sec. 3. Whenever any ~1~s. reguletioae or
course of procedure la connection with the
construction or maintenance of the roads, bridges,
and drain. of Uerria County may have been adopted,
they shell thereupon be reduced to writing. . . .
. . . .
‘>. 1166
Ronorable Hike Driscoll - Pege 3 (JX-262)
Sec. 16. The Comissioaers Court shall have
control of all mutters in connection with the
construction and maintenance of county roads,
bridges and drainage, except such aa it may from
time to time, by reeolutiou, delegete to the
precinct road supervisor, and than under such
rules and regulnt~lcma as it uay prescribe. and
subject to their rwall at its pleasure.
. . . .
Sec. 31-C. In acquiring rights-of-way for
roads in Harrio County, the Comissionerc Court
shall deterxiue t.b.e width of the rlght-of-vay
required, and lstal~:lish the lines and eligmeat of
the road. All of the field aoteo of roads so
established and deteruined shall be filed with the
Combsloners Cowt and be recorded on the Road
Log of Rarris County, end no expenditures shall be
made by the Commissioners Court upoa any road not
carried 011 the Road Log. The Comtissioners Court
may edopt a system: for carrying roads oa the Road
Log vith the required vidth of the right-of-vay to
be established by the Court. Provided, however,
no road shell bc carried on the Road Log or
ualntained by the county oa a right-of-vay leas
than twenty (20) feet nor more than 600 feet in
vidth unless the right-of-uey was laid out or
estebliehed on or after Jenuary 1, 1963. No
subdivision or p:.at of lands la Anrris County
outside of incorpcweted cities shall be flied for
record by the Cmnty Clerk of Rarrio County,
Texan, until such plat or subdivirioa bearr the
sigoature of the County Engineer to the effect
that the roads; em indicated on the plat. have uet
the requirements of the syatau adopted by the
Comisaioeers Cowt pursuant to this Section ae to
the width of the :r:Lght-of-vay and have a base and
surface of at leac;t twenty (20) feet in width with
the base and surface meeting the ainiuuu
requirements preswibed by the Coumiasioners Court
by order duly altered in the minutes of said
court, and that all requireuants of Aarrir County
aad the Rarris Comty Flood Control District as to
drainage have been complied vith.
The Harris County Road Lav does not require real estate sub-
dividers to post a bond for either the construction or mintenance of
roada in eubdivieions in Ha~:ris County. Section 9 of the law formerly
p. 1167
tlonorable Mike Driscoll - Page o (JR-262)
llloved the comaiesionera court of Rarris County to require a bond of
contractors for the construction of roads for the county; this
provision, however, was repealed la 1979. Ac ts 1979, 66th Leg., ch.
422. a t915. In any event, section 9 wee and remains applicable only
to roada built with county fur.ds - it does aot affect the COaatNC-
tion and uintenence of roads in subdivisioaa in Barris County that
are not built with county fuzis. Moreover, we are uneware of any
rules or regulations adopted by the county c~issioners requiring
bonds frou developers of subdiviaiona for such matters. Accordingly,
we uust resort to the general laws of the atate to answer your
question.
Article 6702-l. the County Road and Bridge Act.-wes revised and
reenacted during the special legislative session bf 1984. Acts 1984.
w, at 44. Sections 2,401(tl:1(7) and 2.402(d)(7) of the revised act
authorize the coamiaeionera caurt to require bonds for the constNc-
tion of roads in subdivisions. The com&rsionero court nay require
the owner(a) of the land to bmc divided or subdivided to post a bond
“for the proper construction of the roads and streets affected.”
conditioned upoa the construction of such roada in accordance with
specifications established by the coamiaaioaers court. Id. at 75. 78
(to be codlf led as V.T.C,,Ii. srt. 6702-l. H2.40r(d) (7) and
2,402(d)(7), respectively). The bond under either section “shall be
in an amount as uay be determined by the commissioners court not to
exceed the estimated cost of constructing . . . [the] roads or
atreete.” Id.
Section 2.401 appliee to all counties in this state except those
that elect to operate under swtion 2.402. Section 2.402 applies to
counties of uore than 2.2 milLion inhabitants which elect to operate
under this section and to cou:zties contiguous with a county of more
then 2.2 uillion population that also elect to operate under this
provision. We are unavere of uhether the Rarris County Coamissioners
Court her elected to operate under section 2.402; the uaxinum boad
acceptable under the County Road and Bridge Act, bowever. reuaias the
Sm. Therefore, in enaver to your question we conclude that Rarris
County nay require subdividers to rubuit a bond for the proper
construction of roads in subdlvi8ion6 in Barrio County in an amouat
not to exceed the estiuated ewt of construction for such roads and
streeta. We shall nov address the final issue raised by your inquiry.
In the brief prepared by your otfice. you argue that the
c&ssionera court uey also require subdividers to post a uaintenaace
bond as a condition of plat aplwoval or as e prareqaiaite to recording
on the county road log. You contend that section 31-C of the Rarris
County Road Law (quoted abovo:~. when read in conjunction with the
language of revised sections ,I.401 and 2.402 of the County Road and
Bridge Act, iuplicitly luthor:laca the county to require uaintanance
bonda in addition to construction bonds. Alternatively. you argue
p. 1168 L
Ilonorablc Hike Drircoll - Paga 5 (J%262)
that rime acceptance of rosda on the road log is equivalent to
acceptance of such roads for maintenance by the county, a maintenance
bond 16 l reasonable condlticm for such acceptance. We disagras with
both contentions.
First, we note that tt,c County Road and Bridge Act make6 no
provision for the acceptance l>f bonds ensuring proper maintenance of
roada in suhdivi6ions. And, in our opinion, such a bond cannot be
implied from the language o:[ the act; had the legislature intended
maintenance bonds to be mquired of subdividers. it would have
expressly required such bond a. Second, we believe that maintenance
bonds contravene the policy underlying county maintenance of roads.
By requiring subdividers to post bonds for the proper maintenance of
roads, the county would ef fectlvely make theas subdividers under-
writers of work for which the county ia ultimately responsible. The
county may not, in our 0pin:ton. employ this device to assure proper
maintenance; there are. hovever, alternatives that Aarria County may
lawfully utilize. See, e.fk-, V.T.C.S. arts. 6702-l. 53.102(e)(2)
(bond required of lov bidders on improvement contracts); 68121
(contracts for improvamenta ,of highways in counties vith over two
million inhabitants). Finally, ve do not agree that maintenance bonds
may be exacted as prerequiaitsa to recording on the road log or as a
prerequisite to plat approv.nl. In your brief you contend that
recording on the road log is equivalent to acceptance for county
maintenance. The mare filjng of a subdivision plst. however, is
imufficient to constitute: acceptance of a road for county
maintenance. Attorney Gener,k.l Opinion m-200 (1984). Similarly. we
believe that mere recordation on the road log la losufficient to
justify a maintenance bond, :?artlcularly since the county has at this
stage undertaken no obligatitc. to maintain the roads in question.
The liarrla Comty Comiaaionera Court may
require a bond from subdividers for the proper
construction of road6 in subdivisions in that
county in an amount not to exceed the estimated
coat of constructing such roads. The county may
not require subdividers to post maintenance bond
for such roada.
JIM HATTOX
Attorney General of Texas
p. 1169
Honorable Mike Driacoll - P#~g;e6 (JM-262)
TC+lCBEgN
First Aaaiatant AttorneyGenc!ral
DAVID R. RICHAFDS
Executive Aaaiatant Attorney General
RICR GILPIN
Chairman. Opinion Committee
Prepared by Rick Cilpin
Amiatent Attorney General
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin. Chalrman
Colin Carl
Susan Garrison
Tooy Guillory
Jim Moellinger
Jenoifer Riggs
Nancy Sutton
p. 1170 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/8669418/ | By Judge James Y. Lane
This matter came before the Court on Gladys Shifflett’s appeal to circuit court from the May 22, 2009, Appeal Decision of Department of Medical Assistance Services (“DMAS”). In that ruling, the hearing officer found that the Harrisonburg Health and Rehabilitation Center (“HHRC” or “nursing facility”) had sufficient grounds to discharge Appellant, but that it did not comply with process and notice requirements. Appellant assigns error to the hearing officer’s ruling on three grounds:
(1) The hearing officer did not make findings regarding the nursing facility’s refusal to readmit Appellant following a hospitalization;
(2) The hearing officer found that the nursing facility’s decision to discharge Appellant was appropriate;
(3) The hearing officer’s remand instructions were inadequate by failing to explicitly require the nursing facility to comply with the law in its future discharge planning and implementation.
This Court heard argument on January 29, 2010. Having reviewed counsels’ memoranda and the applicable law, the Court now affirms the ruling of the hearing officer.
First, Appellant contends that it was error for the hearing officer not to rule on the nursing facility’s refusal to readmit Appellant. This Court’s “review shall be based solely upon the agency record, and the court shall *136be limited to ascertaining whether there was evidence in the agency record to support the case decision of the agency acting as the trier of fact.” Va. Code § 2.2-4025(B). As the case decision did not include a ruling on the readmission issue, the Court will review the hearing officer’s omission of that issue de novo.
Appellant’s written appeal request form states: “I went to the hospital emergency room and when the ambulance took me back to the nursing home they refused to readmit me.” (Tr. 134.) However, one day after Appellant filed her appeal, the nursing facility readmitted her. (Tr. 32.) As of the date of the hearing before this Court, the nursing facility continued to provide care to Appellant. Thus, the nursing home’s refusal to readmit Appellant, while a part of the written appeal request form, was no longer a justiciable issue at the time the hearing officer heard and ruled upon the matter.
Appellant, however, contends that the issue was not moot, as the issue of the nursing facility’s refusal to readmit Appellant is “capable of repetition, but evading review.” State Water Control Bd. v. Appalachian Power Co., 12 Va. App. 73 (1991). Appellant argues that the nursing home “was forced to readmit Ms. Shifflett once she filed her appeal” (App. Reply Br. 3), but cites no authority, legal or otherwise, for this assertion. Regardless, considering the totality of the circumstances in this case, it appears Ms. Shifflett has not revisited the hospital since the incident at issue nearly one year ago and, further, that the refusal to readmit is not likely to be repeated, given that the nursing facility is currently providing one-on-one care and has been found by the hearing officer to be justified in involuntarily discharging Appellant.
The nursing home’s refusal to readmit Appellant when she arrived in an ambulance was a moot issue at the time the hearing officer conducted the hearing and rendered her decision. Therefore, it was not error for the hearing officer to omit a legal analysis of the nursing home’s refusal to readmit Appellant.
Second, Appellant argues that the hearing officer erred in finding that the nursing home’s “discharge due to safety reasons was appropriate because the Nursing Facility could not meet Appellant’s needs.” (Appeal Decision 6; Tr. 33.) The Court finds that “there was evidence in the agency record to support the case decision of the agency acting as the trier of fact,” Va. Code § 2.2-4025(B), and affirms the ruling of the hearing officer as to the grounds for discharge.
Third, Appellant argues that “the hearing officer’s remand instructions were inadequate by failing to explicitly require HHRC to *137comply with requirements of federal and state law in any future discharge planning and implementation.” (Pet. 2.) Because this issue turns on the meaning of Virginia Code § 2.2-4020(E), the Court will review de novo the omission of remand instructions that would set out the specific laws that nursing facility is commanded to follow.
Virginia Code § 2.2-4020(E) requires that the hearing officer’s decision shall:
briefly state or recommend the findings, conclusions, reasons, or basis therefor upon the evidence presented by the record and relevant to the basic law under which the agency is operating together with the appropriate order, license, grant of benefits, sanction, relief, or denial thereof.
The hearing officer found that the nursing facility “must complete a written discharge plan, a written notice of discharge, and complete all of the necessary steps and procedures before a valid discharge can be ordered.” (App. Decision 7; Tr. 34.) In her remand instructions, the hearing officer further instructed the nursing facility to “complete an appropriate discharge plan” and to “notify the Appellant or representatives of your determination.” Id.
Appellant contends that the hearing officer’s decision was legally deficient in several respects. First, Appellant argues that the hearing officer “failed to include in the remand instructions a requirement that the facility issue a written discharge notice which fully complies with federal law.” (Pet. ¶ 49.) Second, Appellant argues that the hearing officer failed to order the nursing home to obtain documentation in her record by her attending physician that the discharge was necessary for her welfare and that her needs could not be met in the facility. Id. Third, Appellant argues that the hearing officer erred in not specifically ordering the nursing home to secure a written notation in Appellant’s clinical record by an attending physician or medical director of the facility as required by Va. Code § 32.1-138.1. Id.
The Court finds no merit in these assertions. In the body of her decision, the hearing officer quoted extensive portions of the Nursing Home Manual, which set out the very discharge requirements that Appellant claims are absent. E.g., Appeal Decision at 3 (citing 42 C.F.R. § 483.12) (resident’s physician must document in resident’s clinical record that the discharge is necessary for the resident’s welfare); id. at 4 (citing Va. Code § 32.1-138.1) (physician or medical director shall make written *138notation in the patient record approving the discharge after consideration of effects, mitigation, and appropriate care needed upon discharge).
Essentially, Appellant takes the position that all relevant state and federal law must be quoted in the remand instruction section of the hearing officer’s decision. Such a duty goes beyond the requirements of Va. Code § 2.2-4020(E). In this case, the hearing officer has put the nursing facility on notice of the deficiencies in the February 2009 discharge of Appellant and has directed the nursing facility to “complete all necessary steps and procedures,” which quite obviously means compliance with legal requirements set out in her decision.
The hearing officer’s decision will not protect the nursing facility from appeal should a future involuntary discharge of Appellant be conducted in a legally deficient manner. It is simply not the duty of the hearing officer to act as an insurer of absolute future compliance with state and federal law under new facts. Therefore, the hearing officer’s instructions were adequate, and the Court will not reverse on this ground.
The decision of the hearing officer is affirmed. | 01-03-2023 | 11-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4154046/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 19 MM 2017
:
Respondent :
:
:
v. :
:
:
MITCHELL D. DIVENTURA, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 20th day of March, 2017, the Application for Leave to File
Original Process is GRANTED, and the Petition for Writ of Habeas Corpus is DENIED. | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144333/ | 282
OFFICE OF THE A-ITORNEY GENERAL OF TEXAS
AUSTIN
Hon. Bert Ford, Admlnlstrator
?exa8 Liquor Control Eoard
AU&in, Texas
Gear Sir1
Ymtlon 25.
of the Texee Llqu
part a8 tollowar
rant door to
in direct line
looatlon would be within three hundred feet
of a churoh. It 1s agreed by the applicant
and the protestantthat the city where this
petit is located he8 a v&lid ordinanoe pro-
hibitlng the looet’,onof a liquor establieh-
nent within three hundred feet of e churoh.
X83
Ron. Bert Ford, Fage 2
*I have before ~8 the sworn statwent
or the County Surveyor ot the Couiit7 uhere
said pemit la located, which reads as tol-
lOWB3
**That, I a:IE
the County SW-
veyor for Xiahlta County, and have
aado a measurement from the center
of the Bert door of the Salvation
Army Citadel located at 810 7th
Street, Wiohita Falls, Texas, to
the Front door of the ymnlsea looat-
ed at 702-A Scott Street, Wlohita
Falls, Texas, and find it to be Three
Hundred and rive-tenth8 (300.2) and,
that, thl8 measurement war nads to
oonforreto Section 25(a), krtlole
I, of the Texas I.lq’JorControl iat.*
Y!he building, a part ot'wblab la uaad
for a ohuroh, has two atorleo. The lower
floor hae what 1s deslgdated e8 a west door
which opens ircm the retreatdirectly into
the chapel. No part of the building ia used
for ahuroh purposes except the chapel, whloh
is on tne lower floor. Tha west door nen-
tloned above la the door referred to in the
affidavit of the County Surveyor.
*The building also has another door open-
ing from the street, known as the east door,
rhioh does not open dlreotly hnto the ohapel,
but opens into a hall from whloh the etairs
lead to the eeoond floor. mere Is also
another door from the hall whlah leads into
the chapel. ‘!%asecond stcry of the building,
it 1s agreed, la not used for ahurch purposes.
It 1s also agreed by all ooncerned that the
eaat door la rlthln three hundred feet of the
proposed liquor store location.
*Doe6 the front door in this ease man
the door leading from the atreet dlreatlr
into the ohapel, or does ft man the other
9on. Bert Ford, rage 3
door which opena into the hall, irk which
another door leeda lhto the chapel? In
other worda, is the Admlnlatrator justified
In finding which door 1s the main door to
the chapel, or doe8 the word (front door'
mean any door to the bufldIng?"
Article 66d-%fa, Vernon*8 iianotatedPenal Code
read8 aa follows:
*The Coimlaaloners* Court 0r any county
ln the territory thereof outside incorporated
oitle8 and torn8 end the governing authorl-
tiea cf any city or town wlthln the corporate
llelta of any such cltp or tcwn may prohibit
the aale of alooholle beverage8 by any dealer
where the plaoe of buslnesa of any auoh dealer
la within three hundred (300) feet of any
church, public school or public hospital, the
neaaurementato be along the property lines
oi the street fronts and from front door to
rront door and in dlreat line aorosa interaec-
Mona where they ooour.
as we oonatrue your opinion request you are prl-
marlly interested in detenmlnlngwhich door cr doors of the
preudeea desorlbed constitute the *front door* or Front
doora* of 8ald premise8 In acoordance with Section 23(a)
of Artiale I of the Texas Liquor Control Atit.
The question is not without difficulty and we
have been unable to rind any casa whioh ccntalna a deflni-
tlon of the term Wfront door-. However, we shall lllus-
trate how the courts have construed the term "front" in
varloua altuatlone.
*The rront of a lot, 1s very well known
to be that art of the same whloh fBeC8 a
atraat or a E reeta. It cay frop on one at eet
zsl,’ a~tl~a7, front on two. h%at la the Lent
aterminableby it8 raolng upon a
public street or streeta.* Dee f*olneava.
Dorr, 31 Iowa 89, 93.
285
Eon. Part Ford, Pege 4
*Any side or face of a buildllngla the
front, although the word is Itoreoamonly
used to denote the entranoe alde.... Pack-
rront, rear-front, or four fronts of a house
em all terms in comon use - and there la
no reason why a building should not *front*
on two, three or four streets, or that two,
three or four streets should not be 'in front
thereof'1 all such streets would, I think,
Voonfront.*the building." Re Dianlok, 3 Cnt
1 111061 - Note 4(a) 27 Corpus Jurla, page
910.
'The *front property line', wlthln the
restrlatlon of deed6 of property platted
into lots that no building shall be erected
wlthih 20 feet of the front proparty line
of any street, includes, in the case of a
corner lot, the line of the street on which
is the aide of the lot, es well es the line
of the street on which the lot faoe8.e
9cateravs. Collins (R. J. Ch.) 70 A. 984,
citing Des Yolnes vs. Dorr, 31 Iowa, aa, 93.
Xe think the term "front door" should be aon-
.atruedao aa to give effect to the language wed in Seo-
tlon 25 (a) of Article 2 of the Texas liquor Control Act
and ao aa to give effect to the evident intention of the
Legislature in the passage of the aot. In aooordance
with auoh oonstruotion we think it was the intention of
the Iaglalatve to allow the governing authority of
oitlea, towns a%d countlea the right to prohibit the sale
of alcoholic beverages by any deele- -&ore the plaae of
buelneas of such dealer was nlhlh the prohibited distance
frar.a church, public school or hospital, using the basis
of rueeaurementoutlined by tte statute.
viethink the term "front door" es uaed in said
atetute mane any outside entrhnoe door facing or front-
ing a public street. Therefore a church, aohool, hospital
or liquor dealer*8 place of bualnese could have one or
kore "front doora*',dependent upon the facts in the case.
think there shculd be at least 300 feet between tha
:.7e
286
Hon. Hert ?ord, Page S
*rrfm door’*or any 0r the 'rront doors" of suoh places,
using the sy8t.m of Eeamremcnt outlined by the statute.
Viith rererenoe to the faete stated in your
letter We are of the opinion that the Vert door of the
ahapel”, a8 reterred to in your letter, is the *'front
door” or said ohepel.
You tiate in your letter that the building i8
a two-story building a&I that no part or the buildiig ir
wed for church purpose8 exoept the ohapel which i8 on the
~ouor rloor. You a180 rtate that.th b ildi ha8 another
ifoor o~~nninorrcm the 8treet known ai tube nc% dooF.
whioh 2088 not open dfreatly into the chapel, but open8
into n hall from which the &air8 lead to the seaond
rloor. There ir also another door whioh lead8 from the
hall into the chapel. 38 think that the sea& dooP
de8oribed In your letter 16 not a Cart of the chapel end
ib l?ot% *front door" or the chapel. Ke think that the
lnr.erdoor leading lrcm the hall into the ohepel 18 not
a Front door" of the chapel beoauee the oame la not an
outside door racing the 8tre.t.
Very truly your8
ATTamY GEmm. OF TImis
Wm.
J. FarmIng
dsUf
8tCUlt | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147464/ | J-S08042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES MICHAEL DEHNER :
:
Appellant :
No. 1282 WDA 2016
Appeal from the Judgment of Sentence July 6, 2016
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000128-2016
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 22, 2017
Appellant, James Michael Dehner, appeals from the judgment of
sentence entered in the Clarion County Court of Common Pleas, following his
negotiated guilty plea to open lewdness.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On March 10, 2016, the Commonwealth charged Appellant with three counts
of open lewdness and one count each of dissemination of sexual materials to
a minor and corruption of minors. The charges stemmed from several
incidents where Appellant watched pornography and masturbated in front of
twelve-year-old Victim. On July 6, 2016, Appellant entered a negotiated
____________________________________________
1
18 Pa.C.S.A. § 5901.
J-S08042-17
guilty plea to one count of open lewdness, in exchange for the
Commonwealth’s recommendation that the court impose a sentence in the
standard range of the sentencing guidelines and dismiss the remaining
charges against Appellant. Immediately after acceptance of the plea, the
court sentenced Appellant in accordance with the plea agreement to a term
of six (6) to twelve (12) months’ imprisonment. The court imposed the
sentence consecutive to an unrelated sentence Appellant was serving at the
time.
On July 26, 2016, Appellant filed a motion to file a post-sentence
motion nunc pro tunc. The court granted Appellant’s motion to file the nunc
pro tunc post-sentence motion that same day. The court ultimately denied
Appellant’s nunc pro tunc post-sentence motion, which asked the court to
impose Appellant’s sentence concurrent to his unrelated sentence and make
Appellant work-release eligible. Appellant timely filed a notice of appeal on
August 15, 2016. On August 18, 2016, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant’s counsel filed a statement of intent to file an Anders
brief pursuant to Pa.R.A.P. 1925(c)(4) on August 26, 2016. On November
23, 2016, counsel filed a petition for leave to withdraw as counsel in this
Court.
As a preliminary matter, counsel seeks to withdraw his representation
pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d
-2-
J-S08042-17
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(2009). Anders and Santiago require counsel to: (1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; (2) file a
brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to
confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903
A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
____________________________________________
2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
-3-
J-S08042-17
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated November
14, 2016, attached to Petition for Leave to Withdraw as Counsel). In the
Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel’s argument refers to relevant law that might
arguably support Appellant’s issues. Counsel further states the reasons for
his conclusion that the appeal is wholly frivolous. Therefore, counsel has
-4-
J-S08042-17
substantially complied with the requirements of Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
ARE THERE ANY ISSUES THAT APPELLANT CAN RAISE,
THAT MIGHT ARGUABLY SUPPORT AN APPEAL OF HIS
SENTENCE FOLLOWING A VOLUNTARY GUILTY PLEA?
A. WAS ANY ERROR COMMITTED IN THE
COMMONWEALTH’S FAILURE TO MIRANDIZE []
APPELLANT?
B. WAS ANY ERROR COMMITTED IN HOLDING
APPELLANT’S PRELIMINARY HEARING AFTER 14
DAYS OF HIS PRELIMINARY ARRAIGNMENT?
(Anders Brief at 4).
In the Anders brief, counsel argues Appellant waived any challenge to
the alleged Miranda3 violation or the delay between his preliminary
arraignment and preliminary hearing due to Appellant’s knowing and
voluntary guilty plea. Counsel concludes Appellant cannot raise these claims
on appeal. We agree.
The principles surrounding Miranda warnings are well settled:
The prosecution may not use statements stemming from a
custodial interrogation of a defendant unless it
demonstrates that he was apprised of his right against
self-incrimination and his right to counsel. Thus, Miranda
warnings are necessary any time a defendant is subject to
a custodial interrogation. …[T]he Miranda safeguards
come into play whenever a person in custody is subjected
to either express questioning or its functional equivalent.
Moreover, in evaluating whether Miranda warnings were
____________________________________________
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d. 694.
-5-
J-S08042-17
necessary, a court must consider the totality of the
circumstances.
In conducting the inquiry, [a court] must also keep in mind
that not every statement made by an individual during a
police encounter amounts to an interrogation. Volunteered
or spontaneous utterances by an individual are admissible
even without Miranda warnings.
Commonwealth v. Gaul, 590 Pa. 175, 180, 912 A.2d 252, 255 (2006),
cert. denied, 552 U.S. 939, 128 S. Ct. 43, 169 L. Ed. 2d 242 (2007) (internal
citations and quotations marks omitted).
Pennsylvania Rule of Criminal Procedure 540 explains the time
requirements for scheduling a preliminary hearing as follows:
Rule 540. Preliminary Arraignment
* * *
(G) Unless the preliminary hearing is waived by a
defendant who is represented by counsel, or the attorney
for the Commonwealth is presenting the case to an
indicting grand jury pursuant to Rule 556.2, the issuing
authority shall:
(1) fix a day and hour for a preliminary hearing
which shall not be later than 14 days after the
preliminary arraignment if the defendant is in
custody and no later than 21 days if not in custody
unless:
(a) extended for cause shown; or
(b) the issuing authority fixes an earlier date
upon the request of the defendant or defense
counsel with the consent of the complainant
and the attorney for the Commonwealth…
Pa.R.Crim.P. 540(G)(1). Violation of Rule 540(G)(1) does not require
-6-
J-S08042-17
automatic discharge of an accused if his preliminary hearing is not scheduled
within the requisite amount of time. Commonwealth v. DeCosey, 371
A.2d 905, 907 (Pa.Super. 1977). Significantly, “courts have regularly
refused to dismiss prosecutions and discharge defendants based on technical
violations of the criminal procedural rules in the absence of a demonstration
of prejudice.” Commonwealth v. Bowman, 840 A.2d 311, 317 (Pa.Super.
2003).
Significantly, “[a] plea of guilty effectively waives all nonjurisdictional
defects and defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242
(Pa.Super. 1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990). “When
a defendant pleads guilty, he waives the right to challenge anything but the
legality of his sentence and the validity of his plea.” Commonwealth v.
Jones, 593 Pa. 295, 308, 929 A.2d 205, 212 (2007). Here, Appellant
challenges the Commonwealth’s alleged failure to inform Appellant of his
Miranda rights plus he complains about the delay between his preliminary
arraignment and preliminary hearing. Nevertheless, Appellant does not
claim his guilty plea was coerced by the alleged Miranda violation or the
delay prior to his preliminary hearing. Further, nothing in the record
suggests the police obtained a confession from Appellant or conducted an
interview of Appellant at any time during the case. Additionally, Appellant
fails to argue any prejudice resulted from the delay between his preliminary
arraignment and preliminary hearing. Therefore, Appellant’s claims are
-7-
J-S08042-17
waived for purposes of our review. See id. Following our independent
review of the record, we conclude the appeal is frivolous. See Palm, supra.
Accordingly, we affirm the judgment of sentence and grant counsel’s petition
to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
-8- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154062/ | J-S11006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL LINEBURG,
Appellant No. 113 WDA 2016
Appeal from the Judgment of Sentence September 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001722-12
and CP-02-CR-0013718-2013
BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED MARCH 17, 2017
Appellant, Michael Lineburg, appeals from the judgment of sentence
entered on September 30, 2015, as made final by the order entered on
January 6, 2016, which denied Appellant’s post-sentence motion. We affirm.
On July 14, 2015, Appellant pleaded guilty at docket number CP-02-
CR-0001722-2012 to aggravated assault, firearms not to be carried without
a license, possession of a firearm by a prohibited person, possession of a
firearm by a minor, and recklessly endangering another person; Appellant
also pleaded guilty at docket number CP-02-CR-0013718-2013 to
*Former Justice specially assigned to the Superior Court.
J-S11006-17
aggravated assault.1 During the guilty plea hearing, the Commonwealth
summarized the factual basis for Appellant’s plea:
[At docket number CP-02-CR-0001722-2012,] the
Commonwealth would have called as witnesses Detective
Tim Rush as well as others in addition to Kimberly Wade
and Officer Achille. They would have testified that on the
4th of August 2011 [at approximately 10:16 p.m.,] City of
Pittsburgh [Police] officers were called to 2121 Koerner
Avenue on the North Side for a person shot. On arrival[,]
they located one Kimberly Wade who had been shot once in
the abdomen and grazed one time on the right side of her
torso. Ms. Wade was transported to Allegheny General
Hospital in critical condition and upgraded to serious
condition by a doctor at the hospital. [Appellant] was later
apprehended carrying a firearm that matched shell casings
found at the scene. [Appellant] was interviewed by
Detective Tim Rush and gave a confession indicating he had
fired multiple rounds emptying his clip in the general
direction at Kimberly Wade while she was located on the
front porch of her residence. That firearm was test-fired by
the Allegheny County Crime Lab, found to be in good
operating condition. And it was a nine millimeter caliber
Taurus pistol. . . . In addition, [Appellant] did not have a
valid license to carry a firearm and had been prior
adjudicated delinquent for person not to possess by virtue
of . . . possession of a firearm by a minor. . . .
[At docket number CP-02-CR-0013718-2013, the]
Commonwealth would have called as witnesses Detective
Dale Canofari as well as Detective Hal Bolin and Elijah David
. . . as well as others. They would have testified [that, on]
June 11, 2013, at approximately [12:50 a.m.,] officers
responded to 109 Rhine Place for a man shot. Upon
arrival[,] officers found victim Elijah David [lying] in front of
109 Rhine Place with numerous gunshot wounds. He was
transported to Allegheny General Hospital emergency room
____________________________________________
1
18 Pa.C.S.A. §§ 2702(a)(1), 6106(a)(1), 6105(a)(1), 6110.1, 2708, and
2701(a)(1), respectively.
-2-
J-S11006-17
. . . in critical condition. Detectives spoke with Elijah David.
He indicated that he had been shot multiple times by
[Appellant]. He was struck five times during the incident in
his extremities and back area. He identified [Appellant]
through a series of photo arrays and identified him as the
[individual] who shot him.
N.T. Guilty Plea Hearing, 7/14/15, at 6-8.
On September 30, 2015, the trial court sentenced Appellant to serve
an aggregate term of 12-and-a-half to 25 years in prison, followed by five
years of probation, for his convictions. Appellant’s aggregate sentence
included a term of 90 to 180 months in prison for aggravated assault at
docket number CP-02-CR-0013718-2013 and a consecutive term of 60 to
120 months in prison for aggravated assault at docket number CP-02-CR-
0001722-2012; the former aggravated assault sentence fell within the
standard guideline range and the latter aggravated assault sentence fell
within the mitigated guideline range. N.T. Sentencing Hearing, 9/30/15, at
19.
On December 8, 2015, Appellant filed a counseled Post Conviction
Relief Act (“PCRA”) petition, seeking the reinstatement of his post-sentence
and direct appeal rights. See Appellant’s PCRA Petition, 12/8/15, at 1. The
PCRA court granted Appellant’s petition and Appellant filed a timely post-
sentence motion. Within Appellant’s post-sentence motion, Appellant
claimed:
Although his sentence is within the statutory limits, and in
fact the periods of incarceration imposed are in the standard
[sic] range, the sentence imposed was manifestly excessive,
unreasonable, and an abuse of discretion for the following
-3-
J-S11006-17
reasons: (1) the trial court sentenced him without
providing sufficient reasons for the sentence imposed[;] (2)
the trial court failed to give careful consideration to all
relevant factors, specifically, the court did not review the
presentence investigation (PSI) report[; and,] (3) the court
cited no reasons for imposing the periods of incarceration
consecutive to one another, and the maximum sentence of
12 ½ to 25 years’ imprisonment imposed was excessive.
There were pertinent factors in this case that made the
imposition of the two standard [sic] range sentences
unreasonable. There is no indication that the court
considered [Appellant’s] willingness to take responsibility for
his actions by entering a guilty plea; [Appellant’s]
expression of remorse at his sentencing proceedings; and
other mitigating factors.
Additionally, [Appellant] asserts that the sentencing court
abused its discretion in not running the sentences
concurrent to one another instead of consecutively. . . .
[The trial court’s] imposition of a sentence of not less than
12 ½ years and not greater than 25 years’ imprisonment is
inconsistent with specific provisions of the Sentencing Code,
and is contrary to the fundamental norms underlying the
Code.
Appellant’s Supplemental Post-Sentence Motion, 12/21/15, at 3-4.
The trial court denied Appellant’s post-sentence motion on January 6,
2016 and Appellant filed a timely notice of appeal. Appellant presents one
claim on appeal:
Did the trial court abuse its discretion in sentencing
[Appellant] to two consecutive standard range sentences
totaling 12 ½ to 25 years’ imprisonment where the court did
not consider all relevant sentencing code factors; did not
review the presentence report; did not consider
[Appellant’s] willingness to take responsibility for his actions
by pleading guilty, and his sincere expression of remorse;
and did not give any reasons for imposing consecutive
rather than concurrent terms in fashioning a sentence.
-4-
J-S11006-17
Appellant’s Brief at 7 (internal bolding and some internal capitalization
omitted).
Appellant’s claim on appeal is a challenge to the discretionary aspects
of his sentence. “[S]entencing 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 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.A.]
§ 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the case at bar, Appellant filed a timely post-sentence motion and
notice of appeal. Moreover, within Appellant’s post-sentence motion,
Appellant claimed that the trial court abused its discretion at sentencing
because the trial court: 1) “sentenced him without providing sufficient
reasons for the sentence imposed;” 2) “failed to give careful consideration to
-5-
J-S11006-17
all relevant factors, specifically, the court did not review the presentence
investigation (PSI) report;” 3) “cited no reasons for imposing the periods of
incarceration consecutive to one another;” and, 4) did not consider
Appellant’s “willingness to take responsibility for his actions by entering a
guilty plea [or Appellant’s] expression of remorse at his sentencing
proceedings.” Appellant’s Supplemental Post-Sentence Motion, 12/21/15, at
3-4.
On appeal, Appellant repeats the third and fourth numbered sub-
claims listed above. See Appellant’s Brief at 15-21. With respect to the first
numbered sub-claim (that the trial court “sentenced him without providing
sufficient reasons for the sentence imposed”), Appellant has not expounded
upon this claim outside of the contention that the trial court “cited no
reasons for imposing the periods of incarceration consecutive to one
another.” Id. Therefore, since Appellant’s first sub-claim is subsumed in
the third, we will not independently analyze Appellant’s first numbered sub-
claim. Further, on appeal, Appellant has abandoned his claim that the trial
court “did not review the presentence investigation [] report” and Appellant
claims, instead, that the trial court failed to consider his “background,
particularly his history of mental illness and physical abuse.” Appellant’s
Brief at 20. The claim Appellant raises on appeal is waived, as Appellant
failed to raise the claim in his post-sentence motion. Pa.R.Crim.P. 720;
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”).
-6-
J-S11006-17
We will now determine whether the claims Appellant preserved – that
the trial court “cited no reasons for imposing the periods of incarceration
consecutive to one another” and did not consider Appellant’s “willingness to
take responsibility for his actions by entering a guilty plea [or Appellant’s]
expression of remorse at his sentencing proceedings” – present a
“substantial question that the sentence appealed from is not appropriate
under the Sentencing Code.” Cook, 941 A.2d at 11.
Generally, to raise a substantial question, 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). Moreover, in determining
whether an appellant has raised a substantial question, we must limit our
review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.
This limitation ensures that our inquiry remains “focus[ed] on the reasons
for which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits.” Id. at 727
(internal emphasis omitted).
The trial court in this case sentenced Appellant in the standard
sentencing range for one aggravated assault conviction and in the mitigated
-7-
J-S11006-17
sentencing range for the second aggravated assault conviction; the trial
court then ordered that Appellant serve the two sentences for aggravated
assault consecutively. On appeal, Appellant claims that the trial court erred
because it “cited no reasons for imposing the periods of incarceration
consecutive to one another.” Appellant’s Brief at 20. This Court has held
that such a claim raises substantial question under the Sentencing Code.
Commonwealth v. L.N., 787 A.2d 1064, 1071-1072 (Pa. Super. 2001)
(holding the defendant’s claim that the trial court “failed to properly
articulate reasons for imposing consecutive sentences” raised a substantial
question). Therefore, we may reach the merits of Appellant’s claim.
However, Appellant’s claim on appeal immediately fails because the
trial court, in fact, fully and properly explained why it imposed consecutive
sentences in this case. As the trial court explained during the sentencing
hearing:
[Trial Court:] Here is the thing. I tend to agree with the
victim’s mother and the victim’s grandmother. This is a
horrific crime. But by the grace of God this isn’t a murder
case where your client is looking at life in prison for first
degree murder. . . . It is a miracle that the one victim is
alive. I know you saved us the cost of a trial and that, but
still at the same time this is the kind of conduct that kind of
scares me that if he gets back on the street too soon, it is
going to happen all over again and I am going to have
another victim’s family in front of me complaining that this
is happening again.
These were two separate incidents, or is this one incident
with two victims?
-8-
J-S11006-17
[The Commonwealth:] Two separate case[s]. As I
indicated, he did the one case, he was placed in Vision
Quest. After he shot Kimberly Wade, he was placed in
Vision Quest. He escaped, absconded from Vision Quest,
and he gets a gun and puts Elijah David in a wheelchair.
...
[Trial Court:] Given the nature of the crimes as bad as they
were, in the case ending in 13718 I am going to give you a
standard range sentence, 90 to 180 months, on the original
count two. On the other case, the case ending in 1772, I
am going to give him slightly in the mitigated 60 to 120, but
I will run those consecutive rather than concurrent given
the nature of these acts. . . .
N.T. Sentencing Hearing, 9/30/15, at 18-19.
Further, as the trial court explained in its opinion to this Court, the
trial court “ordered, reviewed, and considered” Appellant’s presentence
investigation report prior to imposing Appellant’s sentence. Trial Court
Opinion, 7/14/16, at 7; see also Commonwealth v. Baker, 72 A.3d 652,
663 (Pa. Super. 2013) (“[w]hen a sentencing court has reviewed a
presentence investigation report, we presume that the court properly
considered and weighed all relevant factors in fashioning the defendant’s
sentence”).
It is clear from the above that, at the sentencing hearing, the trial
court fully explained why “the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant” required
-9-
J-S11006-17
consecutive sentences in this case. See 42 Pa.C.S.A. § 9721(b).
Appellant’s claim to the contrary fails.
Finally, Appellant claims that, at sentencing, the trial court “failed to
consider” the following two mitigating factors: Appellant’s “willingness to
take responsibility for his actions by entering a guilty plea” and Appellant’s
“expression of remorse at his sentencing proceedings.” See Appellant’s
Brief at 20. Appellant’s claim does not raise a substantial question under the
Sentencing Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.
Super. 2003) (“an allegation that the sentencing court did not consider
certain mitigating factors does not raise a substantial question”); see
Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n
allegation that the sentencing court ‘failed to consider’ or ‘did not adequately
consider’ various factors does not raise a substantial question that the
sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also
Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a
claim that the trial court “erred by imposing an aggravated range sentence
without consideration of mitigating circumstances raises a substantial
question”) (emphasis added). Therefore, we may not reach the merits of
Appellant’s final claim.
Judgment of sentence affirmed. Jurisdiction relinquished.
- 10 -
J-S11006-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
- 11 - | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4155466/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
305
CA 16-01218
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ.
CLAIRE MCCORMACK, INDIVIDUALLY, AND AS EXECUTOR
OF THE ESTATE OF JOSEPH W. LAMANNA, DECEASED,
PLAINTIFF-RESPONDENT,
V ORDER
UNIVERSITY OF ROCHESTER, DEFENDANT,
WESTFALL CARDIOLOGY, LLP, AND ADEL B. SOLIMAN, M.D.,
DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)
BROWN GRUTTADARO GAUJEN & PRATO, LLC, ROCHESTER (WILLIAM KALISH OF
COUNSEL), FOR DEFENDANTS-APPELLANTS WESTFALL CARDIOLOGY, LLP AND ADEL
B. SOLIMAN, M.D.
DOMINIC PELLEGRINO, ROCHESTER, FOR PLAINTIFF-RESPONDENT.
OSBORN, REED & BURKE, LLP, ROCHESTER (KATHLEEN B. BENESH OF COUNSEL),
FOR DEFENDANT UNIVERSITY OF ROCHESTER.
Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), rendered October 27, 2015. The order denied the
motion of defendants Westfall Cardiology, LLP, and Adel B. Soliman,
M.D., for summary judgment.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs for reasons stated in the decision
at Supreme Court.
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 03-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144323/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Eonorable Earl B. Btinwon
county Attommy
Rookwall county
Rookwal1, Texa5 A
329
B#4orablc Earl B. Stlmaou, Page Iz
iwtiale 331, Vernon*8 Annotated Civil Statutea,
read8 aa followa:
Vounty attornega, by oonaant OS the
aommlaaionera aourt, ahell have power to
agpolnt in wrltlnng oae or more as8Istant8,
not to exceed three, Sor their reapeotlvo
ooutiee who shall hate the eame purera.
authority and gualIfIcatIona aa their prin-
clpala, at whose will they ahall hold ofiioe.
Before entering on the dutiea of their officea,
t&y ahell eooh take the otrlolal oath which
shell be Indorsed upon their appointment, which
oaths an6 appointments ahell be raoorded and
depoalted In the county clerk’8 offIce.”
krtlcle 3691, Vernon*8 &uW.afed Clvll Statutea,
aa amsnded, reads in part se followa:
%ech ofrIcer maed In this Chapter shall
fir8t QUt Or thO OwrWt raea Or hi8 Off108
pay or be paid the &mouat allowed. him under
the provIeIona of rlrtlole SEM33,together with
the aalari~a 0r hfa aaalatan8a aab asputha,
and authorlsod lxpnaqa %uMar A&lelo ,5899,
aadthe amount na6aa8ary to cover ooata of
gmlwm on whatnor eurety boatl may be l~qulre~
If the uurrent r0438 0r each orfloe
oollec;ed In any year be more then the amou&i
needed to pay the eauuata above l paoliiad, 8ama
shall be deemad orceaa~ reo8, end shell be die-
poaetl of in the mamer hereiaafter pxvvI6d.
“In eoantlea eoatalnlng tw~ty-five thou-
sand (ZiS,O’OO)or lea8 inhabiteat+, Dfatrist
aad county 0rrioore. 1~34 harela ahall main
one-thlrb of eueh ezoeaa tw:a ant11 auoh oae-
thI.rd, together with the a~~tmta apeaftled In
hrtiule 3883 abwunte to Three .Thouaan~ pil-
lara ( s,ooof . Praolnot oitlcara ahal& retain
one-t& 8rrd until uuch one-third, togeWnr with
the amount 8~0irhi In Artkle 5883, aaounta
to Fourtaen Xundred Dollar8 ($WXJ].
*The oompenaetIonau l%m.itatIona end maxi-
330
&*.orabls Eerl B. StIaaoa, Page 3
mums herein rixttd In thla Aat~ far orriaera
shall lnolud4 end apply to all 0rti042-8
mentioned herein In taoh and every oouaty
or thle state, and It Ia hereby deolared
to be the Iatentloa of the LegIalature that
the provIaIona of thla kot ahall apply to
eaoh of said ofricere, nnd any lp4eIal or
general law inormslstent with the provIaIona
herwr Is hereby expnaaly repealed la w
far aa t.h8 same mey be iaooaaistant with
thla Aat.
“The u0mgenaatIon, limitat lone aad mexi-
stuw herein fixed shell alao apply to all
roes end oompenaetlon whataoev’er oolleetad
by safd of~Ic4re In their 0rff0ial oapeoltg,
whether accountable as tee8 of ofiloe under
the present law, and any law, general or
epeolal, to the oontrary La hereby expmealy
repealed. The only kind and charaoter of
ooxpanaatloq exempt fro5 the -g.rovIaIona of
this Act ahell be reward8 reoelved br BherIii8
ror aP~reh4naIon of orlarinala or rugutivea
troa juetloe and ror tM roe&very of ltolea
property aad poaeya reoelved by County~Jodgaa
and Jpe&a or the Pea04 for p4rioraIr&aer-
.riagr oeremonlea, ahIah aom ahell not be ao-
oountable ror end not required to be reported
as reea 0r orriee.*
drtlole 3908, Vernon*8 Annotated CIvIl Statutea,
reada in part aa foU.owa:
Whene~ver any dlatrfot, oounty or preoinot
orricer ahall require the aervioea bf deputies,
aaaIatenta or olerka ti the performehoe ot hia
dutlee he ahall agply to the County ConevIa-
sIoaeru* Court of his aounty ior authority to
appoint auuh deputlea, aeaiatanta or olerka,
stating by sworn applloatloh the allarbor neptled,
the position to be filled aad’the aimaht to be
paid. Said applleatlon ahall be aoeompanled
by Y atatemant ahowiagthe probable reoeIpta
irozn tees, oommisalons and ooslpeneetlon to be
oolleoted by said office durlag the fiscal yesr
and the probable dIsbursementa whIah a&all isi-
elude all aalariea and expenaea ai ataid Offi&S~
anor;;ible
Earl B. &timon, iage 4
crnb saidcourt shall ;=ke its order authorlz-
ingthe apaointrnent ot such deputies, esslst-
ants and clerks and fix the oonpeneationto be
?ald them within the lI.titstIonsherein pre-
scribed and determine the ruzber to be ap-
pointed as In the diooretionof said Court
ZJ be proper; provided that In no case shall
the Co~lssloner~s Court or any smaber there-
of attempt.to Inrluenoethe appointzaent of
any person as deputy, assistant or clerk in
any ofrice. Uson the entry of such order the
orrlcers applying for such assistants,depu-
ties or clerks shall be authorlxedto appoint
them; provided that said compensationshall
not exoeed the maxlr~~ amount hereinafterset
out. The ooiaDenaatlon which pay be allowed
to the deQutIes, assistanta or clerks above
nazaedror their sarvfces shall be a reasonable
one, not to exceed the rollowIng amounts:
"1. In counties having a populationor
twenty-fivethousand (25,000)or less Inhablt-
ante, ifrot.assistant or chief deputy not to
exteed Elghtwn Hundred ($1600.00)Dollars per
annum; other assistants,deputlea or olerks
not to exoeed Fiiteen andred ~($1500.00) Dol-
lars per annum each.”
It is to be noted that article 3902, supra, which
Is a later enact-at of the Legislature,doe8 not expressly
repeal ,rtIcle 331, sUpra; however the two atatutes under
oonaIderatIonherein, are in,par1 materla, end their provl-
elons in suoh respeat cannot be reconalled. In s~tioh olr-
oumstancea,"the older statute will be held to be repealed
by ImplIoatIonto the extent of the conrlIct* * *. It la
presumedthat the Legislature Intended to repeal all lava
and phrts or laws olearly inoonslstentwith Its later Aot8.v
39 Texas Jurls. p. 145, sec. 77.
In thfs connectionwe quote from the case oi Meek
v. bheelar County, 125 S. I,.(2d) 331, as follews:
*Ia the case ai Srysn v. Sundberg, 6 Tex.
418, 424, the Supreme Court of this State
announced the rule whiah, we think, Ie decisive
of the Issue before us. Suoh rule Is in the
332
IIonorable &arl 3. Stlmon, Page 5
r0iloring language: *It undoubtedly la true
that n oomatruotlonwhloh repeals rormer
stntutea, by lmplloatlon, la not to be la- :
rored; and it is aleo trus that statutea in
par1 materla, and related to the sama aubjeot,
are to be takea and conetrued together; be-
oausa It le to ba i&erred that they bad one
object in flaw, and were Intended to be oon-
eldered ~II oonotituting one entire, and har-
monious ayotem. But when the new statute,
in iteeli, ooaprehende the entire aubjeot,
and oreatea a new, entire, and lndewndent
eyoteo, raspeotlng that subjeot matter, it
10 unlveraallg held to repeal and supercede
all previous systems and lawn reapacting the
subjeot matter.‘”
ire think that srtlole 3908, aupra, is aontrvlllng
in the appolntiuant 0r assistant oounty lttarney8, and ll.aite
their aompenmatlon as stated therein. Said Artlole rrpeoif-
ioally pmvlden that the W eompeneation that oan ba
allawad a first asolatant or a deputy In counties having a
population oi lea8 than twanfy-five thouaaad inhabitants
Vhallmnot lxoee4 Eighteen Hundred Dollars ()l8OO.00) par
The maximum oompensation provided ror other deputleu,
szianto and aleskm shall aot exoeed Fliteon -red DOI-
lars (#MOO.OO) per 8iukum.
A8 above Indicated, Rmzkwall County has a popala-
tion of under twenty-five thowmnd hhabitate; therefore
the maxlam oonrpensatlon that could be allowed the first
assl6tant ooanty attorney would be eighteen wnd dollara
($1800.90) per annum. iiald aaslstant served as the aselrt-
ant oounty attorney ror only one Bonth aa6 oould not be
entltJ,ed to more than #lbO.OO an oompematlon for hlr rran-
loea. The ttounty attorney 18 entitled to dedttet the 8alarl.ea
OS hla asblstanta"and deputies and authwlzed expenses under
wtlale 3899, and the amoaat naoessary to oover ooet at pre-
aiua on whatever oar&y bond pray be required by&a% under
Article 3891, SaQra.
In view of ths ?oreg&ng authorltlso, you are r'mpeot-
rully advimd that,lt is ths opinloa of this department tht
the oounty attoraay oan legally deduot the BPP of One liurulred
333
-orable Earl B. Stllllson, Page 6
and Fifty ($liiO.OO) Dollars paid the afmiatant aoanty attor-
ney in arriving at hlrr nuximm aompenaatlon allowed by AT-
tialeo 5883 and 3891, rupra.
Trustin& that the foregoing fully a.aaweps your
inquiry, we remain
Your0 very truly
A?%%3 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131236/ | The Attormy General of Texas
JIM MAlTOX Nsvember 14. 1984
Attorney General
Honorable Ray Parabee opinion No. ~~-231
Supreme Couti Bullding
P. 0. Box 12549 Chairman
*usm. TX. 78711.2549 State Affairs Comml’ttee Re: Whether an employee resident
512l4752501 Texas State Senate of a state school is a legal
Telex 910/87C13S7
P. 0. Box 12068. Calpitol Station resident of the surrounding
T&copier 512i4750266
Austin, Texas 78711 independent school district
714 Jackson. Suite 700 Dear Senator Farabee:
Dallas. TX. 75M2.4M6
214174269U
You have informed us that an employee residing on the campus of a
state school seeks election to the board of trustees of the indepen-
4824 Albwla Ave.. Suite 160 dent school district in which the state school is located. The state
El Paso. TX. 799052793 school Is a star:e correctional facility for delinquent children
91515333464 administered by tt,e Texas Youth Commission pursuant to chapter 61 of
the Ruman Resource19 Code. The state school is not an independent
.dol Terra suits 700
school district having geographical boundaries; it is a state-created
“ourton. TX. 77002.3111 and state-administered facility having no elected board of trustees.
7lY22MSS9 All employee residents of the state school are employees of the state
of Texas. Tbe geographical boundaries of the independent school
district completely enclose the state school. The employee in
606 Broadway. Suite 312
Lubbock. TX. 79401.2479
question has resided on the campus of the state school for more than
SW747.5239 six months, has voted in previous independent school district
elections, s sc~~ol;as
district, children attending the independent school
4309 N. Tenth. Suite B
McAllm. TX. 7S501.1SS5
512,SS2-4547 You ask us the following questions:
1. Uader the facts as outlined above, does the
200 Main Plaza, Suits 400
applicant for a place on the district ballot meet
San Antonio, TX. 762052797
the resld’ency requirements of article 1.05 of the
51212254191
Election Code for a ‘district or political sub-
division, ’ so that he may appear one the ballot as
a candidate for the board of trustees of the
inaependznt school district?
2. If the applicant does not satisfy the
requirements of article 1.05 of the Election Code,
is he still qualified to vote in the elections of
the independent school district pursuant to
article KC, section 2 of the Texas Constitution?
3. If the applicant is not permitted to be a
candidat? or to vote in the independent school
n. 1036
Honorable Ray Farebee - Page Z! (JU-231)
district elections by virtue of his status as a
state employee reaidtng on the campus of a state
facility, does this. prohibition constitute a
denial of equal Ilrotection or a deprivation of
liberty under thd! Fourteenth Amendment of the
United States Constitution?
We conclude, first, that the state employee applicant does meet the
residency requirement of ar!:icle 1.05 of the Election Code, and that
his name may appear on the b,LLlot as a candidate for a position on the
board of trustees of the independent school district. A state
employee cannot conclusively be presumed to be a nonresident of a
political subdivision by vj,rtue of his status as a state employee
residing in a state enclave.
Article 1.05, V.T.C.S.. of the Election Code provides in part as
follows:
Subdivision 1. No person sball be eligible to
be a candidate for, or to be elected or appointed
to, any public trlective office in this state
unless he is a citizen of the United States
eligible to holsd such office under the
Constitution and laws of this state . . . and
unless he will hav’e resided in this state for a
neriod of 12 monthe next nrecedlnn the annlicable
iate specified below, and for an; public** office
which is less than statewide, shall have resided
for six months ntgt preceding such date in the
district, county, precinct, municipality. or other
political subdivision for which the office is to
be filled. (EmphasK added).
The residency requirement for any candidate for any public
elective office in Texas is 12 months in the state preceding the last
day his name may be placed on the ballot and 6 months in the state
preceding such date In the distrkt or political subdivision. The
Court of Civil Appeals has held that a school district was a “district
or political subdivision” within the meaning of article 1.05 of the
Election Code. See Brown v. Patterson, 609’S.W.2d 287 (Tex. Clv. App.
- Dallas 1980, T writ). ?ou indicate that the applicant, as an
employee ot the state, has c#l?sided on the campus of the state school
for more than six months.
What constitutes “reslinsnce” is defined in article 5.08.(a) of
the Election Code: “domicj.le; i.e., one’s home and fixed place of
habitation to which he intends toxurn after any temporary absence.”
The Election Code does not: define “residence” for the purpose of
running for public office, but the term has been construed to mean the
same for the purposes of voting as for the purposes of running for
political office. Cf. Prince v. Inman. 280 S.W.2d 779 (Tex. Civ. App.
---
c
Ronorable Ray Farsbee - PaSe 3 (JM-231)
- Beaumont 1955, no vrit). For the purpose of voting, article
5.08.(i) states that
[t]he residence of one who is an officer or
employee of the g;overnment of this state or of the
United States shall be construed to be vhere his
home was before . . . unless he has become a bona
fide resident of the place where he is in
government servic:fr. . . .
Determining the question of residency is a question of intent and
factual circumstances. It ,Ls not within the authority of this office
nor within the discretion of the official receiving the application to
determine those factual qnastions. See Parker v. Brown. 425 S.W.2d
379, 381 (Tex. Civ. App. - Tyler 1968, writ) (question of residence
is to be judicially determined); see also Mills v. Bartlett, 377
S.W.2d 636, 637 (Tex. 1'364) (residence Is determined by factual
circumstances).
In any event, article 5.08 when read with article 1.05 cannot
operate to disenfranchise: a state employee who lives within the
geographical boundaries of the independent school district merely
because his place of resid'ence is located on a public enclave. The
right to vote and to run for a political office are basic fundamental
rights guaranteed by tha First Amendment to the United States
Constitution. Dunn V. Blumstein, 405 U.S. 330 (1972); Evans v.
Cornman. 398 U.S. 419 (1975); ,ington v. Rash, 380 U.S. 89 (1965).
Any statutory provisions which restrict the right to hold public
office should be construei. strictly against ineligibility. See Chapa
v. Whittle, 536 S.W.2d 681, 683 (Tex. Civ. App. - Corpus Christi 1976
no writ).
The factual situation as presented is governed by the principles
of Carrington v. Rash, supta, and Evans v. Co-n, supra. In
Carrington, the United Swtes Supreme Court held that article VI.
section 2 of the Texas Constitution was violative of the equal
protection clause of the Fourteenth Amendment because the provision
established a conclusive presumption against servicemen from acquiring
residency for voting purposes. However, the Court did conclude that
"Texas ha[d] a right to require that all military personnel enrolled
to vote be bona fide resitients of the community." 380 U.S. at 93-94.
At that time the state of Texas provided no means by which a soldier
could establish a bona fide residency in the county where he was
stationed.
Similarly, in Evans '5 Cornman. 398 U.S. 419 (1970). the United
States Supreme Court considered the issue of whether persons living on
a federal enclave could acquire residency for voting purposes. In
m. &. the Permanent Board of Registry of Montgomery County.
Maryland, ruled that perwns living on the grounds of the National
Institutes of Health [hereinafter NIH]. a federal enclave located
Honorable Ray Parabee - Page s!, (Jn-231)
withla the geographical boundaries of the state, did not meet the
residency requirement of the! Maryland Constitution. Accordingly, NIA
residents were denied the right to vote In Maryland elections. The
Court in striking down the provision of the Maryland Constitution as
violative of the equal protection clause of the Fourteenth Amendment
to the United States Constitution, held that the state could assert no
overriding interest to restrict the right to NIH enclave residents;
and, that NIB residents wer I! residents of Maryland and were “just as
interested in and connected with electorial decisions . . . as [are]
their neighbors who lived off the enclave.” -Id. at 426.
We conclude that Carrington and Evans prohibit election officials
from applying article 1.05 x circumscribe the right of a state
employee to acquire residency to run for public office by virtue of
the fact that he resides OIL a state enclave, particularly, as here,
when the state enclave is l.c~cated within the geographical boundaries
,of the political subdivision in which he seeks office. The purpose of
article 1.05 is to provide better representation by assuring that the
voter will be better acquainted with the qualifications and views of
the candidate and the candidate will be acquainted vith and responsive
to the needs and desires of the voter. See Brown v. Patterson, supra.
By construing article 1.05 jn favor of theresidency of the applicant,
the statutory purpose ~111 rot be frustrated.
Since your second and third questions are ~predicated on a
negative answer to your firt,t question, it ia not necessary to address
them.
SUMMARY
Article 1.05 o:i the Election Code does not bar
a state employe,? from establishing residency
within an indepentlent school district by virtue of
the fact that he resides on a state facility
located within the: geographic boundaries of the
independent school district. The applicant,
having met the res,idency requirement may obtain a
place on the ballot: for the position of trustee of
the independent school district.
I
Very truly y
J JIM
L
MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
p. 1039
Eonorable Ray Parabee - Pagr 5 (JM-231)
DAVID R. RICBABDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131247/ | The Attorney General of Texas
October 26, 1984
JIM MATTOX
Attorney General
Suprrme Court Building
Mr. Randy M. Lee Opinion No. JM-220
P. 0. BOX 12549 Executive Director
Austin. TX. 76711. 2546 Texas 1986 Sesquicz~~tennial Re: Whether a county or city
commission may contribute funds to a local
P. 0. Box 1986 sesquicentennial committee and
Austin. Texas 78 X7 related questions
714JaCkSm.Suite 700 Dear Mr. Lee:
Dallas. TX. 75202-4506
2141742.6944
You ask several related questions regarding the status and
funding of local r!csquicentennial committees. First, you ask wherber
4624Albertl Ave..Suils 160 the local commitl:cfes are “extensions” of the Texas 1986 Sesqui-
El Paw TX. 79905.2793 centennial Commiss;jon. You also raise a number of specific issues
~15/533.3464 relating directly t3 partJcular city and county contributions to local
committees.
1001 Texas. Suite 700
“ou.ton. TX. 77002-3111 With regard 10 your first question. we conclude that local
7131223.5888 sesquicentennial wmmittees are “extensions” of the local governing
entities which create rhem; they are not functional extensions of the
Texas 1986 Sesqu.ll!entennial Commission. Local governing entities
606 Broadway, Suite 312
L”DbOCk. TX. 79401.3479
create their low:. sesquicentennial committees, appoint commircee
6061747.5236 members, and apprc%e the committees’ master plans prior to submission
of the plans to t’l’? state commission. Despite some state commission
influence, local commiteees act primarily as agents for the local
4309 N.Tenth, Suite B
McAllen. TX. 76501.1965
governing bodies which create them. See
- Attorney General (Ipinions
5121662~4547 JM-71 (1983); m-533 (1982).
The state cormlission has specific duties and powers with regard
200 Main Plaza. Suits 400 to sesquicentennizll. activities on the local level, but it does not
San Antonio. TX. 16205.2797
5121225-4191
create the local committees or dictate directly the exteot of their
authority. Article 6145-11. section 7. indicates. in part, that the
commission shall
(1) encourage individuals, private organiza-
tions, zJ.d local governmental bodies to organize
activities celebrating the state’s sesquicenten-
nial;
(2) ~II individuals, private organizations,
and low1
-- governmental bodies that organize
Mr. Randy H. Lee - Psge 2 (.Rl-220)
sesquicentennial _c~ctivicies to coordinate the
activities;
. . . .
(4) develop Iltandsrds for sesquicentennial
sctivl ties orsan cred bv individuals. - .orivate
organizations. -and local- governmental bodies and
sanction activitJes that comply with the
standards. . . . (Eaphasis added).
At the local level, the commission’s functiou is to coordinate
local activities with ocher local activities and with state
activities. The collrmission’s power over local governing entities is
indirect, stemming from the benefit derived by local governing
entities from the increased publicity and appeal that result from the
commission’s promotion of specific local activities. Thus, the
authorjty to develop standards is merely a prerequisite to the
commission’s officisl ssnctlon of local activities. rather than a
statutory grant of direct control over the activities of local
governing entities.
A local governing entity or its local committee is subject to
commission control only when, and only to the extent, that the
commission expends state funds, including donations accepted on behalf
of the state, to encourage, coordinate, and sanction local activities r
as authorized by section 7 of article 6145-11. See Attorney General I
Opinions MW-533, m-489 (l’H2). See also M-114871972). Except in
this limited context, local committees are controlled by the local
governing entities which crtr;ite them.
The status of local colmaittees as “extensions” or *gents of local
governing entities is also rarlevant to your inquiry about restrictions
on the source of contribur::lons that may be accepted by local com-
mittees. Because your Letter refers to 8 city or county
“contribution” to its own wmmittee, at the onset it is necessary to
emphasize that vhen alcwal governing entity makes expenditures
through its own agent -- its local committee - the action constitutes
an expenditure by the local governing entity. It is not a “contri-
bution” in the sense of a “iDnation” to the local committee.
Your other question 3 relate to the validity of certain
contributions to, or expenditures by, CitifS and counties.
Specifically, you inquire .%bout their expenditures (1) for their own
local sesquicentennial comndttees. (2) for their conunittees’ projects
directly, and (3) for j0:inc committees formed with other local
governing entities. We conclude that. subject to the folloving
limitations, local governmental entities may expend funds jr. all three
ways for sesquicentennial activities. You do not inquire about the
Mr. Randy g. Lee - Page 3 [JM-220)
extent to vhich cities end counties may delegate this expenditure
power to local aesquicentunnial committees; therefore, Eve do not
address the issue. See Attorney General Opinion JM-71 (1983); see
generally Canales v. xghl.in, 214 S.U.Zd 451 (Tex. 1948); Pidel~
.Land a Trust Co. of Texas V.-&y of West University Place, 496 S.W.Zd
116 (Tex. Civ. App. - Roustc~~l4th Dist.] 1973, writ ref’d n.r.e.).
Limits on expenditurcc, by local sesquicentennial committees
depend upon the local govenmental entities’ authority to make certain
expenditures. Both grants of authority to make expenditures and
limits
-- on its exercise are rr!levant. Counties and cities possess only
the powers expressly or by necessary implication authorized by the
Texas Constitution or statutes, or by local charters. Lower Colorado
River Authority v. City of San Marcos. 523 S.W.2d 641 (Tex. 1975)
Tome rule cities); Canalec?v. Laughlin, 214 S.W.Zd 451 (Tex. 1948)
(count I&) ; Cit of West L.&e Hills v. Westwood Legal Defense Fund,
598 S.W.Zd 681 --+---mnpp
Tex. . - Waco 1980, no vrit) (general law
cities). This rule applies to the power to make certain expenditures.
See Attorney General Opin:.ons JM-191 (1984); JM-65 (1983); H-1170
(1978).
No provision expressly authorizes local governmental entities to
engage In local sesquiccwtennial activities. Nevertheless, by
providing that the conrmisslon shall encourage and sanction local
sesquicentennial activities: by local governmental bodi.es, article
6145-11, section 7, authorizes some local sesquicentennial activities
by necessary implication. More=, numerous more general statutes
expressly authorize counties and cities to engage in local activities
of this sort. See, e.g., V.T.C.S. art. 6145.1 (county historical
commission); V.T.C.S. art. 2372d-8 (certain counties authorized to
make public improvements in.:t!nded to attract tourists); art. 1264j-4.1
(cities authorized to xwl:e public improvements that would be
frequented by tourists); V.‘P.C.S. art. 6081t (G tourism-related
projects); V.T.C.S. art. lOlSc-1 (establishment, by counties and
cities, singly or jointly, 0:: recreational programs and facilities).
Accordingly, local gowrnmental bodies are impliedly authorized
to make reasonable expenditwres for local sesquicentennial activities.
Ag.ain. we emphasize that wedo not address the extent to which cities
and counties may delegate twir sesquicentennial activity authority to
local committees. In many instances, the specific statutes cited may
prevent delegation of certain powers. See. e.g., Attorney General
Opinion .I?+7 1. Therefore, the answers to your questions relating to
particular contributions b:. city and county governments depend only
upon limits on the exercise ,>f this authority.
The Texas Constitution ,:xpressly prohibits the use by a political
subdivision of its public funds or credit for Private purposes. Tex.
Const. art. III, 552; ---
State v. City of Austin, 331 S.W.2d 737 (Tex.
Nr. Randy EC. Lee - Page 4 (JM-220)
1970); see also Tex. Const. art. XI, 93; art. XVI, 16. No fixed rule
delineates exactly what cotrntltutes a public purpose. Nevertheless,
the statutes cited above, particularly article 6145-11 itself, invite
the conclusion that both thl! tourism and historic preservation aspects
of sesquicentennial activl,::tes serve a public purpose. See, also,
V.T.C.S. art. 6144f.
Nevertheless, expenditures for local sesquicentennial activities
cannot benefit private individuals and entities in ways so out of
proportion to the overall p~hlic benefit that they amount to a virtual
donation. Attorney General Opinion JM-65 (1983); see Attorney General
Opinion Jh-103 (1983). An i.ncidental benefit toeprIvate person or
entity is not prohibited. ,G:torney General Opinion MW-423 (1982); see
Barrington7 Cokinos, 338 S.W.2d 133 (Tex. 1960). When expenditux
are made which involve prirate parties, however. particularly if the
expenditures are made dircq:tlg for private local sesquicentennial
“projects,” article III,x?:ion 52 of the Texas Constitution requires
that conditions be attached to the expenditure to assure the use of
public money for a public purpose. See Attorney General Opinions
JM-103 (1983); MW-423 (1982) ; NW-60 (1979).
Article III, section I;; usually relates to government donations
to “private” in the sense oE non-governmental entities as individuals;
hovever , the provision also bars a politlcal subdivisiou from
rratuitouslv nrantinn its funds to soother nolitical subdivision.
Harris Coudty”Flood Contro:t District v. Mann, ‘140 S.W.Zd 1098 (Tex.
1940); San Antonio Independ,$t 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.1: Attornev General Oninions J?+65
(1983); A-1170 (1978). On the other hand; the provision does not
prohibit a local governiug body from contracting with another
political subdivision, or wen with a private entity, to accomplish
certain of its legitimate pll:rposes. Attorney General Opinions Jh-103.
JM-65, J?4-44 (1983); MW-(NC(1979); E-1170, H-1123 (1978); E-413
(1974).
Joint county-city locii1 actions of the kind required for local
sesquiceatennial activities are authorized through other, more general
statutes. See V.T.C.S. art. 4413(32c) (Interlocal Cooperation Act:
section 3A indicates that celebration-expo*ition type activities fall
within scope of act); seu
--- also, V.T.C.S. art. 6081e. $1 (parks,
playgrounds, historic museums and sites); art. 6081t. 152, 2a
(recreational facilities); art. 2372d-9 (auditoriums); art. 2372d-5
(museums) ; art. 1269j-4.5 (civic center authorities); art. 1015c-1
(recreational programs and facilities); art. 969b (acquisition of
property). The specific requirements of these statutes would control
any = local sesquicentennial activities. All that article III.
section 52 requires in sut,k cases is that each participating local
governing body receive a benefit from the joint agreement which
.
Hr. Randy M. Lee - Page 5 (JM-220)
provides a quid pro quo for its expenditures. Attorney General
Opinions R-1170 (1978); H-413 (1974); see also Attorney General
OpinionJM-191 (1984).
SUMFiARY
Local sesquictntennial committees are not
nextensions” of the Texas 1986 Sesquicentennial
Commission; they are the agents of, and are
controlled by, the local governmental entities
which create them, Subject to the limits imposed
by article III, section 32 of the Texas
Constitution, a lccal governing body may expend
public funds for lccal sesquicentennial activities
which serve a valid public purpose.
MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney Gererel
DAVID R. RICRARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Asslstant Attorney General
APPROVED
:
OPINIONCOKMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Cuillory
Jim Hoellinger
Nancy Sutton | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131254/ | The Attorney General of Texas
Oczober 23, 1984
JIM MATTOX
Clarification of LA-23
Attorney General
Supreme Court Building Honorable James S. HcGrath Opinion No. JM-213
P. 0. Box 12548 Criminal District Attorney
Austin. TX. 78711. 2540 Jefferson County Re: Whether one person may serve
512/475~2501 P. 0. Box 2553 simultaneously as county court
Telex 9101874-1387
Beaumont, Texas 77704 at law judge and trustee of an
Tefecopier 5121475.0266
independent school district
714 Jackson. sum 700 Dear Mr. McGrath:
Dallas. TX. 75202.4506
2141742.8944
You state thiu: a trustee of a local independent school district
was recently appointed judge of a county court at law in Jefferson
4824 Alberta Ave., Suite 160 County. You ask:
El Paso. TX. 799052793
915153x3484 May il person serve both as a county court at
law judf,e and as a member of the board of trustees
001 Texas. Suite 700
of an kiependent school district?
HOUS,O~. TX. 77002.3111
7131223~5886 This office ks generally applied three tests to answer questions
about dual office t,olding. These are as follows:
806 Broadway. Suite 312
1. Ilcses one person hold two offices in
LUbbOCk. TX. 79401.3479
8061747~5238 different, branches of government in violation of
article II, section 1 of the Texas Constitution?
4309 N. Tenth, slnte B
2. Ilcbes one person hold two civil offices of
McAllen. TX. 78501.1685
5121882-4547
emolument: in violation of article XVI. section 40
of the ::cxas Constitution?
200 Main Plaza. Suite Gil 3. Does one person hold two offices with
San Antonio. TX. ?8205-2797
conflicl::.ng duties in violation of the common law
512/2254191
doctrine! of incompatibility?
In addition to t:wse general restrictions’, certain constitutional
provisions prohib:ll: specific officers from holding other public office
or employment. See Tex. Const.
--- art. III, §%18, 19 (legislators and
other elected officials); art. IV, §6 (governor); art. XVI, 512
(federal, foreign, or sister state officers). Yone of these apply to
the offices you inquire about. Statutory prohibitions against the
holding of two of~%ces may also apply in particular cases. See, e.g.,
Educ. Code §11.,:12(b); Attorney General Opinion i-W-479 (1982)
(eligibility for wmbership on State Board of Education).
p. 956
q
Honorable James S. McGrath -’ Page 2 (JM-213)
We will deal with art:kle XVI, section 40 first, because it is
the most easily applied test of the three. It states as follows:
theSe;m;Okim+erson shall hold or exercise at
, more than one civil office of
emolument, except-that of Justice of the Peace,
Countv Commissioner. Notary Public and Postmaster.
Offi& of the National Guard, [other exceptions
for certain military officers] . . . and the
officers and directors of soil and water
conservation distl::.cts. unless otherwise specially
provided herein. Provided, that nothing in this
Constitution shall be construed to prohibit an
officer or enlist,,d man of the National Guard,
[other exceptions for military officers] and
officers of the State soil and water conservation
districts, from ho::ding at the same time any other
office or position of honor, trust or profit,
under this State or the t’nited States, or from
voting at any election, general, special or
primary in this State when otherwise qualified.
State employees or’ other 1ndividual.s who receive
all or part of tt,eir compensation either directly
or indirectly from funds of the State of Texas and
who are not State officers, shall not be barred
from serving as m8rmbers of the governing bodies of
school districts, cities, towns, or other local
governmental districts; provided, however, that
such State emplopzes or other individuals shall
receive no salar), for serving as members of such
governing bodies. It is further provided that a
nonelective Stat3 officer may hold other
nonelective offices under the State or the United
States, if the o::her office is of benefit to the
State of Texas or is required by the State or
Federal law, and there is no conflict with the
original office Ear which he receives salary or
compensation. No member of the Legislature of
this State may ?;;?Ld any other office or position
of profit under &is State, or the United States,
except as a no&y public if -qualified by law.
(Emphasis added).-
No compensation attaches to the office of school trustee. See Educ.
Code 523.19(e); Attorney General Opinion WW-246 (1957). TK, this
office is not an office of emolument, and article XVI, section 40 does
not bar a school trustee from holding a second office.
p. 957
.
Honorable James S. McGrath -’ Page 3 (JM-213)
Article II, section 1 oE the Texas Constitution provides for the
separation of powers. This provision states as follows:
The powers of the Government of the State of Texas
shall be divided into three distinct departments,
each of which sha:.:. be confided to a separate body
of magistracy, to wit: Those which are
Legislative to one, those which are Executive to
another, and thos,! which are Judicial to another;
and no person, or collection of persons, being of
one of these departments, shall exercise any power
properly attached to either of the others, except
in the instances Iu:rein expressly permitted.
Article II. section 1 is more difficult to apply than article
XVI, section 40. In Attorno:f General Opinions H-6 and H-7 (1973) this
office construed article II, section 1 to prohibit a person who held
office in one department of government from holding an office or
employment in another branc:t. of government. Letter Advisory No. 137
(1977). however. held article II, section 1 inapplicable to publ,ic
employment and thus overruled the earlier opinions in part.
Attorney General Opinion H-6 cited but did not discuss cases from
other states construing constitutional provisions comparable to
article II, section 1. See State v. Burch, 80 N.E.2d 294 (Ind. 1948)
(legislator may not perfo& “functions” of another department of
government); Saint v. Aller:, 126 So. 548 (La. 1930) (legislators may
not “exercise power” of another department by serving as employee);
Monaghan v. School District No. 1, Clackamas County, 315 P.2d 797
(Ore. 1957) (legislator &y not perform “functions” of another
department). Nor did the o!,:lnion analyze the reasoning of these cases
or explain why they should control the interpretation of a Texas
constitutional provision.
Texas case law on this subject is meager indeed. The court in
Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App. - Corpus Christi 1976,
no writ), following the lead of this office, treated article 11,
section 1 as an impediment to dual office holding. It did not,
however, adopt in all respects the interpretation of this provision
given in Attorney General Opinion H-6 and subsequent advisory
documents. See Letter Advis,,ry Nos. 137 (1977); 106 (1975). Ex parte
Dailey, ‘+46 S.W. 91 (Tex. Crim. App. 1922) Includes the following
dictum:
If a district jr?ge holding a commission as an
officer in the National Guard was directed by the
Governor to call out his company, or if he should
find it necess;*::y to do so upon his own
3nitiative. it
-- might be that judicial authoritv
p. 958
Honorable James S. McCrath - Page 4 (JM-213)
and executive aurhority would be lodged in the
same Individual. Then a different question would
arise. That conl::.ngency is not presented in the
case before ua. (Emphasis added).
246 S.W. at 93. See als! Attorney General Opinion O-1561 (1939)
(relying on article II, swtion 1 and article XVI, $33 to bar dual
office holding).
Attorney General Opin.lons H-6 and H-7 did not construe article
II. section 1 in the context of the entire constitution. See Gragg v.
Cayuga Independent School District, 539 S.W.2d 861 (Tex. 1976). appeal
dismissed, 429 U.S. 973 (1976);erson V. State. 177 S.W.2d 975 (Tex.
Crim. App. 1944). Thus, thwe opinions overlooked the differences In
language between article I::, section 1, which refers to the exercise
of power, and provisions like sections 12 and 40 of article XVI, vhjch
explicitly bar dual office holding. Nor did the opinions consider
whether the terms of article II, section 1 might be defined by
reference to the constj tutional provisions which entrust the
legislative, executive, ant, judicial power of the state to identified
officers and offices. -See Tex. Const. art. ‘
III, 51; art. IV, Sl; art.
v, Il.
Finally. Attorney Genc:l,al Opinions H-6 and H-7 did not consider
whether the language of article II, section 1 might be construed as
applying only to state lewl offices , and not to offices of political
subdivisions. Courts of other states have construed similar
provisions as prohibitiug dual office holding on the state level onlv.
See Peterson vi Culpeppe;, 79 S.W. 783 (Ark.-1904); State V. Tovnsend,
79 S.W. 782 (Ark. 1904). l’ke application of article II, section 1 to
offices of political subdiv:.sions requires the classification of each
such office as legislative, judicial or executive. All local offices
cannot be so neatly categorized. For example. Letter Advisory No. 112
(1975) characterized city tcuncils as legislative bodies because they
exercise legislative powl s. City councils, however, are also
responsible for enforcing the laws and for hiring and firing city
employees. V.T.C.S. arts. 1002, 1011, 1015. Mayors of general law
cities, in some instances, may also be municipal judges. V.T.C.S.
art. 1197. The mayors and city councils of general law cities have
held these diverse powers since at least 1875. See Acts 1875. 14th
Leg. 2d Sess., ch. C., at 113. The legisleture which enacted these
statutes did not believe tt;zt article II, section 1 prevented it from
allocating legislative, executive, and judicial powers to a mayor.
Statutes enacted near the time that the Constitution was adopted carry
great weight In construing the Constitution. Hill County v. Sheppard,
178 S.W.2d 261 (Tex. 1944). See also Educ. Code 1523.25-23.31 (powers
of school trustees); Acts l1105, 29th Leg., ch. 124. 542. at 274; Acts
1879, 16th Leg., ch. LXVII. at 76.
p. 959
Honorable James S. McGrath - Page 5 (JG213)
You correctly point auf, that Letter Advisory No. 23 (1973) holds
tkat article II. section j hars a school trustee from also being a
judge. Since many prohlen:i of interpretations surround article Il.
section 1 in its characce:::lzation as a bar to dual office holding,
however, we are reiuctant rc rely upon It or upon Letter Advisory No.
2:) (1973) as dispositive of your question.
Neither do we need to address here whether the common law
doctrine of incompatibility contro1.s in this case. since we believe
there is a statutory bar I.c this particular instance of dual office
holding, Article V, section i-a(6)A of the Texas Constitution
provides that any judge of a county court at law may be removed from
off ice for
willful or persistent conduct. which is clearly
inconsistent with the proper performance of his
said duties or :ssts public discredit upon the
judiciary or administration of justice.
The statute implementjng :hese provisions defines the prohibited
conduct to include willful. violation of a provision of the Code of
Judicial Conduct. V.T.C.S. art. 5966a. §6E. The Code of Judicial
Conduct includes the folloslng provision:
Extra-judicial A]~‘ointments. A judge shouid not
accept appointment to a governmental committee.
ccmmis*iOn, or ether posiiion that is concerned
with issues of F.act or policy on matters other
than the improvement of the law, the legal system,
or the adminis.:,raticn of justice. A judge.
however, may represent his country, state, or
locality on ceremonial occasions or in connection
with historical, educational, and cultural
activities.
Canon 5 (G) . We believe this provision. read together with article
5466a. bars a county coul’t at law judge from serving as a school
trustee.
SUMMARY
Article XVI, r:r,ction 40 does not bar one person
from serving as c:ounty court at law judge and s
school trustee ia a dfstrict in the ssme county.
Article 5966a. s(zg:tion 6E, bars a county court at
law judge from sc!rving as a school trustee. It Is
unnecessary to dz:idr whether article II, section
p. 960
Honorable James S. McCrath - Page 6 UN-2131
1 of the Texas Coustitutlon or the cornmoo law
doctrine of incompatibility bars this case of dual
office holding.
MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney Genmal
DAVID R. RICHARDS
Executive Assistant Attorney Ceneral
RICK GILPIN
Chairman, Opinion Comittee
Prepared by Susan L. Garrisou
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
-
p. 961 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154087/ | FILED
NOT FOR PUBLICATION
MAR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM J. PAATALO, No. 14-35931
Plaintiff-Appellant, D.C. No.
1:13-cv-00128-SEH-CSO
v.
JPMORGAN CHASE BANK, N.A., as MEMORANDUM*
acquirer of certain assets and liabilities of
Washington Mutual Bank from the Federal
Deposit Insurance Corporation, as
Receiver for Washington Mutual Bank and
U.S. BANK NA, as Trustee, as successor
in interest to Bank of America, National
Association, as Trustee, as successor by
merger to Lasalle Bank, National
Association, as Trustee for WAMU
Mortgage pass through certificate series
2007-OA3 Trust,
Defendants-Appellees.
WILLIAM J. PAATALO, No. 15-35445
Plaintiff-Appellant, D.C. No. 1:13-cv-00128-SEH
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
THE MACKOFF/KELLOGG LAW
FIRM; et al.,
Defendants-Appellees,
and
JPMORGAN CHASE BANK, N.A., as
acquirer of certain assets and liabilities of
Washington Mutual Bank from the Federal
Deposit Insurance Corporation, as
Receiver for Washington Mutual Bank and
U.S. BANK NA, as Trustee, as successor
in interest to Bank of America, National
Association, as Trustee, as successor by
merger to Lasalle Bank, National
Association, as Trustee for WAMU
Mortgage pass through certificate series
2007-OA3 Trust,
Defendants.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted March 7, 2017
Portland, Oregon
Before: O’SCANNLAIN, FISHER, and FRIEDLAND, Circuit Judges.
William Paatalo appeals from the district court’s grant of summary judgment
dismissing his Montana state law claims against the Mackoff Kellogg Law Firm,
Charles Peterson, and Jason Henderson (collectively “Mackoff”). He also appeals
2
from the district court’s grant of a Fed. R. Civ. P. 12(b)(6) motion dismissing his
claims against J.P. Morgan Chase Bank (“Chase”) and U.S. Bank, Trustee of the
WaMu Mortgage Pass-Through Certificates Series 2007-OA3 Trust (the Trust
itself is referred to as the “2007-OA3 Trust” and the Trustee is referred to as “U.S.
Bank, Trustee”). Because the facts are known to the parties, we repeat them only as
necessary to explain our decision.
I
The district court did not err in dismissing Paatalo’s claims of actual fraud,
constructive fraud, and negligent misrepresentations against Mackoff. Paatalo’s
claims arise from alleged misrepresentations made by Mackoff regarding its
capacity as trustee of the 2007-OA3 Trust during previous litigation between the
parties.1 Paatalo v. J.P. Morgan Chase Bank, No. CV 10-119-BLG-CSO, 2012
WL 2505742 (D. Mont. June 28, 2012) (hereinafter Paatalo I). Paatalo’s claims
fail because there is no evidence that Paatalo had a right to rely on any
representation made or that Paatalo was ignorant of the falsity of any
representation. See Mont. Code Ann. § 28-2-406 (defining constructive fraud);
Harpole v. Powell Cnty. Title Co., 309 P.3d 34, 38 (Mont. 2013) (defining
1
That litigation concerned Chase’s attempt to foreclose on Paatalo’s
property. Mackoff was the trustee of the Deed of Trust of such property.
3
negligent misrepresentation); Town of Geraldine v. Mont. Mun. Ins. Auth., 198
P.3d 796, 801 (Mont. 2008) (defining actual fraud).
II
A
The district court properly dismissed Paatalo’s claims of (1) breach of
contract, (2) breach of implied covenant, (3) libel, and (4) violation of the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., because they
were barred by issue preclusion. All of the key factual issues underlying the current
claims were resolved against Paatalo in Paatalo I. Issue preclusion applies if “(1)
the issue at stake was identical in both proceedings; (2) the issue was actually
litigated and decided in the prior proceedings; (3) there was a full and fair
opportunity to litigate the issue; and (4) the issue was necessary to decide the
merits.” Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012).
In Paatalo I the court concluded that the Mackoff settlement did not bind
Chase or the 2007-OA3 Trust. 2012 WL 2505742, at *11–12. This knocks out the
breach of contract and breach of implied covenant claims, since they are based on
the factual premise that the settlement did bind Chase and the 2007-OA3 Trust.
The Paatalo I court also concluded that the Note and Deed of Trust were
enforceable and Chase had the right to initiate a non-judicial foreclosure on
4
Paatalo’s property. Id. at *7. Paatalo’s libel and FDCPA claims rely on the factual
premise that the Note and Deed of Trust are invalid and unenforceable. Thus, issue
preclusion bars these claims for reasons similar to the contract claims. To the
extent the libel and FDCPA claims are based on the binding nature of the Mackoff
settlement, these claims fail for the same reason the contract claims fail.
B
Finally, we are left with Paatalo’s claims of actual fraud, constructive fraud,
and negligent misrepresentations against U.S. Bank, Trustee. These claims are
based on the same factual premises as the claims against Mackoff discussed above.
The district court erred in concluding that claim preclusion barred these claims,
because Paatalo could not have brought them at the time he filed his complaint in
Paatalo I. See Cabrera v. City of Huntington Park, 159 F.3d 374, 382 n.12 (9th
Cir. 1998) (per curiam) (concluding that claim preclusion does not block a claim
that “arose” while a prior suit “was already pending”).2 Nevertheless, all these
claims still fail for the same merits-based reasons that the claims against Mackoff
fail. The district court’s error is harmless.
III
2
As discussed above, these claims arise from supposed misrepresentations
made to Paatalo by the defendants during the Paatalo I litigation.
5
The judgment of the district court is AFFIRMED.
6 | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144337/ | Bon.~B. Carl Rdlder, Secretary~
Texas State Board of Dental Examiners
Nixon Buildlng~
Corpus Christi, Texas
Dear Sir: OplnLon No. O-2058
Re: (a) Whether or not bperation of
chain dental offices under facts
set forth Is in violation of the
laws of this State.
(b) Whether 6r not the dentist in
question is violating laws regulat-
ing the practice of dentistry.
Xe have for reply your letter of March 7, 1940, stippl&
mented by y-ourletter of April 2, 1940;reque.+.tlngthe opinion
of this department on the above stated questions.
The facts underlying your opinion request are restated
as follows:
The dentist in question l"esidingin Los Angeles, Carl-
fornia, and maintaining an office there holds ti"licenseetititl-
ing him to practice dentstry in the state of'.Texa.%.Hitiad-
dress given In registering with the Texas-State Board of Delitiil
Examiners is an office address at Houston, Texas. Two offIces
are maintained under the name of this dentist in Texas - the
one In Houston and one located in Dallas. These Texas offices
are actually operated by a former wife of this dentist-and his
daughter. We shall hereafter refer to the dentfst in question
,as Dr. X.
Using the medus operandi of the Dallas office as an ex-'~
ample, we find that the daughter of Dr. X is in charge. She is
not a licensed dentist, but employs licensed dentists to make
an~examlnatlon of patients and do the actual dental work. Thfs
licensed dentist examines patients and informs her (the daughter)
of his findings, after which she tells the patients what she
thinks should be done, the price of the work and makes arrange-
ments for payment. The licensed dentist then does the work as
directed.
As to the outward appearance of the offlce, the name Of
?.
Hon. B. Carl Holder, Secretary, page 2 0-2058
Dr. X Is prominently displayed on the outside of the building.
On one of the doors leading to the office are the following
names:
DOCTOR X
Dr, A
Dr. B
Dr. X
The actual dental~work performed In this office is done
by another doctor, Dr, Y, employed by the daughter of Dr. X.
Dr. A and Dr. B are no longerconnected with the office, having
left a short time ago. .Dr. X, of course, In in California, and
is very seldom, If ever, In either of his Texas offices. The
exact amount of time spent in the Texas offices and ~whether-on
these occasions any actual dental practice is done by Dr. X, Is
not known. Moreover, the exact facts as to the operation of
the Houston office are not given, yet we shall assume that the
plan of-operatron 1s similar to that of the Dallas office.
On the basis of these facts you ask the following ques-
tions:
(a) Are the maintenance of chain dental offices (more
than two) prohibited by the laws of this state, and, if so, are
chain dental offices being so maintained under the facts set
forth?
. . of any of the laws in
(b) Is Drp-X acting in violation
^_
Texas regulating the practice OS oenlstrg?
The power of the Legislature to regulate the practice of
dentistry and kindred professions and to Impose reasonable re-
strlctions upon persons following this calling ls.well'estab-
llshea by the courts of last resort in this State, as well as
the Supreme Court of the United.States. Pistole v. State, 69
Texas Crfm. Rep. 127, 150 S.W. 618; Sherman.et al v. State,Board
of Dental Examiners et al (C.C.A.~1938), 116 S.W. (2d) 843
writ refused; Semlar v.'Oregon State Board, 148 Ore. 50,, 34
P. 311; Id. 294 U.S. 608, 55 Sup, Ct. 570, 97 L. Rd. 1086.
The power is Inherent in the State under Its police power to
protect and safeguard the Ilfe, health, morals, and general wel-
fare of its Inhabitants; "and the vocation Itself being subject
to.regulation, so are all of its incidents."
The answer to the questions propounded in your letter
involves an interpretation of ch. 7 of Title 12 .of the Penal
Hon. B. Carl Holder, Secretary, page 3 0-2058
code of this State and particularly H.B. No. 36, ch. 501, Acts
of 1937, 45th Leg., p. 3046. Section 1 of this Act amends Art.
752 of the Penal Code to read as follows:
"Article 752. It shall be unlawful for any
person or persons to practice dentistry in this
State under the name of a Corporation, company,
association, or trade name; or under any name ex-
cept his own proper name, which shall be the name
used in his license as issued by the State Board
of Dental Examiners. It shall be unlawful for any
person or persons to operate, manage, or be em-
ployed in any room, rooms, office, or offices where
dental service is rendered or contracted for under
the name of a,corporatlon, company, association,
or trade name, or in any other name than that of
the legally qualified dentist or dentists actually
engaged in the practice of dentistry In such room,
rooms, office or offices; provided, however, this
shall~not prevent two or more legally qualifl~ed
dentists from practicing dentistry 'Inthe same
offices as a firm, partnership, or as associates
in their own names-as stated in licenses 'Issued
to them. Provided, however, that any dentist
practicing under his own license may be~employed
by any person, firm, or partnership pract,icFng
dentistry under licenses issued-~tothem. Bach-
aay of violation of this Article shall constitute
9 separate offense."
Section 6 of House Bill 36 (Article 752~) reads as fol-
lows:
"This Act shall not be Intended to prohLblt
any duly authorized, licensed and registered
dentist 'from.malntainingone additional office in
any town or city other than the town of hLs resi-
dence .'I
Section 4 of House Bill 36 (Article 752c, Vernon's An-
notated Penal Code) reads as follows:
"The State Board of Dental Examiners shall
be, and it shall be their duty, and they are
hereby authorized to revoke, cancel or suspend
any license or licenses that may have been ls-
sued by such Board,' if~ln the opinion of a
majority of such Board, any person or persons
to whom a license has been issued by said Board
to practice dentistry in this State, shall have,
. -
Hon. B. Carl Bolder, Secretary, page 4 0-2058
after the issuance of such license, violated any
of the provisions of the Statutes of the State
of Texas relating to the practice of dentistry
in this State, or any of the provisions of Chap-
ter 7, Title 12 of the Penal Code of the State
of Texas, or any amendments that may hereafter
be made thereto * l * *'
Article 754 of the'Pena1 Code makes the violation of
the pr~ovlslonsof chapter 7 of Tltle 12 of the Penal
an'y~'of
Code a misdemeanor and reads as follows:
"Any person who shall violate any provi-
sion of this Chapter shall be fined not less
from one to SIX months'or both. Bach day of
such violation shall be a separate offense."
-~.Section 6 of Article 752c, Vernon's Annotated Perial'Code,
supra, is the only section of the statutes.touchlngupon.the
'questionof maintaFning more than one office. -Butwe .must
direct ~your attention to the fact that said Sectlon 6.does.not
in terms prohibit anything, nor does Rouse BXll 36, Ctiapter~~501,
Acts~of 1937, 45th Legislature, page 1346, provFde a pena'lty
for the ~'violatlonof,section 6. In this Sectioti~thelegisla-
ture simply provided a guide for and a limFtati.onupon the .
oonstructloiiof other sections of chapter 501, Acts of 1937,
85th Legislature.
As forcefully stated by Chief Justlce~Smith in Sherman
v;"State Board of-Dental Examiners (C.C.A. 1938) 116 S.W. (2d)
843, writ refused,
"Section 6 directlv attacked, does not
within Its ow; vrovlslons restrict licensed
dentists in the conduct of their vocation.
The provision is nermisslve, rather than re-
strictive, and certainly does not by Its own
terms come under the ban of either of the
Constitutional guaranties Invoked by plaintiff."
(Underscoring ours)
For the reasons set forth and under the authorlty'of Sher-
man v* State Board of Dental Examiners, supra, we hold, and you
are respectfully advised, that while other provisions of chapter
7~ of Title 12 of the Penal Code of this State (for example, Art.
752, as amended) might subject those operating, maintaining or
employed in multiple offices operated under the name of one
dentist to prosecution for a misdemeanor, there are no provi-
Hon. B. Carl Holder, Secretary, page 5 0-2058
si'onsof our Penal Code In terms prohibiting the maintenance of
chain d6nttil~offlces;and we cannot as a matter of law condemn
the practices set forth on that score.
Your second question Is whether or not Dr. OX is actllig
in violation of any of the laws of Texas regulating the practice
of dentistry under the facts set forth In your letter.L,In this
corinectioni#e call your attentlbn flrst.to.Article 752a, Ver-
non’s Annotated Penal Code, which reads, in part, as follows:
"It shall be urilawfulfor any person + +~*
to fraudulently employ any person or persons-to
obtain or solicit patronage * * *"
Next, tiecall~your'atteiitionto Article 752b, Vernon's
Annotated Penal Code, which reads, In part as follows:
"It shall be unlawful for any persdh *'* *'~'
to engage in or b&guilty of any~unprofessional
conduct in the practice of d'entliitry,
directly
or lndlrectly. Any 'unprofes'slonalconduct' "as
used herein, me&ui%and includes any one or more
of the following acts, to-wit:
(a) employing 'Cappers' or-Steerers' to
solicit and or obtain business; * * *
('cl employing directly or indirectly or
Permltting'any unlicensed person to perform
dental servlces'upon any pers0n.W any room or
office under his or her control; * * *
employing any person or persons to ob;
taip)contract for , sell or solicit patronage,
zr*m$ng use of free publicity press agents;
,It may be noted that In each instance under the articles
above quoted the prohibition is against emnloslng someone or as
in AFtlcle 752b (c) permitting an unlicensed person to perform
dental ~servlcesin a room or office under the control of the
dentist.
Of course, Dr. X's daughter, under the facts, may be
found to be "performing dental services" without a license wlth-
in the ineanlngof subdlvislon (C) of Art. 75213,Vernon's Annota-
ted Penal Code, for Article 754a provides that,
"Any person shall be regarded,as practicing
dentistry within the meaning of this Chapter:
Hon. B. Carl Holder, Secretary, page 6 O-2058
*+***
3. Any one who owns, maintains or operates
any office or place of business where :heem-
ploys or engages, under any kind of contract
whatsoever, any other person or persons to
practice dentistry as above defined, shall be
deemed to be practicing himself and shall hlm-
self be requLred tombe duly licensed to prac-
tice dentlstry'as hereinabove deflned, and
shall be subject to all of the other provisions
of this Chapter, even though the person or per-
sons so employed or engaged by him shall be
duly licensed to practice dentistry as hereln-
above defined."
However, it has not been established as a matter of
fact whether Dr. X actually employs his daughterin the Dallas
office orhls ex-wife in the Houston office, 'orwhether they
themselves own and operate.those offices; simply ustng his
name as a stimulant for trade. Moreover, ~lthas not b-eenes-
tablished whether or not these offices are actually under his
control. Consequently-as to these Articles, while It may
develop that Dr. X is acting In'vloIation thereof, theanswer
wlll~~ultimately~dependupon a determinationof thenunderlying
facts - a determination ascertainable only by a judge or jury.
.We-call your attention.also to Sectlon 1 of H. B. 36,
Acts 1937, ch. 501, 45th Leg., ProvldFng,
"It shall be unlawful for any person to
operate; manage * * * any room, rooms, office
or offices where-dental service Is rendered
or contracted for under * * * a trade name,
or' in any mothername than that of the legally
qualifled~dentlst or dentists actually engaged
Fn the practice of dentistry in such room,
rooms, office, or offices; * * *"
In order for It to be established that Dr: X is acting
in violation of this provision of the Penal Code, It must be
determined first that he Is operating or managing the office
in Qu~estion,and second, that dental services are being render-
ed and contracted for under a trade name or a name other than
that of the legally qualified dentist actually engaged in the
practice of dentistry there. The determination of whether or
not this is happening Is also a determination which only a
judge or jury can make.
We have, therefore, answered your first question in the
Hon. B. Carl Holder, Secretary, page 7 o-2058
negative and your second by calling your attention to pertinent
provisions of the Penal Code which Dr. X may be found guilty
of violating under the facts as they may develop. -Please note
that we have confined our opinion strictly to the questions
asked and have not expressed our views u@on whether or not
Dr. X's daughter or ex-wife or~~thelicensed dentists employed
by them may be violating the law.
Yours very truly
ATTORNEYGENERAL OF TEXAS
By s/Walter R. Koch
Walter.~R.Koch
Assistant
By s/James D. Smullen
James D. Smullen
JDS:JM:wc
APPROVED APR I%, 1940
s/Gerald C. Mann
ATTORNEYGENERAL OF TEXAS
Approved Opinion Commlttee By s/BWB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144359/ | Honorable Geo. R. Sheppard
Comptroller-of Public Accounts
Austin, Texas
Dear Sir: Opinion NO; o-2036-, -. -. -,
Re: Furchasti'ofpostage%stamp3 by
the Texas Agricultural ExperIl
ment Station at A. & M. College.
.~
-owehave your~lettersof March 1, 1940;and March.14, '-"
1940; also‘~twoletters froinMr.-A. B. Conner, Director, Texas
Ag?lcultural~Expi+Nmeiit'Stat~on,~A;& M; College, aded Feb;~~
ruarg 28, 1940, and March 13, 1940, which you forwarded
-. to us.
'Thes‘e~lette?$
reveal that the Texas 'AgrlcultutialEti-‘.
ljeeliuent
StatF6Khas purchased ~posttige'stamps-by executing a
vbticherm@de.payable to & UnlteKStates Postmaster. Th$~
Station h&'-then ~lssued'~'c~h~ckagainst the Pure Feea Wc%king
FuiiaUXpaykient tif~thestatipps%ihait'ha3 been eriaorsedUbgthe
P&%tm&st&E from whom ~th6 putidhtise
was made:'~A'?eImbursemtint
tibtibh&r
h&s beeii'submittedto you by the Stirltloti
antilistea~-'~
th&i?eoii.is-'the
Cimoilnt
~expendedin the piirchase'of'thesestamps.
They have also attached the orlglnal Stamp voucher,
"~ ~With these facts In mind, you~request our opinion--a~-'~~
tb whether your department would,be auth&lzeKto Issue -a'war-
rafitpayable to the Director-'df'theAgriciilturalExperiment
Station for refund of the stamps so purchased.
We have sfudied.the history of Article '3875,Vernbn's
Revised Civil--Statutes;1925, in an effort to ascertain from
what' sources anKby what authority the funds used by the
Texas Agricultural Experiment Station in purchasing these -~.
stamps were derived. Being unable'to find tinslegally created
?evolvlng br lnstltutional fund from which suchipurchases
could be made, we wrote you on March 8, 1940, asktng for ln-
formatlon~'regardingthe source or sources from which the fund
might be authorized. In response to-this request, we have
Mr. A. B. Conner'sletter of March 13, 1940, and in connection
with this matter he says: .
"The Pure'Feed working fund Is a fund of
$lO;OOO advanced to-'theDirector of the Agriciil-
ttiralExperiment Station by the Board of Dlrec-
- .
Honorable Geo. H. Sheppard, page 2 0-2036
tors of the College many years ago. The
original source of this fund, I understand,
was from the net surplus accrued in the
administration of the Pure Feed Law ana
the wojrklngfund was set up irifter'an amend-
m6nt mad&~ln.the 315t Legislature, Third
Calld Sessioti;wtilbh.amefiament, shown'ln the
General I;avSof Texas;-Thlra Callea'Sesslon,
3lst~Le~islature;lglO, page.16, tiectititi 2!
fir&id&-'that'
.~ I;~. . Said 'fiti& (StirplUs) ~
. . . sh&ll be us.edby the.b6ard'of directors
OT the AgrlcultW~l'aid‘Mechahlcal 'College for"
iilak1ng'aI.l
ritices3aryrepair&at 'the AgrlctiItiiral
%indMech~nlc%l~Col'leg~;Wectron'~bf buildlngs~'
ana otliierImprovemefits,-~a& for such oth@‘pur-~
'pose5&s'mag be'aeemed advlstibleby'the board ~of
directbrs, ana'said funas shall be~paia outsby
the.State Treasutier6n warrants 13sued~bg the
pr@sid&nt and secr~etary'ofthe boarKof'&l;
rt%toPs.' ItIs my‘und~~standihg that 'this
tibrkingfund V&s from rn6fii.63ttiansmltted'by
the'State Trhasurer on warrants to the College
under this
. Act." _ . .
A'sfar &s'w&'have been abl'eto ascertain, the~A6t‘bf..
the-Ltiglslaturedeferred to by'Mr.~Coiixieris~'the~'bliI~~sou~d~~
~~
from which.the~ "working fund'"cd.iSdhaii&b&n'~deri@&.'--~
S-&ate
BrlS'No~.10, Third Called Session, .TtiWtyLfii"stL@l%lattir&~~~';
r&fijrredto-'inl@?*Coniier~'%lettZ5, w~a* tinapprbprlatSon.blIT.
It &ppropri.%tedand transfer&d all moneys colle~ted.under'.tFi~-'
bf the pure feed laws (Including Article 3875; stii5I;a)
pr+ovltiiofis
to the'use and beiiefltof the A. &M. College bf.Texas-8na pro-
vFde6 that 'the Stat% Treasurer should'keep an account on~his-.--
bboks t&be known as the Pure Feed~Fund 6f the'Agricultura1 and
Mechanical College. Section 2 of said
. Act provided:
"Section 2, Said funds so appi+opriatedana
collect-d shall be used by the bdara of directors
of the Bgrlculturtiland MechaiilcalCollege for‘~
itiakingall necessary repairs at the Agrlculturfil
and Mechanical College, erection of builalngs ana
oCher improvemZW.s,"and for such bther purpdses Xs
iriayb5 deemed'aavisable bjithe board of di?ectors-;
and s&id fun& shall be pafd outby the SFate'~Trea,s-
uPer on warrants issued by the presldeiitand"secre-
tary of the board of director‘s;.Th5 said boara.of
dliiectorsshall'on the 315t day of August of~each
jiearfile a swijrfireport Uith'ttieGoVePrior,giving
a-n itemize8 statement of all Feceipts aliadIsbur3e-
ments of said fund for the year ending on said date."
Honorable Gee, R. Sheppard, page 3 Q-2036
"The doctrine of ejusdem generls (of the same kina)
Imports that general words following an enumeratfon of partlcu-
lar or specific things will be confLned to things of the same
kind. In brief, the general words so used are not to be con-
strued in the widest sense, but are to be held as applying only
to-'personsor things of the same 'kindand class-.asthose enum-
erated.;' 39 Tex, Jur:202. See also Farmers' and.MechanPcs'
National Bank v. Hanks, 104~'Tex.320, ~137 S;W. 1120:. In view
of'thls rule, we are constrained to hold that the Board of
Dir'ectorsof the Agricultural and Mechanical Collegewere not
authori~sedunder Senate Bill~No. 10, supra, to set up a "work-
ing fuiid"for the Agricultural Experiment Statfon. The~piir-
of Senate Bill No. 10, supra, was to appropriate the fun&s"
therein referred to for the purpose of'erectlng buildings ana
other improvem'ents,and making repairs-;under the doctrlne‘~of
ejusdem generis, the directors 00uia hiifelisea said funas only
forpurposes similar to, or p of the same class as, those ex-
pressed in the statute. .
~-" Since the moneys appropriated under Senate~Bill~‘No;~10,
supra, could not have-been us~edfor the purpose of.establFsh-
ing the "working fund," themoneysthereinproperly belong in
the State Treasury to.~~theaccountof the PiireFeed-.FunS[‘of‘Xhe
Kgricultural analMechanical College of Texas: -'Asa-practical
matter;-we~riializethat there 1s not ten thousand‘dollars
($~O,OOO) standing-to the credit of the "working fund' at'thls~
timedue to the fact that the ExperIment Station bfficlals have
ls~suedchecks against sala'fund~inaccordance with the-pro-'.
cedure followed forthe past severa years, In view of this-.
fact, we suggest that the moneys standing to the'credit ofsaid
'working fund", together with the-vouchers and cancelled checks
issued by the officials of the Station, be returned to the State
Treasury. . . ,.~
.~
If there'are any legally created revolvfng or Fnstitu-
tibnal funds against which the Texas Agricultural ExperTment-
Station may legally issue checks, they may proceed to make their
purchases out of such funds and your department-,'
under A~rtrticle
3875~,SUPP~.9 would be authorized to issue warrants reimbursing
them for the amounts so expended.
Yours very truly
ATTORNEYGENERAL OF TEXAS
HAS:RS:wc By s/Walter R. Koch
Walter R, Koch
Approved Sun II, 1940
s/Gerald C. Mann By s/Harry A. Shuford
ATTORNEYGENERAL OF TEXAS Harry-A. Shuford
Approved Opinion Committee by s/BWB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144361/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Ron. X.D. Ball
OOUnty Attoa'noy
lIa$igloceunty
RbnrglO, Tux88
Duar 81ra
JW-WO~~ on thu above I)
8aotlons 3 and
Qlrll AnxotaWd Watu*
( 20
o fb ulldlngand th e
road8 0r th aCo unty;a nd8h ill
oa4psaroation
to fha County Road
oad funds of any defined dir-
orlsmd stibdl+l8leaIn the Gouaty,
eyment of road oqulpxaogA.
Ron. K.P. Hall, page 23
zm8t1of the soil irea avoidablewaste and
ioao of pruduetlvenessoi agisulturai cxops
neoe~sary to the public mliaxe, through per-
ziiiesion to use the naahlnsry and e+_uiprient
that may ba made orailable by the County ror
euoh purposes under written contract, and the
County shall remsire frcm suoh landownertannd
tca+payersaompsnsetloa,upon such uniiona basis
aa may ba deelaedequitable, and proper, for
the ao-opratlon sxtsndod and wniaes rsadar-
bd, all suoh campenaationor fund8 to the Ccmn-
ty to be patd into the Road and Bridge Lund of
the Ceunty; and the County Cmmlasloner8*
Court may provide for paymutts frua landowners
and taxpayer8 of the County at mob atated in-
toxvals and in auoh amount+, ES and w-n the
County tams ara ~Uooted, a# mar be equitable,
r0r the use 32 the eqtkipmnnt for the protection
o? lands against aontinu5.agirrPruaeurable inJury
thxough 8Ofl ero8ieq provfd*d that the aAl-
PIewionex~P hart or repxwontatlte thsnef
8hall not go upon tha land of say owner te im-
prove, tarrnes, pxoteot, of dft,chsuch ltmd
until required to do 80 in wrltlng by ~udh Ol*neX;
and provided further,that the Dcnmieal.onass*
Coawt or tepx8sentatfvsa thereof shall not b8
required to do suah imgrovia& tarraoing,pro-
taotAng, and dftching anleea ruch Court shall
detomlne th~+tarch work is of scnm publio
benefit and said Coaxt al~cto to do the wurLa
Dnder tha prcwlsiws of the above quoted 8t&-
ute .* . D.ourt is sp$flcally~authari~d
the Ccmn%srionsra*
t,o enigJ.oy
( or permm to co e~pmyea, any roe+aonstrua-
tioa or other maehfntwy or athex e~uipnt ia the aerw
Ice of soil conservationand grsrentionof eoil waste
through erosion, vcb#nererin the Judgment of the County
Comaissionars*Court, suah mwhlnsrp or aquipmnt is
not demnded for the service of building anO the upkeep
of th% roede of the County. This at52tutsasea not ma-
t;orlze the CoiaQLLseiunero * Court to leeee gradfng equip-
ment , smh .6%trimtom and grcrdersr
ecpipmnt oz machinery to a contraota*
or an
wico~~rt~:
oontmet tckbuild a road aithLn the oomty, nor due8 it
a
smthorlze the leasing or said squipatentamidmaohincry
Xm. X. 9. ??all,psa S
In opinion witton Au@mt 10, 19% br BOQ.
*Mm t. 22&i, Amirtant Attorney Oeneral, addrem-
ed to lion.X~ll Condroll,CountyJbd@, Throok~wtoa,
Texas, tiia departmnt held that;
‘8A bounty Camml8a:oners*Court h&n no author-
ity, lrgresa or bplld, to hire out aountf xond
mmhlnery while euuohmmhinery is idlo.*
In view oi the iloregoiq, ycus quoetian I.8w-
8peotfully mmwed ,in th% n%gatln.
Truatfng thatwe hnve fully answered your in-
quay* w ranafrr
APPROVEDMAR E, 1940
(.isLa&.~
ATTORNEY Gl3ihi-l;rAL
03 TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150619/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0147n.06
Case No. 16-3896
FILED
UNITED STATES COURT OF APPEALS Mar 07, 2017
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
SCOTT DAVID STAYMATE, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY, ) OHIO
)
Defendant-Appellee. )
) OPINION
)
BEFORE: DAUGHTREY, SUTTON, and DONALD, Circuit Judges
BERNICE BOUIE DONALD, Circuit Judge. Scott David Staymate appeals the denial
of his application for supplemental social security income. In his appeal, Staymate raises four
major arguments: (1) the ALJ erred in failing to follow the “treating physician rule” by rejecting
a dispositive conclusion from the consulting expert; (2) the ALJ failed to fully develop the record
and resolve specific conflicts; (3) the ALJ erred by imposing an insufficient burden on the
Commissioner; and (4) the ALJ ignored regulatory factors and picked and chose from the record.
We find that Staymate’s arguments fail, and we AFFIRM the district court’s decision.
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
I.
A. Factual Background
Staymate, born November 14, 1972, is a high school graduate with approximately one
year of college education. (R. 18-2, PageID # 97–99.) He last worked in 2005, after which he
filed for social security benefits because he had problems being around people. (R. 28, PageID
# 767.) Staymate testified that he had bipolar disorder and a distorted sleep cycle, where he
would not sleep for many days, and then sleep for two days straight. (Id.) He also testified that
he suffered from explosive anger disorder, which was unpredictable, and had difficulties with
concentration and focus. (Id.) According to Staymate, he was seeing a psychiatrist every three
months, and seeing a counsellor every other week. (Id. at PageID # 768.)
In early 2010, Dr. Andronic, Staymate’s psychiatrist, reported an improvement in
Staymate’s moods and concluded that although he still had some anger issues, his medications
were controlling his mood swings and depression. (R. 18-7, PageID # 566–67.) On June 30,
2010, Staymate reported to Dr. Andronic that he was doing well, did not have any significant
complaints, and had no ups and downs. (Id. at PageID # 572.) He did, however, report that he
had instances where he stayed awake for up to thirty-six hours, and slept for fourteen hours. (Id.)
Dr. Andronic’s reports from 2011, 2013, and 2014 (Staymate received no mental health
treatment in 2012) are relatively similar.
Staymate also met with David R. Bousquet, M.Ed., a psychologist, in September 2013 at
the request of the Ohio Division of Disability Determination. (R. 18-7, PageID # 631.) Mr.
Bousquet rendered his opinion based on information self-reported by Staymate, as well as some
of Staymate’s medical records from 2010 and 2011. (Id. at PageID # 631–32.) Staymate
reported that he had a family history of psychological difficulties with his biological father, who
-2-
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
had been diagnosed with bipolar disorder and paranoid schizophrenia. (Id. at PageID # 632.)
Otherwise, Staymate generally reported that he was experiencing emotional and psychological
problems, (id. at PageID # 634); that he did not eat a lot, (id.); and that he could go two to three
days without sleeping since he had difficulty falling asleep because of racing thoughts. (Id.)
Staymate denied having suicidal ideations and reported that he had homicidal thoughts, but had
no intent to act on them. (Id.) With respect to his daily activities, Staymate reported that the
browsed the internet, visited friends, and watched television shows, except that he avoided the
news. (Id.) He also reported that he did household chores like mowing the grass, taking out
trash, cleaning his room, doing his laundry, and cooking for himself. (Id. at PageID # 634–35.)
Mr. Bousquet observed that Staymate’s affect was appropriate and that while his mood
was depressed at times and anxious at other times, he did not show any signs of anger or
irritability. (Id. at PageID # 635.) Mr. Bousquet concluded that Staymate’s cognitive abilities
fell in the average range, and that his reasoning and judgment capabilities fell at age appropriate
levels. (Id. at PageID # 635–36.) Ultimately, Mr. Bousquet diagnosed Staymate with Bipolar
Disorder, and assigned him a Global Assessment of Functioning (“GAF”) score of 50 (symptom
and overall) and 60 (functional). (Id. at PageID # 636.) Mr. Bousquet also concluded that
Staymate would be expected to have difficulties with his abilities to respond appropriately to
work place stresses and pressures, (id. at PageID # 638), and this was a marked impairment for
Staymate. (Id. at PageID # 639–41.)
Staymate’s records were also reviewed by two other state agency reviewers, Doctors
Caroline Lewin and Roseann Umana. Dr. Lewin completed a residual functional capacity
(“RFC”) evaluation form on March 25, 2010, and concluded that Staymate had mild restrictions
in daily living activities; moderate difficulties in social functioning; and mild restrictions
-3-
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
maintaining concentration, persistence, or pace. (Id. at PageID # 523.) Dr. Lewin opined that
Staymate would be unable to perform work with anything more than minimal contact with the
general public, and could only withstand occasional contact with coworkers. (Id. at PageID #
521.) Dr. Umana affirmed these findings in September 2010. (Id. at PageID # 581–99.)
B. Procedural History
Staymate filed a claim seeking supplemental security income benefits with the Social
Security Administration (“SSA”) on January 13, 2010, and claiming that he became disabled on
July 1, 2005.1 (Appellant Br., at 2.) The SSA initially denied his application for benefits, and
Staymate received a hearing from an Administrative Law Judge (“ALJ”) on April 26, 2012.
(Appellee Br., at 3.) The ALJ entered a decision on June 15, 2012, denying Staymate’s
application for benefits. (Id.) This decision, however, was overturned on appeal by the Appeal
Council, and the case was remanded for further administrative proceedings. (Id.; Appellant Br.,
at 2.)
Staymate received a second hearing before a different ALJ on January 30, 2014. On
March 6, 2014, the ALJ issued a decision denying Staymate’s request for benefits, after finding
that Staymate was not under a disability because his age, education, work experience, and RFC
indicated that he was capable of successfully adjusting to other work in the national economy.
(R. 18-2, PageID # 82.) On May 27, 2015, the Appeals Counsel denied review, and the ALJ’s
decision became the final decision of the Commissioner. (R. 28, PageID # 766.)
On June 23, 2015, Staymate filed his complaint in the district court challenging the
decision of the ALJ. (R. 1.) The magistrate judge entered a Report and Recommendation on
April 5, 2016, recommending that the court enter judgment in favor of the Commissioner. (R.
1
Staymate filed his first application for disability insurance benefits and supplemental security income in June 2005
and a second application for supplemental security income in March 2007. Both applications were denied.
-4-
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
28, PageID # 778.) The district court adopted the Report and Recommendation in full. (R. 31.)
Staymate timely appealed.
II.
We review a district court’s decision in cases involving social security benefits de novo.
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (citing Gentry v. Comm’r of
Soc. Sec., 741 F.3d 702, 722 (6th Cir. 2014)). This review, however, is limited to determining
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ are
supported by substantial evidence.” Id. (citing Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
405–06 (6th Cir. 2009)).
“The substantial-evidence standard requires the Court to affirm the Commissioner’s
findings if they are supported by ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (citations
omitted). Upon a finding that there is substantial evidence to support the ALJ’s findings, we
must affirm, and may not “even inquire whether the record could support a decision the other
way.” Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v. Sec’y of Health and
Human Servs., 893 F.2d 106, 108 (6th Cir. 1989)). In addition, this limitation precludes the
Court from resolving conflicts in evidence or deciding questions of credibility. Ulman v.
Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (citations omitted). The substantial
evidence standard, however, will not preclude us from reversing a decision where the
Commissioner “fails to follow its own regulations and where that error prejudices a claimant on
the merits or deprives the claimant of a substantial right.” Rabbers v. Comm’r of Soc. Sec., 582
F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th
Cir. 2007)).
-5-
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
III.
A.
Staymate first challenges the weight given Mr. Bousquet’s opinion as a Consulting
Examiner. According to Staymate, the ALJ’s decision to give less weight to the one marked
limitation identified by Mr. Bousquet violated the “treating physician rule.” Staymate further
argues prejudice in the form that the purported error obstructs meaningful review of the ALJ’s
decision. (Appellant Br., at 14.)
The treating source rule is one of the standards that the Commissioner imposes on the
consideration of medical source evidence. 20 C.F.R. § 404.1502. This standard requires the
ALJ to give a treating source opinion controlling weight if it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and not inconsistent with the other
substantial evidence in [the] case record.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004) (quoting 20 C.FR. § 404.1527(c)(2)). “If an ALJ decides to give a treating
source’s opinion less than controlling weight, [he] must give ‘good reasons’ for doing so that are
sufficiently specific to make clear to any subsequent reviewers the weight given to the treating
physician’s opinion and the reasons for that weight.” Morr v. Comm’r of Soc. Sec., 616 F. App’x
210, 211 (6th Cir. 2015) (citing Wilson, 378 F.3d at 544).
Initially, the district court found that Mr. Bousquet was not a treating source whose
opinion was entitled to controlling weight. (R. 31, PageID # 818.) We agree. “The treating
physician doctrine is based on the assumption that a medical professional who has dealt with a
claimant and his maladies over a long period of time will have a deeper insight into the medical
condition of the claimant than will a person who has examined a claimant but once, or who has
only seen the claimant’s medical records.” Helm v. Comm’r of Soc. Sec., 405 F. App’x 997,
-6-
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
1001 (6th Cir. 2011) (quoting Barker, 40 F.3d at 794). The regulations make clear that a
relationship based “solely on [a claimant’s] need to obtain a report in support of [a] claim for
disability” does not constitute a “treating source.” 20 C.F.R. § 416.902. As the ALJ noted,
Staymate met with Mr. Bousquet once in September 2013, and “reported that he was seeking
disability benefits due to bipolar disorder.” (R. 18-2, PageID # 79.) This single meeting does
not suffice to create the on-going treatment relationship necessary to apply the treating source
rule. See Helm, 405 F. App’x at 1000 n.3 (“[I]t is questionable whether a physician who
examines a patient only three times over a four-month period is a treating source—as opposed to
a nontreating (but examining) source.” (citations omitted)).
Having determined that Mr. Bousquet’s opinion was not entitled to “controlling weight,”
we must still determine whether the ALJ properly considered it. First, as between an examining
source and a non-examining source, the examining source will be given more weight. 20 C.F.R.
§ 404.1527(c)(1). In addition to this examining relationship, the ALJ may consider
“specialization, consistency, [] supportability, . . . [and] [o]ther factors ‘which tend to support or
contradict the opinion.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013);
see also 20 C.F.R. § 404.1527(c)(2)–(6). Here, the ALJ specifically gave an explanation for his
treatment of Mr. Bousquet’s opinion: “[L]ess weight is given to the consultative examiner’s
opinion of a marked limitation in responding to work situations and changes, as this opinion is
based on the claimant’s subjecti[ve] reporting of his symptoms and not supported by other
objective evidence. In addition, it appears inconsistent with the GAF score of 60 in functioning,
which supports only mild limitation in functioning.” (R. 18-2, PageID # 80.) We have
previously found reasoning that a medical opinion relied too heavily on the claimant’s subjective
complaints as adequate to support an ALJ’s decision to give little weight to the opinion. See
-7-
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
Keeler v. Comm’r of Soc. Sec., 511 F. App’x 472, 473 (6th Cir. 2013). Here, also, we find that
the ALJ adequately explained his decision to give little weight to a portion of Mr. Bousquet’s
opinion. In reaching his decision, the ALJ properly relied on reports of Staymate’s daily living
and on the notes from Dr. Andronic’s treatment sessions. This decision is supported by
substantial evidence in the record.
B.
Staymate next argues that the ALJ failed to resolve certain conflicts and to fully develop
the record. First, he argues that the ALJ failed to resolve the conflict between the testimony of
the vocational expert and the Dictionary of Occupational Title (“DOT”). The vocational expert
testified that Staymate’s age, education, work experience, and RFC allowed him to work as a
solderer, packing line worker, and bottling line attendant. The ALJ adopted this finding. (R. 18-
2, PageID # 82.) Before the district court, Staymate argued that solderer jobs are outside the
scope of his limitations because they would regularly expose him to hazards, including the
soldering iron and gas flame. (R. 19, PageID # 707.) He also argued that the job of packing line
worker would require him to have more than occasional contact with other employees, which is
also outside the scope of his limitations. (Id.)
Under Social Security Ruling 00-4p, an ALJ has an affirmative duty to inquire as to
whether a vocational expert’s evidence conflicts with the information provided in the DOT, and
to resolve any “apparent conflicts.” SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). We have
found it sufficient to satisfy this duty where the ALJ asks the vocational expert if there is a
conflict. See Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006). Here, the
ALJ specifically asked: “[I]s your testimony that you’ve given consistent with the [DOT]?” (R.
18-2, PageID # 132.) The vocational expert answered that it was. (Id.) Even more, Staymate’s
-8-
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
counsel did not make any objections. (Id.) Absent an objection to the vocational expert’s
testimony, the ALJ reasonably relied on the testimony. See Martin, 170 F. App’x at 374
(“Nothing in SSR 00-4p places an affirmative duty on the ALJ to conduct an independent
investigation into the testimony of witnesses to determine if they are correct.”). Regardless, as
the district court found, Staymate does not argue that there is a conflict with the bottling line
attendant position. The ALJ could have reasonably found that Staymate could perform this
position, had he discounted the first two.
Staymate also appears to argue that the ALJ failed to develop the record with respect to
his “attempts at hospitalization” and the reasons for his discharge from the military. (Appellant
Br., at 16.) Particularly, Staymate contends that the ALJ interrupted his answer to the questions
concerning incarcerations or convictions. (Appellant Reply Br., at 15.) The exchange Staymate
refers to here went thus:
Q: Okay. Have you been incarcerated or have you committed any assaults or
batteries, or shot anybody because of your anger?
A: The last time I was incarcerated for my anger was probably -- I’m trying to
think -- early to mid-‘90s, where I got a persistent disorderly --
Q: Okay. Well, that’s too far back. I don’t need that. . . .
(R. 18-2, PageID # 110.) According to Staymate, the ALJ, in order to properly discharge his
duty, should have allowed him to finish and then asked if there were more recent incarcerations,
instead of cutting him off. (Appellant Reply Br., at 15–16.)
We find Staymate’s argument unpersuasive. True, common courtesy frowns on
interrupting a speaker mid-sentence, but it does not override an ALJ’s discretion in determining
what evidence is necessary. More importantly, Staymate retains the burden of proving that he is
disabled and entitled to benefits. Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 275 (6th Cir.
-9-
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
2010) (citing Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)). Staymate argues that the ALJ
has a heightened duty to develop the record where the claimant has a mental impairment.
(Appellant Br., at 17.) However, Staymate was represented by counsel in the proceedings before
the ALJ. In light of this, we find difficulty in imposing a “heightened” duty on the ALJ.
C.
In his third claim, Staymate argues that the ALJ improperly applied the burden of proof at
step five of the required five-step sequential analysis for a disability benefits claim.
The Commissioner has established a five-step sequential evaluation process to determine
whether a claimant is entitled to social security benefits: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant suffers from a severe medical impairment;
(3) whether the severe impairment meets or equals the severity and durational requirements of
the Social Security Regulations; (4) whether the claimant has the RFC to do any relevant past
work; and (5) whether the claimant can perform any other work. See 20 C.F.R. § 416.920(a)(4).
“The claimant bears the burden of proof during the first four steps, but the burden shifts to the
Commissioner at step five.” Wilson, 378 F.3d at 548 (citing Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 529 (6th Cir. 1997)). “At step five, the Commissioner must identify a significant
number of jobs in the economy that accommodate the claimant’s residual functional capacity and
vocational profile.” Id.
Here, the ALJ first noted that he was required under the Social Security Act to apply the
five-step analysis and then outlined all the applicable steps. At the fifth step, the ALJ noted:
“Although the claimant generally continues to have the burden of proving disability at this step, a
limited burden of going forward with the evidence shifts to the Social Security Administration.”
- 10 -
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
(R. 18-2, PageID # 73.) It is this language that Staymate takes issue with and argues is evidence
that the ALJ did not properly shift the burden as required in this step. We disagree.
The ALJ further noted that “[i]n order to support a finding that an individual is not
disabled at this step, the Social Security Administration is responsible for providing evidence
that demonstrates that other work exists in significant numbers in the national economy that the
claimant can do, given the residual functional capacity, age, education, and work experience.”
(Id.) This does not minimize the burden shift in this step as Staymate claims; rather, the ALJ
properly described the Commissioner’s at this phase. (See id. (citing 20 C.F.R. § 416.960(c)
(“[W]e are responsible for providing evidence that demonstrates that other work exists in
significant numbers in the national economy that you can do, given your residual functional
capacity and vocational factors.”)).) More importantly, the ALJ reasonably assessed whether the
Commissioner had met this burden. During the hearing, the ALJ elicited information from the
vocational expert concerning what work Staymate could perform, considering his RFC, age,
education, and work experience. (R. 18-2, PageID # 127–32.) Based on the vocational expert’s
response, the ALJ found that the Commissioner had carried its burden in this fifth step. The
ALJ’s reliance on this testimony was not in error. “This court has held repeatedly that the
testimony of a vocational expert identifying specific jobs available in the regional economy that
an individual with the claimant’s limitation can perform can constitute substantial evidence
supporting an ALJ’s finding at step 5 that the claimant can perform other work.” Wilson, 378
F.3d at 549 (citations omitted).
The ALJ’s use—perhaps inadvertently—of limited to describe the Commissioner’s
burden in the fifth step did not diminish that burden as Staymate claims, and substantial evidence
- 11 -
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
exists in the record to support the ALJ’s finding that the Commissioner met its burden in this
step.
D.
Staymate’s final claim alleges that the ALJ “picked and chose” from the evidence in
record. (Appellant Br., at 22.) In particular, Staymate argues that the ALJ ignored evidence
from Dr. Andronic, his psychiatrist, which further supported Mr. Bousquet’s findings.
According to Staymate, at least on one occasion in December 2010, Dr. Andronic observed that
Staymate was unkempt, disheveled, and displayed agitated activity with rapid and pressured
speech. (Appellant Br., at 23; R. 18-7, PageID # 613.) This objective evidence, Staymate
argues, was ignored by the ALJ in deciding to discredit Staymate’s self-reporting. Staymate also
appears to take issue with the ALJ’s decision to accord less weight to the testimony from his
mother, Janice Frye.
In general, an ALJ’s failure to follow agency rules and regulations, one of which is
evaluating all opinions of record, may “denote[] a lack of substantial evidence.” Cole, 661 F.3d
at 937. However, we have held that “[a]n ALJ need not discuss every piece of evidence in the
record for his decision to stand.” Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir.
2004). The record indicates that the ALJ considered Dr. Andronic’s opinion and nonetheless
concluded that Staymate had “medically determinable impairments that could reasonably be
expected to cause some of the symptoms described, but not to the frequency or debilitating
degree of severity alleged.” (R. 18-2, PageID # 77.) Further, the ALJ noted its reliance on the
fact that “no treating source has opined that [Staymate] has permanent limitations that prevent
him from working.” (R. 18, PageID # 80.)
- 12 -
Case No. 16-3896
Staymate v. Comm’r of Soc. Sec.
The ALJ’s reliance on its evaluation of the medical opinions in the record, as well as its
decision to give Staymate’s mother’s testimony less weight than the opinions of state agency
medical consultations, (see R. 18-2, PageID # 80), was not improper. Additionally, this decision
was supported by substantial evidence.
IV.
For the aforementioned reasons, we AFFIRM the district court’s judgment.
- 13 - | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288752/ | Fourth Court of Appeals
San Antonio, Texas
June 19, 2018
No. 04-18-00275-CV
CITY OF MASON, TEXAS (Cross-Appellee),
Appellant
v.
William Robin LEE, as Trustee of Lee Descendants Trust; William Harold Zesch and Amy
Daviss Zesch; and Dennis Evans and Kay Evans (Cross-Appellant),
Appellees
From the 452nd District Court, Mason County, Texas
Trial Court No. 185789
The Honorable Robert Rey Hofmann, Judge Presiding
ORDER
The City of Mason, Texas’s opening brief was filed on June 12, 2018. Appellees/Cross-
Appellant’s consolidated response and opening brief is due on July 2, 2018. Before the due date,
Appellees /Cross-Appellants filed an unopposed motion for a twenty-day extension of time to
file the consolidated brief.
The motion is GRANTED. Appellees/Cross-Appellants’ consolidated response and
opening brief is due on July 23, 2018.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of June, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court | 01-03-2023 | 06-26-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4288758/ | Case: 18-30099 Document: 00514529928 Page: 1 Date Filed: 06/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-30099 June 26, 2018
Summary Calendar
Lyle W. Cayce
Clerk
VIKING CONSTRUCTION GROUP, L.L.C.; EDUCATIONAL
ELECTRONICS CORPORATION; NOVO COMMUNICATIONS, L.L.C.; HAL
COLLUMS CONSTRUCTION, L.L.C.; PERLE CONSTRUCTION GROUP,
L.L.C.; TOM BRANIGHAN INCORPORATED,
Plaintiffs - Appellants
v.
SATTERFIELD AND PONTIKES CONSTRUCTION INCORPORATED;
SATTERFIELD AND PONTIKES CONSTRUCTION GROUP, L.L.C.; CDW
SERVICES, L.L.C.,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CV-12838
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-30099 Document: 00514529928 Page: 2 Date Filed: 06/26/2018
No. 18-30099
Plaintiff-Appellants Viking Construction Group, LLC and five other
Louisiana subcontractors brought suit in state court against Satterfield &
Pontikes Construction, Inc.; Satterfield and Pontikes Construction Group, LLC
(collectively S&P); and CDW Services, LLC, asserting that defendants violated
the Louisiana Racketeering Act (Louisiana RICO) by defrauding the
subcontractors out of labor, materials, supplies, and other funds. S&P removed
the case to federal district court. The district court denied Appellants’ motion
to remand and dismissed all claims against each defendant as time-barred.
See LA. REV. STAT. § 15:1356(H) (establishing five year prescription period for
Louisiana RICO claims); Farmer v. D&O Contractors, Inc., 640 F. App’x 302,
304 n.3 (5th Cir. 2016) (noting that, for both federal and Louisiana RICO
claims, the “limitations periods begin to run when a plaintiff has knowledge or
constructive knowledge of the injury giving rise to a cause of action.”); Ames v.
Ohle, 97 So. 3d 386, 392 (La. Ct. App. 2012) (applying this “injury discovery
rule” to Louisiana RICO claims).
For the first time on appeal, Appellants allege that the prescription
period for claims under Louisiana RICO does not expire until five years from
the defendant’s most recent racketeering activity. As long as the most recent
alleged activity was within five years, Appellants argue, they can bring claims
against a defendant for injuries from any past activities that were part of the
pattern of racketeering, even though those injuries were discovered longer
than five years before.
Our careful review of the record, the parties’ briefs, and the district
court’s ruling demonstrates no error in the district court’s dismissal of
Appellants’ claims. Appellants provide no legal support for their argument
that, when a defendant engages in racketeering activity within the past five
years, this permits a plaintiff to bootstrap claims against a defendant for
injuries allegedly suffered from past racketeering activity. See Love v. Nat.
2
Case: 18-30099 Document: 00514529928 Page: 3 Date Filed: 06/26/2018
No. 18-30099
Med. Enter., 230 F.3d 765, 772–75 (rejecting this argument as applied to
federal RICO claims); State v. Touchet, 759 So. 2d 194, 197 (La. Ct. App. 2000)
(“Because of the parallel between the [federal] RICO and Louisiana's [RICO]
statutes, federal decisions in this area are persuasive.”) Further, the district
court correctly concluded that Appellants failed to demonstrate any injury
resulting from S&P’s alleged filing of a false public record, which is the only
alleged racketeering activity that occurred within the five year prescription
period.
Accordingly, we affirm the district court’s judgment for essentially the
reasons stated by that court.
3 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4288759/ | Case: 17-40812 Document: 00514529803 Page: 1 Date Filed: 06/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40812
Fifth Circuit
FILED
Summary Calendar June 26, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff–Appellee,
v.
TIMOTHY JORDAN,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CR-1374-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Timothy Jordan appeals his conviction of one count of conspiracy to
transport and move and attempt to transport and move undocumented aliens
within the United States and five counts of transporting and moving and
attempting to transport and move an undocumented alien within the United
States for commercial advantage and private financial gain and the sentence
imposed. He argues that the district court violated his rights under the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-40812 Document: 00514529803 Page: 2 Date Filed: 06/26/2018
No. 17-40812
Confrontation Clause by limiting his cross-examination of a Government
witness. He also argues that the district court incorrectly determined that
possession of a commercial driver’s license (CDL) is a special skill within the
meaning of U.S.S.G. § 3B1.3.
This court reviews claimed violations of a defendant’s Sixth Amendment
confrontation right de novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir.
2004). Where a defendant’s constitutional rights are violated, review is for
harmless error. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). If there
is no constitutional violation, then this court reviews a district court’s
limitations on cross-examination for an abuse of discretion, which requires a
showing that the limitations were clearly prejudicial. United States v. Restivo,
8 F.3d 274, 278 (5th Cir. 1993).
The record reflects that Jordan had an opportunity to cross-examine the
Government’s witness effectively. Delaware v. Fensterer, 474 U.S. 15, 20
(1985). The questions that Jordan was prevented from asking the witness
would not have produced relevant evidence. See Holmes v. South Carolina,
547 U.S. 319, 327 (2006). Moreover, the witness’s answers on cross-
examination contradicted the speculative theory that the defense was seeking
to establish. Id.
The “district court’s application of section 3B1.3 is a sophisticated factual
determination” that this court reviews for clear error. United States v. Pruett,
681 F.3d 232, 248 (5th Cir. 2012) (internal quotation marks and citation
omitted). Jordan’s argument that possession of a CDL is not a special skill for
purposes of § 3B1.3 is foreclosed. See United States v. Villafranca, 844 F.3d
199, 199 (5th Cir. 2016), cert. denied, 137 S. Ct. 1393 (2017). The district
court’s conclusion that Jordan used his special skill as a licensed commercial
truck driver to commit and conceal the offense is plausible in light of this
2
Case: 17-40812 Document: 00514529803 Page: 3 Date Filed: 06/26/2018
No. 17-40812
record. See id. at 200; United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008).
The judgment of the district court is AFFIRMED.
3 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4288762/ | Case: 17-40947 Document: 00514529708 Page: 1 Date Filed: 06/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40947 FILED
Summary Calendar June 26, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID LEE VANN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:16-CR-901-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Defendant-Appellant David Lee Vann was indicted on one count of
attempted enticement and coercion of a minor and four counts of possession of
child pornography. Vann pleaded guilty to attempted enticement and coercion
of a minor in violation of 18 U.S.C. § 2422(b). In consideration of Vann’s guilty
plea, the Government agreed to move to dismiss the four remaining counts of
the indictment at sentencing. Vann was sentenced to 120 months of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-40947 Document: 00514529708 Page: 2 Date Filed: 06/26/2018
No. 17-40947
imprisonment and 10 years of supervised release. On appeal, Vann argues
that the Government breached the plea agreement by failing to move to
dismiss the remaining counts. He also asserts that the written judgment
incorrectly identifies his offense of conviction as enticement and coercion of a
minor rather than attempted enticement of a minor.
“[A]n alleged breach of a plea agreement may be raised despite a waiver
provision.” United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010).
Because Vann failed to object to the Government’s alleged breach in the district
court, our review is limited to plain error. See United States v. Hinojosa, 749
F.3d 407, 411, 413 (5th Cir. 2014). In resolving whether a breach occurred,
this court considers whether the Government’s conduct was “consistent with
the defendant’s reasonable understanding of the agreement.” Id. at 413
(internal quotation marks and citation omitted).
We need not resolve whether the alleged breach constitutes plain error
as neither party disputes that the written judgment should be corrected to
reflect the dismissal of the remaining counts. In addition, although the written
judgment identifies the offense of conviction as enticement and coercion of a
minor, the record reflects that Vann pleaded guilty to attempted enticement
and coercion of a minor. Accordingly, we REMAND to the district court for the
limited purpose of entering a corrected judgment reflecting the dismissal of the
remaining counts and the offense of conviction as attempted enticement and
coercion of a minor. See FED. R. CRIM. P. 36.
2 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4131281/ | The Attorney General of Texas
JIM MAllOX August 6, 1984
Attorney General
Suprsms Court BulldIn Honorable Henry Wadt! @iniOn NO. JM- 186
P. 0. Box 12549 Criminal District AMoney
A,,s!In. TX. 7671% 254S Dallas County Re: Competitive bidding
5?21475-2501 Services Building requirements under article
Telex 9101874-1387
TsIscODIs’ 51214750288
Dallas, Texas 7520:! 2367, V.T.C.S.
Dear Mr. Wade:
714 Jackson, Sub 700
Dallas. TX. 75202.4506
You have asked .#hether all competitive bids must have affixed to
214i742-9944
them the affidavit set out in article 2367, V.T.C.S. If such an
affidavit is legally required on a specific type of item or on all
4824 Albsrts AvO.. Suite 160 bids, you ask whether a bidder may notarize the affidavit after the
El Paso. TX. 799052793 official bid openin!! date.
SlY533.34a4
r As we understan it. all bids for merchandise, supplies, services
11.~1 Texas. Suite 700 and/or equipment received by Dallas County have heretofore contained
Houston, TX. 77002.3111 both the wording cotd the notarized signature of the bidder. You
713l223.5996 state, however, thglt, the Dallas County purchasing agent desires. in
order to increase competition, to have the requirement of a signature
before the notary el:lminated, but continue to place the wording of the
905 Broadway. Suile 312
Lubbock, TX. 79401.3479 affidavit, as set out in article 2367, V.T.C.S., on all bids
909J747-5239 documents.
It is our o?Lnion that article 2367, V.T.C.S.. imposes a
4309 N. Tenth. Suite B
mandatory duty upc’r a bidder to affix to his bid a signed and
McAllsn, TX. 79501-1995
512f982.4547 notarized affidavit as specified within the article. We conclude.
however, that this article applies only to bids submitted to the
commissioners COUIt for the printing and stationery supplies
200 MaIn Plan. Suite 400 enumerated within article 2358. V.T.C.S., and is not legally required
Ssn Antonlo. TX. 782052797
51212254191
for all bids involv:.ng other types of supplies and/or materials. It
is further our opin:.oa that when such an affidavit is mandated under
article 2367, V.T.C.S., it must be affixed to the bid when submitted
An Equal Opporlunltyl and may not be notarized after the official bid opening date.
Alllrmatlve Action Employs~
Article 2367, V.T.C.S., reads as follows:
The manager, secretary or other agent or
officer of the bidder shall attach to each bid an
affidavit to the effect that affiant has full
knowledge of the relations of the bidder with the
other firn,s in the same line of business and that
the biddet is not a member of any trust, pool or
Bonorable,Henry Wade - Page 2 (~~-166)
combination of an]i’kind and has not been for six
monthr last past, directly or indirectly concerned
in any pool or agreement or combinati& to control
the price of suppl.les bid on, or to influence any
person to bid or not to bid thereon. (Rmphesia
added).
The article clearly impof es upon a bidder, acting through an
appropriate officer or agent, a duty to attach “to each bid” an
affidavit designed to discl,cse the affiant’s full knowledge of the
bidder’s relations “with the other firms in the same line of
business .I’ The affiant muft legally affirm that the bidder is not
involved in “any trust, poo!. or combination” with the other suppliers
and that he has not, within the prescribed period, entered into “any
pool or agreement or combinclt:ion” for the purpose of controlling “the
price of supplies bid on” or in order “to influence any person” to bid
or refrain from bidding. V.T.C.S. art. 2367.
The obvious intent of cll,ticle 2367 is to ensure that all bidders
will have an opportunity to bid on equal terms and will have their
bids judged according to t!ll? same standards; this is a fundamental
tenet of the competitive bidding process. Accord Texas Highway
Co~ission v. Texas Aswcic~t~ion of Steel Importers, 372 S.W.2d 525
--.
(Tex. 1963). See also A::orney General Opinions m-449, MI-440
(1982); MW-299 (1981); H-24 (1973).
Article 2367 is merely one of the provisions of a 1907 act
enacted as an emergency measure for the specific purpose of regulating
the purchases of stationery supplies by the county. Acts 1907. 30th
Leg.. ch. 136, at 252 [hereinafter referred to as the 1907 Act]. This
enactment, codifying articles 2358 through 2367, V.T.C.S., deals
specifically with the authority of the commissioners court to contract
on behalf of the county for specific supplies and prescribes the
manner in which bids thereoa must be solicited and accepted. Attorney
General Opinions O-1597, O-244 (1939).
We are aware that a number of statutes, overlapping in some
caees, relate to the bidding requirements applicable to supplies
purchased by the county. ,sre, e.g., V.T.C.S. arts. 1658 (bids for
supplies of stationery, books, blanks, records and other supplies);
1659 (bids for supplies of c!very kind); 1659a (bids for supplies in
counties of 900,000 or morel; 2368a (bidding procedures for purchases
of supplies in the amount of $5.000 or more applicable to all
counties). See generally Attorney General Opinions MW-439 (1982);
MW-296 (1981); F-1219 (1978).
The statutes cited abormz mandate, in general, that all purchases
of supplie? for the use of t!le county made by the co~insioners court
-
must be awarded on the b.331~ of competitive bidding requirements
imposed by applicab1.e str.tutory language. See Attorney General
p. 813
Honorable Rcnry Wade - Page 11 (m-186)
Opinion IN-299 (1981). A failure to engage in competitive bidding is
grounds for holding a co~i~h~ioners court purchaee contract invalid.
See V.T.C.S. art. 2368a. 52(d); Kelly v. Co&ran, 82 S.W.2d 641 (Tex.
1935); Attorney General 0p:lnion MW-449 (1982). See also V.T.C.S.
arts. 1659, 1659a and 1659b.
It is apparent that the L907 Act, governing contracts made by the
commissioners court for tha! purchases of the expressly enumerated
items, see V.T.C.S. art. 2362, is a specific enactment intended to be
effecticin regard to these *Enumerated supplies. One of the rules of
statutory constructlon is thrlt the express enumeration of particular
persons or things is tantamou:lt to an express exclusion of all others.
Er parte McIver, 586 S.W.2d ,351 (Tex. Grim. App. 1979).
In view of the foregoing, we conclude that the affidavit set out
in article 2367, V.T.C.S., must be attached to bids submitted to the
commmissioners court for printing and stationery supplies governed by
the provisions of articles 2358 through 2367, V.T.C.S. It is not
legally required for bids an supplies not included within these
specific bidding statutes.
In response to your second question, we believe that when an
affidavit is legally required, it must be attached to the bid when the
bid is submitted and may not be notarized subsequent to the official
bid opening.
An instrument not sworn to and properly notarized attached to a
bid will not constitute “an affidavit.” Gordon v. State, 16 S.W. 337
(Tex. Grim. App. 1891). Yet compliance with the terms of the bidding
statutes is required in order to create a valid contract. Accord
Attorney General Opinions :$C449 (1982); MW-296 (1981). The only
exceptions to such requirements are those contained in the statutes
themselves. See Limestone iounty v. Knox, 234 S.W. 131 (Tex. Civ.
APP. - Dsllas 1921. no writ). We are aware of no exception applicable
to article 2367. Purthernlcsre, in view of the possible criminal
penalty which may be imposc!i, on an affiant making a false statement
and slnce an affidavit 13 legally binding on the affiant, the
legislative choice of words mandating that “an affidavit” be affixed
“to each bid” indicates that the legislature intended for the document
to be signed and notarized at the time the bid is offered. We
therefore conclude that SUC’I an affidavit should not be notarized
after the official bid opening date.
SUMMARY
Article 2367, V.T.C.S., requires an affidavit
to be affixed tc, each bid submitted to the
commissioners court on bids for stationery and
printing supplien used by the county. When
legal 1-y required for the specific type of
Honorable Henry Wade - Page 4 (JM-186)
supplies, governed under provisions of articles
2358 through 2367, V.T.C.S., the affidevit muet be
signed by the affhnt under oath and notarized by
an officer authorized to administer oethe. It may
not be notarized subsequent to the official bid
opening date.
JIB WATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICHARDS
F*ecutive Assistant Attorney, General
Prepared by Georgette Bethle,n
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Georgette Bethlen
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 815 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131287/ | The Attorney General of Texas
Lily 5, 1984
JIM MATTOX
Attorney General
Suprem cwrl SulldlnQ Booorable Fred M. Ba,xker opinion, no. ~~-180
P. 0. Box 11548
Parker county Attorcey
Auslln. TX. 7S71I. 2!m
512l4752661 County Courthouse Be: Whether an auxiliary county
Telex 81a674.1367 Weatherford. Texar 76086 courthoure 10 subject to city
telecopier 612l476.0266 zoning ordinances
714 Jackson.Sulle 700
Dear Mr. Barker:
Dallas. TX. 75202ao6
214i742+.Q44 You ask whether Parker County’s uee of a tract of land for an
auxiliary courthoum! within the city limits of the county seat la
eubject to ,the city’s ‘zoning ordinancea and building codes. We
924 AIberIa Ave.. Sullr 160
‘aso. TX. 76Wt279.3
conclude that the ccunty’a use of land for an auxiliary courthouse is
3Iol5353464 subject ~to the munic:ipality’e zoning ordinances only tom the extent
that nuch ordinancmt ‘do not prevent the county from reasonably
locating its auxilicuy courthoucle within the municipal limits of the
1001Texas.sqite 7w county seat. Addit:looally, ve conclude that the county muat comply
Houslon. TX. 770023111
with the munfcipalitp’e building and fire coder.
713i223.6666
Texas courte have yet to determine the acope of a municlpality’e
606 Broadway.Suite 312 zoning power over county property located within municipal llmita. We
Lubbock.TX. 794014472 recently held that buildinge, structures. and laod controlled by
6ow747-6236
federal or etate aga!c,ciem ari ixeapt from municipal ronlug. Attorney
General Opinion m-117 (1983). Bowever. a political rubdivision’o
4366N. Tenlh. Sull. S property Is not lta teproperty for purpoaea of resolving conflict8
MCAIIen.TX. 76601-1666 with another politiml rubdivirion. Port Arthur Independent School
5w662-4647 Dlatrfct v. City of Grovea. 376 S.W.2d 330, 333 (Tex. 1964); Attorney
General Opinion lN-Gi)(1982).
200 Mel mua. Slme UK)
Sm Antonlo. TX. 762OW767 A municipal acnln8 ordinance which conflict8 vith or is
512/2264161 inconsistent with e’tate legislation 1~ invalid. City of Brookside
Village v. Comeau, liZI S.W.2d 790. 796 (Tex. 1982). However, state
legislation In e particular field does not automatlcally preempt that
,field from amicipal regulation; local regulation ancillary to and in
harmony with the purpose of the state leginlation is acceptable. Id.
Thur, whether a municipality may exercise zoning paver over a count-
auxiliary courthoure: located vlthln the municipality depend6 upon
reconciliation of two different, potentially conflicting legislatively
created powerr.
The coumieefone:rtl court of a county ha6 the authority to provide
auxiliary courthouse8 in the county seat. V.T.C.S. art. 1605a-5.
Honorable Fred M. Barker - Page 2 (JM-180)
51(a)(l); V.T.C.S. art. 23753’5, Il. Subsection l(a) (1) of article
1605a-5 specifically authorizea the comissionera court to provide
auxiliary courthousea
in any part of the city, town, or village
designated a8 the comty eeat, including a part of
the municipality atlcled to the municipelity after
it became the cow&p rut. but not including a
part of the munic:ipality that la outside the
county. (Emphasis mlded) .
liowever. the legfrlative history does not indicate that “in any part”
was intended to address a c:onflict with city zoning ordinances;
rather. it wan intended to indicate that the county la not limited to
the “town center . ”
Additionally, counties hwe the right of eminent domain
four the purpose of condemning and acquiring land,
right of way or tuhaement in land, private or
public . . . whew said laod. right of vay ‘or
.caeement ie neceeaal)m in the construction of . . .
courthouses . . . .
V.T.C.S. art. 3264a. Article 6702-l. section 4.302. grants counties
the right of eminent domain for road construction and maintenance
purposes within the bouadazles of ounicipalltlcs and expressly
raquircs the prior,consent of r:he municipality. No similar statutory
requirement for a muaicirv~lity’a : consent amlies tom county
co~dexmations pursuant to, .art&le :3264& Cf. Cir;-of fpler v. Smitir
~County, 246 S.l?.2d.601~(Tex. 1952); El Pasoaty v. City of El Peso,
357 &U.2d 783 (Tex.. Civ. ,App. - 81 Paeo 1962, no writ) (resolution of
conflict over condemnation by one political subdivieion of property
belonging to an equally empour~‘cd subdivision ultimately reste on the
paramount use and best interests of the public).
Zoning regulation io a recognired tool of cowaunity planning
vhich allova a municipality, in .itm legislative dircretion, to
restrict the use of property fc,c the protection of the general health,
safety, and velfare of the public. City of Broobide Village v.
Comeau. a; see V.T.C.S. nrts., 1011a through 10113 (the zoning
enebllng act ofzas which lu,thorixes building and zoning regulation
by municipalities). Became a municipal roalng ordinance vhich
conflicts with or lo inconrlrtturt with lta te lenjslation cannot stand,
City of Brookside Village v. Ctmeau, a , an orditica which defeata
the legislative authorization ~~countica to ertabliah courthoueer ia
Invalid.
Honorable Fred M. Barker - P#ll;e 3 (JM-180)
Texas courts dealing with conflicts .betwean municipslitiea and
school districts employ thicl reasoning to hold that municipalities
cannot use their zoning po!n,ra totally to exclude the reasonable
location of achoo~.facilitic~ within municipal boundaries. Austin
Independent School Dietrict o,, City of Sunset Valley, 502 S.W.Zd
(Tex. 197,3); Port -Arthur Independent ,School District v. City of
Crivea , 376 S.W.2d, .330:. (Tt;:. 1964); City of Addison v. Dallas
Independent School, District, (132 S.W.2d 771 .(Tex. Civ. App. ‘- Dallas
1982. .writ ref’d n.r.c.). AlLn&~g such an exclusion would defeat the
school district’s power of end,nent domain. Austin Independent School
District v. City of Sunset Valley, B; City of Addison v. Dallas
Independent School District, eupra, Nor can the zoning ordinances of
municipalities override the eminent domain powers granted by the
legislature to other types of cntitiea. Sea Gulf, C. 6 S.P. Ry. Co. v.
m, 281, S;W.Zd 441 (Tex. Civ. App. Dallas 1955, writ ref’d
n.r.e.); Fort Worth 6 O.C. Ay. Co. v. Auunons. 215 S.W.Zd 407 (Tex.
Civ. App. -. Amarillo 1948; writ ref’d 0.r.e.).
As a practical matter, a political subdiviaion’a “immunity” from
rC munidipal zotilng ‘is limited by a rule of reasonableneaa. For example,
despite language ,in~ the -- Sunset Valle case that school districts are
absolutely immune from a city 4’ s zoning power, the supreme court
emphasized that its holding was
not that the Sch,,l District can act with
impunity . ~. . . (Yhia immunity is absolute
unless the City in #: given instance can show that
its exercise is unreasonable or arbitrary.’
502 S.W.2d ,.at ,674:; (quoting ,ulth epproval from City of Nevark v.
University of Delaware, .,3D4 -A.,:!d 347. ,349 (Del. Ch. 1973)); see City
of Addison -v. Dallas Indepe~~lant School District, 632 S.w.?d at
772-773. ‘.
Similarly. in Porter v. Southwestern Public Service Co., 489
S.W.2d 361 (Tex. Civ. App. - &rillo 1972, writ ref’d n.r.e.3. the
court held that,, absent i --- su&lined challenge, a city did not usurp
the eminent domain power of a public utility by requiring it to meet
certain standards under tit:? zoning ordinances. Therefore, ve
conclude that Parker County’s IMC of land for an auxiliary courthouse
is subject to the city’s zoning ordinances only to the extent that
such ordinances do not prevent the county from reasonably locating its
auxiliary courthouse within the municipal limits of the county seat.
r However, the county must comply with city regulations regarding
the construction of its rcxiliary courthouse. Texas courts
distinguish between municipal :#,ntrol over the location of buildings
of another political subdiviair~c and control over the construction of
such buildin8a. See, e.g., %eet Valley, m, at 673. The supreme
Honorable Fred M. Barker - Pr,fe 4 (JM-180)
court in Port Arthur fndeperdent School Oiatrict v. City of Groves,
supra, held that a school district must comply with the city's
building regulations. The legislature, .by l uthoriainS the ,achool
district to locate a school Sacility vithin a ~nicipality. did~not
preempt the city's police povcc to enforce necessary health and aafety
regulatione. Port Arthur I!dependent School ~Diatrict v. City ~of
Groves, B, et 334. ~Lo Attorney General Opiuim~M~l-508.(1982),
~-office ~extended~thia"~ratlonele to counties end detelrined -.thet
couuty buildings within munic:~.palitfes are subject to municipal-fire
codes. See al~eo Attorney Geno::al Opinion WV-218 (1957).
Although particular "poli:e power" regulations vhich. in effect,
prevent the location of another political subdivision's fecilitiea may
be invalid, see. e.g., Cit of Addison v. Dallas Independent School
. Ofstrict, supra, +-
the county II authority to locate buildings in a
municipality does not abrogc.re municipal authority to protect the
public health, safety, and veXare. See City of Fargo, Case County v.
~ Harwood Township, 256 N.W.2'1 694 (N.O. 1977); Lincoln County v.
Johnson, 257 N.W.Zd 453 (S.11, 1977); Wilkinsburg-Peaa Joint Water
Authority v. Borough of ChurclG, 417 Pa. 93, 207 A.2d 905 (1965);
Pal-Uar Water Hanagement Oia~rict v. Martin County, 377 So. 2d 752
(Fla. Diet. Ct. App. 1979).
&II M M A R Y
Parker County's ure of land for sn auxiliary
courthouse within the municipal limita of the
county seat ,ia subject to the munlcipality'e
zoning ordinances only to the extent that such
ordinances do not prrrent the county from loceting
its auxiliary courthcuae within the municipality.
l'he county must comply vith municipal regulations
regardinS the couw:ruction of its auxiliary
courthouse.
LJ!!!k
Very truly
JIM
m
MATTOX
yo 8
Attorney General of Texas
TOMGREEN
First Assistant Attorney Genera,]
DAVID IL RICHARDS
Executive Assistant Attorney General
. -
Honorable Fred M. Barker - Pa&c 5 (JM-180)
Prepared by Rick Gilpin
Aaeiatent Attorney General
APPROVZD:
OPINIONCQEMITTEE
Rick Gilpin, Ghairman
Go1111 Carl
Susan Gerriaon
Jim Moellinger
Nancy Sutton | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131298/ | The Attorn.ey General of Texas
JIM MAl-rOX June 18. 1984
Attorney General
supmIllcourtBulknmJ tionorable Micbsel J. Gu.rino Opinion No. .rt+169
P. 0. Box 12546
CrMnsl District Attorney
Au~lln. TX. 16711-2548
Gslvcston county ik: Whether s village which
51214752501 .__ - _ -
T&X 01om74-IS7 405 County.Courthou.e M(I b.COm. . tOWt pUr6USUC CO
Telecopter 512l475.0255 Galveston, Texs. 77550 article 961, V.T.C.S.. pay
revert to village etatus. snd
714 Jackson. Sulle 700 relsted question.
Dalla5. TX. 75202.45W
214f742.8944 Dear Mr. Gusrino:
You have posed ssv.r.1 question. about the legal status of
4524 *Ibetl~ Ave.. Suite 160
Dickinson.~ Texa.,~ which vs. originslly Incorporated s. s villsge
El Pmo, TX. 79005-2703
91- pursuant to cbspter 11. Title 28, of the Rsvised Civil Statute.,
article 1133. et ~(Ieq.. V.T.C.S. In 1982. the village board of
aldermen unanimously passed sn ordinance adopting chapter. l-10 of
tmi Texas. suits 700 Title 28 s. it. governing body of lsw (rstber ,tbsn chapter 11) snd
nou*ton. TX. 770025111
filed It of record with the Galveston county clerk. Subsequently. you
71-
edvise. s newly .elected board of sldsrmsn psssed en ordlnsnce
purporting to reps.1 the previous ordlnsnce sad thereby return
606 Broadway. S@te 312 Dickinson to "villsge" ststus. Your questions concern the effect of
Lubbock, TX. 70401a479 the ordinsncss. .'~
Mw747.3235
Tex+. ~ststute. allow the incorporation of s community under
UQO N. Tenth. SuIta B cbsptsr 11 if tb. number of inhsbitsnt. is mre tbsn two hundred but
McAltul, TX. 76501.1665 less'tban tan thbcwand. V.T.C.S. srt. 1133. A toun 80 incorporated
5126524547 (which, uy be ,c.lled s "villsgs" instesd of s "town" without
diminishing its powers) become. "invested with sll tb. 3fgbt. incident
200 M&l Ptua. BIBIt* 400 to' suchxZorporation under this cbsptsr" [cbspter 11). V.T.C.S. art.
San Antonlo, TX. 78205cm7 1140. Tovn. ~incorporated under cbspter 11 bsve powers more lirited
512/225.4191 tbsn those organized under cbspters 1 through 10 of Title 28 (vbicb
uy bc csllsd "cities" instead of "towns" wltbout enlarging their
povcrs). V.T.C.S. art. 1153.. Town. est.blisbsd under chspter. l-10
An Equal opportunttyl
Afflrmattw Action Empbyw srs slso subject to' different orgsnirstional requlrsmsnta. See m
of Wsxshscbi. v.~grows. 4 S.U. 207 (Tex. 1887); Cbsndlsr v. S.I. 315
S.W.2d 87 (T.x. Civ..App. - San Antonio 1958, writ ref'd n.r.e.1.
Ilunicip.1 corporation. organized under either met of provision.
are brosdly considered "genersl lsw cities" to distingui.b,tbco from
"home rule" cities tbst sre orgsnired pursusnt to article XI, section
5, of the Tess. Constitution. becsuas home rule cities possess greeter
powers. V.T.C.S. art. ,116s. See Forewood v. Ctty of Taylor, 214
S.W.2d 282 (Tar. 1948). Unlike~e'rule title., gsnersl lsw cities
Honorable Michael J. Cusrlno - Page 2 (JM-169)
have only those powers given them by the legislature. -See 40 Tex.
Jur. 26 Hunlcipsl Corporations. $318 st 78.
The legislature has given villages organized under chapter 11 [if
they have 600 or more inhsbitsnte] the power to choose to become towns
governed by chapter6 l-10. V.T.C.S.. srt. 961; Been v. Town of Vidor.
440 S.W.2d 676 (Tex. Civ. App. - Beaumont 1969. writ ref’d n.r.e.);
Lusby v. Cotby. 402 S.W.2d 799 (Tex. Civ. App. - Dallas 1966. no
writ). Once chapter l-10 towns have been established. however. they
have no correeponding power to revert to chapter 11 status.
Article 961, granting the powera to reorganize under chapter
l-10, reads In pertinent part:
Any incorporated city, town or village in this
State containing six hundred inhabitants or over,
however legally incorporated . . . may accept the
provisions of this title relating to cities sad
towns, in lieu of any existing charter. by A
two-thirds vote of the council of such city, town
or village. had at A regular meeting thereof. and
entered upon the jourosl of their proceedings, and
s copy of the same signed by the mayor and
Attested by the clerk or secretary under the
corporate seal. filed and recorded in the office
of the county clerk in which such city. town or
village is situated, and the provisions of this
title shall be in force, sad ~11 acts theretofore
passed incorporstfng ssid city, town or village
which may be in force by virtue of any uisting
charter, shall be repealed from and after the
filing of ssid copy of their proceedings. es
sforeesid. When such city, tom or vlllsge is 00
incorporated se herein provided, the ssme shsll be
known se s city or town. subject to the provisions
of this title relsting to citlea end towns. snd
vested with ~11 the rights, powers, privilsger and
immunities ssd franchises tbsreln con-
ferred . . . . (gmphsait~ added).
We believe it ia clear that the board of sldermen poseessed the
authority to nccspt for tbe vlllsge the benefits and responsibilities
of chsptere 1 through 10 of Title 28. When it did, the villsge of
Dickinsos, ipso f*cto. ceased to exist as A corporate entity
authorized by chapter 11. end instsntly became one organized under
chapters 1 through 10. V.T.C.S. art. 962; Luclby v. Cozby. 8uprcl at
803.
When the vote was taken that purported to return Dickineon to
chapter 11 ststue. the town had slresdy become a municipal corporation
controlled by chsptere 1 through 10 of Title 28. Since there is no
legislstively permitted procedure allowing such 8 reversion to chapter
.’
Honorable Michael .I.Guarino - Page 3 (JR-169)
11 status, the vote was a nullity. See Lum v. City of Bowie, 18 S.W.
142 (Tex. 1891); Largen v. State exrel. Abney, 13 S.W. 161 (Tex.
1890). Cf. Harness V. State, 13 S.W. 535 (Tex. 1890). As noted in a
useful brief submitted 011 the auestion. a general law citv can
exercise only those powers that a;e expressly or impliedly conferred
by law, and any substantial doubt about such authority is resolved
against the municipality. --See State ex rel. Rea v. Etheridge, 32
S.W.2d 828 (Tex. Comm'n App. 19, 30); City of West Lake Hills v.
Westwood Legal Defense Fund;. 598 S.W.2d 681 (Tex. Civ. App. - Waco
1980, no writ).
Your specific questions are therefore answered as follows:
1. Did the board of aldermen, in their
December 1982 action, err in passing Ordinance
63-82 to adopt chapters l-10, Title 28, since the
provisions of article 961 requires entering the
vote on the journal of their proceedings?
It is the action of the board, not the evidence or record
thereof, that accomplishes the transformation of the municipality from
one category to another. Lusby v. Cozby, supra. Minutes of the
meeting can be corrected to make them speak the truth. city of
Electra v. American La France 6 Foamite Industry, Inc., 133 S.W.2d 223
(Tex. Civ. App. - Fort Worth 1939, writ dism'd judmt car.); 39 Tex.
Jur. 2d Municipal Corporations 8140, at 524. Although article 961,
V.T.C.S., would apparently allow the adoption of chapters l-10 by
resolution rather than by ordinance, it requires only that the action
be taken by a two-thirds vote of the governing body. An ordinance
will serve. Lusby V. Cosby, supra.
2. Under the authority to repeal ordinances
granted to city council in article 1011, V.T.C.S.,
can city council repeal Ordinance 63-821
As discussed above, once the adoption of chapters l-10 was complete,
the action taken could not be rescinded.
3. In as much as no reference is wade to a 213
majority vote in article 1011, where power to
rescind ordinances is granted, is other than a
simple majority vote required to rescind Ordinance
63-827
Again, Ordinance 63-82 cannot be rescinded.
4. Would the rescinding of Ordinance 63-82
return the corporation to the village status as
existed prior to the adoption of Ordinance 63-82
in December 1982?
NO.
p. 745
.
Honorable Michael J. Guarino - Page 4 (JM-169)
,-,.
5. Assuming the proper procedures outlined in
article 961 are followed in establishing a general
law city under chapters l-10, Title 28, are there
any statutory provisions allowing a return to a
chapter 11 village?
Dickinson can become a village again only by dissolving its present
corporation pursuant to article 1241, V.T.C.S., and reincorporating
under article 1133, V.T.C.S. Lum v. City of Bowie, supra at 144.
6. As a result of the action taken on December
14, 1982, and the rescinding action taken on May
3, 1983, has Dickinson returned to a village?
No.
SUMMARY
The city of Dickinson currently has the legal
status of a town or city operating under chapters
1 through 10 of Title 28 of the Revfsed Civil
Statutes, and may not revert to village status
under chapter 11 thereof. To regain village
status, it must dissolve its present corporation
and reincorporate as a village.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 746 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147463/ | J-S81006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JULIAN DESHIELDS
Appellant No. 1261 EDA 2016
Appeal from the Judgment of Sentence March 24, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001724-2016
BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 22, 2017
Julian DeShields appeals from the judgment of sentence of seven to
twenty-three months incarceration followed by a consecutive period of three
years probation imposed following a nolo contendere plea. Counsel filed a
petition to withdraw from representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.
We rely on the facts from the affidavit of probable cause supporting
the complaint as Appellant stipulated to the affidavit as providing the factual
basis for his plea. On October 15, 2015, homeowners at Ruskin Lane
contacted the Upper Darby Township Police Department to report a burglary.
A neighbor provided surveillance video from a camera pointed towards the
* Former Justice specially assigned to the Superior Court.
J-S81006-16
victims’ residence, which revealed two males entering it through a basement
window. The victims were shown still frame images of the males. The
victim’s daughter, Appellant’s former girlfriend, identified the males as
Appellant and his brother. The police confirmed that Appellant, who was
fifteen years old at the time of this incident, was not present in school on
October 15th.
Based on the foregoing investigation, a juvenile delinquency petition
was filed. The Commonwealth later sought transfer to the court of common
pleas, which was granted on March 24, 2016. Appellant tended his nolo
contendere plea that same day, whereupon the judge imposed the
aforementioned sentence, which was recommended by the Commonwealth.
On April 21, 2016, Appellant filed a post-sentence motion challenging
the validity of the guilty plea. The next day, Appellant filed a notice of
appeal.1 In lieu of a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, counsel filed a Rule 1925(c)(4) statement indicating his intent to file
an Anders brief.
Appellant’s counsel now files a petition to withdraw and accompanying
Anders brief, asserting that there are no non-frivolous issues to be
____________________________________________
1
The notice of appeal was filed by Assistant Public Defender Patrick J.
Connors. The motion challenging the plea was filed by Assistant Public
Defender James S. Wright, who represented Appellant at the plea. The
application to withdraw states that the notice of appeal was filed at
Appellant’s request.
-2-
J-S81006-16
reviewed. The brief sets forth one issue arguably supporting an appeal:
“Whether [Appellant] entered a knowing, voluntary and intelligent [nolo
contendere] plea given his young age?” Anders brief at 1.
We first must address whether counsel has complied with the
procedural requirements of Anders. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa.Super. 2013) (en banc). Counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court's attention.
Id. at 1032 (citation omitted).
Counsel’s petition provides that he has thoroughly reviewed the case
and concluded that this appeal is wholly frivolous. Copies of the petition and
Anders brief were provided to Appellant, and the accompanying letter
informed Appellant of his right to raise additional matters pro se or hire his
own attorney. Thus, we find counsel has complied with the procedural
requirements.
We next address whether the Anders brief complies with the
requirements set forth by our Supreme Court in Santiago, supra:
[I]n the Anders brief that accompanies court-appointed
counsel's petition to withdraw, counsel 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
-3-
J-S81006-16
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.
Id. at 361. The brief fully complies with these four requirements, as it sets
forth the procedural history and relevant facts with citations to the record;
refers to an arguably meritorious ground; concludes that the appeal is
frivolous; and explains why counsel reached that conclusion. Therefore,
counsel has fully complied with the requirements of Anders and Santiago.
We now proceed to examine the issue raised by counsel in the brief.
Counsel frames this issue as one implicating the trial judge’s duties in
accepting a plea. To wit, counsel maintains that there is an issue of
arguable merit as to whether Appellant’s age should have prompted the
judge to engage in a more detailed colloquy to ascertain the voluntariness of
the plea.
Instantly, we note that in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea. Commonwealth v.
Leidig, 850 A.2d 743 (Pa.Super. 2004). Before accepting a plea of nolo
contendere, the judge must determine, on the record, “after inquiry of the
defendant that the plea is voluntarily and understandingly tendered.”
Pa.R.Crim.P. 590(A)(3). The Comment delineates the areas of inquiry that,
at a minimum, should be assessed by the trial judge:
-4-
J-S81006-16
(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 trial by jury?
(4) Does the defendant understand that he or she is presumed
innocent until found guilty?
(5) Is the defendant aware of the permissible range 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?
(7) Does the defendant understand that the Commonwealth has
a right to have a jury decide the degree of guilt if the defendant
pleads guilty to murder generally?
Comment, Pa.R.Crim.P. 590. Nothing in the Rule specifies additional
measures that must be taken where the defendant is a juvenile.
Additionally, we note that, in Commonwealth v. Lewis, 708 A.2d
497 (Pa.Super. 1998), we reviewed the challenge by a minor defendant who
pleaded guilty to first-degree murder in exchange for the Commonwealth
agreeing to forego seeking the death penalty.2 Among other claims, the
appellant asserted that refusing to permit him the opportunity to withdraw
his plea was a manifest injustice because his legal guardian was not present
____________________________________________
2
This case predates the United States Supreme Court decision in Roper v.
Simmons, 543 U.S. 551 (2005), which bars the execution of individuals
who were under eighteen years old when they committed their crimes.
-5-
J-S81006-16
to aid him in his decision to plead guilty. Lewis likened his situation to that
of a juvenile waiving his rights under Miranda v. Arizona, 384 U.S. 436
(1966). See In re V.C., 66 A.3d 341, 351 (Pa.Super. 2013) (presence or
absence of interested adult is one factor to consider in determining whether
juvenile’s waiver of Miranda rights is voluntary). We disagreed, observing
that “The crucial distinction between deciding to plead guilty and deciding to
waive Miranda rights is that, at the guilty plea stage the juvenile is
represented by counsel whose job is to ensure that his client voluntarily
waives his rights.” Lewis, supra at 503, n.7. The same logic applies
equally herein, where counsel was available to assist Appellant and ensure
that the plea was a voluntary exercise of his rights.
Appellant’s counsel suggests that the trial judge should assume the
responsibility of conducting a more probing and searching inquiry when
accepting a guilty plea from a juvenile. However, for a plea to be
constitutionally valid, “the guilty plea colloquy must affirmatively show that
the defendant understood what the plea connoted and its consequences.”
Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014). Our review
of the guilty plea hearing transcript demonstrates that the trial judge
followed the requirements set forth by Pa.R.Crim.P. 590. Appellant also
completed an extensive guilty plea colloquy form, and answered in the
negative when the trial court specifically asked if he had any questions of
Attorney Wright or the court. These procedural safeguards ensured to the
-6-
J-S81006-16
judge’s satisfaction that the plea was knowing, intelligent, and voluntary.
Additionally, Appellant did not raise any additional matters in response to
counsel’s application to withdraw. Thus, there is nothing of record to
indicate the plea was involuntary3 in some capacity, and he would bear the
burden of proving involuntariness. See Commonwealth v. Willis, 68 A.3d
997, 1002 (Pa.Super. 2013). Therefore, this issue is wholly frivolous.
We have conducted an independent review of the record, as required
by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),
and have concluded that there are no preserved non-frivolous issues that
can be raised in this appeal. Hence, we concur with counsel's conclusion
that this appeal is wholly frivolous and grant his application to withdraw.
Petition of Patrick J. Connors, Esquire to withdraw as counsel is
granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
____________________________________________
3
The motion to withdraw the guilty plea stated, “That subsequent to said
plea, documentation was provided to defendant tending to support his claim
of innocence in this matter.” The motion does not elaborate on this
purported documentation, and the Notice of Appeal was filed the next day.
-7-
J-S81006-16
-8- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144339/ | A.rrOH?sacYGENERAI.
Ron. Dan W. Jackson
Criminal District Attorney
Houston, Texas
Dear Sir: gttentlon: Palmer Hutcheson, Jr.
Opinion NO. 0-2056
Re: Elections - Judges, Clerks and
Supervisors - Article 2940, Revised
Clv~i.1 Statutes.
Your request for opinion upon the following questions:
"1. Are school teachers, school trustees,
officers and employees of the various school
systems and~dlstricts; employees and officers of
the ,various drainage districts and other employees
paid by tax money but not specially~llsted in
Rrticle'2940, disqualified as judges, clerks or,
supervisors of elections?
l12." If so, is such disqualification mandatory
or directory?" ~
has been received and carefully considered by this department.
Article 2940, Revised Civil Statutes of Texas, as amended,
reads, In part, as follows:
"No one who holds an office of profit or trust under
the United States or this State, or In any city or town
in this State, or within thirty (30) days after.resignlng
or being dismissed from any such office, except Notary
Public, or who is a candidate for office, or who has not
paid his poll tax, shall act as judge, clerk or supervisor
of any election...."
We quote from 34 Texas Jurisprudence, pages 332-3-4,~,
Public officers - Section 2 - Definitions and characteristics,
as follows:
"Rany judicial definitions of 'public offlce( are to
be found in the reported cases, but they are substantially
of the same import. It is said to be a right to exercise
a public function or employment and take the fees and
emoluments belonging to it; 'a public stationor employment
Hon. Dan W. Jackson, Page 2, 0-2056
conferred by the appointment of government;land ‘the
right, authority, and duty created and conferred by law,
by which, for a given period, either fixed by law, or
enduring at the pleasure of the creating power, an
Individual is Invested with some portlon,of the sovereign
functions of the government, to be exercised by him for
the benefit of the public.’ The individual so Invested Is
a public officer. He la a person who exercises some
functions of the government - one who Is commissioned
or authorized to perform any public duty.
“The Revised Statutes provide that when an
officer is referred to in any civil or criminal law
of this State, an officer of this.State Is meant,
unless otherwise expressly provided; and various articles
of the Penal Code define ‘officer’ as the term is used
in denouncing particular offenses.
“‘Office’ embraces the Ideas of tenure, duration, emolument
and dut le 8. Among the criteria for determining whether
an employment Is a public office’are the following; the
delegation of a portion of the sovereign functions of the
government; the requirement of an official oath; that the
power8 entrusted are c0nferre.d by law and not by
contract; and the fixing of the duration or term of
office. It ia the duty pertaining to the office
and the nature of that duty, ~snd not the extent of
.authority which make the Incumbent an officer; and one
Is none the lessan officer because his authM%ty Is
confined to narrow limits. Salary or comms&%ion is not
essential to constitute an emplbyment an office; it is
a mere incident and form8 no part of the office.
“There IS, as we shall see presently, a distinction
between the ,offlce and the term of office, and between
an office and a public contract or employment.”
We quote from 34 Texas Jurisprudence, page 324,
Public officers - contract dlstlngulshed from office, as follows:
“A public office is something different from
a public contract. Offickrs hold, their positions
by election or appointment and not by contract.”
We quote from 34 Texas Jurisprudence, page8 325-6,
Publlo officers - employment dlsti~ngulshed,‘as follows:
“There is a material difference also between $%
public office and a public employment. .The relation
between an office bolder and the government under which
. .
Hon. Dan W. Jackson, Page 3, 0-2956
he function8 Is not that of an employer and employee,
and ~thelr respectlve.rights are not to be determined
by application of the rules of contracts of employment.
As said by Chief Justice br8hal1, ,‘Although an office
is an employment,, it does not follow that every employ-
ment,,is an office.
“The most Important distinction ~3s that the
creation and conferring of an office Involves a delegation
to .the, individual of some. of the sovereign functions of
t,hegov,ernment, to be exercised by ,him for the benefit of
the public. . Other distinctions are:~ that en office must
be. creat~ed by law, while an employment Mayobe:; and
frequent 1y Is , created ,by c.ontract ;, and ,offlcers are
usually required to~.take an oath’ and serve for a definite
term; and,. that the duties, of an office are. generally
continuing ,,and permanent ,.rather than temporary and
transitory. . ,. . “~
” :.
The case; of Moots. v.. Belyea, 60 N.D. 741; 2 6 N.W. 358, 75
A.L.R. 1347, .(Supreme, Court of North Dakota 3 holds that a
schoo$ _teacher employed ‘by a common.school district Is an
employee and not an,.offlcer and that the.relatlonshlp between
her and the sqhool board .ls that of contractonly.
,-
We quote:.from 75 A.L.R,, &&8 1352-3, 88 follows:
!%e courts are almost unanimous In holding that
thqie;position of a teacher is that of~~,anemployee, resting
on the contract. of employment, and not that!~of public.
officer.“’
The ‘co&%s’iof Texas have repeatedly held that school
trustees ~:are public -,offlcers of this State. See the ,followlng
case8:
“Rowan v. ‘King, 94 Tex. 659, 55 S.W. 123;
Kimbrough v. Darnett, 93 Tex. 301, 55 S.W. 120;
Lee v. Leonard IInd. School District, 24 SW (2)
443;
Thomas v. Abernathy County line Ind. School Dist.,
278 S.W. 3x.290 SW 152;
Buchanan v. Graham, 81 S.W. 12j7;
Hend,ricks~ v. State, 49 S.W. 705.. .'
We :quote ,,from 15 Texas Jurisprudence, page 732, Drainage
Districts.* Section :l?,; Drainage Commlssloners - Powers in
General,, as follows :;
;.., ” .,~_.
“The statutes provide ,,for the election of drainage
Hon. Dan W. Jackson, Page 4, 0-2056
commissioners, (Wt. 8119, R.C.S.) or In lieu
thereof their appointment, by the comml$stone~psl ‘court..
(Art, 8118, R.C.S.) Other provisions -regulate the
EI? e: commissioners’ term8 of office;.(Art, 81.19,
7 their salaries, (Art. 8120, R.C.S.) their oath
oi if&e. (Art. 8121,‘R.C.S.) official’ bond8,,.Y(AF$;:~ :‘~
8122, R,C,S.) and their organization,” (Parerithetidal~ ” :
$nsexMons of statutes oust)
With reference %o your flrat quest&on ~you are. i?ti&eti4%$ly
advised that It is the opinion: of this ‘departaient~ $hat” 8chool
trustee8 and drainage comm$ssloners are public @ffice?s, off,
this State and are dlsquallfled from aatlng as ‘jw,g&s,:,~ile$ks
or $upemrisora of any election In this State,. ‘,Y& :,a’ee Purther~
respectfully advised .that it is the. opinion ~of th$iae#artment
that 8ChOOl teacher8 are nqt public ‘offlcalrs &nd iir&~~t,:,~~‘. ,“~
disquallf$ed thereby from acting ‘a8 judges, -‘oletiks~~,~or _ :: :, ‘,I’
supervisors of any election in this 3tate land t@+niay
legally serve as eleatlon judges,:, clerks oar super$lsora:~$i~
not otherwise disqualified, ,You are, further Pesp@a$ful,li’ :.:, ~~
advised that It ,ls the op+ion of’thls. depsrtment,‘.that,.~‘, ,.
employee8 of the various school, systema and d*ainige~~d.lsti$ote
who are not holders of an’office~ of prbflt. or .$$uat~;,uitdeP~-.th6 ,~’
United States or this, State, nor in .,‘any‘<$:,:o$+ t6wn’:i$thi$ ‘. :~’
State, and who are not otherwise ~.disq~l,ifled ,~by~.lei+(~~:~:&Q.~ ~:~:~’ 1
legally act as judges, clerk8 or’ su$~fllsoFb ,&p~-ti.letit$+s:~$~
this State. We fael that you oan,readIZy, deter*mine~.whether,~~~, ”
or not an employee is a~public officer bjr. applying the wle.g
laid down by the quoted provlelons.of ‘Texas Jurlsptia~ncai ~~
8upra, to the facts In each situation presented to’~you.
We have carefully read then ~opinian’ of this department q ,,“’
dated May 6, 1932, written -by Ron.. Bruce ~W,BrJranc,, :F&~st ,.. ,,
Assistant Attorney General,’ referred, to by, you, ~,a!&& fiti
that same not appllaable~here beaause of a diPferent.queetian
Involved.
We have read the cases cited by you in your brief r&lativ,e~
to the second questlon.
lihe case of Savage v. Umphrles, Civi App. 118 S.W. 968;: 1
cited by you In your brief, decided .April 20, 19G9i. hoI&
among other thlnge, that”wJaere the. law ,,mqulred the~,~a;ppointment
of two judges In a precinct If one wa8 dlsquslifled to eat;, ~
and there 18 nothing to show that .the other d1d’tiot ~ac$;‘~‘@nd
nothing tb show that the election waa not falnly held~in that’
precinct the election 1~ that precinct will not be h6ld to,be,,
void because ~~oni:;$.@g& had~no Fight: to. act.
The case of Gayle.:!v. Alexander (Civ,App.) 75 SW.2d:7061”~
Hon. Dan W. Jackson, Page 5, 0-2056
cited by you In your brief, holds among other things, that
although the election officers were disquallfled that fact did
not render t-he election void, since statute is directory asp,
regards vallddty of electlonj ln.absence~ of attempted exercise
of influence on electors, or unfairness~ orfraud, where
qualifications of majority of election officers were not
challenged.
We quote from the opinion of the court In the case of
,Gayle v.. Alexander,-supra, as follows:
"Appellant Insists that the.provlslons of Article
2940 are mandatory;:that each of the aforesaid election
officers aforesaid was disqualified and prohibited thereby
from acting as such; and that the election in each such
votlng~precinctwas, by reason of ~their partic.lpatlon in
holding thesame., absolutely void.' A,Mandatoryiprovls5on
In a: statute +s...one, the omLsslon tomfollow, which renders the
proc,eed$,ng.to, which It. relates Illegal and void., whlle,.a
dlrectoSy:~:~Foaislon,is.:.one,, the,,observance of which is not
necessaryto~the valldlty'~of ~the.proceedlng. &statute may ':'
& mandatory in some respects.and~.dlreat._~n~
so far as the selection of election officers is concerned,,.
saidarticle .mlght well be deemed mandatoryand compliance
therewith required when ~the ellglb1llty.of~.sn officer so,,,
selected 'is denled,'or his right to serve as.such: assailed
by'lariy proper proceeding prlor,to his actual~servlce,... &
such: situation Is presented in this case, But should the
provisionsof said article In that ,phase of its application
be held mandatory, it does not necessarily follow that when
a person named in said article has been selected as an
election officer for a,particular voting precinct; and his
selection has not been agsalled but has been acaulesced in
by the qualified electors of such precinct by participating
in the election held therein, and the votes cast in such
precinct have been fairly and correctly counted and .,
tabulated'and return thereof duly made, that such election
as to said.preclnct~ should, s~olely bye reason of the
particlpatlon'of such election officer in holdfng the
same, be declared void, the returns thereof excluded from
the canvass~of the votescast In said election lh.the
entire county, and the,voters of .such precinct thereby In
effect disfranchised. ~,(Underscorlng ours)
."....We thdnk under the findings of.the.court \
herelnbefore ~recited and the above authorities, that the,
election In the several voting precincts under consideration
was not 'rendered void by the participation of such
disauallfied election officers in the holdinn thereof. So
far-as ,the provisions ,of said article effect-the valid%=
of elections In the holding of which disqualified officers
Ron. Dan W. Jackson, Page 6 0-2056
or clerks participated, the same, In the absence of some
Imputation of attempted exercise of lnfluence'upon the
electors, or unfairness or fraud, may well be~held to have
merely a directory effect." (Under scoring ours)
The case of Miller at ai v. Tucker, et al, 119 S.W.2d 92,
decided June 23, 1938, by the Beaumont Court of Civil App,eals,
holds that a local option election was not rendered Invalid
because the mayor of a town In a precinct acted as precldlng
officer contrary to a statute prohibiting public office holders
from acting as election officers , where the election was fairly,
and honestly held and no objection was made to the mayor's
serving, since the statute was merely directory. This opinion
cited and followed the case of Gayle v. Alexander, supra.
In answer to your second question, you are respectfully
advised that It Is the opinion of this department that Article
29&O, Revised Civil Statutes , as amended, is directory lnso~ far
as said article affects the validity of electlons in the holding
of which disqualified officers or clerks participated, in the
absence of some Imputation of attempted exercise of Influence
upon the electors, or unfairness or fraud.
We wish to thank you for your able brief in this matter
which has aided us greatly in passing upon your questlon.~'
Very truly yours
ATTORNEY
GERERALOF TEXAS
S/ Wm. J. Fanning
BY _.
Wm. J. Fanning
Assistant
WJF :AW/c ge
APPROVED APRIL 2, 1940
f$ .Gerald C. Mann
ATl'ORNEYGENERALOF TEXAS
Approved Opinion Committee
By BWB, Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144360/ | OFFICE OF THE Al7ORNEY GENERAL OF 7EXAS
AUSTIN
Ronorablo L. R. Phomp8on
&Wf Auditor
Doat Sir;
38 us in reorlpt
lQC0, in whioh potlra$urr I to tha rtatum of
ryus common Oon*oltdatwl t 80. 11 In Taylor
County.
act8 in forrrletter ot
getit loll6the
oup thr two oaa-
OoIrfaon oon8olidatr6
W l6 the Xylf. COW
irtrlot HOG.llr At
088 wro mlbmlttr4 to
, %r$a Coimon Yohool Diltriot
olastlo populationof 6s an6
n Sohool Dlatriot 80. 11 had a
polation 0r 847. There 4lrtrlotr
as pray84 for in tha petition8
riot thw orratrd ha8 opsnted
rlnor a8 a oomon ooasolidatrd mhool dirtriot.
=It is thought by &me that rhor therm
blatrlotr wora ipoupad u8 t&y wrs by the
county mar& t&at tbry form4 a rural high
Honorable L. B. Tho=96on, Pa. 3
rohool dlrtrlot but after thrlr grouping
the Iborl6 Comon Sob001 DI8triot Ho. 33
loat ita Identity and 110sohool ram -in-
talnod In that dbtriot. In faot, build-
ing6 aid 6quIpms6t were all momd to th6
2yllo ~ohool site.
=~oOordlng to Art1016 e93t-A, PoblIo
School Law of Terre, It 606166to m6 that
a raral high rchool dIetrIot of tha tyger
nentlomd oorrLdnot hare boa& legally
oreatod.
"Tim qraotlon al60 arose a6 to whether
n6 had’l,egallycreated a sohool dlatrlot;
tharefon, wo aoked that th6 LogIrlatur6
raildate ouoh di8trfot a8 orrntsd in 1933.
So at thr Ssoond Call S6s6ion ot the Porty-
fifth Loglslntuz’6Eiou~rMl1 Ho. 69, a
valldatlag not ran pcresodtalld6tlnq the
dirtriot no oreated.
R51noe it WUB the de8lre of tha patrons
of thasr tm sohool dI6trIct6 to hare or66t6d
a common oonrolidat6d dlrtrlot and not a rural
high.oo~oldI8trlot and rl6oe ltwas the
Iat~tlOn Or tb County Boat0 to oreate such
a &latrlot, uo reel thit the atatua or the
dI6trIct ohould be tbat.of s ooinumnoonrolldat-
ed amriot.
'*It 60oa6 tkit tbs coarltyBoardin its
aotlon8 was riotoontrolled by any law glrtng
thss the authority to aot ,a8 thay did. They
aeamad to hare taken it SOT granted that they
had 8ueh authority tihenthey declared the d&q-
triot8 so grouped.*
At our request, yua hero al80 furnlebrrda oopy of
the minutor of the County Who01 Board dated hprll, 1933, at
whloh tha aborr nuntioned aotlon uua taken. Said alnutsr
read an r0u0w6:
"Parties lntare8tod in the annexation of
IbrrI6 to '6~110SON prearnt a8king that tho
annexation ba not mado. After dlsouarlon of
149
IbBOZdbl8 L. 8. Thoqwa, Pago 3
the matter i&r. 8. T. FOrgtieonmadO 6 notion
that the matter k dorrrrrd to 6m0 futum
-J-g”* The mtlonwaa loot having no
yurthrr dIBCUO6iOa follorwd, SO-
for ani 503O awlnet th8 pr0poaItlon.
“After duo 0QBBfdO~tfOB, rinaJmg that
thr prtltlon from t&O Ibrrlr Cozmo6 School
Distrfot )38 bore thr signatures of a majority
0r th6 ~~ualirf~arotsrr In raid dl6trlot and
ll6o had thr Sfg66tUreB of a majority Or tbr
trUBtO~6 Of Said dirtriot t&id that Said peti-
tion rar in all r6oprotr l6@ aa hating thr
ar0errary not100 of a0ooptaaor la writing iron
thr by110 CoaaolIQtOd Conuwn School Diatriot
ill, 6fgB~d by a majority of thr members of
the Board of TrUJtea6 of the w$116 Di6trlot,
the Board of CoUnty Sok~ol TruJteca ot Taylor
Couaty, Taxne pacssd the following order:
'The potitloa of J. 3. Lovatt and others
asking that the Iberia Camon School Dirtriot
336 b6 aanorod to t& V;yllOCoa6olldatOd Dl6-
trIOt fillbo gr&Od, andtbat ~bOrf6 Comrpo6
Sohool DiBtriOt &38 I6 hereby aMOx to th6
'UylloConaolidatOd DiBtriOt ill and that all
t#rtitOr~ A01 lying Within t& bOUB&rfS# Of
both the Yiy116Coxmolidated District $11 and
the Iberia Comaon :i0hoolDlatrlot $36 be In-
Oludod ln thr ivy110 ConmlldatOd Dirtrict $11
and thO ruao Ohall by rOdot1m.l to ocaformrlth
this Ordrr an4 shall bO imown a6 Wyllr Consoll-
dated DI6trIot ill sad Ohallbo rurther ddfB66
by Wt.6 and bound6 88 foUnd in Reoord of School
Ddp.c+tfmor Taylor county pago Book
.
84, 1938, thI6 de-
By lottor opfnIo6 dated Saauary
partment adliard
the CouBty Sohool SupOrlntc%dOat of Taylor
Courrtytkmt baa64 upon t.h~tranrorlpt beice* this d*partnnat
at that tlum, the l6hool df6trlot was not a oonsolldat6d oam-
zaon6ChOOl dirtriot and the writer expressed th6 opialon that
It wa6 a rural high 6ohooldi8trlot. That lrttar apparently
arooe out or the faot that tha Zylir School Diatriot had prr-
asntsd bonds to tblr dopeirtmont ror apprmal and they w0r6
ro)sotad boeauso th6 propOr authorltiba tad not o6llOd the
llOotIoa, ou0h ll60tfon hatlniJbaoa called undrr~tha law6
150
Honorabla L. R. Thompson, P666 4
applicable to ~n6OlidatOd dI6triotr.
Correepondonco in the off108 of tho Dopartmont
of Education reveals th a l tubaoquont to the above lOtIO6
by the Attorney drnoral tho Fir& AMIrtant State Supor-
Intendant rdrlaod the County Superlatendont 0s Taylor
Couoty t&t I6 hi6 OpIBlon the dlrtrlat W66 not a oon-
6olIdated 6ohooldi6ttlat, rlmo the &iLtUtoB grorlding
the procedure ror consolidation had not been rollowl.
After further oorro6pondenco and oon8ultatlon with th6
rttoraay O6aoral*a orfi00 tbr tlrat A6616tant stat6 su-
geerintsndontreaffixmod hi6 o'9IaIoaby lottor dated April
11, 1958, t&t a oonrolldatod diatrfot ~a# aot oroatoa
and cxjmcerd the oplnlon that tha County Board had tol-
patha procedure u-4 In orsating rural high 6ohool dir-
. Ee adrfsod that if a aa- aon6olldat.d school
dlstrlot wa8 desired, such rural high school dl6ttrlct as
had been formd, If my, should be blsolrod and an election
orillodto oreate a ooaealldated diatriot under the proti-
6iOn6 Of ..iI’tiClS 2806, SeVi804 Glrll StatQt.6, 1925, md
that the bond6 be ro~tot.4.
?roatho rooorda before us, apparently no further
aotlon ha6 bean taken.
Conoolfdatcd dI6trIota are foraed upon tho approval
of 6 3naJorltyof the wallflod rotor6 in eaoh di6triOt lffOOt-
ad, at an alootloa called for that purpo60. Tho lleotlon ro-
tuna sre oazwasrcd by tha oommfe6ioaer6~ OOUH and Bach oourt
declares the bletrlota consolidated. Se8 Artlolo 2806, Ro-
vloed Cl~ll St.3tut06, 1935. clearly the County Board Of
school Trusttea could SOt dlsrogard the p~OVI6lOlv Of the
Statute6 end r0rp a ca66olldatod df#triCt Ia 'a cuaaaor unau-
thorlzed by law: We think tb OpIxiiOuof the Pirat ABBiBtaBt
State 3upcrlatoadaBt and the fOn!N OPlnl011by this deiartsont
in this rcspeot are comot.
Rural high #ah001 di8trIoto are foraod by ogrouplng*
and %moxatlon* uadiw +tlolo 2922a. RotIaod Civil atatutor,
1925. Xaoh of t bsso ooaaon 6OhooL.dl8trIots ha a aohola6tio
p0opulatfoa of 1066 than roar h9rrdr.a (+oO),and if any author-
ity orIstod at all, oould haro bean "group6b"to form a rural
kiiep sahool di6trict by the County Board wftbout t& ~.666-
sity ot a rote of th0 pooplo, ooaarat of t& local truotoea
or any othr action 0u the pwt oi the 9o0oplore6Iafag In
said dirtriot. gou stat0 that no 001 intended to oroato a
IioaorabloL. R. Thompson, Paga 8
rural high aohool dlatrlot and dib aot want ouoh a dirtrict.
Prointha rooord before M we think you ue oorreot in thlr
rtakaont and 8ft8r a oarrrul 8oamh of the Statuttrrin
fOrOa 6t thr tip8 the County 3oard acted, ~8 h-8 oome to
th8 WllOh8iOn that th8 i?QUd attWlpt8d t0 fO~OU a SttitUta
which authorized thr d8taOharat of territory frm on8 die-
trfot 8ita eaaeratloa to another; ln other *orddo, 8 ch8a~e
or boundary betwoon two ooatfsuour ai8triOt8.
AQt8 1929, U8t trgi8l4tUre, Firat C811d 2k8810Br
p. 106, oh. 47, 88 amended, AOt8 1931, 4Ead tegi818tUre, p.
235, eh. 140, MO. 1 (app8arlng a8 Artial8 2742-F, Vernon18
‘hXa8 CiVil S-tot88 2riOr t0 it8 OIWlldp8Utby AOt8 1935,
44th Lagl8latare, p. 790, ah. 339, 8eo. 2) provided in Soo-
tlon 1 that the County Board ci TrU8tCe8 rhould have author-
ity when petitioned, to dstaoh territory iron on8 8ohool
dl8triot and aaau it to snother, provided the 2oard of Tnw-
t8e8 oi th8 dirtriot to which the annexation WE8 to be ilrade
approrrd the transfer. xi th8 territory attachad.nhoQld ef-
oe8d ten par oeat (10%) of the entire dlatriot the ~p8tition
W(r8 r8qufrOd to be 8i(@XSd by a CllijOritr Of th8 'ZZU8kO8 snt
of the qualified toter8 or the dietrlat rmn which the turl-
tory ua8 taken. Dpoa reoeipt af tmoh petltion 8IId won notioa
of'th8 approval in ~rltlng by’the Board Oi TrUst808 t0 whioh
ths territory wall to be adaed, the County TrPotee8 odrd au-
thorized to 9ass i.ta ordsr traart8rrlng aafd turitory aad
redeflalag the boUndaria Oi the di8triOt8 8rr8Ot8d. It -8
rnrther provided that no 8ekmo~ aistriat 8hoald br r8ducea to
8il U8a Or lS88 tbaa llioe (9) 8pw0 ari188.
Ceotioa 14,a8 aiucaded,provided ior ths d8tach-
dent of t8lTitOm irOm 8CTOrd CcWAt%yOUa bi8triOt8 by th8
CoUaty Board Or TrU8tes8 sod aUthOriZ8d th83 t0 Orsate th#I'e-
from a new inoorporatad or wmaoa 8ohool d 18tttlOt.
Our eonolaalon that the Trurtee8 ware attempting
to oonsolidate th8 di8triOt8 k qUO8tiOXlunder thr aborl
Stutute ir baaed apon th8 raOt that the miaate8 rhow that a
prtltion 8f@8d by a 8taJorityor the quellfled Voter8 Or
tha fbetfs ilohool District W&8 presented, thst 8da petition
8lw bore th8 8iglratWeC Or d SUjOrity Of th8 Tm8tW8 Of
said dirtriot ad further tht it OoUtailledtha %8Od488rJ*
wtiO8 0r 8ae89taac8 in writins ma the 7~118 s&o01 Dir-
trlot 8ign8d by a maJority or the member8 of the Board 0r
TrU8t888. iiidently th8 Board of Trunteas 8OIIllid8r8d thesa
matter8 nsoasrary to th8ir aotloa and y8t no 8uoh rewirrment
i8 pl'e88nt in “lJl%NQil@ 00-D 8OhcOl dirtrIOt with a
Eoaorable t. B. Tho~8jmon,P8ue 6
8OhOla8tiO population 1OSS than fOUr hundred (400) IUiAOr
ArtIolr 292% whloh authorlzr8 the orerrtloaof rural hia
8OhOO1d iBtriOt8. 1x0oannot b8 eertaln it-oath0 raotr
b8iOM UI that this 18 true but it doa8 t8ad t0 8oppOrt
the ooaolu8ion that there ~08 not an attempt to oreate a
rural high 8OhOol dI8trlOt. Thr taot that tromtho data
Or the action by th8 CoUUtJ ROUd Utttilth8 pr888t tim
tho d18trlot ha8 ~b8anoporat8d a8 a 0Oa8011dateA distrlot
would aho 8upport thr ooaolo8ioa that there w118 an 8ttsqt
to asat 8 rUr81 high 8OhOO1 di8triOt.
The Validrti~ 80t to whloh JOU ref8r in four
letter appe8r8 a8 EUU~O Bill HO. 59, Ch8ptOr 23, AoU 4Sth
Legislature, Eeooad Call06 Sm8lon, Page 1898, and read8
a8 r0u00rs:
Y3eotioa 1. T&t the Wy110 ConrolIAateA
CoprppoaSOboA Di8triOt lo. ll or Taylor County
a8 llsrged bt ordrr ot the Couaty Bard of
ikhool TruetOe or Taylor County paurd and
adopt86 on the 8th day of April, 193S annexing
Ibor18 CozmOn SOhoOl D18trIOt No. 38 to said
Wrlla COnaoliAated Comaon Sah001 D18trlctno.
11 In re8ponoi to a p4tItloa signed by a major-
itt Of the M8lb8r8 Or th8 ward Of ‘PrU8t808 Ot
said IborI8 Common Bchool DilrtrlotHo. 98 aad
by a majority Ot the NU.fIeA TOtet8 in 8aiA
dirtriot ana by 6 loajorlt~ of the ple!&er8 0r
thr Baard oi TrU8tW8 or ivylIeCoxmolldatod
Common Bohool DLtriOt MO. 11, be and the
8apI 18 in all r88JWOt8 ralIdat8d and 0Wfil-m.d.
wSeotIoa 2. T&it the mat.8 and bound8 0r
wy11r con00udatoa cormponsoho Di8triot no. 11,
Taylor CoUntya Texar are and ehall hereaatter bo
ilxed aaa drror1b86 a8 fOilOW81" (Hero fO11OW8
tb 08t88 ad bouadr Or aald di8trIOt)
Seotion 3 purport8 to vaIldaN the rrrnlt of aa
018OtfOU ror the a88UniptiOU 0r the bonded inaebteane88 w’prlor
to the fonatfon of the pt88Mt Xyli. Coasolldatwl COSmOa
Sob01 Dilltriot No. urn aad to authOrir.8 the i88aanae at Oer-
tala bond8 and tim Isrr or tarerr.
Thi8 Xot 8UpQOrt8 OOT -lkOlU8fOn that t hOt8 Wa8 00
lnteatloa or attempt to form a rural hl&h rahool dirtriot.
sin08 th8 L8gf8lnture 5al not by 8paalal law oneto
Honorable L. B. Tboap~on, Pago I
or validate attsapt8d oreation8 of 8OhOO1 dirtriots the
~roregoIngdot 18 olearly anoon8tItutlonal and did act ar-
i8Ot the legal 8tatU8 Of th8 dlatrlot. T8X88 COn8titutiOn,
hJtIole 7, i;eotlonS, stlole 3, Lootion 53; Trltter f.
;!88t (nit IVfUSrd) 6s s. L. (2d) 414; ~rownflela T. Toa-
gate, (T.C.A.) 109 S. 'h. (2d) 352.
Aat8
1938, 44th Llgi8btU8, 3rd Called Se88iOll,
Page 1992 (Art. 292%-l, Voraoa*8 TaXa CIVIl Statatem) 18
a general ralldatbq aot ralidatIn& thr notion Or County
3oflda *in orratlad or attwtlag to areate oon8olIdat8d
rural high 8ohooldiatrIot8*. From the rooord brioro ~8,
howover, we oannot with any Argrw of oertalnty AetermIao
that the County Board in thi8 itutanoe ~88 attemgtfng to
oreate a ~aoarolidat8d r9ral high 8OhOOl di8trf8t."
It 18
our OpInIoa that the Lb8ri8 Conron Sahool
Di8trfOt wa8 ralldly annoxed to tho Wylie Johool DIE
not
trlot or tb two dl8trIotr QOn8Olfbat8A uo er to i0m a de
Jurr iuylleCoznon Coruolldatod Sob001 InoUAIlrg tho t8rrltory
Or the Iberi8 GOiSWn 30hOO1 Di8triOt.
Ba8ed O$iOO th. MOOtd bdOM U8 W. Ue Or th8
0pInIon that the Wylie Cozmoa Cooaolldated Sabool DLtrIot,
Iaoludingthe terrltary of the IbeT; Coisaion Sob001 DI8trIot,
is not a rural high soh001 dl8trIot.
The .8t8tUi Of thi8 district ba8 kin in qU8StiOn
sSno* 193;3,and ha8 bean a 8o~rae of Alft8r8aoe 0r oplaloa In
the oommualt$o8 ror noveral f8ar8, harIng bera oalled'to thr
attontlQ.qn 0tpk8 AttOt-lt8t Gea8ral's Departwit 8nb tlm Demrt-
meat of EAuoatlQn 8eT8Ml tflt88,th830 depart-at8 having
raled that the aotloa oi the Couaty Board was rofd inroiar
a8 It attempt04 to oroat a OOn8OlIdated dlstrlot whioh’you
8tciteth8 &WO910.de8lre. 1sodoubt th18 dirtriot will In thr
ruture attempt to lrsuo bond8 or take othor aotloa whloh dll
depoad upon th8 relidlty of the aotlon oi th8 County Board la
1933. 88 thfBk the advia Or tb6 First A88i8tMt sate SUpsr-
Int8nAant M8 approprlatr'and timely Air8a, wherrla it wa8 re-
oomemdea that proper aotlon be taker under the grneral law
to obviate th8 dlffioulty OOlkO~XliB&tbe 8tatU8 Of tb8e di8-
trlat8.
Your8 very trUly
APPRC'ETAPR. 8, 1940
ATTORNEY GENERAL 03?TmS w
ccc:Rs | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144366/ | 124
OFFICE OF ‘THE ATX-ORNEY GENERAL OF TEXAS
AUSTIN
Eonorablr Ralph 4!sen
CouAty Irttolmy
Tom Orson County
8en 1~ps.10,Tuas
tter of March2, lQ40,
in which you subznit thir departlmnt
?“OlY OUX OQbliOtU
y the rsslcjnatian
lb such truatoe ep-
tern of the resign-
t regular eleatlon
intod trlistee~ up fur
eguler el8etlon data, w0u.U
on to 8CbnrOSOT the *unoxpirbd
11 iour gear ter5%7
II1s t&s r1nal date for rllfng, an6
necobsery rbquimmmnt~ to somire e
Trustee in the
ballot for tiiohool
San Airg*loIndependentBob001 Dirtriot?*
The Ban Anne.10Indqmident tsahooloirtr ot ir govern-
ed in pert Tyler the provlaio5s or Artlolo l378S(a f , VOr5o5'8
Texas Cirll Matutes b@ing Chepter i303, gaga 674, &%a 19e9,
418t ts&lature, ~1 it we8 ruled in our Oplnlon No1 0448,
I.25
Honol'sblsRslph Logan, tige 2
dated %reh 27, 1939 that provisions In said statute oontrol
Independent sohool d&lots ionn~d unCer the authority of that
Aat when its prorI8ions dltrar from those or the general laws.
Section 6 of Article 2783(b) providoo In ;lart as fol1owsr
I Qr~V$dad further, t&t $1 case of a
vamno; k~rebignstlon of a amber of tha board
of txustoes the rsoanay aball bs filled :or the
unerplred tera Ey sppol~tolsat made by the board
of tn15t%b5.w
MO questton $8 nissd as to the alearnses of the lsn-
guege used
in this statute, but it La suegeoted that thr above
quoteu pxorl~lon mxy be ln violntlon or the la6t eeutence of
Seotlon 18 of &tIole 4 of the Tsxa8 ConStltutIon. This see-
tIca of ths Conrtltutlon$5 found under the Artlcrleentltlsd
nZxsautlve Depnrtmintn 2nd rends sa follows:
"Section 12. All vscanolos io Sttte OF dfs-
triot oifioes, except mubere of C,heLo~;lelnturs,
ebnll be filled unlwe othanvlsa provided by law,
by a>;,po$ntxeat of the ~%wurnor, w,k.loh n;goI~tmnt,
IS mde &win;; its seasIo:1,shnll be witt tns sd-
~10s and eonsent of two-thirds of UN tienatepre-
sent. If made durfag the xeoesa OS the &anste,
the eald ~~pOillt30, Or 502lO Other PyYCOil t0 ill].
mob wesnop shall be n;znIaa%d t..: the Yenate
during the first ten cays of its 55ssIo5. If re-
jccted, said orflee shall ImmIIately bacoznsva-
east, and the Governor shall, without Qalay
xake further nomlnatlons, untfl a conffrxat~oh
takes islaoe. But ohould there be M c:.nf$ms-
tlon \tu?Inethe rsessIo?l of the Sen8tb, the Gov-
ernor ah611 mt thereafterappoint any prraon to
fill much reoenoy who be8 bean rejected by the
Senate; but may appoint mns other persol to
fill ths vaoanoy until the next 5es5loa of the
Seaate or until the regular eleatlon to aald
OffhO, ShOP1d it SGGAQT OCOUX. Appointoonts
to veoanoies IA off$oac eleotlv,eby the R60916
ahsl~ only oontlnue until the flr6t ,gsheraleleo-
tlon thereafter.*
Ah eremlaetion of the verlous oodlftoatlon8or the
laws of Texea dl~o1oses that slailar provisionswere oontained
la statute8 re&tlq to riu.hg teoenolsr in elsotlre sshool
board8 la the Revised Statutes of 1895 ahd 1911. L;snyof the
present sahool statutes Ia the Hevloed Civil &atutes 1925,
ns azaended, aonteln euch provlslolu. Artiolaa 274O(bf, Seo-
tlon 4; 2745; 2774, Sections 3 and 4; 2777; 2777(e); and 2779(b).
1.26
Snorablo BalJh Logan, Yase 3
%S last EsntenOo of aOtf6Ll 12 Artlole 4 Of the
Texas ConstItuti;a if aegregqted
aad eonsI-
~orod saparsto
cndqert from the acocqwnyi~, context in X:?~CAit Is round,
mI.@t be re53:nably coasfdersd 1s a; llcsblc
t.3 any ahd
ersry typ and dharaoter or offiaa w Jtate whioh
-8 thin this
is fillbd by the QSOQl4 in an deOtfon. lf Oon6fds:ed,
bwever, In oomeotloc zIth the remainder of hotion U,
zuch omazuotion does not neoasanrlly follow and it uay
reesnnablybe oonatrued .?ahsvin!:rcieronco ta tha kind of
oflIce th?::ci3a’mve ~r.eutl:lnod, ad a::% lntonded to apply to
sobs01 trust.668 who have bean held t: bc aounty oftiesrr,
Xn re6:wme to a request by Uoon.L. A. tiooda,
3tdtb 3uprlntendeat of Pub110 Inrtruotlon this ~departo9nt
z.eadarod an o~Anion Liaroh 9, 1939 e-graved by Bmoe V.
Bryant, First Asal~tant Attorney General, Letter CcInIon
Book 344, pa :o 303, 13 which it Wa6 held that ibotion 12
ol Article 4 doe6 cot sggly ts vaoaaoi9R in mlectivs et!mol
bonds and t&t a provision slnllar to that ccntnined In
Article 2763(b) war not in omtravsntitn of Secticn 12,
Artiola 4 cI” the Ccx3tItutlzn of Texas. its t5ve hareto-
Core formrded y::u e cozy ol’ thst opinlsn.
We do not find my provision In Artiole 2783(b)
wtiic!! spaolfis6 the date for filing ati the proaoCur4 to
be follmed In >lnoing a nruro upon the ballot for eohool
trustee 12 sohcol dlstriots sf the ;xrtioular olesa aIPoot-
ad by aald 6tc tub. Xe amum thmt the can &l~::610 Indegen-
drurt Yohool District hsa e aoholeatlo?o3;ile’:fon 1~ 0x006s
of 500 and mu14 therel‘ore not be tintrolled by Artfale
2746 (a j , Varnan’6 Taxas CIvZl Statutes. :stic1e ‘776,
a’-lc!i grovldae ch=t the board ol truacees ~>f a~1 :ncle>eudeht
sohool district stall order the elsotion and w:iich provide6
r0r the lulttar or holding PWh aleotIon,doea no’t UQnft&A
an7 provie doei!3n3tIng the final riihz,. Cab0 cP‘my
artloular roq~irmeat ior imtlng e nem ;laosd ujwn the
i: allot. 3 have al6o exet3i.neU the general aleotlon lam
and find no provision rrhIob would appear to be applicable.
~30are InSomod by t%o De artzont of Eduoation
that It Is a ocnstruotion and preot P 08 of 10% atandlzg 15
these lcrger lnde~ecdent school distrfatn, far cscCIdates
to file their mr~35 v:lth the Sooretery of the sohool board,
requesting that they~be ,;laced Q;on t%o ballot an8 that
t&o aohool board under the @mere1 >orors vestsd in said
board, entara an e~grogria t,e order ?IxIn: the final date
1.21
Bouorable Ralph Logan, Pwe 4
within nhieh flllnga my ba mds. irbare of the opinion that
this authority may be reaasnably isglled fros the %eneral
pabr vestbd in the board.
Yours very truly | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288763/ | Case: 17-10721 Document: 00514529754 Page: 1 Date Filed: 06/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-10721 FILED
Summary Calendar June 26, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ATUL NANDA; JITEN JAY NANDA,
Defendants-Appellants
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-65-1
USDC No. 3:13-CR-65-2
Before DAVIS, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Atul Nanda and Jiten “Jay” Nanda (the Nandas) appeal the denial of
their motion for a new trial based on newly discovered evidence under Federal
Rule of Criminal Procedure 33. On direct appeal, we affirmed the Nandas’
convictions for crimes arising from a conspiracy to commit visa fraud. United
States v. Nanda, 867 F.3d 522, 525 (5th Cir. 2017), cert. denied, 2018 WL
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-10721 Document: 00514529754 Page: 2 Date Filed: 06/26/2018
No. 17-10721
1317816 (Apr. 16, 2018) (No. 17-8114). The new-trial motion was filed while
the direct appeal was pending.
We review the denial of a new-trial motion for abuse of discretion.
United States v. Pratt, 807 F.3d 641, 645 (5th Cir. 2015). “Questions of law are
reviewed de novo, but the district court’s findings of fact must be upheld unless
they are clearly erroneous.” Id. (internal quotation marks and citation
omitted). Rule 33 motions are not favored. Id.
The Nandas argue that the Government promised two testifying
codefendants that they would not be immediately deported and that the
promise was not revealed until sentencing, when the Government sought to
modify a restitution award to preclude the codefendants’ convictions from
qualifying as “aggravated felonies.” The Nandas also assert that the
codefendants testified falsely, with the Government’s knowledge, that they had
not been promised a particular immigration result.
The codefendants’ plea agreements stated that the Government could
not promise a particular immigration result. Moreover, prior to trial, the
Government accurately disclosed the intent of the agreements. Thus, the
district court did not clearly err by concluding that there was no undisclosed
promise. Further, the district court did not clearly err by finding that the
codefendants did not testify falsely as to their understanding of their plea
agreements, even if that understanding may have been incomplete in some
respects. See Pratt, 807 F.3d at 645; see also United States v. Dunnigan, 507
U.S. 87, 94 (1993); United States v. Simpson, 741 F.3d 539, 555 (5th Cir. 2014).
Finally, even were we to assume there was undisclosed impeachment evidence
or false testimony, there is no reasonable likelihood that it affected the verdict.
See United States v. Stanford, 823 F.3d 814, 838-39 (5th Cir. 2016).
The judgment is AFFIRMED.
2 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4288768/ | Electronically Filed
Intermediate Court of Appeals
CAAP-18-0000116
26-JUN-2018
01:37 PM | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4288769/ | Electronically Filed
Intermediate Court of Appeals
CAAP-18-0000244
26-JUN-2018
01:48 PM | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4131326/ | The Attorney General of Texas
April 5, 1984
JIM MATTOX
Attorney General
Supreme Court Building
Honorable Oscar H. Mauzy Opinion No. JM-141
P. 0. BOX 12546 Chairman
Austin. TX. 76711- 2540 Senate Committee on Jurisprudence TVS?: Whether a county com-
5121475-2501 Texas State Senate missioner may be appointed
T&X 910/674-1367 P. 0. Box 12068, Capitol Station to the Texas Sesquicentennial
Telecopier 5121475.0266
Austin, Texas 78711 Commissio”
,607 Main St.. Suite 1400 Dear Senator Mauzy:
Dallas. TX. 75201.4709
2141742-6944 You have asked whether a county commissioner may serve as a
gubernatorial appointee on the Texas Sesquicentennial Commission
4624 Alberta Ave., Suite 160 created by article 6145-11, V.T.C.S. In answering such questions of
El Paso. TX. 79905.2793 dual office holding, this office has considered the following three
9151533.3464 issues:
20 oakis Ave.. Suite 202
1. Whether article II, section 1 of the Texas
tiouston. TX. 77002-6966 Co”stitutio”, the separation of powers provision,
7131650-0666 prevents one person from holding the two offices.
2. Whether article XVI, section 40, which
606 Broadway. Suite 312
hbbock. TX. 79401-3479
prohibits one person from holding two civil
6061747-5238
offices of emolument is applicable.
3. Whether the common law doctrine of
4309 N. Tenth. Suite B incompatibility prevents one person from holding
McAllen. TX. 76501-1685
both positions.
5121662-4547
Article II, section 1 of the Texas Constitution provides as
200 Main Plaza. Sulk 400 follows:
San Antonio, TX. 762052797
5121225.4191
The powers of the Government of the State of Texas
shall be divided into three distinct departments,
each of which shall be confided to a separate body
of magistracy. to wit: Those which are
Legislative to one; those which are Executive to
another, and those which are Judicial to another;
and no person, or collection of persons, being of
one of these departments, shall exercise any power
properly attached to either of the others, except
in the instances herein expressly permitted.
p. 603
Honorable Oscar Ii.Mauzy - Page 2
Prior opinions of this office have held that this provision bars
one person from holding offices in two different branches of
government, see Attorney General Opinions H-7, H-6 (1973); Ietter
Advisory No.137 (1977), although there are also opinions which permit
one person to hold office in two branches of government. See Attorney
General Opinions M-1194 (1972) (judge may serve as college regent);
M-1146 (1972) (Parks and Wildlife Commissioner may serve as a trustee
of an independent school district); M-842 (1971) (judge of a domestic
relations court may serve as a regent of TSU); C-43 (1963); and V-63
(1947) (a county commissioner may serve as a trustee of an independent
school district).
However, it is unnecessary to determine which line of opinions
represents the correct view of article II, section 1. The Texas
Constitution assigns a county commissioner to the judicial branch.
See Tex. Const. art. V, §l; Attorney General Opinion H-6 (1973). The
members of the Sesquicentennial Commission do not, in our opinion,
"exercise any power properly attached to either of the [other
departments of government]." Thus, article II, section 1. however
interpreted, does not bar a county commissioner from serving on the
Sesquicentennial Commission.
Article 6145-11, V.T.C.S., establishes the "Texas 1986
Sesquicentennial Commission." It consists of public members appointed
by the governor, members drswn from the legislature, and the executive
heads of particular state agencies. V.T.C.S. art. 6145-11, 82. The
commission is abolished effective September 1, 1987. Sec. 11.
The duties of the commission are set out in sections 7 and 9A of
article 6145-11, V.T.C.S. The overwhelming majority of its duties are
advisory and ceremonial. For example, the commission is to encourage,
assist and develop standards for activities celebrating the state's
sesquicentennial organized by individuals, private organizations, and
governmental bodies, and to sanction activities which meet its
standards. Sec. 7(l), (3). (4). It is to publicize sesquicentennial
activities and invite national and international dignitaries to attend
such activities. Sec. 7(2!, (5), (6). The commission also has
responsibil~itieswith respect to developing a logo and sanctioning and
selling commemorative products. Sec. 7(7), (8). It may begin
planning for the Texas Sesquicentennial Museum. Sec. 9A(a). Planning
is to be completed and the museum operated by the Texas Sesquicenten-
nial Museum Board.
The commission does, however, perform some minor functions of the
executive branch. Members of the executive branch cause the laws to
be carried out, while the legislative branch enacts them, and the
judiciary determines whether the actions of the other branches are
lawful, when the issues are presented in a proper case. See State V.
Southwestern Bell Telephone Co., 526 S.W.?d 526 (Tex. 1975);Walker V.
p. 604
Honorable Osca~rH. Mauzy - l'age3
Baker, 196 S.W.2d 324 (Tex. 1946); Texas Liquor Control Board V.
Continental Distilling Sales Co., 199 S.W.Zd 1009, 1012 (Tex. Civ.
APP. - Dallas 1947, writ ref'd n.r.e.). See also Tex. Const. art. II.
§l. interp. cownentary (Vernon 1955).
The cormnissionhas power to authorize others to use the logo it
develops, to sanction commemorative products, and to make rules and
regulations necessary to perform its functions. However. the
commission has minimal power to affect individuals through exercise of
the powers to sanction commemorative products and authorize use of its
logo. Exercising these powers assists the commission in publicizing
,and commemorating the sesquicentennial while it controls the kind of
product bearing its imprint. The commission mY adopt rules
"necessary for it to perform its functions," a rulemaking power that
is as limited~as its functions.
The commission's executive powers, in comparison to its advisory
and ceremonial duties, are few and de minimus. Looking at the
commission's legal role in its entirety, and taking into consideration
its short life span, we cannot say that members of the commission are
"of" the executive branch or "exercise any power properly attached" to
the executive branch. Therefore, article II, section 1 of the Texas
Constitution, however interpreted, does not bar a county commissioner
from serving as a member of the Texas 1986 Sesquicentennial
C0mmiss10*.
Article XVI, section 40 of the Texas Constitution does not
prohibit the appointment in question. A member of the
Sesquicentennial Commission receives no compensation for his service,
only reimbursem~entof expenses. See V.T.C.S. art. 6145-11, 95. Thus,
he does not hold a "civil officeof emolument" within article XVI,
section 40. Moreover, county commissioners are expressly excepted
from article XVI, section 40. Therefore, article XVI, section 40
poses no bar to this appointment.
The common law doctrine of incompatibility prevents one person
from holding two positions where one is accountable or subordinate to
the other, or where there is overlap of powers and duties such that
one person could not disinterestedly serve in both positions. See
Thomas V. Abernathy County Line Independent School District, 290 ST
152 (Tex. Cocmt'nApp. 1927, judgmt adopted): State ex rel. Brennan V.
Martin, 51 S.W.Zd 815 (Tex. Civ. App. - San Antonio 1932, no writ);
Letters Advisory Nos. 137, 149 (1977); 114 (1975). We find no
relationship of dominion or accountability between the commissioners
court and the Sesquicentennial Commission, nor do we find any conflict
or overlap between their duties. Therefore, the common law doctrine
of incompatibility does not prevent a county commissioner from also
serving as a member of the Sesquicentennial Commission.
p. 605
. -.
Honorable Oscar 11.Mauzy - Page 4
A county commissioner may serve on the Texas Sesquicentennial
commission.
SUMMARY
A county commissioner is not barred by article
II, section 1 or article XVI, section 40 of the
Texas Constitution or by the common law doctrine
of incompatibility from serving on the Texas
Sesquicentennial Commission.
very truly your
.
J-b
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Susan Garrison
Nancy Sutton
p. 606 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147434/ | Case: 15-13059 Date Filed: 02/22/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13059
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-00083-WLS-TQL
EDWARD EUGENE BARBER,
Plaintiff-Appellant,
versus
THOMAS J. KREPP,
Assistant U.S. Attorney,
U.S. Department of Justice,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(February 22, 2017)
Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 15-13059 Date Filed: 02/22/2017 Page: 2 of 7
Edward Barber appeals the district court’s order denying his motion to
proceed in forma pauperis and dismissing his complaint without prejudice. He
argues that, although he is a “frequent filer” under 28 U.S.C. § 1915(g), he has
sufficiently alleged that he faces “imminent danger of serious physical injury.”
Barber alleges that he received a letter from the Department of Justice and
Thomas Krepp, an Assistant United States Attorney, in June 2014. The letter
informed him that he might be a victim of fraud in an active criminal case. The
letter assigned Barber a victim identification number and directed him to report
threats or harassment in retaliation for his cooperation with the government.
According to Barber, the people who defrauded him were officials from the
Georgia Department of Corrections, Department of Law, and State Board of
Pardons and Parole. He claims that they have retaliated against him for reporting
what he believes are numerous violations of federal law to the United States
Attorney. He filed a lawsuit to compel Krepp to take steps to protect him from
further retaliation.1
1
The United States, as amicus curiae, argues that the district court lacked jurisdiction
over Barber’s claims. It argues that, because Barber’s claims are based on the Crime Victims
Rights Act (CVRA) and the only case it can find in which Barber might have been a victim is
from the Northern District of Georgia, he was required to file this action there. We disagree.
While it is true that the CVRA provides that actions to enforce its guarantees should be filed in
the district where the crime occurred or a prosecution is ongoing, 18 U.S.C. § 3771(b)(1), we are
not persuaded that this requirement is jurisdictional. “The Supreme Court has cautioned, in
recent decisions, against profligate use of the term [jurisdictional] . . . .” Santiago-Lugo v.
Warden, 785 F.3d 467, 472 (11th Cir. 2015) (quotation marks and citations omitted) (first
alteration in original). In general, it has suggested that “where Congress does not say there is a
2
Case: 15-13059 Date Filed: 02/22/2017 Page: 3 of 7
“We review the denial of a petition to proceed in forma pauperis for abuse of
discretion, . . . but we review interpretations of the [Prison Litigation Reform Act]
de novo . . . .” Daker v. Comm’r, Ga. Dep’t. of Corr., 820 F.3d 1278, 1283 (11th
Cir. 2016) (citations omitted). “A district court abuses its discretion if it applies an
incorrect legal standard, applies the law in an unreasonable or incorrect manner,
follows improper procedures in making a determination, or makes findings of fact
that are clearly erroneous.” Hartford Cas. Ins. Co. v. Crum & Forster Specialty
Ins. Co., 828 F.3d 1331, 1333 (11th Cir. 2016) (quotation marks omitted).
Whether a prisoner is entitled to proceed in forma pauperis under § 1915(g) must
be determined based upon the complaint, “which we must construe liberally
[because it was filed pro se] and the allegations of which we must accept as true.”
Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004).
Section 1915(g) was enacted as part of the Prison Litigation Reform Act and
provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has, on
3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious, or fails to
jurisdictional bar, there is none.” Id. at 473. Congress has not said so here and we see no other
reason to conclude that § 3771(b)(1) speaks to jurisdiction instead of venue. Additionally, it is
not clear to us that all of Barber’s claims are premised on the CVRA. For example, at one point
in his amended application for mandamus relief Barber appears to argue that the U.S. Attorney’s
office’s failure to take reasonable steps to protect him — as the CVRA requires — resulted from
discrimination on the basis of disability.
3
Case: 15-13059 Date Filed: 02/22/2017 Page: 4 of 7
state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Barber concedes that he has three “strikes” under this
provision, but argues that he falls within its “imminent danger of serious physical
injury” exception. The district court concluded that he did not fall within that
exception because his allegations were not sufficiently specific. In particular, it
emphasized that Barber talked a lot about past harm and failed to identify who had
threatened him and what they had threatened to do. We disagree.
While simply recounting past injuries is not sufficient to establish an
“imminent danger of physical injury” under § 1915(g), a prisoner can establish it
by recounting recent injuries that reveal an “ongoing pattern of acts” as well as
threats of future harm. Chavis v. Chappius, 618 F.3d 162, 170–71 (2d Cir. 2010).
In his various filings in the district court,2 Barber claims that, among other things,
he has been stabbed, almost lost an eye, and been threatened with unnecessary anti-
psychotic medication in retaliation for his cooperation with the government. He
alleges that three of those incidents were severe enough to qualify as attempts on
his life. He asserts that he was told that prison officials would use force to
2
It is not necessary that the allegations of imminent harm be contained in a document
labelled a complaint; instead the question is “whether some timely filing avers facts suggesting a
prisoner was under imminent danger of physical injury . . . .” See Asemani v. U.S. Citizenship
and Immigration Servs., 797 F.3d 1069, 1074–75 (D.C. Cir. 2015) (quotation marks omitted).
We do, however, decline to consider the allegations in Barber’s initial application for a writ of
mandamus and his May 29, 2015 addendum to it. Both would have been superseded by the
amended application for a writ of mandamus that he filed on June 3, 2015.
4
Case: 15-13059 Date Filed: 02/22/2017 Page: 5 of 7
administer unnecessary medical treatment and, if he died in the process, would
justify his death by planting a weapon on his person. Barber’s request for a motion
to enjoin third parties mentions by name several individuals who were allegedly
involved in his harassment. And, construing the filings liberally, all of this
apparently occurred between the time he received the letter in June 2014 and the
time he filed various documents with the district court in June 2015. Those
allegations are sufficient to establish an “imminent danger of serious physical
harm,” and it was an abuse of discretion for the district court to conclude
otherwise.
That conclusion is not altered by the fact that, during the pendency of this
appeal, Barber has been transferred from the prison where the past attacks
allegedly occurred. Barber claims that his harassment is the result of a conspiracy
that reaches beyond Autry State Prison to include, among others, the statewide
Georgia Department of Corrections and the Board of Pardons and Parole. As a
result, it is not clear that merely transferring him from one prison to another within
the Georgia penal system will end the alleged retaliation against him. 3
It is true that the Second Circuit has concluded that, in order to fall within
the “imminent danger” exception to § 1915(g), the prisoner must demonstrate a
3
For the same reason, we reject the suggestion of the United States, as amicus curiae,
that Barber’s transfer moots this case. That being said, if it later becomes clear that the transfer
has ended any risk of retaliation, the district court would be obligated to reconsider this issue.
5
Case: 15-13059 Date Filed: 02/22/2017 Page: 6 of 7
“nexus” between the physical injury he fears and the claims in his complaint.
Pettus v. Morgenthau, 554 F.3d 293, 397 (2d Cir. 2009). The United States, as
amicus curaie, suggests that we should adopt this view of the statute. But we need
not decide in the present case whether § 1915(g)’s “imminent danger” exception
requires proof of such a nexus. Even if it did, Barber has alleged a nexus between
the harm he has suffered and the defendant’s inaction. Barber argues that he
continues to live under threat of physical injury because the defendant has not,
among other things, helped him to obtain a restraining order to stop prison officials
he has accused of committing federal crimes from abusing him. In essence, he
appears to claim that “reasonably protect[ing]” him “from the accused” requires
rendering such assistance. 18 U.S.C. § 3771(a)(1).
Of course, it is very possible that some or all of Barber’s claims may be
subject to dismissal for reasons other than his status as a “frequent filer.” But
“[section] 1915(g) concerns only a threshold procedural question — whether the
filing fee must be paid upfront or later. Separate PLRA provisions are directed at
screening out meritless suits early on.” Andrews v. Cervantes, 493 F.3d 1047,
1055 (9th Cir. 2007). We leave those preliminary merits determinations for the
district court on remand.
The district court’s judgment of dismissal is VACATED, its order denying
leave to proceed in forma pauperis and dismissing Barber’s complaint is
6
Case: 15-13059 Date Filed: 02/22/2017 Page: 7 of 7
REVERSED, and the case is REMANDED to the district court with instructions
to grant leave to proceed in forma pauperis and for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.
7 | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295077/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4147449/ | J. S88035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
MOISES ROSADO, :
:
Appellant : No. 1776 EDA 2016
Appeal from the PCRA Order Entered June 3, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007720-2008
BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 22, 2017
Moises Rosado (Appellant) appeals from the June 3, 2016 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In light of the issues presented, a complete factual history is
unnecessary. Pertinent to this appeal, on March 10, 2010, following a jury
trial, Appellant was convicted of, inter alia, attempted murder and
possession of a firearm, stemming from the 2007 shooting of his sister’s
boyfriend, Louis Martinez.1 On April 29, 2010, Appellant was sentenced to
1
Following the jury’s verdict, Appellant elected to waive his right to a jury
trial on his remaining charge, possession of a firearm by a prohibited person.
Following an on-the-record colloquy, the trial court found Appellant guilty of
this charge.
*Retired Senior Judge assigned to the Superior Court.
J. S88035-16
20 to 40 years’ incarceration for attempted murder, with a concurrent term
of five to ten years’ incarceration for unlawful possession of a firearm.
On January 20, 2012, this Court affirmed Appellant’s judgment of
sentence, and our Supreme Court denied Appellant’s petition for allowance
of appeal on May 30, 2012. Commonwealth v. Rosado, 43 A.3d 523 (Pa.
Super. 2012) (unpublished memorandum), appeal denied, 47 A.3d 847 (Pa.
2012). Appellant timely filed the PCRA petition that is the subject of the
instant appeal, his first, on November 13, 2012.
PCRA counsel was appointed and, on August 25, 2014, counsel
filed an amended PCRA petition. On June 12, 2015, the
Commonwealth filed a motion to dismiss and [Appellant] filed a
response on July 11, 2015. The matter was first listed before
[the PCRA] court for decision on November 6, 2015. On
November 6, 2015, a hearing was scheduled for January 29,
2016. On January 29, 2016, [the PCRA] court heard argument
related to [Appellant’s] claim of trial counsel’s ineffectiveness for
failure to interview and call a witness at trial. On April 22, 2016,
following a review of the record, [the PCRA court] sent
[Appellant] a 907 Notice, pursuant to Pa.R.Crim.P. 907(1). [The
PCRA court] did not receive any response to the 907 Notice. On
June 3, 2016, upon review of the record, evidence, [and]
argument of counsel, [the PCRA] court dismissed the PCRA
petition.
PCRA Court Opinion, 6/10/2016, at 2 (unnecessary capitalization omitted).
On June 3, 2016 Appellant timely filed a notice of appeal. The PCRA
court did not issue an order for Appellant to file a concise statement
pursuant to Pa.R.A.P. 1925, but did author a 1925(a) opinion.
Appellant raises the following claims for our review.
-2-
J. S88035-16
I. Did the [PCRA] court err when it dismissed Appellant’s
PCRA petition without a hearing since trial counsel
rendered ineffective assistance of counsel?
a. Is Appellant entitled to post-conviction relief in the
form of a new trial or a remand for an evidentiary
hearing as a result of trial counsel’s ineffectiveness
in failing to interview Michael Amerman and present
his testimony at trial?
b. Is Appellant entitled to post-conviction relief in the
form of a new trial or a remand for an evidentiary
hearing as a result of trial counsel’s ineffectiveness
in failing to object to the trial court’s allowing the
jury to have a copy of the trial court’s charge
concerning the crime of attempted murder only in
violation of Pa.R.Crim.P. 646?
c. Is Appellant entitled to post-conviction relief in the
form of a new trial or remand for an evidentiary
hearing with regard to his conviction for possession
of firearms by prohibited person under [18 Pa.C.S.
§ 6105] as a result of trial counsel’s ineffectiveness
in failing to object to the trial court’s denial of
Appellant’s right to a jury trial concerning this
charge?
Appellant’s Brief at 4.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the PCRA court’s rulings are supported by the evidence
of record and free of legal error. Commonwealth v. Anderson, 995 A.2d
1184, 1189 (Pa. Super. 2010). “To establish ineffectiveness of counsel, a
PCRA petitioner must show the underlying claim has arguable merit,
counsel’s actions lacked any reasonable basis, and counsel’s actions
prejudiced the petitioner. Prejudice means that, absent counsel’s conduct,
there is a reasonable probability the outcome of the proceedings would have
-3-
J. S88035-16
been different.” Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa.
Super. 2013) (citations omitted). Further, counsel is presumed to be
effective. Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015).
Appellant first contends that trial counsel was ineffective in failing to
interview Michael Amerman and call him as a witness at trial. Appellant’s
Brief at 14. Specifically, Appellant references an affidavit wherein Mr.
Amerman avers he was an eyewitness to the shooting and claims that he
observed an individual, who arrived at the scene of the crime with the
victim, pull out a gun and shoot in the “general direction” of Appellant.2
Affidavit of Michael Amerman, 8/21/2012. Appellant contends the
Commonwealth and police were aware of Mr. Amerman’s existence, because
Mr. Amerman, matching the description of the male wanted in connection
with the shooting, was subject to an investigative stop hours after the
shooting. Appellant’s Brief at 20. A report was generated and was provided
to trial counsel as part of pre-trial discovery. Id.
In response, the PCRA court offered the following analysis of
Appellant’s claim.
In the instant case, although [Appellant] has attached an
affidavit of Michael Amerman providing his putative testimony,
[Appellant] has failed to establish that Mr. Amerman was
available and willing to testify at the time of trial because the
2
Appellant conceded on direct appeal that he shot the victim. See Rosado,
43 A.3d 523 (unpublished memorandum). Appellant avers in his pro se
memorandum in support of his PCRA petition that Mr. Amerman’s testimony
would have served as “mitigating” evidence against the attempted murder
charge. Pro Se Memorandum, 11/16/2012, at 5 (unnumbered).
-4-
J. S88035-16
affidavit is silent as to those key requirements. Regardless of
any analysis of the prejudice suffered or not suffered by
[Appellant] on account of the absence of Mr. Amerman’s
testimony, [Appellant] has not shown that the witness was
available or willing to testify and thus, his claim must fail.
Moreover, [Appellant] completed a colloquy on the record
at the time of trial regarding his decision not to testify and his
decision not to present any witnesses. The transcript provides
the following:
[Defense Counsel]: Do you understand that you
have the right, but do not have to call witnesses?
[Appellant]: Yes.
[Defense Counsel]: There are no witnesses to call; is
that your belief as well?
[Appellant:] Yes.
[Defense Counsel]: So we will not be calling any
witnesses?
[Appellant]: Yes.
[Defense Counsel]: Are you doing this of your own
freewill?
[Appellant]: Yes.
[Defense Counsel]: And you have the right to call
witnesses?
[Appellant]: Yes, sir.
[Defense Counsel]: Are you satisfied?
[Trial court]: Yes.
As such, the record further refutes [Appellant’s] claim of
ineffectiveness because [Appellant] indicated to counsel that he
did not wish to call any witnesses to testify on his behalf.
-5-
J. S88035-16
Accordingly, this Court has determined that his claim of
ineffective assistance of trial counsel lacks merit.
PCRA Court Opinion, 6/10/2016, at 6-7 (unnecessary capitalization omitted).
We agree with the PCRA court that Appellant has failed to meet the
threshold requirements to establish a valid argument that he was prejudiced
by counsel’s failure to call Mr. Amerman as a witness. See Commonwealth
v. Neal, 713 A.2d 657, 663 (Pa. Super. 1998) (“In order to establish that
trial counsel was ineffective for failing to call witnesses, a petitioner must:
(1) identify the witness or witnesses; (2) demonstrate that counsel actually
knew, or had a duty to know, the identity of the witness or witnesses prior
to trial; (3) demonstrate that the witness or witnesses were ready, willing
and able to testify for the defense at trial; and (4) demonstrate that the
proposed testimony would have been helpful to the defense asserted at
trial.”). Here, the affidavit is silent as to whether Mr. Amerman was
available and willing to testify at the time of trial. This omission is fatal to
Appellant’s claim. See Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa.
Super. 2002) (Finding statements of potential witnesses proffered by
petitioner were insufficient to satisfy the burden of proving ineffectiveness
when the “statements [did] not meet the second and fourth prongs of the
test because they [did] not indicate whether the individuals were available
and willing to cooperate with the defense. Nor [did] these statements
indicate that the persons who authored them were known to counsel.”).
See also Commonwealth v. Lassen, 659 A.2d 999, 1012 (Pa. Super.
-6-
J. S88035-16
1995), abrogated on other grounds, (Finding the absence of affidavits
indicating a potential witness’ willingness and ability to cooperate barred
appellant from obtaining relief.). Moreover, as set forth supra, during his
colloquy at trial, Appellant affirmatively acknowledged there were no
witnesses to call. N.T., 3/11/2010, at 87. No relief is due.
Next, Appellant avers counsel was ineffective for failing to contest the
trial court’s decision to provide the jury with a portion of the charge, namely,
the charge for attempted murder. Appellant’s Brief at 24. Appellant argues
that allowing the jury to possess only one portion of the charge during
deliberations was in violation of Pa.R.Crim.P. 646. Id. at 24.
Pa.R.Crim.P. 646 states, in pertinent part:
(B) The trial judge may permit the members of the jury to have
for use during deliberations written copies of the portion of the
judge’s charge on the elements of the offenses, lesser included
offenses, and any defense upon which the jury has been
instructed.
(1) If the judge permits the jury to have written copies of the
portion of the judge’s charge on the elements of the
offenses, lesser included offenses, and any defense upon
which the jury has been instructed, the judge shall provide
that portion of the charge in its entirety.
(2) The judge shall instruct the jury about the use of the
written charge. At a minimum, the judge shall instruct the
jurors that
(a) the entire charge, written and oral, shall be
given equal weight; and
(b) the jury may submit questions regarding any
portion of the charge.
-7-
J. S88035-16
By way of further background, during the jury’s deliberations at
Appellant’s trial, the jury submitted a question about the definition of
attempted murder. The following exchange took place on the record:
[Trial Court]: What I have proposed and both
counsel [and the Commonwealth] have agreed
without any objection and we also have shown it to
[Appellant], is that under the new rules of procedure
what is allowed to be shown to a jury. I am going to
give them a copy of the standard jury instruction on
attempted murder. It is an exact copy of what was
read to them. Is that right [Defense Counsel]; and I
have given you an opportunity to look at and review
it and you have shown it to [Appellant]?
[Defense Counsel]: Yes.
[Trial Court]: He understands that instead of
bringing them back out here and reading it again
that I am going to exercise my discretion and follow
those new rules and give it to the jury to read?
[Defense Counsel]: He understands, Your Honor.
[Trial Court]: I know you are stepping in for Ms.
Rhodes for the Commonwealth and you agree with
this.
[Commonwealth]: Yes, Your Honor.
[Trial Court]: I will send this with my staff for them
to read it over.
Th[e trial court] proposed, and counsel and [Appellant] agreed,
that sending back the written definition would be a more
practical way to give the jury the answer to their narrowly
tailored question, rather than having everyone brought back into
the courtroom and the [a]ttempted [m]urder charge reread from
the bench.
PCRA Court Opinion, 6/10/2016, at 7-8 (footnotes omitted).
-8-
J. S88035-16
Here, Appellant asserts that he was prejudiced by trial counsel’s failure
to object to the trial court decision, baldly claiming, “[h]ad the entire charge
been provided to the jury and had the jury been instructed accordingly, the
outcome of the trial would have been different.” Appellant’s Brief at 26.
Because such a bald claim does not demonstrate prejudice, Appellant’s claim
fails and we need not consider the merits of the claim or the reasonableness
of counsel’s failure to object. Commonwealth v. Fears, 86 A.3d, 795 at
804 (Pa. 2014) (noting that, if an ineffective assistance claim falls short
under any element, the court may skip ahead to that element). Thus, his
second issue warrants no relief from this Court.
Lastly, Appellant contends his counsel was ineffective for failing “to
object to the trial court’s denial of Appellant’s right to a jury trial concerning
the charge of possession of a firearm.” Appellant’s Brief at 29. As noted by
the PCRA court, the record belies Appellant’s claim.
In the instant matter, [Appellant’s] assertion that counsel was
ineffective for failing to object to [the trial court’s] “denial” of his
right to a jury trial on the [possession of a firearm by persons
not permitted] is meritless and finds no support in the record.
The jury convicted [Appellant] of attempted murder (F1),
aggravated assault (F1), carrying firearms without a license
(F3), possession of instrument of crime (M1) and recklessly
endangering another person (M2). After polling the jury and
recording the verdict, the following discussion and colloquy was
held on the record:
[Trial Court]: We need to determine whether it is
going to go [sic] be submitted to the jury or do you
want to explain to [Appellant] that he can waive the
jury for that portion of that charge.
-9-
J. S88035-16
[Defense Counsel]: He can waive it. He understands
that however --
[Trial Court]: Essentially they are going to be told by
me that he had a record and therefore couldn’t have
a gun and they already found him guilty of having
the gun.
[Defense Counsel]: We will stipulate to his prior
record, but it will be a jury question. It is the jury’s
decision as to the whether --
[Commonwealth]: The only aspect. They already
found him guilty of possessing the gun. The only
question is whether or not he could not have a gun
because he was a convicted felon.
[Trial Court]: He can’t. I am going to instruct them -
[Defense Counsel]: That is what it is.
[Trial Court]: He can also just do it as a waiver and
waive the jury’s ability to do that and have –
[Defense Counsel]: Actually -- if I could have a
minute.
(Whereupon, [Defense Counsel] conferred with
[Appellant].)
[Defense Counsel]: I will colloquy [Appellant].
[Trial Court]: Okay.
[Defense Counsel]: [Appellant], do you understand
you are still under oath from when you took your
oath in the trial?
[Appellant]: Yes.
[Defense Counsel]: You know you have been found
guilty of all the charges including the charge of
carrying a firearm without a license?
- 10 -
J. S88035-16
[Appellant]: Yes.
[Defense Counsel]: One further charge left is a
person not permitted to carry a firearm based on
their criminal record. Do you understand that?
[Appellant]: Yes.
[Defense Counsel]: You have an absolute right for
the jury to hear it; however it is my understanding
after speaking to you that you want to waive your
right to a jury trial as to that charge and allow the
judge to make her decision as to guilty or not guilty.
Do you understand that?
[Appellant]: Yes.
[Defense Counsel]: Is that your decision?
[Appellant]: Yes.
[Defense Counsel]: Are you doing that of your own
freewill?
[Appellant]: Yes.
[Defense Counsel]: Are you under the influence of
alcohol or drugs that would inhibit your ability to
understand?
[Appellant]: No, sir.
[Defense Counsel]: Has anyone forced or promised
you to give up that right to a jury trial and have a
judge decide?
[Appellant]: No.
[Defense Counsel]: Are you satisfied, Your Honor?
[Trial Court]: I am. It is just a matter of introducing
into the record, from what I understand is a charge
under 6106.
- 11 -
J. S88035-16
[Commowealth]: 6105, Your Honor.
[Trial Court]: The jury has already made the decision
that he possessed the gun and that it was a firearm.
[Commonwealth]: Correct, Your Honor. It is a legal
argument based upon the record that he is ineligible
under the 6105 statute to be able to be in possession
of a gun it is more of a legal issue. At this point,
Your Honor, the Commonwealth will mark and move
[Appellant’s] criminal record under Photo No.
792119. Specifically Ms. Rhodes submitted two
Quarter Sessions Files the first being CP-51-CR-
1204761-1998, a conviction in front of [Judge]
Catherine Lewis that would be to robbery, felony of
the second-degree and criminal conspiracy. Both the
robbery [sic] does not make [Appellant] eligible to
carry a firearm. The second Quarter Sessions File
will be under CP-51-CR-0304881-2001, a conviction
for possession with the intent to deliver in front of
Judge Kane and that is also a felony conviction. All
three of those being felony convictions that do fall
under the statute that do not make [Appellant]
eligible[. H]e cannot carry a firearm without a license
as the jury found and that would make him a
convicted felon with those charges that would fall
under 6105; and with that we would rest with those
quarter sessions files marked and moved.
[Defense Counsel]: So stipulated.
(Whereupon, C-25 was marked and moved into
evidence.)
[Trial Court]: So [Appellant,] understand there is
very little to decide once I hear about this conviction
for robbery and a conviction for PWID. The law says
you are not to be in possession of a firearm and the
jury’s factual finding that you had a firearm and you
are in possession of it. So I will find him guilty of
6105.27.
- 12 -
J. S88035-16
PCRA Court Opinion, 6/10/2016, at 9-11 (footnote and unnecessary
capitalization omitted).
Appellant further argues his “jury trial waiver was not knowing,
voluntary and intelligent[ly entered].” Appellant’s Brief at 28. Appellant
avers he was not informed “of the essential ingredients of a jury trial” and
never executed a written waiver. Id. at 29. Without addressing the
arguable merit of this claim, we reiterate that a petitioner must show that,
“but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.”
Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). Here,
Appellant provides no argument, nor are we able to proffer one on his
behalf, as to how he was prejudiced by counsel’s actions. As aptly stated by
the PCRA court:
[Appellant] is unable to show that he suffered any prejudice on
account of counsel’s actions because the jury’s conviction for the
charge of [possession of a firearm] in conjunction with his
existing criminal record left no outstanding actual determinations
to be made in adjudicating the charge of [possession of a firearm
by a person not to possess].
PCRA Court Opinion, 6/10/2016, at 11. No relief is due.
Because we agree with the PCRA court that Appellant’s issues lack
merit, we find no error in the PCRA court’s decision to dismiss Appellant’s
petition without a full evidentiary hearing.
The PCRA court has the discretion to dismiss a petition without a
hearing when the court is satisfied that there are no genuine
issues concerning any material fact, the defendant is not entitled
- 13 -
J. S88035-16
to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings. [T]o obtain
reversal of a PCRA court’s decision to dismiss a petition without
a hearing, an appellant must show that he raised a genuine issue
of fact which, if resolved in his favor, would have entitled him to
relief, or that the court otherwise abused its discretion in
denying a hearing.
Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011) (quotations
and citation omitted).
As Appellant has failed to convince this Court that the PCRA court
erred by dismissing his petition, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
- 14 - | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144378/ | OFFICE OF THE AITORNEY GENERAL OF TEXA!S
AUSTIN
O-C-
---
Bon. Joe Rllnachik, Comll.88foner
Bureau of Labor Statfstier
Auatin, T 0 x a 61
opinion Ho. 04018
X6 a pertton engage
a8 deroribsd, with1
Arti i5me-6ee1,
Art~ole8 16644893
qulrsd to ob
lhmlse?
You hava reques
00mruOti0n0rArti0m
shed FA li I& ot perhapr fir8 , 8iX
or etgbt WlW8tler8 who an aPrilab$e for
a ~cirtioular night. %%8 proIt&?terthan
6Sh&ti fX’Ql% t&i8 list 80 fUrntPkUk6 t0
hi81 th8 IWreStler he d’J8iXW8 to &&oh,
WleOtiing: parchap tW0, fy, or Sir Of
Ron. Joe Kunaohik, Coml%sloner, pag% 9
th% name8, and di8oarding the remainder.
The aanicee of th% wrestler end the agree-
aunt 68 to the p%ro%nteg% or saale of
xemuneratton is deaided ?aetween the pro-
moter cud wmatler; the booking a&put
do%8 n,-,t
sttsxpt to aOntrc1 the auicuut of
p%rc%nteg% paid, exoept tbt he Stipulate6
that tka promoter will ham to guarantee
a miol.mm apount to aover tSerel.in(;ex-
pensea of the wmstler.
**The booking agentreoelrea no money
Or pay whetsosver from th% wrestler....*
but *does receive from the promoter a per-
centag% of th% Cross intak% of the sntirs
6Low. Thlb~sperooufege la ?Sid by the
promoter and is not paid by the wreMler8,
nor deducted rroa their earning8 .. ....I
**The senloes of the booking agent axe
deslred by the various prrmoter8.....@ in
pluny i.n8taIIa%B,and tLiS 8el~iCe i8 al60
desired by the wrestler6 La mahy ihstanoes.
“ThiO ~pkrtlll%nt &18, a.nO% the bwwnoei of
an opinion dated Jenuary 9l, 1936, by tM At-
torney %nera148 38partaenli, oontended thet mob
a booking agent ahou1.d obtain an aaployment
agency ilcense before oarrying on suoh opera-
tions. The opinion refarred to wa8 si+guad by
kir.Eussell Rentfro, vrho was at that time an
assistant attorney general under Hon. WillLam
BIoCrew, aud a ~co?y of 8Qid opinion is attaahed
fox your refax8noe.
***I@.
"AS we undsratend the netter, rarious
wxcstlera cask %mplom:ht In one Show on room
particular night, and they also deeire to ob-
teln employmmt from other promoterf3 on 88 many
sncaerrsire nights 08 possibt8. 9% understand
thErt the booking qgsnt adv%xti%%s the qualities,
abflitise, and regutntions of such wrestiers,
Hon. SOS lC¶umohik, Oaanlasloner, page 3
and tlmt mob agentis iatere8tad ln seeIn
that th%8% wre8tlars obtain em;lloyment in
order that the e&went xmy obtain fro3 the pro-
moter8 certain isee thct h%Ye prt3viOu8ly been
agreed upon between thb promoter and th8 agsnt.
We heme oerefnlly considered this m8tter sines
th% OOnOlU8iOn W her% reached neoessitate~ the over-
ruling Of the former opinion of ttil% dasertzzent, dated
Jtnuary 21, 1936.. reterred to in yaw ooaaunioatlon,
whloh you state you hare been iollomin2.
micle 5208, .Rsrised Civil Btatuteir, rend8, in
part t
The term *Emplomnt Agent* saam eVery per-
son, fimr, pertnership or essociatf;on of person8
%li@PgSd in the bUsinsBU Of a8%i8tiw el&Oy@Jr8
t0 BetUU%3 emp1OySe8, and pOXSOn t0 SstJUre~ZR-
ployment, or of oolleoting information regardin
em~loyeta seek& spaploy%%s, snd persons aeakln2
lmpLoy8lsnt. 'The term *ExsployaentBXio%* mans
truer plaoe or,offlos where the buainese oiE glr-
lng 1 ntsl~i~nue or information where ea@oyment
or cS&p nag be obt%lxi%d or where the,bu8in*88
of en emploglaent agent 1s 0arrLed on. * * * ."
Art&cl* 1524 of the Fan81 Cob oontelas the 8azm
d4rititioII8.
These deiinltlons determine the ROtivitie8 reg-
ulatad by Artioleo 6208-6221, lnolusiva, supra, end Ar-
tie168 1524-1695,inolusive, Bupre, and the question
which muat be auswured is whether the sitnatloa decloribed
in your letter 18 oo+ereQ thereby. Clearly, thernr atat-
atas do not %rpr%eely do so; they may be held to do 80
only if suoh 1% the neoesaary implication th%refrom.
%a believe it Etunif'eetthet the boo- agunt,
or broker, dsfdoribsd in your l%tter, ia not the usual.
and well-reoognized *Employment AgenV and does not
79
Hoz. Joe Kuneahik, Corraieslonor, page 4
maintain the usual and well-reoognized *iWplo~%nt
err ice". Or-dlnarilp an employment agent deal6 with
applicants for fobs in the 6%n8% of regulsr %m~~loy-
ment by an employer, under which a regular w%ge or
salary is paid, cweting the typioal re1atiouahl.p of
master-servant, %~~ploy%r-%mploy%%, ae diatinguirrbed
from an *engagemenV of short duration for a perrom-
ance, or a 8?.ar, or a ur%sfAlng match, with the 001p-
penaation payable not on a selerr or wage basla, bat
on an engapment or yerronmmee basle.
Reaogniefng this vary real dletinction, we must
decide if these stirtutes were intended to r%@.at% the
booking agent, or broket, %Egag%d,'only, in assisting
the promoters deeiring the wrertlere for a performeno%
upon a particular night in securing euoh wr%stl%ro
aud the wreletlers thannmarelre6in making Oontpct',wi&
the pxomotorll f.u tke manor dascribad.
In Seation 6 Or the AOt (Acts 1923, 33th Lea;.,
R.-s., p. 79; Art. 1587, P.C.) one of the regulatioar
lmpo~ed read6 au iollowsa
* * + + SW& employlnsnt agent shall alao
enter and keep in a well-bound book the mm%
and addreea or *very person, rm, oorporatlon
or aesoolation of peraom. who shall mice ap-
plioatlon to hlm r0r aasistanoe in wouring
eniployeertogether withthe number and kin&
or SIU~~O~W~S desired, the amount 0r wages Or
salary to be .paid and the place wh%r% such em-
Pl p t k, d th date oi th
pl~ca~8io~~naor~~-re~~ired~a (mq~hasi~ airsI
This tenntnology definitely tadloates that the
Legislature cont%mpl.oted~th% typioal relatlonehip or
%mployer-employ%%, wher% regular work is eeOu?ad, and
mgulular wagas or rsale3-y1% paid.
section 10 0r t&e Aot (AMi. 5215, li%YiMd Ciril
Statutes; Art; 2689, Penal Code) prior to ita tindment
in 1937, else read2
Where a ,fes is charged for obtaining employ-
8
Ran. Joe FAneohIk, Commlasloner, page 5
m%nt , such ree in no etsnt shall emteed the
sum or three dollara, which may be oolleatad
fro3 the agyllcant only ortar employment has
been obtained and acoeptad by the a;?plicant;
provldud, hoeover, em#oysmnt agents engaged
exa.u3lr-~ly in imovldlng employment ror skill-
%d, proressi0ntd OS olerloal positiona may
oh&r&a. with the wxltten oonaent or the as-
plloant, a reg. not to exceed twenty per Cent
0r the rirGt nonth*c salary.* (Zmphaeis ours)
hgain we peroelte the presralllhg idea of a
Lialnry, a oontinuous %zploymnt on a month to month
basis.
These provisiont3, It maema to ua, denuxmtrak
that the Leglslaturs la enaofing thie law did not have
In aontemplation the type of booking agent, or broker,
deoorlbad 5.n your lottar, and wan not undertaking, in
these ststutee, to regulate them. Re ere uhwllllhg,
in the abseoC% of a olear legisletlve intent that suah
was intended, to give to the term mloymmt Agent*
and Qnployxaant OrSlce% an all-lrioluaivs nraanlng oov-
erlng all actlrltles where an In~lrl&u~& znay be a8sIsted
in eeourlng any type of employment with oompemation
therefor upon any basis.
Tie in~Ivl&utl ahioh you dasorlbe ocouples more
tii@ y6sition
of a *broker% a8 thut term Is defined by
our courts. For example, the court in the case of
FXZZ2';-v. EICZ;OLs, 110 S.Y. 206, 208, says:
*In Xeyw~ v. Johnson, 68 Pa. 42 fidge
Shsr8wood, delirmring the opinion of the oourt
said1 *Erok%rs as% persona w:io%e bus5nese it
is to brln@ buyer and seller together; they
n%ed have nothlrq to do with th8 negotiation
or the bargain 'r 4 % (t
It is not, hourevar, neoesaary that we d%fln%
th% business or the pereon desoriberl in your l.ott.fm;
6urric% to 8ay, ~43 are oonetrained to the oplnIon that
the statutes involve& were enacted to rqulate the typf-
o%l Gnd well-r%co&z%d em&Aoyment sagant's buainesa
81
Ilo?. Joe Kununschik,ComAssioner, Page 6
8:ich ~KX~~U sot include that of the booking ageent 88
described in pour oommn ioation.
Accordingly, you are reejmctiu1l.y abvieed that
it is the opinion of this department thet the person
engaged In the activltiee deesoribed is not re uired,
under izticlee 5200-5221 ir,cluslre, mpre, an3 Arrtioles
1584-1593, inclueire, eupra to obtain an emp&oymnt
agsnoy licenee berore engag ing 11:#%oh buxslness.
Tru:iti ng that tiehere adequately enemared your
iiquiry, we remain
Your6 very truly
ZGSrob | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144439/ | OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Qua-o.-
--
Hon. Jerry Sadler, Kexbar
Ratlrond Comnissioa of Texas
Auatln, Texae
cpicioa x0. o-19
Re: Porel! OS Fla
rescind, UJS
ration ords
1940, you 8et out
allroud 0ommlaaion
39, dnd the pro-
ca~lusIoil of Texas
the opinfbn of
thfs department up
lindicge ma& by
te or mxas, u wm3.m
na the Order of January
le produotlon of oil
!iMca8., and edopt a new
pPoduotlon ot elk In
B 03 the b&3ila Of t&6
tithout atiling a Imar-
Again, aan the Pel,&mad Corsrlltaslon
View at the provlelons ot the Ozdaf*
hexeimibovs refermU to, actlry within the Sate
of Texas, a QuQrtm thehoi being’ went, enter a
vtiid promtion order eubrrtantialT my Q$.CCeredt to
its Order of Januarp 84, 194,C, tieeinabovq r&f errsld
to, fixing the Ltwunt of 09.1 that imy &6 produced
fmn the tarbus f$e,lds in TBxas 1”~ thy abseaoe 02
a i3eetlng ou3&4 bp the RaiUoa4 Oomi~sion for
euab, purpoas ana t%m irsuunee ot notice tbtwmf
to aZ1 interertcrd parties?
‘746
EOR. Jerry Sadler, iLaCe 2
Third: Shoould tile Zailrocd Coxmlseion of Texas
by projjSTrder, duly re5cizd its Order of Jauuary
24 'S lW&, fixl;ig t.he allowable cil production for
the various ZleldJ in Term, con It by 3rGer reiastate
fts Order of 3ece:~fiber2?, 1P39, flxir:~ the amount
Of Oil tktit CkiLljJ% FU3d;ICOd f;-072tk% VaviOU3 ii81ds
within the State rf Texzs -xitho~t cni1i.q whearing
for suck purpose aDd lame a not&e oi 3u.ch hearing
to ~11 interested parties'"
The statute relating to tha yromlCat3.05 cf rules,
r.e@ations and orders by the Railroad Coxz~lssio~ with respect
to t:;e conservation of oil and gas end the prevention of waste
is Artlolo 6036e, Vernon's flevised Civil Statutes, which
reeds as follows:
*No rule, regulation or order shall be adopted
by the Corszlssion under the r;rovial.ims of this hat
or of Title 102 Of the ReVi58d CiVil 3tatUtes OZ.
Texas, 1925; as ammdad, dealla~ with the oonssr-
vation ci 011 aad~gas and the prevention of the
waste ~ther,eof, exoept aiter heari% upon at leaet
te: (10) day5 zotloe Civet in the manner ahd form
&reaeribed by the Cozdasicn; Frov?bed tkat in case
an quergency is ioussl by the Com~issioc t.o exiet
which, in its .juQm%nt requires th8~aetkicC of a
rule, regulation or order without notice and hen-
ink;, snoh emirgeaay mile, regulation or order crap
be prosulgetcd and &all have the sezm validity
as if a hear@ lath respect tr: the salne had bean
!zeld efter due sbtlae. The ener.p3ncy rule, rewla-
tton or orGer authorized herein shall rema$a la
force no longer than firteen (151 days fro15 its
effective date, and, In any event, it shall expire
when the rule, regulation. or order sade after due
notice and hearlzg with rsspeot to the subjeot mcrtter
of~suoh euergeuay rule, regulation or order be&xnes
effeat~ve.
lithe Cozrafseion may, without prior notfee, re-
rake any ruls, regulation or or0er Iprozul.gat& bp
it; arid it may, w/t&out prior notice, amend the
same, provided the subjeot raattsr of the %aend?aeiit
was ooonsldered at the hearia% xde th,e basis $oz
such rule, regulation or order. The renewal or
extension of szp rule, regulation or order shall
be base6 upon e hwming aftar proper notlbe, eub-
&at to the provisions of this Seotlon with refer-
enae to energeisncy rules, regulationa and ord%rsrw
It ~311 be saen thrt. t?ia etstuta leys down thr
general mle that no rule, re&:latlon or ortier deellw with
conservetlon of 011 or ras can be entered by the Railroad
~oml~~lon~ or remwed or extended by It, except otter hear-
ing upon tsn deys notlca to InteresteC parties.
It will further be observed, however, that tr?Ls
general rule 1s subject to the following etatutory excep-
t1ona:
1. The Co~mIesIon, without notloe and hearing, may
revoke or resclnc? any rule, regulation or order promulgated
by It. The revocation or resoleslon of such order would
leers no order, rule or regulation In effect with respeet
to the subject matter,
2. Tf the CarmIssIon finds an emergenay to exist re-
quiring it, it may enter en e,mrgenoy rule, regulation or or&
der without a hearing; but such emergency order w&l1 ,be ef-
feetire for only 15 days and will IB any event beuoms Inef-
feotlre when a rule, regulation or order Is entered by the
Commission with respect to the same subject matter followlng
notlte and hearing.
3. An order previously ente~red by the Commlesion fol-
1owIbg notloe and heering may be ahanged or modified by amend-
ment, If the subjeot matter of the amend-eat waa aoneldered at
the hearing which was the basis for the orIgInal order promul-
geted by the Coztilasl~n, without e~dd1tIoae.l notice end hearing
es e condition precedent to the right to make euoh amendment.
'4. The statutory eracaptions mentioned above nmaeure
and limit the rlgbt of the Co"3~isslon to revoke or resOiBd Its
order, promulgate a new order, or amend lta existing order,
without notlce and heerlne;.
1.f the order to be entered In lieu of the January Z4,
1940, order does not fall wlthln the eetegory of an emergency
order, or If it la to be made as an a.mendsent of the January
24, 1940, order, and the subject matter thereof was not eonsld-
ered at the heerlng which was the basis for tbe January 24, 1940,
order, suah order cannot be entered without notice and hearing.
Whether under the facts the propaatee order falle within either
of these ciategorlee, so that It may be promulgated with&t
notice and hearing, le a naRtter whloh addreaaes Itself to
the consideration of the CO~ISSIO~ as suoh, aad vthioh oan-
not be deteralned by this department upon the basid of the
5’48
Hon. Jerry Aadler, Page 4
iniormatlon submlttod in your request.
Xe trust that the forego& aatlsraotorily a?spers
your Inquiry.
Yours very truly
ATTORk?Ey C!:iB;llALOF TX:ZAJ
By ,&f?Lg?M
R. '8. ~alrohllb
Assistant
Ri'lF:pbp
APPROVEDF- 10, 1940
5.ibu4u.A
ATTORNEY GENERAL 03' TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288767/ | Electronically Filed
Intermediate Court of Appeals
CAAP-18-0000128
26-JUN-2018
01:41 PM | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4288770/ | Electronically Filed
Intermediate Court of Appeals
CAAP-17-0000697
26-JUN-2018
12:57 PM | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4131351/ | The Attorney General of Texas
December 30. 1983
JIM MATTOX
Attorney General ”
Supreme Court Building Mr; Robert J. Provan Opinion No. JM-116
P. 0. BOX 12546 General Counsel
Austin, TX. 76711. 2546 Stephen F. Austin State University Re: Whether the Gulf Star
512/475-2501
Nacogdoches, Texas 75962 Conference is subject to the
Telex 9101674-1367
Telecopier 5121475-0266 Open Meetings and Open Records
Acts
714 Jackson, Suite 700
Dear Mr. Provan:
Dallas, TX. 75202.4508
2141742.6944
You have informed us that Stephen F. Austin State University and
five other universities are "engaged in the organization and
4024 Alberta Ave., Suite 160 establishment' of a new intercollegiate athletic conference to be
El Paso, TX. 76005-2793 called the Gulf Star Conference." The proposed constitution of this
9151533.3464
conference states that one of tbe two' general purposes of the
- conference is:
Jl Texas, Suite 700
Hwsto”, TX. 77002-3111 [~t]o form and maintain among universities of
713223.5686 approximately the same size and comparable
,educatidnal programs an athletic conference, the
806 Broadway, Suite 312
members of which shall incorporate intercollegiate
Lubbock, TX. 79401-3479 athletics within their respective educational
6061747-5236 programs and shall place and maintain such
athletics under the same administrative and
academic'control as that which obtains in their
4309 N. Tenth, Suite B
McAllen, TX. 76501-1685 other educational programs.
512/662-4547
Fou:,'haveasked whether this conference will be subject to the Open
Meetings Act, article 6252-17. V.T.C.S., and to the Open Records Act,
200 Main Plaza, Suite 400
San A”t,,“lq TX. 762052797
article 6252-17a. V.T.C.S.
51212254191
Both acts apply to "governmental bodies." Section l(c) of the
open Meetings Act defines a "governmental body" as:
An Equal OpportunityI
Alflrmatlve Action Employer
any board. commission, department, committee, or
age~ncy within the executive or legi@.ative
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 rule-making 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
p. 489
Mr. Robert J. Provan - Page 2 (JM-116)
county board of school trustees and county board
of education; and the governing board of every
special district heretofore or hereafter created
by law.
Section 2(l) of the Open Records Act defines a "governmental body" as:
(A) any board, comtaission, department,
committee. institution, agency, or office within
the executive or legislative branch of the state
government, or which is created by either the
executive or legislative branch of the state
government, and which is under the direction of
one or more elected or appointed members;
(B) the commissioners court of each county and
the city couucil or governing body of each city in
the state;
(C) every deliberative body having rulemaking
or quasi-judicial power and classified as a
department, agency, ox political subdivision of a
county or city;
(D) the board of trustees of every school
district, and every county board of school
trustees and county board of education;
(E) the governing board of every special
district;
(P) the part, section. or portion of every
organization, corporation, comisslon. committee,
institution, or agency which is supported in whole
or in part by public funds, or which expends
public funds. Public funds as used herein shall
mean funds of the State of Texas or any
governmental subdivision thereof;
(G) the Judiciary is not included within this
definition.
The conference will be a voluntary association of SiX
iustitutions, three of which are in Louisiana. It is therefore not
"within the executive or legislative department of the state." Thus,
the only provision in the definition of "governmental body" contained
in the Open Meetings Act that could conceivably apply to the
conference is inapplicable. We therefore conclude that the proposed
conference will not be subject to this act. ?
p. 490
i
Mr. Robert J. Provan - Page 3 (.D+116)
On the other hand, we conclude that the conference will be
subject to the Open Records Act. You have informed us that each
member university will pay an initial membership fee of $20,000 and
then will pay $10,000 to the conference each year thereafter. Under
section 2(l) of the Open Records Act, "governmental body" includes
"the part, section, or portion of every organization . . . which is
supported in whole or in part by public funds, or which expends public
funds." Two prior Open Records Decisions have construed this
provision. Open Records Decision No. 228 (1979) concluded that the
North Texas Commission, "a private, nonprofit corporation chartered
for the purpose of promoting the interests of the Dallas-Fort Worth
metropolitan area," is a "governmental body" under this provision.
The decision stated as follows:
Under a sample contract submitted by the
Commission, the City of Fort Worth was obligated
to pay the Commission $80,000 a year for three
years. The Cormnission also receives funds from
several other units of government . . . [W]e have
examined the contract in question here, and we do
not believe it imposes a specific and definite
obligation on the Commission to provide a
measurable amount of service in exchange for s
certain amount of money as would be expected in a
typical arms-length contract for services between
a vendor and purchaser. Specifically, one
provision of the contract purports to obligate the
Commission to:
(e) Continue its current successful
programs and implement such new and innovative
programs as will further its corporate
objectives and common City's interests and
activities.
Even if all other parts of the contract were found
to represent a strictly arms-length transaction,
we believe that this provision places the various
governmental bodies which have entered into the
contract in the position of 'supporting' the
operation of the Commission with public funds
within the meaning of section Z(l)(F) . . . . We
are holding . . . that these records of the North
Texas Commission are public under the Open Records
Act since it receives funds from serveral public
entities and has entered into contracts with these
entities which result in at least a portion of the
public funds paid to the Commission being used for
the general support of the Connnissionrather than
being attributable to specific payment for
specific measurable services.
p. 491
Mr. Robert J. Provan - Page 4 (JR-116)
Relying upon Open Records Decision No. 228, Open Records Decision No.
302 (1982) held that the Brasos County Industrial Foundation is also a
"governmental body." This decision held that the Foundation was
"similar in many respects to the North Texas Connnission." In 1980, it
received an unrestricted grant of $48,000 from the city of Bryan. The
decision stated that:
Open Records Decision No. 228 (1979) held that the
phrase 'supported in whole or in part by public
funds' refers to any agreement between a political
subdivision and any 'organisation, corporation,
cowwission, cosimittee, institution, or agency'
which transfers public funds from the political
subdivision to such entity, but fails to '[impose]
a specific and definite obligation on the [entity]
to provide a measurable amount of service in
exchange for a certain amount of money as would be
expected in a typical arms-length contract for
services between a vendor and purchaser.' This
agreement failed to provide adequate consideration
flowing to the political subdivision, and the
public funds passing to such entity. although in
the possession of private, hands, retained their
character as public funds.
We believe that the present situation is virtually identical to
the situations with which these two decisions dealt. In our view, the
member universities must be deemed to be in the position of
"supporting" the athletic conference with public funds, because the
funds that they will pay to the conference will be used for its
"general support . . . rather than being attributable to specific
payment for specific measurable services." Open Records Decision No.
228 (1979). Because the conference will be "supported . . . in part
by public funds," it will be a "governmental body" subject to the Open
Records Act.
SUMMARY
The proposed Gulf Star Conference will not be
subject to the Open Meetings Act, article 6252-17,
V.T.C.S.. but will be subject to the Open Records
Act, article 6252-17a. V.T.C.S. I
Attorney General of Texas '
p. 492
“.
Mr. Robert J. Provan - Page 5 (~~-116)
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 493 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131364/ | The Attorney General of Texas
December 29. 1983
JIM MATTOX
Attorney General
Supremacouli EUlldlng Mr. Winnie P. Gibson Opinion No. m-103
P. 0. BOX 12545 Somervell County Auditor
AU~wt. TX. 79711. 2545 P. 0. Box 612 Re: Use of county funds for
512l475.2501
Glen Rose. Texas 76043 operation of senior service
Telex 9101874.13S7
Telecopier 51214750255 center
Dear Ms. Gibson:
714 Jackeon, Suite 700
Dallas, TX. 75202.4505
2W742.5944
You have requested our opinion on the following question:
Whether or not Somervell County may legally pay
4S24 Alberta Ave., Suite 150 county monies to the Somervell County Comittee on
El Paso, TX. 7-2793 Aging for their operation of the Senior Service
915l533.3454
Center.
-
,901 TWPII. Suite 700 You have not stated the purpose or nature of the Senior Service
HOUSTON,TX. 77002.3111 Center, but for purposes of this opinion we will assume that it offers
71312235556 social and recreational programs designed for the enjoyment of elderly
people.
5w eroaeway. Sultr 312
Lubbock, TX. 79401-5479 It is well established that counties in Texas may pursue
SOW747.5239 activities and expend county funds only when authorized by the state
constitution or statutes. Article 1015c-1. section 3. V.T.C.S.,
provides that a county
4309 N. Tenth. Suite B
MeAllen. TX. 79501-1595
5121552.4547 =Y establish. provide, acquire. meintain,
construct, equip, operate, and supervise
recreational facilities and programs, either
200 Main Plaza. Sub 4w
singly or jointly In cooperation with one (1) or
San Antonio. TX. 79205.2797
51212254191 more other governmental units.
Article 6081t. section 2, V.T.C.S., permits sny political subdivision
An Equal Opportunity/ to enter into a joint agreement with another political entity to
Allirmatlve Action Employer
establish, provide. maintain, construct, and
operate jointly with another governmental unit
located in the ssme or adjacent counties,
playgrounds, recreation centers, athletic fields,
,- swimming pools, and other park and recrestional
facilities located on property now owned or
p. 433
Ms. Winnie 1. Gibson - Page 2 (JK-103)
subsequently acquired by either of the
governmental units.
See Attorney General Opinion. M-60 (1979) (county may contribute to
zoo); R-1170 (1978) (county may coutract vith city for the operation
of museum, park or recreational facility); E-413 (1974) (county may
participate jointly with school district for the construction of a
swimming pool). It wss pursuant to article 1015c-1 that this office
concluded in Attorney General Opinion E-127 (1973) that a county could
contract with a non-profit corporation to use federal revenue sharing
money for the operation of a recreational facilfty designed for the
elderly. We said that
the county may, itself, construct and maintain a
recreational facility for the use of the public
and primarily for the use of the aged, under
reasonable regulations.
A county may contract with a private entity for the performance
of these services, so long as contractual and other controls insure
that an authorized public purpose of the county will be achieved.
Attorney General Opinion C-334 (1964) (hospital district contracting
with private hospitals for indigent care). As long as the facility
about vhich you inquire is open to the public, i.e., ao long as no
member of the public is precluded from its use notwithstanding that It
may be primarily designed to assist the elderly, we believe the county
might contract with it.
If the senior service facility is designed to provide medical or
health care, we believe that the county would have the authority to
contract with it pursuant to article 441gf, which provides in part as
follows:
The Conmissioners Court of any County shall
have the authority to appropriate and expend money
from the general revenues of its County for and in
behalf of public health and sanitation within its
County.
-Cf. art. 5547-201 (MHMR
center).
Counties also have the responsibility to “provide for the support
of paupers . . . who are unable to support themselves.” V.T.C.S. art.
2351. See also art. 4430, V.T.C.S., (county responsibility for
hospital care of indigent sick). In Attorney General Opinion C-246
(1964) this office concluded that a county could contract for the
operation of a residential convalescent home for the indigent aged as
permitted by article 2351.
p. 434
1 - Hr. Winnie 1. Gibrou - Page 3 (~?4-103)
However. a county does not have the authority to provide for the
general assistance of elderly residents. Such assistance may be
provided only if the county is pursuing its authority to provide
recreational areas, health care, or support for the county’s pauperr.
Any other assistance to elderly people by a county would likely be
found unconstitutional under the multiple provisions which prohibit
the giving away of public funds or property In absence of a proper
public purpose. See Tex. Const. art. III. 152; art. VIII, $3; art.
XI. i3. State v.xy of Austin. 331 S.W.2d 737 (Tu. 1960); Attorney
General Opinion m-22 (1979) (state may not pay utility bills for
needy aged individuals).
In Attorney General Opinion R-1244 (1978) this office concluded
that a county was not authorized to provide daycare services for
children generally. Similarly, It was found in Attorney General
Opinion H-1189 (1978) that there was “no statute authorizing the
commissioners court to provide day care for all children in the
county.” We believe that these two opinions would apply to
individuals on the other end of the age spectrum and would prohibit a
county from providing a comparable facility for the elderly, A county
may. however, provide recreational facilities for the elderly so long
as it is not to the exclusion of other county residents. Although
there are many provisions of state law which confer certain privileges
and benefits upon the elderly, there is simply no statutory authority
for a county to provide services generally to elderly individuals. A
county’s authority is limited to the provision of recreational
facilities, health care, and support for the poor. It is only in
pursuit of these statutory provisions that Somervell County vould be
empowered to contract for the operation of a “Senior Service Center.”
Of course, a county may not gratuitously grant public funds to a
private entity for any purpose.
SUMMARY
Somervell County may contract for the operatfon
of a center for the aged for recreational, health,
or indigent support purposes if contractual and
other controls insure that a public purpose vi11
be achieved.
JIM HATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
D. 435
nr. Winnie F. Gibew - Page 4 (Jn-103)
.
?
DAVID R. RICIURDS
Rxocutive Aesirtant Attorney General
Prepered by David Brouka
Arrietant Attorney General
APPROVRD:
OPIIION COlM’ITEE
Rick Gilpin. Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrisw
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 436 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144401/ | TEXEA~~ORMEY GENERAL
OFTEXA~
Hon. Tom L. Beauchamp
Secretary of State
Austin, Texas
Dear Sir: Attention of Mr. Perry L. Jones,
Securittes Analyst
Opinion NO. O-1996
Re: The Securities Commissioner shall
issue and sign real estate licenses
under House Bill No. 17, 46th Legis-
lature.
Your request for an opinion from this department by
letter dated August 18th, and to which the above opinion num-
ber has been assigned, reads as follows:
"We are preparing the license forms to be
used in issuing licenses to the real estate
dealers'ana salesmen under the Real Estate Deal-
ers License Act of 1939, House Bill No. 17.
"We desire an opinion from you as to whe-
ther these licenses should be signed by the Sec-
.retary of State or by the Securitfes Commissioner.
"Under the Securities Act, all licenses are
signed by the Secretary of State, however, the
Real Estate Act seems to be placed directly.under
the Securities Commissioner, consequently, it Is
possible that these licenses should be signed by
the Securltles Commissioner rather than the Sec-
retary of State."
The above request involves merely an administrative
function preparatory to carrying out the provisions of House
Bill 17, entitled "Real Estate Dealers Licenses Act," 46th Leg-
islature, found Incorporated under Title 113A, Article 6573a,
of Vernon's Annotated Revised CFvFl Statutes, 1925.
Section 5 under said Article 6573a reads as follows:
"(a) The administration of the provisions
of this act shall be vested in the Securities DF-
Hon. Tom L. Beauchamp, page 2 o-1996
vision of the office of the Secretray of State.
"(b) The Secretary of State Is hereby em-
Powered to employ an Executive Secretary; the
salary of such Executive Secretary shall not ex-
ceed the sum of Two Hundred Dollars ($200) per
month.
"(c) The Administrator of the Securities
Division is hereby empowered to examine witnesses
and administer oaths, ana it shall be his duty
to investigate persons dolng~~businessin real-'es-
tate'~Inthis State to ascertain whether they-.are
violating any of the provlslons of this Act and
to keep such'records and minutes as shall be
necessary to an orderly dispatch of busFness."
Under subsectlon (c), Section 9 of the aforementioned
Article, we find.the following provlsLon:
"(c) The Administrator of the Securitles~
Division of the office of the Secretary of State
shall'lssue to each 1Icensee a license In such
form and size as shall be prescribed by the Ad-
ministrator of the Securities Division of the
office of the Secretary of State:. This license
shall show the name and address of the licensee,
and in case of a real estate salesman's license
shall show the name of the real estate dealer by
whom he is employed. Each license shall have ..
imprinted thereon the Seal of the State of~'Texas,
and Fn addition tothe foregoing shall contain
‘such matter as shall be prescribed by the Adminls-
trator of the Securities Dlvlslon of the Office
of the Secretary of State. The license of each
real estate salesman shall be delivered or mailed
to the real estate dealer by whom such real estate
salesman may be employed and shall:!.be
k;pt under
the custody and control of such dealer.
An examination of the provisions of the Securities Act,
Incorporated under Title lgA, Article 6CCa, of the Revised Civil
Statutes, 1925, reveals the following provision:
“Seca 34. The adminIstration of the provF-
sions of 'this Act shall be vested in the Secretary
of State D.00 To aid the Secretary of State in
carrying out the provisions of this Act, there is
hereby created the office of the Securities CommFs-
sioner of Texas, who shall be appointed by the
Hon. Tom I. Beauchamp, page 3 o-1996
Secretary of State for a term coextensive with
the term of the office of the Secretary of'State.
The Securities Commissioner, as herein created,
shall-draw an annual salary not exceeding Three
Thousand Six Hundred Dollars ($3,600), and shall
perform the duties of the present Blue Sky Com-
missionerin the enforcement of the provisions of
this Act as directed by the Secretary of State."
The use of the term "Administrator of'.theSecurities
Division of the office of the Secretary of State," by the Leg-
lslature-.inthe Real Estate Dealers License Act clearly, we
think;.has reference to the Securities Commissioner, whose of-
fice was created by the Legislature in the passage of the Texas
Securities Act.
You are therefore respectfully advised that licenses
issued under the Real Estate Licensing Law should be-.slgned
by.the Securities Commissioner and not by the Secretary of
State.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By s/Lloyd Armstrong
Lloyd Armstrong
LA :AW:wc
APPROVED OCT 10, 1939
s/Robs&E. Kepke
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BwB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144421/ | Gerald C. Mann Aus-mra a,.TF;PLAB
D
Hon. K. D. Hsll Opinion No* O-1976
County Attorney Re: Is the county required to furnish
Refuglo County an office for justices of the peace in
Refugio, Texas counties where the population is less
than lC,OOC?
If not, would the county be permitted
to spend money for furnishing and equip-
ping offices of the justices of ,the
Dear Sir: pe,ace if its officers desire to do: so?
We are in receipt of your letter of February 17 1940,
requesting an opinion of this department on the above sta 4 ed
quest ions.
Article 1603 of Vernon’s Annotated Civil Statutes
treads as follows:
“The county commissioners court of each county,
as soon as practicable after the establishment of
a county seat, or after Its removal from one place
to another, shall provide a court house and jail
for the county, and offices for county officers at
. such county seat and keep the same in good repair.”
Article 2379, Vernon’s Annotated Civil Statutes,
reads as follows:
“When the justice precinct where the courthouse
of any county is located contains more than seventy-
five thousand inhabitants, the commissioners c.ourt
of said county shall provlde and furnish a suitable
place in such courthouse for such justice to hold
court .”
Conferen,ce Opinion No. 2328, printed in the 1920-22
Biennial Reports of the Attorney General, at page 439, holds:
“1. The commissioners court is not authorized
by law to furnish offices for justices of the peace
except as provided in Chapter 94, General Laws, Regu-
lar Session of the 36th Legislature, which statute
requires that suitable places shall be provided and
furnished in the courthouse for the holding of court
Hon. K. D. Hall, page 2
by justices of the peace in the precinat where
such courthouse is situated where there are more
than seventy-five thousand inhabit ants in’such
just ice precinct.
"2. In all other instances the commissioners
court is without authority to furnish offices for
justices of’the peace and hence said court is not
authorized to pay office rent out of county funds
for ‘justices of the peace.”
The Supreme Court of Texas In the case of.Reynolds,
Justice of’the Peace v. Tarrant County, 14 S.W. 580 in effect
holds that a ‘justice of the peace Is not a county o!ficer wlth-
in the meaning of Article 705 (which is now Article 1603) pro-
viding that the county commissioners( court shall provide and
maintain offices for the county officers, and the justice of
the peace cannot maintain an action to recover from the county
moneys expended for office rent and furnishings.
In an opinion written January 9, 1933, by Honorable
Homer d. De Wolfe, this department held that the commissioners*
court is not authorized by law to furnish offices for justices
of the peace except as provided in Article 2379 Vernon’s An-
notated Civil Statutes which requires that suigable places
shall be provided and furnished in the courthouse far the hold-
ing of court by justices of the peace ‘in the precinct where such
courthouse is situated where there are more than seventy-five
thousand inhabitants In such justice precinct and that the com-
missioners’ court Is not authorized to pay of&e rent out of
county funds for justices of the peace.
-la an opin$on written September 28 1932, by Honorable
6actt~ Gainsr,,~Aseist&tit Attorney General, thfe department held
that the ooiinri8dioner.s~~ ocurt is without authority to rent of-
fiosa or ,buildlngs for’ ‘ju%istioa’.court rxoept under Article 2379.
We believe that Opinion No. 2328 supra, Is at%13 a
aorreot interpretation of the law in regar b to payment by the
county of office rent for justioee of the peaae.
With reference to Article 2379, supra, it appears that
the Legislature was under the Impression that the commissionerst
court was before the passage of this Act, without authority to
even provide offices in the courthouse for justices of the peace,
and that In order for the commisslonerst court to have authority
to furnish offices in the courthouse to justices of the peace in
precincts having more than seventy-five thousand inhabitants, it
was necessary to expressly cohfer,such authorlty upon said court-
Hon. K. D. Xall, page 3
Having affirmatively conferred this authority upon the commis-
sioners' court to be exercised under the circumstances and
conditions mentioned in this Act, this has the effect of negat-
ing the authority of the court to exercise like authority under
any other circumstances or conditions.
Article 3899b, Vernon's Annotated Civil Statutes,
does not authorize the commissionerst court to pay office rent
for a justice of the peace. So far as a justice of the peace
is concerned this Act only requires the commissioners' court
to furnish him with such books and stationery as are necessary
in the performance of his duties.
In viewof the foregoing authorities you are respect-
fully advised that it is the opinion of this department that
the two questions submitted in your inquiry must be answered in
the negative.
Trusting that the foregoing fully answers your ln-
quiry, we remain
Yours very truly
ATTORNEY
GENERAL
OF TFiXAS
By /s/ Ardell Williams
Ardell Williams, Assistant
APPROVRD FEB 23, 1940
/s/ Gerald C. Mann
ATTORNEY GENERAL OFTRKAS
APPROVRD:
OPINIONCOMMITTEE
BY: BWR, CHAIRMAN
AW:LM:wb | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144425/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable 3. L. Armstro
County auditor
Tom Green County
San An&elo, Texas
Dear Sir: opinion HO, o-lSi2
Ret Has the oo~ssloners~ court
authority ta ~pvahase or rent
sewing,machines for,.use In
the ?PA sewlng.room’grojact?
AnQelated quesE ens;\ ‘\
t
Your reoent reques;t/&r 8~. opinion of tBis/de-
partment on the questions $sare hsreln stated has hen
reoelved. ,I i
“The Coza&&u.ners * &n&. has requestedme
to write your department OdQxxnlng a number of
matters wh&bh zrptdqooins
befoi’e,
t&e court ror
their consld@ation\. 4respohiie to this reque&
ask that.your de-
,opInloncbvering the
;_
,,*qEay.thlP’~
Comrnissloners’ Court authorityto
puro+se g&aerIes or other supplies to be used
tration purposes In connectionwith
WA ousekeeping
*Or dmY?
the aid projeot?
~f.:~uestion
no. three
“Haa the Coarmissioners’ Court authority to
furnish typewritersand adding machInes or to
repair and maintain such machines used in State
or Federal relief agenoies? ~lso in this con-
nection, does the Court have the authority to
furnish to such agenoies office supplies, such
as paper, typewriter ribbons, desks, ohairs, sto.?
HOR. 3. L. Armstrong, page 2
"?:uestIonno. faur
Yias the Commissioners*Court authority to
employ alarical helF for the Texas and yedersl
relief agencies nominatedas secretaries,steno-
graphers, bookkeepers,etc.7
n,",uestion
no. five
What authority, if any, has the ComnIssIon-
ers* Court to participatewith County funds in
the constructionof a building to house Federal
and State relief agencies?
"2,uestIonno. six
WA local charitableorganizationoDeratIng
under the name of Wthers* Health Center has for
Its purpose education and the aIssemInationof
oontraceptivemethods and supplies to the In-
digent mothers of this loeallty. 31s the CommIs-
sloners' Court authority to participatewith
County funds in the carrying on of the work of
this organization?*
Artiale 2331, Vernon's Civil *nnotated Statutes
specifies the general powers and duties of the comaIssion-
ers* oourt.
Article 2372e-2, Vernon's Civil Annotated Stat-
utes, reads as follows:.
Section 1. The County CommIssIoners~
Court and the City ComnIssion of any Inaorporated
town or city of this State are hereby authorized
to lease, rent, or provide office space for the
purpose of aiding and ooaperatlngwith the agen-
oies of the State and Federal Governments engaged
In the admInIstrationof relief to the unemployed
or needy people of the State of Texas, and to pay
the regular monthly utility bills for such offices,
such as lights, gas, and water; and when In the
opinion of a majority of'a CommIsslonarsCourt of
8 county such offloe space is essential to the
croper administrationof such agencies of either
the State or Federal Covernmcnts,said Court is
hereby specificallyauthorized to ;ay for szii~e
,andfor the regulsr monthly utility bills for
such offices out of the County's General Pund by
warrants as In the payment of such other obliga-
tlons of the county.
Hon. 2. L. ,:mstrong,page 3
"sec. 2. ‘Al lotions, proceedings, orders,
and contracts for such rentals, lease, or utility
bills for such purposes as stated In Section 1
hereof, .zsade
and entered Into by any Zomissioners
:Zaurtof this State, pursuant to such servicss as
have been rendered are hereby validated, conStied,
and declared-tobe In full Force and efieot, not-
ivithstandingeny irregularitythereof prior to the
enaotment OS this -ict.*
Section 1 OS lrticle 23728, Vernon's .;nnotated
Civil Statutes, reads as follows:
"That County Cornissionersl:ourtsoS this
State be, and the same are hereby authorized to
purchase naterlals for the purpose ox'aiding aa
cooperatingwith the agencies of the State and
Federal Governnents in the constructionOS build-
iugs for the purpose OS housiaq cmneries ar,d
cnnnihg factorieswhere/appropriationshave been
or my hereaSter be nsde out of the Federal and
State &nds set aside Sor the reliei of the un-
eapioyed nnd neeCy people In the State of Texas,
and to pay for such matorIa3.sout OS the County's
Termnent izprovementZund."
This department held In an opinion written by
Honorable Zoe 3. ;rlsup,Assistant .Lttorneg General, ad-
dressed to iionorable,'.3. ‘#atSOn, County .iuditor,Liz%-
stone County, Groesbeck.,Texas, April 27, 1937, that
where "The ComuIssioners*Court makes the necessary lnves-
tigation and IS Srun the Saots reve;cledby such investlga-
t-ionfind that.the relief wor’kers are ;?auFers. . : and
that the relief workers have been bona Side Inhabitantsof
the county not less than six months and oPthe state not
less than one year, then we are 04 the opinion that the
buying or renting of the sewing machines comes within the
purview of -;rticle2331 and that the Comissionersf Court
then has the full authority, imder the provisions or the
statute, to purchase or rent the said mchines from county
funds for the purpose of providlzg 3 xxis of sUpFort for
mid relief workers*.
'?heabove sectioned opiaion does lot pi;ssdi;-ect-
ly u>oa your first .qzestion,but holds ?&are the coimis-
aioners~ court sakes the necessary ixrestigationInd finds
that the relief xorkers rarepaupers, then da court, mcisr
.~,.ticle~351, ybrzrnon*s,Jmotc;t.zdCitil Statiltes,
au?ra, 5~s
.
Hon. 3. L. Armstrong, page 4
authority to purchase or rent sewing machines from county
funds for the purpose of providing a means of support
for said relief workers who have been found to be paupers
by the commissioners'court,
In Opinion No. O-281, written by Konorable
Senjamin Woodall,‘Assistant Attorney General, this depart-
ment held that the commissioners*court has no authority
to employ a stenographerfor the United States Farm Credit
RdmLnistrstionand pay such stenographerfrom county funds.
It has long been held in-this state that the com-
missioners'aourts are aourts of limited jurisdictionv-ith-
out eny powers except such as are expressly conferred. 31
Paso vs. aam, 100 3. VI. (2d) 393; Xoward vs. Slenderson
County, 116 S. W. (2df 479; Hill County vs. Bryant and
Huffman, 264 S.W. 320; CanmIssioners* Court vs. 'liallace,
15 S. 7y. (2d) 535.
In the last aase cAted in support of this pro-
posltlon Jndge Pierson, speaking for the Supreme Court,
approved and confirmed the holding of the Court of Civil
apeals on this proposition,reported in 281 S. ;r.373.
In the Court of Civil appeals case, Judge Marcus of the
Waco court said:
'The commissioners*oourt is a creature
of the State Constitutionand its powers are
limited and controlled by the Constitution
. and the laws as passed by the Legislature.W
W have made a careful.searah of the statutes and
numerous cases and failed to find any authority that au-
thorizes the coranissioners28'
court to make any of the expendi-
tures mentioned in your inquiry. Yiithreiarenae to your
question MO. 5 your attention is directed to irtlole 2372e-2,
supra, regarding the authority of the commissioners'court
to lease, rent or provide office spaoe for the purpose of
aiding and cooperatingwith the agenales of the state and
federal governmentsengaged in the administrationof relief
to the unemployed or needy people of the State of Texas,
and to pay the regular monthly utility bills for such of-
fioes, such as lights, gas and water; however, this ,rtiCle
does not authorize the commissioners'court Co expend
county funds in the constructionof buildings to house fed-
eral and state relief agencies.
Hon. R. L. mustrong, page 5
You are rsspeotfullyadvised that it is the
opinion of this departmmt that all of your c$zestions
inustbe answered in the negative.
Trusting that the foregoing fully answers
your inc_ulry,we remain
Yours Tery truly | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131352/ | .
The Attorney General of Texas
JIM MATTOX December 30, 1983
Attorney General
Supreme Court Building Honorable Carl A. Parker Opinion No. JM-115
P. 0. Box 12546 Chairman
Austin. TX. 76711. 2546 Senate Education Committee Re: Obligation of state to
5121475.2501
Texas State Senate fund university insurance
Telex 9101674.1367
Telecopier 512/475-0266 P. 0. Box 12068, Capitol Station premiums for employees
Austin, Texas 78711
714 Jackson, Suite 700 Dear Senator Parker:
Dallas. TX. 75202-4506
2141742.6944
You ask the following two questions concerning the "Texas State
College and University Employees Uniform Insurance Benefits Act,"
4624 Alberta Ave., Suite 160 article 3.50-3 of the Insurance Code:
El Paso, TX. 79905-2793
9151533.3464
(1) Does the state have any obligation to
r‘
provide the funds necessary in order for each
1001 Texas. Suite 700 university to provide the proper level of
tto~ston, TX. 77002-3111 insurance coverage? Are those institutions who
7131223.5666 may not have the necessary unappropriated funds,
and who are unable to find commercial insurance
606 Broadway, Suite 312
carriers willing to provide the minimum required
Lubbock, TX. 79401.3479 coverage for the state's appropriation of $70 per
6061747.5236 employee, per month, entitled to the additiona~l
funds needed to provide the required coverage?
4309 N. Tenth. Suite B
McAllen. TX. 76501-1665
(2) In the event that the university is unable
512,662.4547 to provide its employees with the minimum coverage
because of its financial inability to supplement
the state appropriation, will university employees
200 Main Plaza, Suite 400
have a cause of action against the university, any
San Antonio. TX. 76205.2797
5121225.4191
of its officers, and/or the state of Texas?
Article 3.50-3 of the Insurance Code requires state colleges and
An Equal Opportunity/ universities to provide employees with basic life, accident, and
Affirmative Action Employer
health insurance coverages
at least equal to those commonly provided in
private industry and those provided employees of
other agencies of the State of Texas under the
Texas Employees Uniform Group Insurance Benefits
Act.
Ins. Code art. 3.50-3, §2(b) (purpose clause). An administrative
council established under the act determines basic coverage standards
p. 485
Honorable Carl A. Parker - Page 2(.X+115)
that are at least equal to those provided in private industry and
those provided employees of other state agencies. Sec. 4(a)(4)(A).
The employer must make basic coverage available to each employee at no
cost to the employee. Sec. 11. As your first question indicates,
some universities are unabl~e to provide basic coverage from the
state's appropriation of $70 per employee. Attorney General Opinion
MW-215 (1980) determined that the university must pay any excess
premium from non-appropriated funds, but you state that some
universities lack sufficient non-appropriated funds. You state in
your request letter that costs of health care vary considerably from
one region of Texas to another. Two areas of high cost medical care,
Houston and Beaumont/Port Arthur, also have higher rates of cancer
than the state as a whole. You also state that some university
employee groups are so small that a few large claims in one year can
raise future premiums to a level exceeding the state appropriation.
With this background in mind, we turn to your first question. In
essence, you ask whether the legislature must appropriate a 'sufficient
amount to fully fund premiums for the statutorily required basic
coverage.
The legislative power of Texas is vested in the Senate and the
House. Tex. Const. art. III, 01. The legislature has full power and
discretion to enact laws. subject only to limitations contained in the
state and federal constitution. Watts v. Mann, 187 S.W.2d 917, 924
(Tex. Civ. App. - Austin 1945, writ ref'd); Conley v. Daughters of the
Republic, 156 S.W. 197 (Tex. 1913); Tuttle v. Wood, 35 S.W.2d 1061
(Tex. Cl". App. - San Antonio 1930, writ ref'd). Funds in the
treasury may be appropriated only by legislative action, E Tex.
Const. art. VIII, $6; see generally Letter Advisory No. 132 (1977),
and legislative discretion to appropriate funds is in fact limited by
several constitutional provisions. See, e.g. arts. III, %%44. 49a.
50; art. IV, 914; art. VIII, §6.
Article 3.50-3 of the Insurance Code is a general law. and does
not itself appropriate funds to carry out its purposes. Pickle v.
Finley. 44 S.W. 480 (Tex. 1898). The legislature in enacting article
3.50-3 could not thereby bind subsequent legislatures to make
appropriations to carry out its purposes. See generally Watts v.
Mann, supra at 924 (one legislature may not limit the power of a
subsequent legislature to enact laws). Article 3.50-3 does not
establish a constitutionally protected vested right in university
employees to full payment of basic coverage from appropriated funds.
We therefore conclude that the legislature has no obligation to
appropriate the funds necessary for each university to provide the
proper level of insurance coverage. Your first question is answered
in the negative.
?
You next ask whether university employees will have a cause of
action against the university, its officers, or the state if the
university is unable to provide them with basic coverage pursuant to
p. 486
Honorable Carl A. Parker - Page 3 ($4-115)
section 11 of article 3.50-3. A "cause of action" is a fact or facts
entitling one to institute and maintain an action which must be
alleged and proved in order to obtain relief. A. H. Belo Corp. v.
Blanton, 129 S.W.2d 619 (Tex. 1939). The violation of a right with
consequent damage gives rise to a cause of action. Lotus Oil co. V.
Spires, 240 S.W.2d 357 (Tex. Civ. App. - El Paso 1950, writ ref'd
n.r.e.).
Since we cannot investigate and resolve fact questions in the
opinion process, we cannot say with certainty whether the employees of
any university subject to article 3.50-3 have a cause of, action
against an official or governmental entity for failure to provide
insurance coverage. If university employees determine that the facts
establish a cause of action they must seek legislative consent to
bring a suit against the state, a state agency, or an official acting
within his legally authorized area of discretion. Director of the
Department of Agriculture and Environment v. Printing Industries
Association of Texas, 600 S.W.2d 264 (Tex. 1980); Texas Technological
College v. Fry 278 S.W.2d 480 (Tex. Civ. App. - Amarillo 1954, no
writ); Walsh v.'University of Texas, 169 S.W.2d 993 (Tex. Civ. App. -
El Paso 1942, writ ref'd). A litigant who wins a damages claim
against the state must then seek payment from appropriated funds.
S. & G.Construction Company v. Bullock, 545 S.W.2d 953 (Tex. 1977).
If the facts show that a state officer has acted beyond his
statutory capacity, the injured party may sue the official f.n his
individual capacity, without legislative consent. Simmons v. Vinson,
394 F.2d 732 (5th Cir. 1968) cert. denied 393 U.S. 968 (1968). Such a
suit would not seek damages from the state, but from the personal
funds of the officer. We reemphasize, however, that we have made no
finding as to whether facts exist which would give rise to a cause of
action against any person.
SUMMARY
The legislature does not have an obligation to
fully fund insurance premiums necessary to pay
basic coverage for university employees under
article 3.50-3 of the Insurance Code. Whether
university employees who do not receive minimum
coverage have a cause of action against the state,
the university, or university employees is a fact
question which cannot be in the opinion
process.
Attorney General of Texas
p. 487
Honorable Carl A. Parker - Page 4 (3%115)
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 488 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144448/ | Yonorabi:::
Jse X. Webb
Cofnty Attorney
Madison County
i%disonville, Texas
Gear Sir:
Opinion No. O-1349
I-h?:State Ss.nks-- County deposi-
tory -- F. D. I. C. -- Insur-
ance -- Maximum insurance of
individual accounts.
We have your letter of February 71'1$+0, in ribichyo;~ask the rul-
ing of this department upon questions therein stated, as follows, to-xit:
"The County depository of Madisor,County, Texas, was the '~
North Zulch State Bank, located in Madison County.in the town
of North .Zulch. Deposits up to $5000.00 were guaranteed by
the Federal Deposit Insurance Corporation. This bank closed
on January 4, 1940, and a.liquidating agent of the State Bank-
ing Department and officials of the Federal Deposit I~sursnc$,.~
Corporation immediately took charge.
"The F. D. I. C., as guarantor, has offen:d .L:,
the county
Superintendeat the sum of $5000.00, takirrgthe pos;fion that
the several account balances of various schools azd of various
other funds for school purposes comprise only one insurable ac-
count within the meaning of the F. D. I. C. Act, analthat,
therefore, the payment of $5000.00 by the F. D. I. C. complete-
ly discharges its insurance liability as to schwl funds. The
County Superintendent has declined to accept tllis$50X.00 of-
fered by the F. D. I. C. Each and all of the s~2:oolsaffected
as well as the school funds under consideration are commoa
school districts.
'!Alist of all accounts involved is attxied hereto and
made a part hereof. The names of the se\reralaccounts are the
same as appear on the bank books and the recxds of tKe County
School officials. Each of these accounts was c%rrid &%perste-
ly, a.ndon a separate sheet by the bank, also by -tLeCox?ty
School officials.
Honorable Joe 2. Webb - page 2 - (O-1949)
"Is each Cosmon School District a separate governmental
entItyP
"Is each Independent School District a separate govern-
mental entity?
"Does the money in any account listed under Madison County
Board of Education held in trust or otherwise, enjoy such actual
separate ownership a8 to entitle it to separate insurance under
the terms of the F. D. I. C. Act? In this connection the term
'County Board of Education' means the same as 'Board of County
School Trustess',"
Gur opinion No. O-1948 recently rendered to you has discussed quite
fully the principles of law applicable to the questions propounded by you in
this particular inquiry, and a further discussion is not thought to be neces-
sary.
In this, as in your other letter of inquiry, you state that each
of these accounts was carried separately, and on a separate sheet by the bank.
Our opinion No. O-1948 answers, we think, all of your inquiries,
and no useful purpose could be subserved by making a detailed application of
the law, as therein snnounced, to the particular fund or account listed in
the sheet appended to your letter of inquiry.
Very truly yours
ATTOBNEYGENERALOFTEXAS
By /s/ Ocie Speer
Ocie Speer
Assistant
OS-MR-Ial
APPROVED FEB 15, 1940
IS/ Gerald C. Mann
ATTOBNEYGEEEBALOFTEXAS
APPROVED
OPINION
COMMITTEE
BY /s/ BWB
CHAIRMAN | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144467/ | OFFICE OF THE Al-t-ORNEY GENERAL OF TEXAS
AUSTIN
Xx. G
an thr abova stated
qmotlon h&s be
y.-
in tbia 3epl%ilmlt
lMurauo0 aealtr
lsorp nature my be
‘SOfindthatin at hot cubi
ob*a
triou
to11oen8.8 0 r8Uoa) houmer, undo?a*ouqo
3 or Art1010 808 fho Le&sl8tar@hu 8tatedl
"iEl:
WoBoard~blln.otlsao* lloawto a oor-
poratlon.!
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gmeral a eat8we lsoludbdtronall
llrtlolo,
thODroririOE6 Of f MAOt- '~O~@V%8iOXLOf
tbi8rot @hallqpPl7to ... aa (Imrrd ylsnt
or stute at OT bruuohmnqw representlag
iua
lalaitt xi aablimurd inruraaoo
00 ,a7 or
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oam$alw or 0aa WB la a
'8tQNTYirO&704lD~Oit7.'
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thlr DepaTtment for 8QaetlBmthRt ~OllM a OOT-
porotiouapplyfor liaeaaeto o-rata in tho
euerullnsuranoo bu&ws ar&esmr~lagoatr
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& oanse rhoul6 be grantodd.
vie Te8peotrall7
rukrit to you the qn#tionl
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comul8rloa~ eutbQrltad
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raauala p8l-t
a8 folloxllt
93m. 1. xBaurenoe agmtr, aa thrt tom
ladstlnedlathela~ ofthr8tete shallto?
the pUTpOSeOf thirA08 bb biV%dtih0 tU0
clasBeo;l.oQalRbQor~;goa~an4souoltor~.
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a & ealat
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traurotionr whlahare lavolvd,ubo lollaot m-
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prematl aA xAEurukoecurlor in it8 rolatloa
to f&q pa
4 110.
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traIlraotlonB. Thieshall~~&brooartcoadto aaka
& 8olloltor of 8 Lo-l u*oordlAgaeAt rho DhO.8
bwlneor OS a 01888rhlohthe rulesuif#a mm-
p a yo r eur luroqpln to b o plaobdo nlp lloa-
tion or to bs urltten in a rupenlror~offPoe.
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-eat for an In8uranoo Con ianyor Inauranoo
cfurlbr,ho dall D&CO appPloatloafor a lloemr
$0 t&O BoardOf ~1~~300 ~BliOAOLT, in 8Qoh
fom as the Board r e y a r e,
UAa luoh liaum.
bay be lnae4 b7 ax soar4la tb fora propsred
b7 it nhea he shallbo fopadof ooa oharaotor
and go06 zeputatlon.Thooar4Li+utholltito
leruslloamor t4 firm or to iallridaalr mns
ini;(18DUt2l.r~in the bIDUre!iW bUdLWWS WW Y-d-
ed tbe aamssof all perronalntuestodin luoh
t&man rmlab4lathouooMa,uld prori6od,tur,
thor,that all lioa68d a&mts mtut be tuidrntr
of Tnar. ~?roridedthat a personrhor~nf rulda
in a tom tboryb &Oh tti8Stat0linev NO
and uho80reeideaoeI la the t-oarin tbo a&e-
lA& St&4 may be llooauod,ii &.&a8 clurl
lart preo~d.lx& tuo ~08x0b8wallOmbSO4b74 h0
~~te,amllf hlr bwineu otflorbag benrnd b
zmlntulaed lnthl8 Stat& Iha IWrQ rball
not 7 UP. 4 liouur to 8 OorpMtlOlL.
“8W. ‘ls. ~0 prwlrlo~ of thir rot 8hall
app17to #mUSo Irrruranrs bwti@$aororL~
DODUtilWUt Of tba OOmwB%U lW
Y
*ball 1t appl7to an7 of tlk.folwlp, na34l
BOA. %kUYiAHdl, Db&O 4
(d)Aa Goneral Agait or State Aqontor
BranohUmagsrrbpnrbntlag UL dmltted and
lloulmdIMuranooCamp or Carrlu, or In-
arm00 Cerpsmlu or ,Cax us in 4 6up6nleor7
44paolt7.*
Ad010 lSOZ,YWaon*0 maotated ClvllStatutes,
rhioh6~oolSlee th purpo8u for whloh pritnk oorporatloat
may be foraub,doornot aotlmrlu iaruranoe ageate who60
dutlu am of a 8uponleor7 nature to iooerporato. Sootloa
s OfATtiOiO %mzA, lUp4 OpWifiO&di7pOTid that *thb
SoaiM shall not leeuo 8 Ike* to 8 oorpor4tiona. wade2
Seotloal2 of the6~43~rtlole, gramal agrntrara exoluaed
fTopPd.l tbb ~OViSiOM Of th. AOt, plWVi&i~ iA pW'trat
rorlIloa or this rot elmllapply to ,.,
or state agent or braaob eumag8r reprosea
""I lng an ail-
ttod and liomml Inrruraaeo Compaayor Carrier, or nuur-
anaaCompaalee or Carrlbnla a lu srvleor7 0apaolW.
Borstor, aa abow rtated # :rtlol~P 3O&,lupra,dOb6 not
euthorlsr generaliasuranoo qrnt.6jhoeobut108am of a
eupamleor~ aaturato lnoorpowtr.vie60 not think that
Seotlon12 of ~Hlolo E-06& eupra, author1544 tbb lmor-
Hr6ttOA of genbml lA6Ar6Aoo 6ggsnt6 for the purposes above
lncrloatbd. Although 6uoh egonteare 0xOlUdeU from all the
prtielo~ of the rot undrr SOOtlOA12 of iZtlOl~-~o~2A~
lupra l
In lieu of the'foregolaglta tutw,
you are ro-
lpeotful4 adti44d thatit ls the opinion of thl.0
4s rt-
meAt.thatyOur Qtlb#tiOA riv..
Auut be anawaredlA tilelrsga
¶'rurw that tho fully
fbrrgoing annuar6yoaT
lAQulry,wo remalA
Tour8tory truly | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4155464/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
130
KA 14-01899
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RODNEY MCFARLAND, DEFENDANT-APPELLANT.
CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.
Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Monroe County (Thomas E. Moran, J.), dated August
29, 2014. The order denied the motion of defendant to vacate the
judgment of conviction pursuant to CPL 440.10.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the motion pursuant to CPL 440.10 (1)
(g) is granted, the judgment of conviction is vacated, and the matter
is remitted to Supreme Court, Monroe County, for further proceedings
on the indictment.
Memorandum: On a prior appeal, we remitted the matter to Supreme
Court to conduct a hearing on defendant’s motion pursuant to CPL
440.10 (1) (g) seeking vacatur of the judgment “on the ground that new
evidence has been discovered since the entry of the judgment, which
could not have been produced at trial with due diligence ‘and which is
of such character as to create a probability that had such evidence
been received at the trial the verdict would have been more favorable
to the defendant’ ” (People v McFarland, 108 AD3d 1121, 1121, lv
denied 24 NY3d 1220). Defendant alleged that a statement of a third
party that it was he, and not defendant, who shot and killed the
victim, constitutes a statement against penal interest and that, if
the statement had been admitted in evidence at trial, the verdict
would have been more favorable to defendant. We remitted the matter
for a hearing to determine whether the third party was unavailable to
testify “and, if so, whether there is ‘competent evidence independent
of the declaration to assure its trustworthiness and reliability’ ”
(id. at 1123). Following the hearing, the court denied the motion.
That was error. We therefore reverse the order.
The third party appeared at the hearing and exercised his Fifth
Amendment right to remain silent. Thus, the court properly determined
-2- 130
KA 14-01899
that he is unavailable to testify. Defendant called to the stand to
testify the person to whom the third party allegedly made the
admission. That witness testified that the third party told him in
2003 at the Monroe County Jail that it was he who shot the victim and
that he implicated defendant because “he did what he had to do” to
avoid “serious jail time.” The witness’s testimony varied from the
factual averments set forth in an affidavit he sent to defendant’s
counsel in 2007. The witness averred in his affidavit that the third
party told him that he and defendant went to the victim’s house where
he had a confrontation with the victim because the victim owed him
money. During the hearing, however, he testified that the third party
said that the victim owed defendant money and that, after the victim
punched defendant, the third party shot the victim. An eyewitness
testified at the trial that “in her quick glance out of a window” she
saw defendant engaged in a struggle on the porch with the victim
(id.). She further testified, however, that while defendant, the
victim, and the third party were inside the residence, the third party
and the victim were engaged in a loud dispute and that defendant was
not part of that dispute. We note that our prior decision erroneously
states that other witnesses “testified” that they heard the victim
pleading with the third party by name before they heard gunshots
(id.). That information was provided in defendant’s CPL 440.10 motion
through statements of those eyewitnesses to the police, but there was
no testimony to that effect at defendant’s trial. In any event, an
investigator hired by defendant’s attorney testified during the 440.10
hearing that the third party admitted to her that he was at the scene
and that he had a dispute with the victim. He also told the
investigator, however, that defendant was not present and that the
victim was shot by a person who ran onto the porch and pushed the
third party away from the victim. Also admitted in evidence at the
440.10 hearing were letters written by defendant’s wife to the third
party and letters ostensibly written by the third party to defendant’s
former attorney.
Following the hearing, the court determined that the testimony of
the witness who testified that the third party made the incriminating
statement to him was “incredible as a matter of law.” The court also
determined that the letters ostensibly written by the third party were
“lacking in evidentiary foundation, and thus, authentically unreliable
and untrustworthy,” explaining that it had compared the signatures on
those letters with the third party’s signature on his statement to
police implicating defendant in the crime. The court therefore
concluded that the third party’s statement would not be admissible at
trial as a declaration against penal interest.
As a preliminary matter, it is well settled that a “less
stringent standard [of admissibility] applies, where, as here, the
declaration is offered by defendant to exonerate himself rather than
by the People, to inculpate him” (People v Backus, 129 AD3d 1621,
1624, lv denied 27 NY3d 991; see McFarland, 108 AD3d at 1122).
Furthermore, the statements attributed to the third party “all but
rule[] out a motive [for the third party] to falsify” the statement
that it was he, and not defendant, who shot the victim (Backus, 129
AD3d at 1624). Thus, in determining whether there is evidence
-3- 130
KA 14-01899
constituting “sufficient supportive evidence of a declaration against
penal interest[,] . . . [t]he crucial inquiry focuses on the intrinsic
trustworthiness of the statement as confirmed by competent evidence
independent of the declaration itself . . . Supportive evidence is
sufficient if it establishes a reasonable possibility that the
statement might be true. Whether [the hearing] court believes the
statement to be true is irrelevant . . . If the proponent of the
statement is able to establish this possibility of trustworthiness, it
is the function of the jury alone to determine whether the declaration
is sufficient to create reasonable doubt of guilt” (People v Settles,
46 NY2d 154, 169-170 [emphasis added]).
We conclude that defendant provided sufficient competent evidence
at the 440.10 hearing to establish the “possibility of
trustworthiness” of the third party’s statement to satisfy the
requirement that the statement was a declaration against penal
interest. In addition to the trial testimony that the third party was
engaged in a dispute with the victim, the third party admitted to the
defense investigator that he was present and engaged in a dispute with
the victim and that he wrote the letters to defendant’s former
attorney. Thus, we conclude that the third party is unavailable and
that his alleged statement is “supported by independent proof
indicating that it is trustworthy and reliable” and thus that it is a
statement against penal interest (People v Ennis, 11 NY3d 403, 412-
413, cert denied 556 US 1240; see People v Brensic, 70 NY2d 9, 15).
Furthermore, the statement is “clearly exculpatory of the defendant”
(People v Deacon, 96 AD3d 965, 968, appeal dismissed 20 NY3d 1046).
We therefore conclude that defendant met his burden of establishing,
by a preponderance of the evidence (see CPL 440.30 [6]), that the
third party’s statement against penal interest was not available at
the time of defendant’s trial and “is of such a character as to create
a probability that had such evidence been received at the trial the
verdict would have been more favorable to the defendant” (CPL 440.10
[1] [g]; see People v Bailey, 144 AD3d 1562, 1564).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 03-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4187876/ | Filed 7/20/17
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S075725
v. )
) Los Angeles County
KIONGOZI JONES, ) Super. Ct. No. NA031990-01
)
Defendant and Appellant. )
____________________________________)
A jury found defendant Kiongozi Jones guilty of two counts of first degree
murder (Pen. Code, §§ 187, subd. (a), 189),1 one count of attempted murder
(§§ 187, subd. (a), 664), one count of assault with a firearm (§ 245, subd. (a)(2)),
and one count of shooting at an inhabited dwelling (§ 246). The jury found true
allegations that defendant had personally used a firearm (all counts; §§ 1203.06,
subd. (a)(1), 12022.5, subd. (a)); that the attempted murder had been willful,
deliberate, and premeditated (§§ 189, 664, subd. (a)); that defendant, in
committing attempted murder, had personally inflicted great bodily injury upon a
human being (§ 12022.7, subd. (a)); and that defendant had previously been
convicted of robbery (all counts; §§ 211, 667, subd. (a)(1), 667.5, subd. (b)). The
jury also found true the special circumstance allegation that defendant had been
convicted of multiple murders in the same proceeding. (§ 190.2, subd. (a)(3).)
1 Further undesignated statutory references are to the Penal Code.
1
The jury fixed the penalty at death. This appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment.
I. BACKGROUND
In the span of a few minutes on the evening of December 6, 1996, four
people — Mario Lopez, his sister Veronica Munguia, Angel Villa, and Nery
Hernandez — were shot in the vicinity of an apartment building located at 1700
Pacific Avenue, in Long Beach. Lopez was shot twice outside of the ground-floor
apartment where Munguia and another sister lived. Munguia was hit in the knee
by a bullet that entered the apartment. Villa was riding a bicycle near the
intersection of 16th Street and the alley behind the apartment building, when a
man grabbed him by the neck and shot him in the head. The shooter then
proceeded in the direction of Pine Avenue, where a car was backing out of a
driveway. The shooter approached the car and shot the driver, Hernandez, in the
chest. Lopez and Villa died, but Munguia and Hernandez survived.
Two police officers received a call regarding the shooting at 1700 Pacific
Avenue and were told that two male African-American suspects were seen
running toward Pine Avenue. The officers stopped by 1708 Pine Avenue, which
was near the crime scene and was a known hangout for members of the Crips
gang. The officers spoke to defendant and Melvin Sherman, among others. A few
days later, the police arrested defendant and Sherman, and the prosecution charged
them with crimes pertaining to these events.
A. Defendant’s First Trial
Defendant and Sherman were initially charged jointly with two counts of
murder (Lopez and Villa) and two counts of attempted murder (Munguia and
Hernandez). Lengthy pretrial proceedings not relevant to the issues presented on
appeal resulted in dismissal of these charges. Defendant was then charged
2
separately with, pleaded not guilty to, and was held for trial on two counts of
murder (Lopez and Villa), one count of attempted murder (Hernandez), one count
of assault with a firearm (Munguia), and one count of shooting at an inhabited
dwelling. After Sherman was held to answer on related charges, the prosecution
moved to consolidate defendant‘s case with Sherman‘s. The trial court denied this
motion. Defendant‘s trial occurred in January 1998. The jury deadlocked and the
court declared a mistrial.
B. Defendant’s Second Trial
After defendant‘s first trial, the trial court granted the prosecution‘s motion
to consolidate defendant‘s case with Sherman‘s. The prosecution filed an
amended information charging Sherman individually with one count of conspiracy
to commit murder and defendant and Sherman jointly with two counts of murder
(Lopez and Villa), one count of attempted murder (Hernandez), one count of
assault with a firearm (Munguia), and one count of shooting at an inhabited
dwelling. The prosecution sought the death penalty for defendant but not for
Sherman. (Unless otherwise specified, all facts and analysis relate to defendant‘s
second trial.)
1. Guilt Phase
The prosecution presented evidence showing that the shootings were part of
an escalating gang war, with two African-American gangs, the Insane Crips and
the Rolling 20‘s Crips, on one side, and a Hispanic gang, the Eastside Longos, on
the other. Defendant ―had been beaten up by someone just described as a
Mexican,‖ and the prosecution argued that the shootings were ―payback of sorts.‖
Defendant and Sherman spent part of the evening of December 6, 1996, at 1708
Pine Avenue, apartment 4. Within a span of about five minutes, they left the
apartment, shot the victims, and returned. The prosecution contended that
3
defendant was the shooter, and Sherman aided and abetted him. Defense counsel
took the position that ―[t]he sole issue in this case is identification,‖ and,
accordingly, principally sought to undermine witnesses‘ identifications of
defendant as a perpetrator.
a. Prosecution Case
i. Background Gang Evidence
Detective Victor Thrash of the Long Beach Police Department testified that
the Rolling 20‘s Crips and the Eastside Longos claimed the area around 1700
Pacific Avenue and 1708 Pine Avenue as their turf, and there was a ―black–brown
war that was going on within that specific area.‖ Officer Freaman Potter of the
Long Beach Police Department, a gang expert, gave general background about
gangs and gang culture. He testified that the Insane Crips and the Rolling 20‘s
Crips, two African-American gangs, and the Eastside Longos, a Hispanic gang,
were among the largest and most violent gangs in Long Beach. He testified that
he recognized defendant as a member of the Rolling 20‘s Crips and explained the
significance of defendant‘s tattoos, which appeared to be related to the Rolling
20‘s Crips. Officer Potter said that if a member of the Rolling 20‘s Crips were
―beaten down physically by a Hispanic gang member,‖ he would have to respond
or ―the rest of the gang members would view [him] as weak.‖
Officer John Stolpe, Officer Michael Schaich, and Detective Steven Lasiter,
all of the Long Beach Police Department, testified that they each separately had
contact with defendant in April or May 1990 and, on those occasions, defendant
told each of them that he was a member of the Rolling 20‘s Crips. Defendant told
Officer Stolpe that he used the moniker ―Swoop.‖ Defendant told Officer Schaich
that he used the moniker ―Key Loc.‖ And defendant told Detective Lasiter that he
used the moniker ―Chicken Swoop.‖ Defendant had the words ―Little 20 Swoop‖
4
tattooed on the inside of his right forearm. Officer Potter testified that that ―could
be his gang name.‖
Officer Erik Herzog of the Long Beach Police Department testified that he
spoke to Rosalind Gilyard, Sherman‘s mother, a week after the shootings.
According to Gilyard, Sherman said he could not come to her neighborhood
because there were a lot of Hispanic gangs, and he was a member of the Rolling
20‘s Crips. Gilyard testified that she told Officer Herzog that Sherman was a
member of the Rolling 20‘s Crips, but she thought ―he was younger when he was
involved in that.‖ Sherman showed the jury his tattoos — a ―2‖ on the back of his
left arm and a ―0‖ on the back of his right arm.
ii. Lopez and Munguia Shootings
(a) Amber Gutierrez
Amber Gutierrez was at 1700 Pacific Avenue, visiting the apartment where
Lopez‘s sisters lived, on the evening of December 6, 1996. A group of people had
gathered at the apartment. Gutierrez was a member of the Eastside Longos, but
she did not think anyone else at the apartment was a member. She was on the
couch, talking on the telephone, and a man walked by the front door toward the
alley; she heard him talk to somebody else but could not hear what they were
saying. Lopez walked outside, and Anna Granillo, one of his sisters, entered the
apartment. Right after that, Lopez was shot; he stumbled inside the apartment and
fell down. Other bullets entered the apartment; one struck a balloon and another
struck Munguia, who had entered the living room to get her daughter after she
heard the shots. Gutierrez identified Sherman as the man who had walked by the
front door. She saw a glove and a gun, but she did not see the face of the person
who fired the shots. Although Gutierrez had seen defendant in the neighborhood,
5
and he had previously ―yell[ed] gang stuff‖ at her and her friends, she did not see
defendant that evening.
(b) Veronica Munguia
Veronica Munguia, one of Lopez‘s sisters, lived in an apartment at 1700
Pacific Avenue, and was home on the evening of December 6, 1996. She knew
members of the Eastside Longos. Munguia was in the bedroom of the apartment
when Granillo entered the bedroom; shots were fired shortly thereafter. Munguia
ran into the living room to get her daughter; Lopez, who had been shot, pushed her
daughter toward her. Munguia was hit in the knee by a bullet that came through
the wall, and she ran back into the bedroom. Lopez collapsed in the hallway of the
apartment after being shot. Munguia did not see who did the shooting.
(c) Anna Granillo
Anna Granillo, Lopez and Munguia‘s sister, lived with Munguia at 1700
Pacific Avenue, and was home on the evening of December 6, 1996. That day,
she had made several trips between the apartment and a nearby laundry room,
doing laundry and returning to the apartment to fold and hang up clothes. On her
last trip from the laundry room, around 7:00 p.m., she saw Lopez outside the
apartment and two men by the alley. She told Lopez to ― ‗watch out‘ ‖ and walked
into the apartment with her laundry, ―and that‘s when they started shooting.‖ She
identified defendant and Sherman as the men she saw by the alley before the
shooting began, but she did not see the shooting.
iii. Villa and Hernandez Shootings
(a) Maria Jaramillo
Maria Jaramillo was at home at 126 West 16th Street on the evening of
December 6, 1996. She was outside playing with her nephews when she heard
gunshots. She took her nephews inside, then went back outside. She observed a
6
man, whom she identified as defendant, walk out of an alleyway in the direction of
Pine Avenue. Another man went by on a bicycle from the direction of Pacific
Avenue; defendant grabbed him by the neck and shot him in the head. She saw
defendant proceed toward a car that was backing out of a driveway; she went back
inside, heard more shots, went outside, and saw the two victims of the shootings,
Villa and Hernandez.
(b) Nery Hernandez
Nery Hernandez testified that he lived at 1601 Pine Avenue, and was
leaving his house with his family shortly before 7:00 p.m. on December 6, 1996.
He backed his car out of his driveway and got out to close the gate. He saw a
Hispanic man on a bike and an African-American man, whom he identified as
defendant, about 10 or 15 feet away; they looked like they were arguing. He saw
defendant point a gun at the Hispanic man, and he heard one or two shots. He got
back into the car and tried to leave, but could not because there was a car behind
him; when he turned back around, defendant was standing in front of the car,
pointing a gun at him. Defendant fired, and Hernandez was struck in the chest.
Hernandez saw defendant run toward Pine Avenue.
iv. Subsequent Investigation
Officer Peter Anderson of the Long Beach Police Department testified that
he and his partner, Officer Ernie Kohagura, responded to a report of a shooting at
1700 Pacific Avenue, shortly before 7:00 p.m. on December 6, 1996. The radio
dispatch stated that two male African-American suspects had been seen running
eastbound toward Pine Avenue. Because other officers had secured the crime
scene, and believing the shooting may have been gang related, Officers Anderson
and Kohagura went to 1708 Pine Avenue, a nearby hangout for members of the
Crips. Defendant was standing outside the front door of apartment 4. After
7
defendant saw the officers, who were in uniform, he quickly turned and went
inside the apartment. The officers went to the apartment, conducted a protective
sweep, spoke to the occupants, and filled out field identification cards on
defendant and Sherman. Officer Kohagura testified and gave a similar account.
Detective William Collette of the Long Beach Police Department, one of
the lead investigators, testified regarding the crime scenes, the locations of the
victims, and the collection of shell casings that were found.
Detective Thrash testified that he interviewed Leslie Rainey, a friend of
defendant‘s and Sherman‘s, a week after the shootings. Rainey used the
nicknames ―Swoop‖ and ―Baby Troub‖ when referring to defendant and Sherman,
respectively. He said that he was at 1708 Pine Avenue, apartment 4, with
defendant, Sherman, and four women on the evening of December 6, 1996.
Rainey told Detective Thrash that defendant and Sherman had left for about five
minutes and returned together, and defendant had said ― ‗something must have
happened out there outside because there are a lot of police.‘ ‖ Rainey also said
―Swoop [defendant] was mad cause he was beat down . . . by a Mexican earlier
that week.‖
Rainey also testified that he was at 1708 Pine Avenue, apartment 4, with
defendant, Sherman, and four women on the evening of December 6, 1996. They
were planning to watch the television show Martin, which played at 6:00 p.m. and
6:30 p.m. Defendant stepped just outside the apartment for about five minutes and
came back inside to watch the show. The broadcast of Martin was interrupted by
news of the shootings. Officers Kohagura and Anderson showed up to talk to
them about the shootings, and Rainey was interviewed a week later by detectives.
Rainey denied ever having told the police that defendant and Sherman left together
for five minutes. He also denied telling Detective Thrash that defendant had said
― ‗he had a fight with some Mexicans.‘ ‖
8
Detective Craig Remine of the Long Beach Police Department, one of the
detectives assigned to the case, testified that he checked the distance between the
scenes of the shootings. He said it took him about 55 seconds to walk the distance
between the three locations and about 30 seconds to jog it.
Dale Higashi, a senior criminalist with the Los Angeles County Sheriff‘s
Department, testified that he examined eight .40-caliber shell casings that were
collected from the scenes of the shootings. In his opinion, all of the shell casings
came from the same semiautomatic pistol. He neither possessed nor examined the
pistol from which the bullets were fired.
Dr. Suko Jack Whang, a deputy medical examiner with the Los Angeles
County Coroner‘s Office, testified that Lopez had been struck by two bullets. One
of the bullets struck Lopez in the chest and lacerated his heart, killing him.
Dr. Thomas Gill, a forensic pathologist with the Los Angeles County
Coroner‘s Office, testified that Villa died of a gunshot to the right eye, which
entered the brain.
b. Defense Case
i. Gregory Sinsun
Gregory Sinsun testified that he was with Granillo and others in the
bedroom of the apartment at 1700 Pacific Avenue on the evening of December 6,
1996. Granillo was in his presence during the shooting, and he did not see her
moving her laundry around at that time.
ii. Officer William Jarman
Officer William Jarman of the Long Beach Police Department testified that
he interviewed Granillo on the night of December 6, 1996. Granillo told Officer
Jarman that she was in the bedroom of the apartment, ―heard several loud
gunshots,‖ ―dropped to the floor,‖ and ―never left that bedroom.‖ Officer Jarman
9
also interviewed Sinsun the same night, and he said he was in the bedroom with
Granillo that night, ―heard several loud shots and dropped to the ground and never
left the bedroom.‖
iii. Robert Elder
Robert Elder was unavailable to testify at defendant‘s second trial, and the
trial court permitted defendant to introduce the testimony Elder gave during
defendant‘s first trial. Elder was Hernandez‘s upstairs neighbor, and he was at
home on the evening of December 6, 1996. He heard three gunshots and went to a
window, where he saw a stocky man with a large afro shooting down the street
with a ―long gun,‖ ―a .45,‖ ―like Clint Eastwood had.‖ The man walked down
16th Street toward Pine Avenue, got into a car with two other people, and drove
off. Elder did not see the man‘s face, and from his vantage point, he could not see
the shooting victims. After the man left, Elder went outside and saw that Villa and
Hernandez had been shot. Elder further stated that he did not recognize defendant
from a photo lineup that defense counsel had previously shown him.
c. Jury Verdict
On July 31, 1998, the jury found defendant guilty of two counts of first
degree murder (Lopez, count 2; Villa, count 3; §§ 187, subd. (a), 189), one count
of attempted murder (Hernandez, count 4; §§ 187, subd. (a), 664), one count of
assault with a firearm (Munguia, count 5; § 245, subd. (a)(2)), and one count of
shooting at an inhabited dwelling (count 6; § 246). With respect to each count, the
jury found true the allegation that defendant had personally used a firearm.
(§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) With respect to count 4, the jury
found true allegations that the offense had been willful, deliberate, and
premeditated (§§ 189, 664, subd. (a)) and that defendant had personally inflicted
great bodily injury upon a human being (§ 12022.7, subd. (a)). With respect to
10
counts 5 and 6, the jury found not true the allegation that defendant had personally
inflicted great bodily injury upon a human being. (Ibid.) Finally, the jury found
true the special circumstance allegation that defendant had been convicted of at
least one count of first degree murder and one or more counts of first or second
degree murder in the same proceeding (i.e., the multiple-murder special
circumstance). (§ 190.2, subd. (a)(3).)2
2. Penalty Phase
a. Aggravating Evidence
During the penalty phase, the prosecution introduced evidence that
defendant had been involved in six prior uncharged criminal incidents: (1) the
April 1990 attempted murder of Matthew Ferguson and Quincy Sanders;
(2) carrying a concealed weapon, a loaded revolver, in June 1990; (3) the June
1990 robbery of Sarom Sao at gunpoint; (4) the August 1990 murder of Carl
Milling; (5) the May 1991 attempted murder and assault with a firearm of Artis
Lisby; (6) and the September 1991 murder of Ronald Broussard. The prosecution
also introduced evidence that defendant had pleaded guilty in 1992 to the robbery
of Charles Loch, for which he received a three-year prison sentence.
The prosecution also presented victim impact evidence. Anna Munguia,
Lopez‘s mother, went to the hospital with Lopez after he was shot and was there
when he died. She testified that Lopez‘s death ―hurts a lot.‖ He ―got along with
2 The jury found Sherman not guilty of conspiracy to commit murder (count
1; § 182, subd. (a)(1)) and guilty of counts 2 through 6, as recited above. The
prosecution did not seek the death penalty for Sherman. The Court of Appeal
affirmed Sherman‘s judgment of conviction, and we denied review. (See People
v. Sherman (June 23, 2000, B128330) [nonpub. opn.], review den. Aug. 30, 2000,
S090284.)
11
everybody‖ and was not involved in gangs like his brothers. Margarita Rodriguez,
Villa‘s widow and the mother of his children, identified Villa‘s body after he was
killed. She testified that he was a ―very good‖ person, and Villa‘s death affected
their four children ―a lot.‖ Inez Villa Uriarte, Villa‘s sister, testified that Villa was
the best of her brothers and was a loving father. She helped to take care of Villa‘s
children after his death. The children were very affected by the loss of their
father.
b. Mitigating Evidence
Defendant presented testimony from 13 witnesses as mitigating evidence.
They testified that defendant‘s father had drug and alcohol problems, which
―messed [defendant] up‖ and caused defendant to lose respect for his father.
Defendant was raised mostly by his mother and grandmother, who took good care
of him, but his father was also around until defendant was in high school.
Defendant is the youngest of seven children, and most of his siblings had spent
significant time in prison. Defendant was not a disobedient child, but ―went the
wrong place at the wrong time‖ and spent some time in prison. Defendant was a
kind, respectful, fun-loving person and a good father to his four children, and he
was trying to get his life together. Several witnesses were unaware of defendant‘s
gang membership. Not long before the shootings, defendant sought employment
with a community outreach program that hired former gang members and tried to
prevent gang violence. An employee of that organization believed defendant was
no longer an active gang member.
c. Jury Verdict
On August 13, 1998, the jury fixed the penalty at death. At the same time,
the jury also found true the allegation that defendant had been previously
12
convicted of robbery, a sentencing enhancement that had been bifurcated from the
guilt phase. (§§ 211, 667, subd. (a)(1), 667.5, subd. (b).)
3. Posttrial Proceedings
Defendant filed a motion for a new trial, claiming, among other things,
insufficiency of the evidence, prosecutorial misconduct, and ineffective assistance
of counsel, which the trial court denied. The trial court also denied the automatic
motion to modify the verdict (§ 190.4, subd. (e)) and imposed a judgment of death.
This automatic appeal followed.
II. DISCUSSION
A. Guilt Phase Issues
1. Restriction of Cross-examination
Defendant argues that the trial court improperly prevented him from cross-
examining Munguia, Granillo, and Detective Collette about the fact that Granillo
came forward and identified defendant and Sherman only after the prosecutor told
Munguia that the ―case against [defendant] was weak, and that without an
eyewitness to identify him, [he] would likely ‗walk.‘ ‖ He contends that the jury
was deprived of evidence of ―Granillo‘s strong motive to fabricate, [which] would
thus have severely undermined the credibility of her testimony.‖ We find any
error harmless beyond a reasonable doubt.
a. Background
When interviewed by the police on the night of December 6, 1996, Granillo
said she was in the bedroom of the apartment at the time of the shootings and
could not identify anybody involved. She did not talk to anybody else about the
case for more than a year. On December 8, 1997, after jury selection in
defendant‘s first trial had begun, Patrick Connolly, who was then the prosecutor,
spoke to Munguia about ―how the case looked and what the evidence was.‖ He
13
asked for her help in locating witnesses, because ―there was a possibility that the
defendant would be walking out the door at the end of this trial.‖ Munguia called
Connolly that night and told him that Granillo had seen ―two male blacks enter the
apartment complex.‖ Granillo contacted Connolly and gave a statement to
Detective Remine, in which she identified defendant and Sherman as having been
in the alley behind the apartment building right before the shootings occurred.
(She ultimately testified to that effect in both trials.)
i. Defendant’s First Trial
At defendant‘s first trial, the trial court ruled that testimony regarding
Munguia‘s conversation with Connolly would be excluded as hearsay. ―What I
want to exclude is the conversation between Mr. Connolly and Miss Munguia.
You can certainly — and put this in context as well. That late in these
proceedings, she informed the — I believe Mr. Connolly that Miss Granillo had
something to say. And then when Miss Granillo is called to testify, you can then
question her concerning her motivation for changing her testimony or statement or
adding to her testimony or statement as previously given. You can cross-examine
her concerning that.‖
During cross-examination, Munguia testified that she provided Connolly
with Granillo as a witness. Defense counsel then asked, ―What were the
circumstances that brought about you notifying the district attorney with Anna
Granillo‘s information?‖ Consistent with its earlier ruling, the trial court sustained
the prosecution‘s objection to the question as calling for hearsay, namely, the out-
of-court statements Connolly made to Munguia. The court permitted defense
counsel to ask Munguia whether she had had an interview with Connolly and
provided Granillo as a witness only after that interview. Munguia answered in the
affirmative.
14
On cross-examination, Granillo testified that she had lost her memory of
the shootings until about a week before she came forward as a witness. She talked
to Munguia around December 8, 1997, and learned that Munguia had met with
Connolly. At a sidebar, defense counsel stated, ―I am going to ask [Granillo] . . .
if [Munguia] told her that [Connolly] told her about the case. . . . I am going to
ask . . . exactly what [Munguia‘s] words were. That [Connolly] thought the case
was weak and needed additional witnesses. I am going to make the connection.
That‘s why her memory came back.‖ The prosecution objected on hearsay
grounds. Consistent with its earlier ruling, the trial court allowed defense counsel
to ask Granillo whether Munguia had told her to come forward and testify, ―as
long as it is not a repetition of the statement by Mr. Connolly.‖ Defense counsel
then asked Granillo whether, as a result of Munguia‘s conversation with Connolly,
Munguia informed her that the prosecution needed her testimony. Granillo
responded that she told Munguia the truth about what she saw, and Munguia asked
her to tell the prosecution the same thing.
ii. Defendant’s Second Trial
Defendant‘s second trial began almost six months after defendant‘s first
trial ended. A different prosecutor, Steven Schreiner, tried the case. The trial
court did not enter an advance ruling regarding Munguia‘s conversation with
Connolly, as it had in the first trial. Before Munguia testified, and outside of the
presence of the jury, Schreiner stated: ―She [Munguia] and, I believe, Anna
Granillo, the next witness, are going to be attacked as essentially concocting and
bringing in Miss Granillo late into the proceedings through Mr. Connolly. I have
subpoenaed Mr. Connolly. [¶] Depending on how far we go into that — I know
there were discussions at the previous trial about hearsay and the conversations
15
and all of that. So depending on what takes place there, I may have to bring in
Mr. Connolly to rebut that.‖
On cross-examination, Munguia testified that she had had a conversation
with Connolly on December 8, 1997, and ―[a]s a result of that conversation [she]
had with the district attorney, . . . [she was of the] state of mind that [she] needed
to obtain an additional witness.‖ Defense counsel followed up, ―Is it also true that
as a result of that conversation with Pat Connolly, the district attorney, on
December 8th, 1997, that you were of the state of mind that the reason that you
needed an additional witness was because the case was weak, correct?‖ The
prosecution objected to the question as ―calling for speculation,‖ and the trial court
sustained the objection. Defense counsel did not rephrase the question, but asked
two more questions, eliciting testimony that Munguia spoke with Granillo after her
conversation with Connolly, and then Granillo came forward. On redirect
examination, Munguia testified that she asked Granillo to talk to Connolly about
what she knew, but did not ―force her or make her say anything‖ in particular. On
recross-examination, Munguia testified that Connolly asked her if she could help
him in the case. Defense counsel followed up, ―It is true that he also informed you
that he needed additional witnesses, correct?‖ The prosecution asked to approach
the bench, the trial court overruled any objection, and Munguia answered in the
affirmative.
On cross-examination, Granillo testified that around December 8, 1997, she
found out from Munguia that defendant‘s first trial had started. Granillo learned
that Munguia had met with Connolly. As a result of that conversation, Munguia
asked Granillo to call Connolly. Granillo did call Connolly and gave a statement
implicating defendant and Sherman. Defense counsel did not ask Granillo about
the details of Munguia‘s conversation with Connolly.
16
Six days later, Detective Collette testified. On cross-examination,
Detective Collette testified that he was present when defense counsel interviewed
Munguia. He heard Munguia state that she had had a conversation with Connolly
and that as a result of the conversation, she ―felt obligated to find additional
witnesses,‖ after which point she spoke to Granillo. Defense counsel asked
Detective Collette what Munguia said about why she felt obligated ―as a result of
the conversation she had with [Connolly] regarding the evidence in this case.‖
The prosecution requested a sidebar. Defense counsel stated that she intended to
ask whether Detective Collette heard Munguia say that ―Connolly told her that this
was a weak case and, unless they get additional witnesses, that [defendant] would
be walking out the door.‖ Defense counsel initially suggested this line of
questioning was relevant to Detective Collette‘s state of mind. She stated that this
line of questioning went to ―the fact as to why Veronica Munguia went to
[Granillo] and it brings up that whole thing. She told [Granillo] that this is a very
weak case, we need somebody to come forward. [Granillo] says, ‗Okay, I saw
everything.‘ It goes to that, your honor.‖ The trial court noted that ―the person to
ask about that is Anna Granillo, not the detective, not this detective.‖ The
prosecution argued that the testimony sought was ―impermissible hearsay.‖ The
trial court ruled: ―I am not going to permit any questions of this witness
concerning an opinion offered by Mr. Connolly concerning the strengths or
weaknesses of the case. . . . [¶] . . . [¶] You can ask him about his interview with
Miss Granillo and the rest of that, as long as we don‘t get into eliciting any
opinion about the case from Pat Connolly.‖
b. Discussion
Defendant argues that the trial court erroneously excluded as hearsay
evidence of Munguia‘s conversation with Prosecutor Connolly — in which
17
Connolly said the evidence against defendant was weak and that defendant might
―walk‖ at the end of the trial if more witnesses were not located. Defendant
contends that evidence of this conversation was nonhearsay, because it explained
Munguia‘s state of mind in calling Granillo, and, more importantly, Granillo‘s
state of mind and motive to lie when she stepped forward on the eve of trial,
changed her story, and identified defendant as being in the alleyway moments
before the shootings at 1700 Pacific Avenue occurred.
The Attorney General does not dispute that Connolly‘s statement to
Munguia about the strength of the case against defendant could plausibly have
been admitted for legitimate nonhearsay purposes. He thus concedes that the trial
court might have erred in defendant‘s first trial by sustaining the prosecution‘s
hearsay objections to Munguia‘s and Granillo‘s testimony about Connolly‘s
statement. But, the Attorney General argues, the trial court committed no
comparable error in defendant‘s second trial.
The Attorney General observes that the prosecution did not raise hearsay
objections to defense counsel‘s questioning of Munguia and Granillo about
Munguia‘s conversation with Connolly. The prosecution instead objected to the
question defense counsel posed to Munguia — whether she was ―of the state of
mind that the reason that [she] needed an additional witness was because the case
was weak‖ — as calling for speculation. The trial court sustained the objection on
that basis, and defense counsel did not rephrase the question or pursue the matter
further. And in her cross-examination of Granillo, defense counsel never sought
to elicit the details of Munguia‘s conversation with Connolly. The Attorney
General thus contends that defendant has forfeited his claim of error with respect
to Munguia and Granillo. (See Evid. Code, § 354.) The Attorney General further
argues that the trial court‘s ruling with respect to Munguia was not an abuse of
discretion, because the question called for Munguia‘s lay opinion on the strength
18
of the evidence, of which Munguia had no personal knowledge, which would have
not assisted the jury, and which is an improper subject of lay opinion testimony in
any event. (See id., § 800; People v. Rodriguez (2014) 58 Cal.4th 587, 631;
People v. Thornton (2007) 41 Cal.4th 391, 429.) Finally, the Attorney General
argues that the trial court correctly excluded Detective Collette‘s testimony
regarding what he overheard Munguia say about her conversation with Connolly,
because his state of mind was irrelevant, and the testimony would have been
inadmissible multiple hearsay. (See Evid. Code, § 1201.)
Defendant, for his part, argues that he has preserved his claim of error. He
notes that the same judge presided over both trials, the admissibility of Connolly‘s
statement to Munguia was a significant point of contention in both trials, and thus
the ―substance, purpose, and relevance of [Munguia‘s conversation with Connolly]
was made known to the court.‖ (Evid. Code, § 354, subd. (a).) Furthermore,
defendant contends that the trial court‘s rulings demonstrated that the court was
excluding the evidence as hearsay and, thus, any further attempts to introduce it
would have been futile. (Id., subd. (b).) He also disputes that defense counsel‘s
question to Munguia called for speculation. Defendant does not renew his
argument in the trial court that Detective Collette‘s testimony about the
conversation was admissible to show Detective Collette‘s state of mind, nor does
he specifically argue that the trial court‘s exclusion of Detective Collette‘s
testimony was an abuse of discretion under the Evidence Code. But defendant
does argue that the trial court‘s restriction of cross-examination of Munguia,
Granillo, and Detective Collette deprived him of his constitutional rights to
confront adverse witnesses, to present a defense, to a fair trial, and to a reliable
penalty determination.
We need not unravel these competing arguments, because any restriction of
cross-examination was harmless beyond a reasonable doubt, satisfying both
19
federal and state standards of harmlessness. (Chapman v. California (1967) 386
U.S. 18; People v. Watson (1951) 46 Cal.2d 818.) Defendant claims that the trial
court‘s restriction of cross-examination was not harmless because the jury was
deprived of evidence that ―was critical to impeach Granillo‘s testimony that her
statement on the night of the crime was false‖ and her reasons for coming forward
with ― ‗the truth,‘ a full year later, just as the case was going to trial.‖ We
disagree. The jury heard Munguia testify that Connolly told her he needed more
witnesses; that she tried to get her brother Arthur to come forward, but he refused;
and that after she talked to Connolly, she also spoke to Granillo, who then called
Connolly and changed her story about what she had seen. Granillo admitted that
she initially lied about not seeing anything on December 6, 1996, and she testified
that she did so because she feared retaliation and did not want to go through ―the
memory of the loss of [Lopez] again.‖ Defense counsel elicited testimony from
Granillo that she did not tell anybody about seeing defendant and Sherman on the
night of the shootings until she learned from Munguia that defendant‘s first trial
was starting, and that she would not have called Connolly if she had not spoken to
Munguia. Detective Collette also testified that he heard Munguia say she felt
obligated to find additional witnesses after she spoke to Connolly, and only after
that conversation did Granillo come forward and give a different account. Based
on this evidence, defense counsel explicitly invited the jury to make the reasonable
inference that Connolly told Munguia ―obviously, we need additional witnesses.
This is a weak case. We don‘t get additional witnesses, Mr. Kiongozi Jones, he is
going to walk.‖ Defense counsel introduced considerable evidence that tended to
impeach Granillo with respect to her inconsistent statements and reasons for
coming forward; introducing Connolly‘s precise words to Munguia would have
added little, if any, additional value. Any erroneous restriction of cross-
examination was harmless beyond a reasonable doubt. (See Delaware v. Van
20
Arsdall (1986) 475 U.S. 673, 684; cf. People v. Brady (2010) 50 Cal.4th 547, 560–
561.)
2. Exclusion of Robert Robinson’s Testimony
Defendant argues that the trial court erroneously prevented him from
introducing testimony from Robert Robinson during the guilt phase to the effect
that defendant was no longer an active member of the Rolling 20‘s Crips at the
time of the shootings. We find that the trial court did not abuse its discretion in
excluding Robinson‘s testimony.
a. Background
At a hearing held outside of the presence of the jury under Evidence Code
section 402, Robinson testified to the following. Robinson worked as a gang
prevention outreach counselor for an organization that worked closely with the
Long Beach Police Department. Defendant had sought a job with the
organization, and the organization wanted to hire him, as a former gang member,
to work with children in an outreach program. The organization screened
applicants to find out whether they were, in fact, no longer active in a gang.
Robinson believed defendant was no longer active in the Rolling 20‘s Crips, based
on defendant‘s statement that he was no longer active in the gang; discussions
with unspecified gang members and others in the community; and his observations
of defendant, which suggested to Robinson that defendant‘s ―mind was in a
different place.‖
The prosecution objected to the admission of Robinson‘s testimony. The
trial court acknowledged that Robinson‘s testimony was relevant to counteract the
prosecution‘s evidence that defendant was a gang member. It found, however,
that the first two bases for Robinson‘s opinion — defendant‘s own statements and
Robinson‘s discussions with other people — were inadmissible hearsay. The trial
21
court precluded Robinson from testifying during the guilt phase about his belief
that defendant was no longer an active gang member because the only remaining
nonhearsay basis for this opinion — his observations of defendant — was
insufficient.3
b. Discussion
At trial, defendant argued that Robinson could testify about his discussions
with defendant and others regarding defendant‘s past gang membership because
those discussions were admissible for a nonhearsay purpose — to prove
Robinson‘s state of mind. The trial court found such testimony inadmissible for
that purpose because Robinson‘s state of mind was not at issue, and defendant
does not take issue with this ruling on appeal. The trial court recognized that
Robinson‘s own observations of defendant were admissible. But it precluded
Robinson from testifying that defendant was no longer an active gang member
because ―the jury would be misled if they were — because of the hearsay problem,
if they were to hear from Mr. Robinson, that the only basis about which he could
testify would be the personal observations, and that that would not give a complete
record or complete information about Mr. Robinson‘s opinion.‖
―A lay witness may offer opinion testimony if it is rationally based on the
witness‘s perception and helpful to a clear understanding of the witness‘s
testimony.‖ (People v. Leon (2015) 61 Cal.4th 569, 601; see Evid. Code, § 800.)
―By contrast, when a lay witness offers an opinion that goes beyond the facts the
witness personally observed, it is held inadmissible.‖ (People v. McAlpin (1991)
53 Cal.3d 1289, 1308.) The trial court found that Robinson‘s discussions with
defendant, gang members, and others in the community were significant to his
3 Robinson did testify during the penalty phase.
22
opinion that defendant was no longer a gang member, and that his personal
observations of defendant were a ―confirming factor‖ which were not, on their
own, a sufficient basis for his opinion. As a result, it had discretion to exclude
Robinson‘s opinion. (See Evid. Code, § 803 [―The court may, and upon objection
shall, exclude testimony in the form of an opinion that is based in whole or in
significant part on matter that is not a proper basis for such an opinion.‖].)
Defendant offers no reason why the trial court‘s ruling on the matter was an abuse
of discretion, and we find none.
Instead, on appeal, defendant shifts the focus of his arguments. Defendant
first contends that Robinson should have been permitted to testify as a gang expert
and offer his expert opinion that defendant was no longer an active member of the
Rolling 20‘s Crips. If Robinson had been qualified as an expert witness,
defendant argues, he would have been permitted to testify as to his opinion even if
it was based on inadmissible hearsay, such as his out-of-court discussions with
defendant and others. (Evid. Code, § 801; People v. Sanchez (2016) 63 Cal.4th
665, 675–679, 685–686.)4 But defendant admits that ―Robinson was not formally
4 Defendant argues that Robinson should have been permitted to give his
expert opinion that defendant was no longer an active gang member and relate the
basis of such opinion to the jury, even if the opinion was based on otherwise
inadmissible hearsay. Defendant relies in significant part on People v. Gardeley
(1996) 14 Cal.4th 605, 619, in which we held that a gang expert ―could reveal the
information on which he had relied in forming his expert opinion, including
hearsay.‖
After briefing concluded in this case, we decided People v. Sanchez, supra,
63 Cal.4th 665, in which we disapproved Gardeley ―to the extent it suggested an
expert may properly testify regarding case-specific out-of-court statements without
satisfying hearsay rules.‖ (Sanchez, at p. 686, fn. 13.) In Sanchez, we explained
that an expert witness is permitted to ―rely on hearsay in forming an opinion, and
may tell the jury in general terms that he [or she] did so.‖ (Id. at p. 685; see also
id. at pp. 674–679.) But we held that ―[i]f an expert testifies to case-specific out-
(footnote continued on next page)
23
qualified as [a] gang expert,‖ and there is nothing in the record to suggest that
defendant sought to have Robinson testify as a gang expert. On the contrary,
defendant expressly recognized that Robinson was a lay witness. In the trial court,
defense counsel argued that Robinson should have been permitted to testify
regarding defendant‘s statements to Robinson because Sherman‘s mother was
permitted to testify that Sherman told her he was a member of the Rolling 20‘s
Crips: ―The People were allowed to put [Sherman‘s] mother, a lay person, same
as Mr. Robinson, on the stand and ask his mother, . . . ‗Are you aware that he‘s a
gang member?‘ ‗Yes.‘ ‗Did he tell you that?‘ ‗Yes.‘ ‖ (Italics added.) Defense
counsel explained, ―I‘m offering the same thing.‖ Defendant may not assert on
appeal that Robinson was qualified to testify as a gang expert when he did not
urge that theory of admissibility in the trial court. (See Evid. Code, § 354,
subd. (a); People v. Valdez (2004) 32 Cal.4th 73, 109 [we will not address the
merits of a new theory of admissibility ―based on a hypothetical offer of proof‖].)
Defendant also argues that Robinson‘s opinion that he was no longer a gang
member was admissible as evidence of his reputation in the community. Again,
(footnote continued from previous page)
of-court statements to explain the bases for his [or her] opinion, those statements
are necessarily considered by the jury for their truth, thus rendering them hearsay.
Like any other hearsay evidence, it must be properly admitted through an
applicable hearsay exception. [Fn. omitted.] Alternatively, the evidence can be
admitted through an appropriate witness and the expert may assume its truth in a
properly worded hypothetical question in the traditional manner.‖ (Id. at p. 684.)
Because we conclude that defendant did not offer Robinson as an expert
witness at trial and the trial court properly excluded Robinson‘s opinion testimony
during the guilt phase, we need not consider the application of Sanchez to
Robinson‘s out-of-court discussions with defendant and others regarding
defendant‘s past gang membership.
24
there is nothing in the record to suggest that defendant sought to introduce
Robinson‘s testimony or opinion as character evidence. In arguing against the
admission of Robinson‘s testimony, the prosecution recognized that ―clearly, the
Evidence Code does allow a defendant to put his own character in issue, but then,
it allows [the prosecution] to respond to that.‖ Later, the prosecution stated:
―Now, if it‘s going to character, that‘s one thing. But if we‘re talking about
character, then let‘s call it that, and then allow me to respond.‖ (See Evid. Code,
§ 1102; People v. Wagner (1975) 13 Cal.3d 612, 618 [―when the defendant . . . has
injected the issue of his good moral character into the case by direct testimony,
the prosecution may rebut by introducing evidence of the defendant‘s bad moral
character‖].) By not asserting in response that he wanted to introduce Robinson‘s
testimony and opinion as evidence of his good character — and, thus, to open
himself up to evidence of his bad character — defendant has forfeited this
argument. (See Evid. Code, § 354, subd. (a); cf., e.g., People v. Panah (2005) 35
Cal.4th 395, 481.)
Defendant argues that excluding Robinson‘s testimony denied him his
constitutional rights to present his defense, to a fair trial, and to a reliable guilt and
penalty determination. The trial court‘s exclusion of Robinson‘s testimony, which
was not an abuse of discretion under the Evidence Code, did not amount to a
deprivation of defendant‘s constitutional rights. (People v. Jones (2013) 57
Cal.4th 899, 957; People v. Riccardi (2012) 54 Cal.4th 758, 809; People v. Boyette
(2002) 29 Cal.4th 381, 413.)
3. Introduction of Tape Recording
Defendant argues that the trial court erred in permitting the prosecution to
play for the jury a recording of a telephone call between defendant and his brother
25
that took place a few days after defendant‘s first preliminary hearing. We find no
error.
a. Background
Two days after defendant‘s first preliminary hearing, while defendant was
in jail, he placed a telephone call to an unidentified woman. The woman initiated
a three-way connection to a person named Tony, later revealed to be defendant‘s
brother, Tony Frazier. Deputy Sheriff Dale Lovvik monitored and recorded the
call for reasons unrelated to this case. Parts of the recording are difficult to
understand; the prosecution prepared a transcript of the call, and the trial court
interlineated a few corrections to the transcript after it listened to the tape. In the
tape recording, defendant and Frazier discussed what happened at the preliminary
hearing, before moving on to discuss Frazier‘s parole status and other matters.
Selected portions of the transcript of the recording follow:5
―[Frazier]: What‘s up man? I‘ve been waiting on you to call.
―[Defendant]: Uh uh. What you guys doing?
―[Frazier]: Nothin. I talked to Troub man and I‘m trying to get a hold of
the dude so I can find out what happended in there.
―[Defendant]: Huh.
―[Frazier]: Who was it? Why did they detain you.
―[Defendant]: Oh I don‘t know. Oh you talkin my homeboy little Troub?
―[Frazier]: The one you both here.
5 Although the transcript of the tape recording was not introduced as
evidence, both sides quote from it in their briefs. We also use the transcript as the
source of quoted material. All text appears as it does in the original transcript.
26
―[Defendant]: Oh, they sick man. I don‘t know cuz.[6] They pointed cuz
out and kept me man.[7] [¶] . . . [¶]
―[Frazier]: Okay now, who who said something . . . Who is this person, a
lady?
―[Defendant]: Two ladies and uh uh and uh dude, but they ain‘t sayin shit.
They ain‘t sayin nothin. I thinkin they got help. The Judge said no doubt in his
mind that he think I‘m guilty of the crimes. They pointed the homeboy out.
―[Frazier]: Ah ug.
―[Defendant]: Talk about he walk by the door and looked in and uh why
did two minutes after that they‘d seen the glove and gun comin how they seen no
hand and nothin, saw a blast, way out . . . . . . but they dropped that murder. Now
they got me for a murder in the attempt and everybody got shot with the same gun.
It don‘t make no sense, you know you drop one and
6 Officer Potter testified that ―cuz‖ ―is a term that is used with Crips,
specifically Crips, recognizing another Crip.‖ Frazier testified regarding the
meaning of cuz: ―Well, you can take it in two different ways. Gang members use
it for Crips, they use it. But if you — I was born and raised in Long Beach. If you
live in this area, everybody says the word. Ain‘t nobody going to say blood or
brother. Because if you‘re not a gang member and you say blood or brother, they
gonna jump you. So everybody get used to saying the word ‗cuz.‘ It‘s a slang.‖
7 At the preliminary hearing, Gutierrez testified that she saw Sherman walk
by shortly before the shooting began. Jaramillo initially identified Sherman as the
person who shot Villa, but, after some confusion, corrected herself and identified
defendant as the shooter. Hernandez testified that defendant ―look[ed] very much
like‖ the person who shot him and Villa. At the end of the hearing, the trial court
dismissed all of the charges against Sherman. The trial court dismissed one count
of murder (Lopez) and one count of attempted murder (Munguia) against
defendant but ordered defendant held to answer on one count of murder (Villa)
and one count of attempted murder (Hernandez). The prosecution later filed a new
complaint, and defendant was held to answer on all of those charges. (See ante,
pt. I.B.)
27
―[Frazier]: They got you on one.
―[Defendant]: They got me on one murder and an attempt.
―[Frazier]: Now who. How did they get you on this one if they ain‘t got
nobody?
―[Defendant]: I don‘t know cuz. I don‘t know.
―[Frazier]: Well who are these people? Get the transcripts.
―[Defendant]: Yeah, I fixin to tell my lawyers man
―[Frazier]: Okay.
―[Defendant]: But he said he fixen to go out there and investigate. You
know I ain‘t got, I ain‘t do this cuz, they ain‘t go.
―[Frazier]: I know.
―[Defendant]: Don‘t even worry about it.
―[Frazier]: Uhh.
―[Defendant]: Don‘t even worry about it.
―[Frazier]: Man I‘m worried about it man. I know how the folks is.
―[Defendant]: Yeah.
―[Frazier]: I ain‘t just.
―[Defendant]: Nigger need that DA hit that‘s who the nigger need hit.[8]
―[Frazier]: Yeah, but you know, you know
―[Defendant]: You know that‘s what I‘m thinkin fool. He‘s mad because
he‘d come up with that proof on the nigger. [¶] . . . [¶]
8 Officer Potter testified that ―in the gang jargon, hit specifically means
nothing more than commit a murder.‖ Deputy Lovvik testified that he flagged the
telephone call for his supervisors because of the reference to a district attorney
being ―hit.‖
28
―[Frazier]: You know, that got to be a condition of parole is seeing a
psyche. [¶] . . . [¶]
―[Defendant]: Are you crazy?
―[Frazier]: No I ain‘t crazy.
―[Defendant]: Oh . . . Well you should let it roll, it might get you . . .
―[Frazier]: No I ain‘t fittin to play nothin.
―[Defendant]: Yeah.
―[Frazier]: Yeah I gave little Troub.
―[Defendant]: Yeah.
―[Frazier]: Yeah I gave him some and I had found two pistols in the garage
here.
―[Defendant]: Yeah. Don‘t be talkin over the phone cuz, they‘ve got my
girl‘s phone tapped.
―[Frazier]: But anyway I gave them to troub.
―[Defendant]: Is that right.
―[Frazier]: Yeah.‖
The prosecution argued that the tape recording of the telephone call was
―highly relevant as to three areas concerning consciousness of guilt: disposing or
hiding evidence, witness intimidation, murdering a district attorney as well.‖
First, it contended that the recording showed that Frazier gave ―two pistols‖ to
―little Troub,‖ whom the prosecution claimed was Sherman,9 which was probative
9 The only evidence linking Sherman to this nickname was Detective
Thrash‘s testimony that Rainey had referred to Sherman as ―Baby Troub.‖ Officer
Potter testified that, in gang parlance, variations on a moniker generally referred to
different people. Using his own last name as an example, Officer Potter explained
that he would be referred to as ―Big Potter.‖ If he brought somebody into the
gang, that person would be referred to as ―Potter.‖ If ―Potter‖ brought somebody
(footnote continued on next page)
29
because no murder weapon was recovered and Frazier‘s statement was followed
by an admonishment that the telephone was ―tapped.‖ Second, the prosecution
argued that the purpose of Frazier‘s suggestion that defendant ―get the transcripts‖
was to ―intimidate and find out who those [witnesses] are.‖ Third, the prosecution
claimed that defendant‘s statement about needing a district attorney ―hit‖ (i.e.,
murdered) showed consciousness of guilt. Defendant objected that the recording
was difficult to understand, irrelevant, speculative, remote, and more prejudicial
than probative. The trial court permitted the jury to hear the tape, which was
introduced through Deputy Lovvik. The transcript of the recording, with the trial
court‘s corrections, was given to the jurors as an aid for listening to the tape but
was not itself introduced as evidence.
During the defense case, defense counsel called Frazier as a witness.
Frazier testified that at the time of the telephone call, he had recently been paroled
and was not allowed to possess firearms. He found ―two old revolvers,‖ which
were not working, in his garage and gave them to his neighbor, whose street name
was ―Troub.‖ He had never met Sherman and did not know Sherman as ―Troub,‖
―Little Troub,‖ or ―Baby Troub.‖ The conversation about the pistols was not
related to defendant‘s case. Frazier asked about the preliminary hearing
transcripts because he wanted to find out why defendant was bound over after his
preliminary hearing. He thought the witnesses‘ names and addresses would be
(footnote continued from previous page)
into the gang, that person would be referred to as ―Little Potter.‖ If ―Little Potter‖
brought somebody into the gang, that person would be referred to as ―Baby
Potter.‖ Sherman‘s counsel argued that the evidence Sherman used the moniker
―Baby Troub‖ was weak and, in any event, ―Baby Troub‖ would be a different
person than the ―Troub‖ or ―little Troub‖ mentioned in the taped conversation.
30
redacted and did not intend to intimidate or harm anybody. Frazier thought the
reference to ―need[ing] that DA hit‖ was just defendant ―say[ing] things in the
heat of the moment,‖ because he was angry about how his preliminary hearing had
gone; it was not a suggestion for Frazier ―to go out and hit a D.A.‖
Defense counsel also called Darlene Garrett Frazier, Frazier‘s wife, as a
witness. She testified that her ex-boyfriend had left two old revolvers at her
house, which she moved to the garage. Sometime later, she realized the pistols
were missing, and Frazier told her that he had given them to somebody. She did
not have a neighbor named ―Troub‖ or know anybody named ―Troub,‖ nor did she
know Sherman.
At the close of evidence, the prosecution asked the trial court to give
CALJIC No. 2.06, which instructs the jury that attempts to suppress evidence can
be considered as a circumstance tending to show consciousness of guilt, on the
theory that the taped conversation showed that defendant tried to suppress a
weapon used in the shootings. The trial court denied the instruction. It found that
the conversation might support an inference that Frazier suppressed evidence ―in
an attempt to assist the defendant,‖ but it was insufficient ―to indicate that the
defendant was doing something in taking positive step[s] to suppress or conceal
evidence on his own behalf.‖ The trial court did permit the prosecution to argue
during closing arguments that the jury could infer consciousness of guilt from the
conversation, and the prosecution did so.
b. Discussion
Defendant argues that the tape recording was inadmissible because it was
irrelevant and more prejudicial than probative. (Evid. Code, §§ 350, 352.) First,
he contends that the evidence was irrelevant because the recording would tend to
prove consciousness of guilt only if the jury speculated that Frazier was helping
31
defendant dispose of or conceal the murder weapon and that defendant wanted to
intimidate witnesses or kill the prosecutor. (See People v. Kraft (2000) 23 Cal.4th
978, 1035 [―Defendant correctly observes that evidence leading only to
speculative inferences is irrelevant.‖].) Defendant then argues that even if the
recording was admissible, the trial court should nonetheless have excluded it under
Evidence Code section 352 because it had minimal probative value, ―diverted the
jury‘s attention from the weakness of the prosecution‘s case,‖ ―encouraged the
jury to draw conclusions regarding [defendant‘s] guilt and his bad character,‖
―unfairly misled and inflamed the jury,‖ and ―confused the issues‖ since defendant
was not on trial for threatening witnesses or prosecutors or for being a gang
member.
―A trial court has ‗considerable discretion‘ in determining the relevance of
evidence. [Citation.] Similarly, the court has broad discretion under Evidence
Code section 352 to exclude even relevant evidence if it determines the probative
value of the evidence is substantially outweighed by its possible prejudicial
effects. [Citation.] An appellate court reviews a court‘s rulings regarding
relevancy and admissibility under Evidence Code section 352 for abuse of
discretion. [Citation.] We will not reverse a court‘s ruling on such matters unless
it is shown ‗ ―the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.‖
[Citation.]‘ ‖ (People v. Merriman (2014) 60 Cal.4th 1, 74.)
The trial court did not abuse its discretion in concluding the recorded
conversation was relevant. The jury could have inferred consciousness of guilt
from the taped conversation, particularly when also considering other evidence
adduced at trial. The conversation indicates that Frazier gave two pistols to
someone named ―Troub‖ or ―Little Troub,‖ and the recording and other testimony
gave rise to an inference that that person was Sherman. Moreover, Frazier‘s
32
statement was followed by a swift admonishment not to talk about guns, because
the telephone was ―tapped.‖ There was discussion about who various witnesses at
the preliminary hearing were, and Officer Potter had testified that gang members
often intimidate witnesses to keep them from testifying at trial. And in the
recording, defendant referred to needing ―that DA hit.‖ The meaning of the
conversation was not speculative merely because inferences were required to find
that it showed consciousness of guilt. Nor did Frazier‘s testimony about his
understanding of the conversation destroy the relevance of the conversation,
because the prosecution was free to, and did, argue other reasonable inferences.
(See People v. Livingston (2012) 53 Cal.4th 1145, 1166 [― ‗Circumstantial
evidence involves a two-step process — first, the parties present evidence and,
second, the jury decides which reasonable inference or inferences, if any, to draw
from the evidence‘ ‖].)10
Nor did the trial court abuse its discretion in declining to exclude the
evidence under Evidence Code section 352. If the jury subscribed to the
prosecution‘s understanding of the taped conversation, then it was damaging to
defendant. But ―[t]he prejudice which exclusion of evidence under Evidence Code
10 Our conclusion about the relevance of the taped conversation does not
change because the trial court denied the prosecution‘s request to give the jury
CALJIC No. 2.06. The trial court admitted the recording based on the
prosecution‘s offer of proof, and the prosecution cited three reasons, detailed
above, why the conversation was relevant to prove consciousness of guilt. The
trial court‘s decision not to give CALJIC No. 2.06 was based only on its belief that
there was not ―sufficient evidence to connect the defendant‘s action to the attempt
to conceal evidence‖; the court did not address the prosecution‘s other two reasons
why the conversation demonstrated consciousness of guilt. And although the trial
court declined to give CALJIC No. 2.06, it nonetheless permitted the prosecution
to argue during closing arguments that the jury could infer consciousness of guilt
from the conversation.
33
section 352 is designed to avoid is not the prejudice or damage to a defense that
naturally flows from relevant, highly probative evidence. ‗[A]ll evidence which
tends to prove guilt is prejudicial or damaging to the defendant‘s case. The
stronger the evidence, the more it is ―prejudicial.‖ The ―prejudice‖ referred to in
Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which has very little
effect on the issues. In applying section 352, ―prejudicial‖ is not synonymous
with ―damaging.‖ ‘ ‖ (People v. Karis (1988) 46 Cal.3d 612, 638.) Although the
parties debated the meaning of the taped conversation — which contained both
statements that could be interpreted as inculpatory and statements that could be
interpreted as exculpatory — the recording was neither misleading nor
inflammatory, and was therefore properly admitted.
Defendant further argues that the tape recording was unintelligible and
should have been excluded under Evidence Code section 352 on that basis. This is
incorrect; much of the tape is intelligible. ― ‗[A] tape recording may be admissible
even if substantial portions of it are unintelligible.‘ ‖ (People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1205.) ― ‗ ― ‗[T]o be admissible, tape recordings need not
be completely intelligible for the entire conversation as long as enough is
intelligible to be relevant without creating an inference of speculation or
unfairness.‘ [Citations.]‖ [Citation.] [¶] Thus, a partially unintelligible tape is
admissible unless the audible portions of the tape are so incomplete the tape‘s
relevance is destroyed.‘ ‖ (Ibid.) Although we agree that portions of the tape
recording are difficult to understand, most of the recording is intelligible, and the
portions the prosecutor used were clear enough and did not create an inference of
speculation or unfairness. Indeed, Frazier‘s testimony regarding the telephone
conversation was consistent with the prosecution‘s understanding of the words on
the tape; Frazier disagreed only with respect to the appropriate inferences to draw
34
from those words. (Cf. id. at pp. 1205–1206; People v. Siripongs (1988) 45 Cal.3d
548, 574; People v. Ketchel (1963) 59 Cal.2d 503, 519.)
Defendant claims that the trial court compounded its error in allowing the
tape to be played by also permitting the jurors to use a transcript of the
conversation as an aid while listening to the tape during trial. We find no abuse of
discretion. Only the recording was admitted as evidence; the transcript was not
admitted as an exhibit, and the trial court took the transcript back from the jury
after the tape was played. The trial court admonished the jury that the transcript
was simply an aid to help it understand the taped conversation, and that the jury
was to be guided by its own interpretation of the recording. In similar
circumstances, reviewing courts have recommended that trial courts review the
recording to ensure that the transcript reasonably reflects the recorded words. (See
People v. Polk (1996) 47 Cal.App.4th 944, 954–956, discussing U.S. v. Robinson
(6th Cir. 1982) 707 F.2d 872, 876–878; People v. Brown (1990) 225 Cal.App.3d
585, 598–599; People v. Miley (1984) 158 Cal.App.3d 25, 36–37.) The trial court
did so here, and it made independent corrections to the transcript, which were a
reasonable interpretation of the words spoken. Unintelligible portions of the taped
conversation were so marked in the transcript, and the transcript was not
misleading. (See Polk, at p. 955; Brown, at p. 599; Miley, at p. 36; People v.
Fujita (1974) 43 Cal.App.3d 454, 472–473.) Moreover, defense counsel did not,
as far as we can tell, request any specific changes to the transcript.
Finally, defendant claims that admission of the tape recording and use of
the transcript deprived him of his rights to due process, to a fair trial, and to a
reliable judgment of death. We disagree. The admission of the tape recording,
which we have found was not an abuse of discretion, did not render defendant‘s
trial fundamentally unfair or otherwise violate his constitutional rights. (People v.
Jones, supra, 57 Cal.4th at p. 957; People v. Riccardi, supra, 54 Cal.4th at p. 809;
35
People v. Partida (2005) 37 Cal.4th 428, 436; People v. Boyette, supra, 29 Cal.4th
at p. 413.)
B. Penalty Phase Issues
1. Exclusion of Prospective Juror No. 3389
During the ―death qualification‖ phase of jury selection, the trial court
granted the prosecution‘s for-cause challenge to Prospective Juror No. 3389
(Juror 3389), on the ground that Juror 3389 had a ―definite bias‖ for life
imprisonment without the possibility of parole over the death penalty and would
not ―fairly consider both [sentencing] options in this case if given the opportunity
to do so.‖ Defendant argues that the trial court erred in excusing Juror 3389,
requiring automatic reversal of the penalty verdict. (See People v. Zaragoza
(2016) 1 Cal.5th 21, 41, citing Gray v. Mississippi (1987) 481 U.S. 648, 659–667.)
Because the record supports the trial court‘s determination that Juror 3389 held
views that would have substantially impaired the performance of his duties as a
juror, we reject defendant‘s argument.
a. Background
The written juror questionnaire described in general terms the guilt and
penalty phases of the trial, explaining that if the jury found defendant guilty of
first degree murder and found the special circumstance allegation true, then there
would be a separate penalty phase. If the trial proceeded to the penalty phase,
additional evidence would be presented, and the jury would be tasked with
choosing between two sentencing options, death and life in prison without the
possibility of parole. The questionnaire included a number of questions regarding
attitudes toward the death penalty, to inform the court ―whether or not [a juror]
could be fair to both the prosecution and the defense on the issue of punishment.‖
36
According to his written answers in the juror questionnaire, Juror 3389 was
a 66-year-old retired project manager. On the questionnaire, Juror 3389 checked
boxes indicating that he was ―moderately against‖ the death penalty; that he would
not automatically vote for either life without the possibility of parole or the death
penalty regardless of the evidence presented; and that he would not seek to avoid
the issue of the death penalty by automatically refusing to vote for first degree
murder or a special circumstance allegation regardless of the evidence presented.
He described his general views about the death penalty as follows: ―The death
penalty should be used rarely, only when society cannot depend upon life in prison
without the possibility of parole being ‗absolutely‘ implemented.‖ Juror 3389
explained that he was Roman Catholic, and that he accepted the church‘s view of
capital punishment, which he articulated as follows: ―The death penalty should
only be imposed when life in prison without possibility of parole cannot be
‗absolutely‘ implemented to protect society.‖ He indicated that he believed death
to be a worse punishment for a defendant than life without parole, explaining:
―My religious beliefs include the fact that God demands justice, but God is also all
forgiving to those who warrant forgiveness. Life in prison provides the
opportunity to earn forgiveness. Society must be absolutely protected from a
possibility of parole.‖ (Underscoring in original.) He ―disagree[d] somewhat‖
with the statement that ―[p]rison sentences for convicted felons should be
increased‖ and ―strongly disagree[d]‖ with the statement that ―[a]nyone who kills
another person should get the death penalty,‖ explaining, for both questions, that
―[s]entences shou[l]d be appropriate for the crime.‖ Juror 3389 also ―strongly
disagree[d]‖ with the statements that ―[a]nyone who intentionally kills another
person without legal justification, and not in self-defense, should receive the death
penalty‖ and ―[a]nyone who[] commits multiple murder should receive the death
37
penalty.‖ With respect to both statements, he elaborated: ―Why not life in prison
without parole (literally); brain tumor; insane, etc.‖
During oral questioning, the prosecutor asked Juror 3389, ―[Y]ou indicated
in the questionnaire that you are opposed to the death penalty, correct?‖ He
answered: ―I didn‘t intend to state it clearly. Basically I believe that if there were
such a thing as life imprisonment that would be sustainable, then I probably would
not be. [¶] . . . [¶] . . . It‘s not a simple yes or no for me.‖ The trial court
instructed him to assume that a defendant sentenced to life without the possibility
of parole ―will live out the rest of their natural life in custody.‖ Given that
assumption, Juror 3389 stated: ―I think it‘s possible that certain circumstances
could allow me to [vote for the death penalty] if there were — I‘ll just invent one.
If there were individuals that were incarcerated and had ended up killing three of
the guards, you know, where the system was having difficulty with that individual
and where that individual‘s existence is hazardous to some segment of society,
even though it happens to be inside within the prison, then I could find — I would
find that an easy decision to say, hey, I would go the other way.‖ He could not
think of any other ―obvious‖ examples and stated, ―My inclination is to try to
avoid the death penalty, inclination but not an absolute.‖ In response to additional
questions from the prosecutor, Juror 3389 suggested that he might be able to return
a death verdict in ―some situation where a person is in prison and still at risk,‖ but
―[a]bsent something like that, [his] inclination [was] to always vote for life
without the possibility of parole.‖ Defense counsel inquired, ―If you sat in the
penalty phase and you felt the facts and evidence presented warranted a death
verdict, could you render such a verdict?‖ Juror 3389 responded: ―In other words,
if it fit my criteria, yes.‖
The prosecutor challenged Juror 3389 for cause, because Juror 3389 did not
have an ―open mind‖ to the death penalty and would consider the death penalty
38
only in very limited circumstances that did not apply in this case. Defense counsel
opposed the challenge, because Juror 3389 ―was open, depending on the
circumstances and facts of the case, to render a verdict of death if he felt it was
warranted.‖ The trial court granted the challenge. ―It appears from [Juror 3389‘s]
answers that he has a definite bias in favor of the life without parole and that the
only situation in which he could foresee himself, the only one he gave as an
example — even when I asked him for additional situations where it might
occur — the only one that came to mind for him is a situation where someone was
already serving a life sentence and had committed further murders while in
custody serving that life sentence. [¶] I believe that based upon his expression of
his strong religious beliefs that he would not fairly consider both options in this
case if given the opportunity to do so.‖
b. Discussion
A prospective juror may be excused for cause ― ‗only if his or her views in
favor of or against capital punishment ―would ‗prevent or substantially impair the
performance of his [or her] duties as a juror‘ ‖ in accordance with the court‘s
instructions and the juror‘s oath.‘ [Citation.]‖ (People v. Thompson (2016) 1
Cal.5th 1043, 1064; see Uttecht v. Brown (2007) 551 U.S. 1, 6–9; Wainwright v.
Witt (1985) 469 U.S. 412, 424–425.) ―[N]ot all who oppose the death penalty are
subject to removal for cause in capital cases; those who firmly believe that the
death penalty is unjust may nevertheless serve as jurors in capital cases so long as
they state clearly that they are willing to temporarily set aside their own beliefs in
deference to the rule of law.‖ (Lockhart v. McCree (1986) 476 U.S. 162, 176.)
―The critical issue is whether a life-leaning prospective juror — that is, one
generally (but not invariably) favoring life in prison instead of the death penalty as
an appropriate punishment — can set aside his or her personal views about capital
39
punishment and follow the law as the trial judge instructs.‖ (Thompson, at
p. 1065.) We have recognized that prospective jurors may give ―halting,
equivocal, or even conflicting‖ responses regarding their views about the death
penalty and their ability to set aside those views and follow the law. (People v.
Fudge (1994) 7 Cal.4th 1075, 1094.) Indeed, given a prospective juror‘s
―probable unfamiliarity with the complexity of the law, coupled with the stress
and anxiety of being a prospective juror in a capital case, such equivocation should
be expected.‖ (Ibid.)
―In light of the inherent ambiguities associated with the death qualification
of juries, two rules have emerged. First, a prospective juror‘s bias against the
death penalty, or the juror‘s inability to set aside his or her personal views and
follow the law, need not be demonstrated with unmistakable clarity. [Citations.]
Instead, after examining the available evidence, which typically includes the
juror‘s written responses in a jury questionnaire and answers during voir dire, the
trial court need only be left with a definite impression that the prospective juror is
unable or unwilling to faithfully and impartially follow the law. [Citations.] [¶]
Second, in assessing a prospective juror‘s true state of mind, the trial court
occupies a superior position vis-à-vis an appellate court, for the former court is
able to consider and evaluate a juror‘s demeanor during voir dire. [Citations.]
‗ ― ‗[A]ppellate courts recognize that a trial judge who observes and speaks with a
prospective juror and hears that person‘s responses (noting, among other things,
the person‘s tone of voice, apparent level of confidence, and demeanor) . . . gleans
valuable information that simply does not appear on the record.‘ ‖ [Citations.]‘
[Citation.] Accordingly, the trial court‘s ruling regarding the juror‘s true state of
mind is entitled to deference on appeal if supported by substantial evidence.
[Citations.]‖ (People v. Thompson, supra, 1 Cal.5th at p. 1066.)
40
Substantial evidence supports the trial court‘s decision to dismiss
Juror 3389 for cause. Juror 3389 made clear in his written questionnaire answers
and responses to questioning that he would not vote for death as long as life
without the possibility of parole meant that defendant would never be released.
After the trial court instructed him to assume as much, further questioning
revealed that Juror 3389 would be willing to vote for the death penalty only if the
case ―fit [his] criteria,‖ and his criteria were narrow: He articulated only a single
hypothetical situation in which he could see himself voting for the death
penalty — where a defendant continued to kill while in prison — and that
hypothetical situation was not applicable in this case. (See People v. Martinez
(2009) 47 Cal.4th 399, 432 [―Excusal for cause is not limited to a juror who
‗ ―zealously opposes or supports the death penalty in every case.‖ ‘ ‖]; ibid. [―the
mere theoretical possibility that a prospective juror might be able to reach a
verdict of death in some case[s] does not necessarily render the dismissal of the
juror an abuse of discretion‖].)
Defendant argues that the trial court‘s statement that Juror 3389 had ―a
definite bias in favor of the life without parole‖ shows that the trial court found
that Juror 3389 merely had a preference in favor of one penalty option, which is
not the correct legal standard. But the trial court went on to conclude that Juror
3389‘s responses, and particularly his expression of strong religious beliefs,
showed that ―he would not fairly consider both [sentencing] options.‖ ―The
gravamen of the court‘s finding was clearly that [Juror 3389] was impaired under
the [Wainwright v.] Witt standard.‖ (People v. Thomas (2011) 52 Cal.4th 336,
360–361; see, e.g., People v. Merriman, supra, 60 Cal.4th at p. 53 [―The focus of
questioning by the court and the parties was whether there was a likelihood that
S.B. fairly could consider both the death penalty and life without parole. We have
repeatedly explained that such an inquiry is a proper formulation of the standard
41
set forth in Wainwright v. Witt, supra, 469 U.S. 412‖].) ―Witt has long been the
law and it is clear the court was aware of the appropriate standard to apply. In the
absence of evidence to the contrary, we presume that the court ‗knows and applies
the correct statutory and case law.‘ ‖ (Thomas, at p. 361.)
Defendant also contends that the trial court had insufficient information to
make a reliable determination that Juror 3389‘s views on the death penalty would
have prevented or substantially impaired the performance of his duties. He notes,
in particular, that the trial court did not specifically inquire of Juror 3389 whether,
―despite his personal feelings about the death penalty, [he] was willing and able to
follow the trial court‘s instructions by weighing the aggravating and mitigating
circumstances of the case and determining whether death was the appropriate
penalty under the law.‖ We agree that the better practice is to ask such a question.
But the focus of our review is whether there is substantial evidence to support a
conclusion that the juror would not be able to set aside his or her personal feelings
and follow the trial court‘s instructions concerning the imposition of the death
penalty. (See People v. Thompson, supra, 1 Cal.5th at p. 1075 [―Prospective Juror
Kusum P. had generally strong feelings against the death penalty. Although she
was never asked expressly whether she could set them aside and follow the law,
her answers provided substantial evidence that she could not fairly consider both
sides.‖]; see also Wainwright v. Witt, supra, 469 U.S. at p. 424 [―determinations of
juror bias cannot be reduced to question-and-answer sessions which obtain results
in the manner of a catechism‖]; People v. Whalen (2013) 56 Cal.4th 1, 39–40.)
And, for reasons already discussed, Juror 3389‘s responses to the written
questionnaire and oral questioning provided substantial evidence for the trial
court‘s conclusion that the juror would not be able to set aside his personal
feelings about the death penalty and follow the trial court‘s instructions.
Defendant‘s reliance on People v. Stewart (2004) 33 Cal.4th 425, 442–451 is
42
misplaced. ―There we confirmed that, when the court chooses to rely solely on a
prospective juror‘s written questionnaire answers to justify excusal, the answers
themselves must clearly indicate the juror‘s unwillingness or inability to determine
the appropriate penalty under the instructions. We indicated that a brief written
response to a question whether the juror‘s death penalty views would ‗ ―prevent or
make it very difficult‖ ‘ to do so would not suffice. [Citation.] Here, however, the
court and both counsel subjected [Juror 3389] to substantial oral examination, and
the court was able to observe [Juror 3389] during this process. Under such
circumstances, a juror‘s conflicting or ambiguous answers may indeed give rise to
the court‘s definite impression about the juror‘s qualifications, and its decision to
excuse the juror deserves deference on appeal.‖ (People v. Jones (2012) 54
Cal.4th 1, 44.)
2. Constitutionality of the Multiple-murder Special Circumstance
The jury found defendant guilty of the murders of Lopez and Villa and,
accordingly, found true the multiple-murder special-circumstance allegation,
making defendant eligible for the death penalty. (§ 190.2, subd. (a)(3).)
Defendant argues that the judgment of death must be reversed because the
multiple-murder special circumstance ―does not achieve the constitutional goal of
distinguishing in any meaningful or principled way the few cases in which the
death penalty may be imposed from the many cases in which it may not.‖ As
defendant acknowledges, we have rejected this argument numerous times (see,
e.g., People v. Covarrubias (2016) 1 Cal.5th 838, 934, citing cases), and we
decline defendant‘s invitation to revisit the issue.
3. Admission of Evidence of Unadjudicated Criminal Activity
During the penalty phase, the prosecution introduced as aggravating
evidence under section 190.3, factor (b), six incidents of alleged, unadjudicated
43
criminal activity by defendant. (See ante, pt. I.B.2.a.) Defendant argues that the
judgment of death must be reversed because factor (b) and the use of
unadjudicated criminal activity during the penalty phase violate various
constitutional rights. We have previously rejected each of defendant‘s arguments,
and we do so again here.
Section 190.3, factor (b) does not, as defendant contends, allow the
―arbitrary and capricious application of the death penalty in violation of the Eighth
Amendment requirement that a rational distinction be made ‗between those
individuals for whom death is an appropriate sanction and those for whom it is
not.‘ ‖ (See People v. Dement (2011) 53 Cal.4th 1, 56.)
Defendant argues that we have interpreted factor (b) in an overly broad
manner and have ―treated death differently by lowering rather than heightening the
reliability requirements in a manner that cannot be countenanced under the federal
Constitution.‖ ―In prior decisions, we have rejected the identical argument.‖
(People v. Taylor (2010) 48 Cal.4th 574, 651; see People v. Harris (2008) 43
Cal.4th 1269, 1315.)
Allowing the guilt phase jury to adjudicate other-crimes evidence during
the penalty phase did not deprive defendant of an impartial and unbiased jury.
(People v. Thomas (2012) 53 Cal.4th 771, 836; People v. Rogers (2006) 39 Cal.4th
826, 894.) Nor did using the same jury during the guilt and penalty phases force
defendant ―to make impossible and unconstitutional choices during jury
selection.‖ (See People v. Taylor, supra, 48 Cal.4th at p. 652.)
―We have also found that the use of unadjudicated offenses in capital
proceedings, but not in noncapital matters, does not violate equal protection or due
process principles.‖ (People v. Taylor, supra, 48 Cal.4th at p. 651; see People v.
Watson (2008) 43 Cal.4th 652, 701.)
44
4. Other Challenges to California’s Capital Sentencing Scheme
Defendant raises numerous other challenges to the California capital
sentencing scheme, which he acknowledges we have previously considered and
rejected. (See People v. Schmeck (2005) 37 Cal.4th 240, 303–304.) We briefly
respond to, and reject once again, each of these arguments.
Section 190.3, factor (a), which directs the jury to consider the
―circumstances of the crime,‖ does not result in the arbitrary and capricious
imposition of the death penalty in violation of the Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution. (People v. Simon (2016) 1 Cal.5th 98,
149; see also Tuilaepa v. California (1994) 512 U.S. 967, 976.)
Nothing in the federal Constitution requires the jury, at the penalty phase,
to make written findings; to unanimously agree that particular aggravating
circumstances exist; or to find beyond a reasonable doubt that aggravating factors
exist, that aggravating factors outweigh mitigating factors, or that death is the
appropriate sentence. (People v. Seumanu (2015) 61 Cal.4th 1293, 1376; People
v. Jackson (2016) 1 Cal.5th 269, 373.) These conclusions are not altered by the
high court‘s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v.
Arizona (2002) 536 U.S. 584, Blakely v. Washington (2004) 542 U.S. 296,
Cunningham v. California (2007) 549 U.S. 270, and Hurst v. Florida (2016) 577
U.S. __ [136 S.Ct. 616]. (People v. Rangel (2016) 62 Cal.4th 1192, 1235 &
fn. 16; Seumanu, at p. 1376.)
The federal Constitution does not require that a burden of proof be placed
on the prosecution at the penalty phase. (People v. Jackson, supra, 1 Cal.5th at
p. 372.) ―Unlike the guilt determination, ‗the sentencing function is inherently
moral and normative, not factual‘ [citation] and, hence, not susceptible to a
burden-of-proof quantification.‖ (People v. Hawthorne (1992) 4 Cal.4th 43, 79.)
The trial court did not err in failing to instruct the jury that the prosecution had the
45
burden of persuasion regarding the existence of aggravating factors or the
appropriateness of the death penalty. (Jackson, at pp. 372–373.) ―Nor is an
instruction on the absence of a burden of proof constitutionally required.‖ (People
v. Brasure (2008) 42 Cal.4th 1037, 1067.)
―Section 190.3, factor (b) does not violate the federal Constitution by
permitting the use of unadjudicated criminal activity as an aggravating factor, nor
must such factors be found true beyond a reasonable doubt by a unanimous jury.‖
(People v. Harris, supra, 43 Cal.4th at p. 1323.) This conclusion is not altered by
the high court‘s decisions in Apprendi v. New Jersey, supra, 530 U.S. 466, Ring v.
Arizona, supra, 536 U.S. 584, Blakely v. Washington, supra, 542 U.S. 296, and
Cunningham v. California, supra, 549 U.S. 270. (People v. Taylor, supra, 48
Cal.4th at pp. 651–652.)
―CALJIC No. 8.88 properly instructs the jury on its sentencing discretion
and the nature of its deliberative process.‖ (People v. Valencia (2008) 43 Cal.4th
268, 310.) Its instruction that ―jurors may impose a death sentence only if the
aggravating factors are ‗ ―so substantial‖ ‘ is not impermissibly vague or
ambiguous.‖ (People v. Jackson, supra, 1 Cal.5th at p. 373.) ―CALJIC No. 8.88
is not constitutionally flawed because it ‗uses the term ―warrants‖ instead of
―appropriate.‖ ‘ ‖ (People v. Linton (2013) 56 Cal.4th 1146, 1211.) Nor is it
―unconstitutional for failing to inform the jury that if the mitigating circumstances
outweigh those in aggravation, it is required to return a sentence of life without the
possibility of parole.‖ (Ibid.)
―CALJIC No. 8.85 is both correct and adequate.‖ (People v. Valencia,
supra, 43 Cal.4th at p. 309.) Its inclusion of such adjectives as ―extreme‖ and
―substantial‖ in the list of potential mitigating factors did not prevent the jury from
considering mitigating evidence. (People v. Brasure, supra, 42 Cal.4th at
p. 1069.) The trial court properly instructed ―the jury in the language of CALJIC
46
No. 8.85 without deleting certain factors that were inapplicable to defendant‘s
case.‖ (People v. Farnam (2002) 28 Cal.4th at pp. 191–192.) The trial court had
no obligation to advise the jury which sentencing factors were aggravating, which
were mitigating, or which could be either aggravating or mitigating depending on
the jury‘s appraisal of the evidence. (People v. Rogers (2009) 46 Cal.4th 1136,
1178–1179.)
―The trial court was not required to instruct the jury that defendant bears no
burden to prove mitigating factors or that it need not be unanimous in finding the
existence of any mitigating factor.‖ (People v. Adams (2014) 60 Cal.4th 541,
580.) ―Defendant was not entitled to an instruction that there is a presumption in
favor of life without parole.‖ (People v. Boyce (2014) 59 Cal.4th 672, 724.)
The federal Constitution does not require intercase proportionality review.
(People v. Simon, supra, 1 Cal.5th at p. 149.) ―California does not deny capital
defendants equal protection of the law by providing certain procedural protections
to noncapital defendants that are not afforded to capital defendants.‖ (Id. at
p. 150.) International law and norms do not render California‘s use of the death
penalty unconstitutional. (Ibid.)
C. Cumulative Error
Defendant asserts that the cumulative effect of errors committed requires
reversal of the judgment of conviction and/or the death judgment. We have
assumed that the trial court improperly restricted defense counsel‘s cross-
examination of Munguia, Granillo, and Detective Collette, but have found any
error in that regard harmless beyond a reasonable doubt. (See ante, pt. II.A.1.b.)
We have found no other errors, and defendant‘s claim of cumulative error fails.
47
III. DISPOSITION
We affirm the judgment.
KRUGER, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
48
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Jones
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S075725
Date Filed: July 20, 2017
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Bradford L. Andrews
__________________________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Jessica K. McGuire,
Assistant State Public Defender, and Ellen J. Eggers, Deputy State Public Defender, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jessica K. McGuire
Assistant State Public Defender
770 L Street, Suite 1000
Sacramento, CA 95814-3362
(916) 322-2676
Viet H. Nguyen
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-0207 | 01-03-2023 | 07-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150674/ | J. S10022/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS O’DONNELL, :
:
Appellant : No. 2261 EDA 2016
Appeal from the Judgment of Sentence June 30, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0005158-2015
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 07, 2017
Appellant, Thomas O’Donnell, appeals from the Judgment of Sentence
entered by the Montgomery County Court of Common Pleas following his
jury trial convictions of Corruption of a Minor, Indecent Assault of a Child
under 13 years old, and Endangering the Welfare of a Child.1 We affirm.
The trial court stated the relevant facts in its Pa.R.A.P. 1925(a)
Opinion as follows:
In February of 2015, the then 9-year–old female victim, S.O.,
and her sister slept over their grandmother’s house as they did
most weekends up to that point in time. During the weekend of
February 7th, S.O.’s uncle, [Appellant], was also staying over.
S.O. and her sister set up sleeping areas in the living room
because they wanted to sleep in the same room as [Appellant]
who they referred to as Uncle Tommy. At trial, S.O. explained
1
18 Pa.C.S. § 6301; 18 Pa.C.S. § 3126(a)(7); and 18 Pa.C.S. § 4304,
respectively.
J. S10022/17
that after watching some TV, she wanted to lay with [Appellant].
She testified that she fell asleep and she awoke to her Uncle
Tommy touching her buttocks under her nightgown with his
hand, then he moved to her breast. [Appellant] continued to
touch S.O. in the vaginal area, rubbing her over her underwear.
S.O. felt disgusted and that he had crossed a line and went over
to the couch to get away from her uncle.
S.O. also testified that after she moved to the couch, her Uncle
Tommy tossed her his phone [] with a note on it, which said,
“It’s our secret. I thought you wanted to learn. I’m sorry.”
S.O. deleted the note, gave his phone back to him[,] and wrote
a note back on her tablet. She wrote, “I don’t want to talk to
you until I figure this out.” She deleted her note from her tablet.
The following day, S.O. told her sister that something happened
the previous night, although she did not tell her what had
happened. S.O. did not tell her grandmother, but rather, waited
until she got home to tell her mother and father.
Trial Court Opinion, 9/27/16, at 1-2 (citations omitted).
After Appellant’s arrest, the court set bail at $200,000. Prior to trial,
Appellant filed a Pa.R.Crim.P. 600(D)(2) Motion for nominal bail, which the
trial court eventually denied.
Also prior to trial, the Commonwealth filed a Motion to admit
Appellant’s prior Robbery and Theft convictions. The parties agreed that the
Theft conviction would be admissible at trial if Appellant testified, but
disagreed about the admissibility of the 14-year-old Robbery conviction
because it fell outside the 10-year period delineated in Pa.R.E. 609(b). The
trial court stated both convictions would be admitted if Appellant testified at
trial.
-2-
J. S10022/17
The day of his jury trial, Appellant requested a continuance for more
time to conduct additional investigation. The trial court denied Appellant’s
belated request and proceeded to trial. At trial, the minor victim testified.
Appellant did not testify.
The trial court instructed the jury about the tender years exception to
the hearsay rule. Appellant did not object to the jury instruction about the
tender years doctrine.
On January 20, 2016, the jury convicted Appellant of the above
charges.2 On June 30, 2016, the trial court imposed an aggregate term of
11½ to 23 months’ incarceration, followed by a consecutive term of 3 years’
probation.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the trial court erred by failing to adequately define
the word “consider” when instructing the jury on the “tender
years doctrine” and its application to the case?
2. Whether the trial court erred by holding that the Appellant’s
fourteen (14) year old conviction for robbery would be
admissible as a crimen falsi offense if the Appellant exercised his
constitutional right to testify in his own defense?
3. Whether the trial court erred by failing to grant the
Appellant’s request for a trial continuance? (Counsel will address
this issue pursuant to Anders v. California, 386 U.S. 738
2
The trial court also convicted Appellant of two counts of Harassment
following a bench trial.
-3-
J. S10022/17
(1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009))
4. Whether the trial court erred by failing to grant the
Appellant’s Motion for Nominal Bail pursuant to Pennsylvania
Rule of Criminal Procedure 600(d)(2)? (Counsel will address this
issue pursuant to Anders v. California, 386 U.S. 738 (1967);
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009))
Appellant’s Brief at 6.
In his first issue, Appellant avers that the trial court’s tender years jury
instruction was ambiguous because the “word ‘consider’ was not adequately
defined, or placed into context by the trial court[.]” Appellant’s Brief at 11.
Appellant argues that “[w]hen the trial court instructed the jury using the
word ‘consider’ without any additional clarification, a juror could reasonably
have interpreted the plain language of [the] word to be a mandate from the
trial court that the tender years doctrine evidence must be believed as a
matter of law.” Appellant’s Brief at 13.
Prior to addressing Appellant’s challenge to the jury instruction, we
must first ascertain whether this issue was preserved for appellate review.
It is axiomatic that an issue may not be raised for the first time on appeal.
Pa.R.A.P. 302(a).
With respect to jury instructions, Pennsylvania Rule of Criminal
Procedure 647 provides, in relevant part, as follows:
(B) Any party may submit to the trial judge written requests for
instructions to the jury. Such requests shall be submitted within
a reasonable time before the closing arguments, and at the
same time copies thereof shall be furnished to the other parties.
Before closing arguments, the trial judge shall inform the parties
-4-
J. S10022/17
on the record of the judge's rulings on all written requests and
which instructions shall be submitted to the jury in writing. The
trial judge shall charge the jury after the arguments are
completed.
(C) No portions of the charge nor omissions from the charge
may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate. All such objections
shall be made beyond the hearing of the jury.
Pa.R.Crim.P. 647(B)-(C).
Our Supreme Court has opined that the rules require a party to lodge
a specific objection to the charge or an exception to the trial court ruling in
order to preserve the issue for appeal. Commonwealth v. Pressley, 887
A.2d 220, 224 (Pa. 2005). This requirement “afford[s] the court an
opportunity to avoid or remediate potential error, thereby eliminating the
need for appellate review of an otherwise correctable issue.” Id. (citation
omitted).
Instantly, the trial court correctly noted “that there was never an
objection at trial to this [c]ourt’s jury instructions; therefore, this issue is
waived.” Trial Court Opinion at 4. In fact, Appellant “concedes that trial
counsel failed to object to the jury instruction so the issue is waived
pursuant to Pa.R.Crim.P. 647(B).” Appellant’s Brief at 12. We agree:
Appellant has waived this issue. See Pa.R.Crim.P. 647; Pressley, supra at
224.
-5-
J. S10022/17
Next, Appellant challenges the trial court’s ruling that his 14-year-old
crimen falsi conviction for Robbery would be admissible if Appellant testified
at trial. Appellant’s Brief at 13-16.
The following standard governs our review of the admissibility of
evidence:
Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial
court clearly abused its discretion. Admissibility depends on
relevance and probative value. Evidence is relevant if it logically
tends to establish a material fact in the case, tends to make a
fact at issue more or less probable or supports a reasonable
inference or presumption regarding a material fact.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion 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, discretion is
abused.
Commonwealth v. Schoff, 911 A.2d 147, 154 (Pa. Super. 2006) (citation
omitted).
The admission of crimen falsi evidence is governed by Pennsylvania
Rule of Evidence 609, which states:
(a) In General. For the purpose of attacking the credibility of
any witness, evidence that the witness has been convicted of a
crime, whether by verdict or by plea of guilty or nolo contendere,
must be admitted if it involved dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed since
the witness's conviction or release from confinement for it,
-6-
J. S10022/17
whichever is later. Evidence of the conviction is admissible only
if:
(1) its probative value substantially outweighs its
prejudicial effect; and
(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party has a
fair opportunity to contest its use.
Pa.R.E. 609(a), (b).
This Court has explained that, in weighing the probative value versus
prejudicial impact of crimen falsi convictions older than 10 years, the trial
court should consider:
1) the degree to which the commission of the prior offense
reflects upon the veracity of the defendant-witness; 2) the
likelihood, in view of the nature and extent of the prior record,
that it would have a greater tendency to smear the character of
the defendant and suggest a propensity to commit the crime for
which he stands charged, rather than provide a legitimate
reason for discrediting him as an untruthful person; 3) the age
and circumstances of the defendant; 4) the strength of the
prosecution’s case and the prosecution’s need to resort to this
evidence as compared with the availability to the defense of
other witnesses through which its version of the events
surrounding the incident can be presented; and 5) the existence
of alternative means of attacking the defendant’s credibility.
Commonwealth v. Palo, 24 A.3d 1050, 1056 (Pa. Super. 2011) (citations
and quotation omitted).
In addressing Appellant’s claim on appeal regarding his crimen falsi
conviction, the Honorable William R. Carpenter, who presided over the jury
trial, authored a comprehensive, thorough, and well-reasoned Opinion, citing
to the record and relevant case law. After a careful review of the parties’
-7-
J. S10022/17
arguments and the record, we affirm on the basis of the trial court’s Opinion.
See Trial Court Opinion at 5-8 (concluding that the evidence of Appellant’s
prior Robbery conviction was more probative than prejudicial and, thus, it
was admissible pursuant to Pa.R.E. 609).
Appellant’s counsel identified two additional issues in Appellant’s Brief:
(1) the trial court improperly denied his request for a continuance; and (2)
the trial court improperly denied his Motion for nominal bail. Counsel
purported to address these issues pursuant to Anders v. California, 386
U.S. 738 (1967), stating that Appellant desired to raise these issues.
Counsel provided minimal facts and citation to legal authority before
concluding that they are meritless. For the reasons infra, we agree.
“Appellate review of the trial court’s decisions on continuance motions
rests on an abuse of discretion standard.” Commonwealth v. Bozic, 997
A.2d 1211, 1225 (Pa. Super. 2010) (citation omitted). “The refusal to grant
a continuance constitutes reversible error only if prejudice or a palpable and
manifest abuse of discretion is demonstrated.” Id.
When reviewing a trial court’s refusal to grant a request for a
continuance in order to procure a witness, we must consider the following
factors:
(1) the necessity of the witness to strengthen the defendant’s
case;
(2) the essentiality of the witness to the defendant’s defense;
(3) the diligence exercised to procure his or her presence at
trial;
(4) the facts to which he or she could testify; and
-8-
J. S10022/17
(5) the likelihood that he or she could be produced at court if a
continuance were granted.
Id.
The trial court addressed this issue as follows:
In this case, [Appellant] made this request for a continuance
immediately prior to the commencement of trial. It was
untimely and violated Rule 106(D) as it was not made more than
48 hours before the time that his trial was set for. In addition,
he knew the identity of the proposed reputation witnesses, one
being his son. He offered no explanation as to why he waited
until the moments before trial to make a continuance request.
Accordingly, this [c]ourt [] properly denied Appellant’s
continuance request.
Trial Court Opinion at 10. We agree with the trial court’s assessment and
discern no abuse of discretion. This issue is without merit.
Lastly, Appellant contends the trial court erred in denying his Petition
for nominal bail pursuant to Pa.R.Crim.P. 600(D)(2).
Rule 600 provides that “no defendant shall be held in pretrial
incarceration in excess of (1) 180 days from the date on which the complaint
is filed…” Pa.R.Crim.P. 600(B)(1). “[P]eriods of delay caused by the
defendant shall be excluded from the computation of the length of time of
any pretrial incarceration. Any other periods of delay shall be included in the
computation.” Pa.R.Crim.P. 600(C)(2).
The trial court addressed this issue as follows:
On December 29, 2015, 21 days prior to trial, [Appellant] filed a
petition for nominal bail pursuant to Rule 600. The
Commonwealth filed a response. It was argued on the morning
of trial, January 19, 2016. Defense counsel argued that
[Appellant] had been placed in custody on May 21, 2015 and
-9-
J. S10022/17
that from that date to the present date, he has been in custody
for 243 days, with 37 days subtracted out for a defense
continuance, puts him at 206 days, which is above the 180-day
nominal bail rule.
In response, the Commonwealth argued that from the date the
initial complaint was filed to the present date, 298 days had
elapsed and that any delay that occurred in this case is
attributable to [Appellant]. The Commonwealth explained that
86 days should be subtracted out because he fled to the state of
Oregon; 37 days should be subtracted out due to a defense
request for a relist. According to the Commonwealth that puts
[Appellant] at 175, which is within the rule.
At that time, this [c]ourt took the matter under advisement.
The motion was later denied.
* * *
In this case, by the time the petition was heard on January 19,
2016, the issue was moot since trial was to commence
imminently, within minutes of this pretrial motion. In addition,
even if it was not moot at the time it was heard, it is now moot
on appeal because [Appellant] has been convicted and is
incarcerated.
Trial Court Opinion at 11 (citations omitted). We agree with the trial court’s
conclusion that Appellant’s claim is moot because Appellant has been
convicted and is incarcerated. See Commonwealth v. Samuel, 102 A.3d
1001, 1006 (Pa. Super. 2014).
In light of the foregoing, we affirm Appellant’s Judgment of Sentence.
The parties are instructed to attach a copy of the trial court’s
September 27, 2016 Opinion to all future filings.
Judgment of Sentence affirmed.
- 10 -
J. S10022/17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
- 11 -
• Circulated 02/21/2017 10:58 AM
• IN THE COURT OF COMMON PLEAS OF MONTGOMERYCOUNTY
PENNSYLVANIA
• CRIMINALDIVISION
• COMMONWEALTH OF PENNSYLVANIA : CP-46-CR-0005158-2015
•
v. .
THOMAS M. O'DONNELL 2261 EDA 2016
• OPINION
•II CARPENTER J.
FACTUAL AND PROCEDURALHISTORY
SEPTEMBER27, 2016
Appellant, Thomas M. O'Donnell {"O'Donnell"), appeals from his
I
judgment of sentence imposed on June 30, 2016, following his conviction of
'I corruption of minors', indecent assault on a person less than 13 years of age-
and endangering the welfare of a child3 at a two-day jury trial. In addition,
O'Donnell was found guilty by this Court of two counts of harassment', a
. .
I' summary offense. O'Donnell was convicted for his improper touching of his
then 9-year-old niece.
In February of 2015, the then 9-year-old female victim, S.O., and her
'I sister slept over their grandmother's house as they did most weekends up to
that point in time. (Trial by Iurv, V. 1, 1/19/16 pp. 21, 27, 50). During the
I 18 Pa.CS.A. §6301(a)(l)(i);
18 Pa.CS.A. §3126(a)(7);
I 18 Pa.C.S.A. §4304(a)(l);
I 18 Pa.CS.A. §§2709(a){l),(3).
·I
I
I
I weekend of February 7 1\ S.O.'s uncle, O'Donnell, was also staying over. Id. at 28
- 29. S.O. and her sister set up sleeping areas in the living room because they
I ·,
wanted to sleep in the same room as O'Donnell who they referred to as Uncle
I Tommy. Id. at 29. At trial, S.0. explained that after watching some TV, she
I wanted to lay with O'Donnell. Id. at 32. She testified that she fell asleep and she
awoke to her Uncle Tommy touching her buttocks under her nightgown with
I his hand, then he moved to her breast. Id. at 32 - 34. O'Donnell continued to
I touch S.O. in the vaginal area, rubbing her over her underwear. Id. at 34 - 35.
S.0. felt disgusted and that he had crossed a line and went over to the couch to
I get away from her uncle. Id. at 3 5.
I S.O. also testified that after she moved to the couch, her Uncle
Tommy tossed.her his phone to her with a note on it, which said, "It's our
I . . ·:
., .
secret. I thought you wanted to learn. I'm sorry." Id. at 36. S.0. deleted the note,
I
'
gave his phone back to him and wrote a note back on her tablet. Id. She wrote,
I "I don't want to talk to you until I figure this out." Id. She deleted her note from
her tablet. Id. at 3 7.
I The following day, S.O. told her sister that something happened the
I previous night, although she did not tell her what had happened. Id. at 38. S.O.
did not tell her grandmother, but rather, waited until she got home to tell her
I mother and father. Id. at 39, 51, 72.
I ISSUES
Whether.this Court gave proper jury instructions concerning the tender
I I.
years doctrine.
I 2
I
--------------------------· ... ·---
I
I II. Whether this Court properly ruled that O'Donnell's robbery conviction
would be· admissible if he testified, when the probative value outweighed
I its prejudice.
III. whether this Court properly denied O'Donnell's untimely continuance
I request.
IV. Whether this Court properly denied OlDonnell nominal bail prior to trial.
I DISCUSSION
I I. This Court gave proper jury instructions concerning the tender years
doctrine.
I First, on appeal O'Donnell contends that this Court erred by failing
to describe the meaning of "consider" when instructing the jury concerning the
I tender years doctrine. O'Donnell asserts that the lack of explanation could have
I .: . : .. · .' L\. I·\·:·
misled the jury: into believing -that a statement made by a child and admissible
I under this evidentiary rule must be accepted as true.
After S.O.'s mother, Elizabeth O'Donnell, testified at trial, this
I Court instructed the jury on the tender years doctrine as follows:
I Members of the jury, there is a general rule which
really says that normally you are not entitled to hear
and consider out-of-court statements of a witness. It's
I called hearsay frequently.
There are exceptions to that. Once example would be if
I a witness made an inconsistent statement on a prior
occasion, you get to consider that, but only as an
element for judging credibility.
I
There is another exception-though, and that deals with
children under 12· years or. younger. The criminal law
I recognizes that children are different than adults, and
this exception is called loosely the Tender Years
I Doctrine. This allows you to consider the statements
of the alleged victim here as proof of the truth of
anything that she said earlier in an earlier statement,
I 3
I
·····-· ·-----------------------
I
I but only if she was 12 years or younger at the time of
making the statement. There is no requirement that
I the earlier statement be given under oath, at a formal
proceeding, or that the statement had been reduced to
writing. signed and adopted by a 'Witness, or that the
I statement is a contemporaneous or verbatim recording
of the witness' statement.
I So, in short, if the witness was 12 or younger and is
the alleged victim of a crime like the crime we are on
trial for, you may consider that.prior out-of-court
I statement for the truth of the matter asserted in the
statement.
Id. at 56 - 57.
I Additionally, this Court during the charge of the jury gave the
I following instruction:
I An exception to the general rule is the testimony of a
child under the age of 12, as I told you previously. The
Tender Years Doctrine allows you to consider the
I . statements of the alleged victim here as evidence of
the proof of the truth of anything that the witness said
in that earlier statement, but only the event the witness
I was 12 years old or younger at the time of the making
of the statement.
I (Trial by Jury, V. 2, 1/20/16 p. 39).
Initially, this Court notes that there was never an objection at trial
I to this Court's jury instructions; therefore, this issue is waived. It is well-settled
I that to preserve a challenge to a particular jury instruction, a defendant must
make a specific and timely objection, and his failure to do so results in waiver.
I
See, Pa.R.Crim.P. 64 7(B) ("No portions of the charge nor omissions from the
I charge may be assigned as error, unless specific objections are made thereto
I before the jury retires to deliberate."), As O'Donnell did not object at trial to the
language he complains of on appeal, this issue is waived ..
I 4
I
I
I Even if this issue was not waived, it lacks merit. There is nothing
I ambiguous about the word "consider." The Merriam-Webster dictionary defines
this term as, "to think about (something or someone) carefully especially in
I order to make a choice or decision." Additionally, the words surrounding the
I word "consider" in the jury instructions, "allows" and "you may" indicate that
that it is to be thought about. It is up to the jury to decide. It is not a directive.
I II.
,. '
This Cou'rt properly ruled that o';Donnell's robbery conviction would be
admissible if he testified, when the probative value outweighed its
I prejudice. ·
Next, on appeal, O'Donnell argues that this Court erred in holding
I
that his robbery conviction would be admissible if he testified at trial.
I O'Donnell argues that the probative value of the admission of the conviction
I would have be outweighed by the prejudice of its admission.
On January 19, 2016, the Commonwealth filed a motion to admit
I prior crimen falsi convictions. These included a theft conviction, which fell
I within the ten-year period set forth in Pa.R.E. 609(b), and a robbery conviction,
which fell outside the ten-year period, with . his last period of incarceration
I . ..
. . .!
··1.
having been in 2002. j.
I The defense and the Commonwealth both agreed that the theft
I conviction would be admissible. Id. at 5. Therefore, at issue was the robbery
conviction as it fell outside the 10-year period. In its motion and before this
I Court prior to the commencement of trial, the Commonwealth argued that the
I evidence of the robbery conviction should be admitted because its probative
value substantially outweighed any prejudicial effect. The Commonwealth
I
5
I
I
I emphasized that credibility would be a key issue in this case and that its case
I relies heavily on the testimony and credibility of the victim, S.O. The
Commonwealth anticipated that the defense would call witnesses to testify
I regarding S.O.'s reputation for truthfulness, and argued that because of the
I nature of the charges, it wouldbe limited in its ability to attack O'Donnell's
credibility by other means because there were no other witnesses to the crimes.
I (Commonwealth's Motion to Admit Prior Crimen Falsi Convictions 1/19/16;
I Trial by Jury 1/19/16 pp. 6 - 7) ..
In response the defense argued that the admission of the robbery
I
conviction would be highly prejudicial, and that the jury might convict based
I upon that alone. Id. at 7. This Court took the matter under advisement.
I The impeachment by evidence of a criminal conviction is governed
by Pa.RE. 609, which reads in relevant part, as follows:
I (al.In General. For the purpose of attacking the
credlbtlity of any witness; evidence that the witness
I has been convicted of a crime, whether by verdict or by
plea of guilty or nolo contendere, must be admitted if it
involved dishonesty or false statement.
I (b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have
'I
passed since the witness's conviction or release from
confinement for it, whichever is later. Evidence of the
conviction is admissible only if:
(1) its probative value substantially outweighs its
prejudicial effect; and
(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party
has a fair opportunity to contest its use.
i ;.
Pa.R.E. 609(a), (b).
In making this determination, the following factors should be
considered:
1) the degree to which the commission of the prior
offense reflects upon the veracity of the defendant-
witness; 2) the likelihood, in view of the nature and
extent of the prior record, that it would have a greater
tendency to smear the character of the defendant and
suggest a propensity to commit the crime for which he
stands charged, rather than provide a legitimate reason
for discrediting him as an untruthful person; 3) the age
and circumstances of the defendant; 4) the strength of
the prosecution's case and the prosecution's need to
resort to this evidence as compared with the
availability to the defense of other witnesses through
which its version of the events surrounding the
incident can be presented; and S) the existence of
alternative means of attacking the defendant's
credibility.
Commonwealth v. Palo, 24 A.3d 1050,· 1056 (Pa.Super. 2011) (citing
Commonwealth v. Randall, 515 Pa. 410, 413, 528 A.Zd 1326, 1328 (1987)).
In granting the Commonwealth's motion at the start of the second
day of trial, allowing the admission of O'Donnell's robbery conviction if
O'Donnell were to testify at trial, this Court explained its reasons on the record
as follows:
By my calculations, the conviction is four years past
the ten years. Here, the probative value, in my view,
substantially outweighs the prejudicial effect.
We have by agreement the fact that the theft is corning
in, should the defendant testify, as that was well within
the tern years. Notice was given, proper notice was
given here.
7
I
I The robbery certainly is a crime of crimen falsi. It
reflects heavily upon the defendant's veracity. With the
theft already admissible, the robbery does not have a
tendency to smear the character of the defendant;
however, it gives the jury a much clearer picture of his
veracity, should he testify.
The age and circumstances of this def end ant are not
remarkable.
The prosecution's case is rather weak; a classic oath-to-
oath, pitting a young child against a mature worldly
adult, in the event the defendant testifies.
The prosecution needs this evidence, in my opinion, to
have a reasonable chance at a fair trial. The only
people available to testify about the critical events are
the def end ant and the victim. The defense will be
attacking the victim with character evidence, a bad
reputation for telling. the truth. The defense also
attacked the child on cross-exarrunation. The only
ability the Commonwealthhas to attack the
defendant's credibility would be with cross-
examination if this evidence is not admitted.
The trial is a truth-seeking process and the truth about
this defendant should be evaluated by the jury, should
the defendant testify.
I certainly 'Will give the appropriate cautionary
instruction to the jury on how to use this evidence.
(Trial by Jury, V. 2, 1/20/16 pp. 3 - 5).
This Court considered the proper factors in decidingto permit the
robbery conviction should O'Donnell have chosen to testify. Any prejudice was
greatly outweighed by the probative value·ofthe conviction. Therefore, the
Commonwealth motion was granted.
III. This Court properly denied O'Donnell's untimely continuance request.
8
i I
.. ';j ,\ i
O'Donnell's third issue on appeal contends that this Court erred in
failing to grant the continuance of trial request.'
At O'Donnell's request, trial counsel made a continuance request
immediately prior to the commencement of his trial on January 19, 2016. (Trial
by Jury, V. 1, p. 8). Counsel made this request so that additional investigation
could be made into rebuttal witnesses and reputation witnesses, Id. He
specifically identified O'Donnell's son, Jordan O'Donnell, who lives in Oregon
and another reputation witness who was not identified. Id. This Court denied
.I< . 'I :
the request as untimely, noting that this case had been scheduled for quite
some time and that it would not be continued at such a late date. Id.
The standard of review that our Superior Court applies is as
follows:
The grant or denial of a motion for a continuance is
within the sound discretion of the trial court and mil
be reversed only upon a showing of an abuse of
discretion. An abuse of discretion is not merely an
error of judgment; rather, 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 of the record[.]
l .•
t ' : .t. ' '
Commonwealth v. Antidonni, 84 A.3d"736, 745 (Pa.Super. 2014) (citations and
•,' I•
. I .
quotation marks omitted).
The Pennsylvania Rules of Criminal Procedure, Rule 106(D)
provides, "A motion for continuance on behalf of the defendant shall be made
In O'Donnell's Concise Statement of Errors Complained of on Appeal, appellate counsel
notes that he will submit an Anders blief as to this issue, but that it was raised so that it would
be preserved.
9
not later than 48 hours before the time set for the proceeding. A later motion
shall be entertained only when the opportunity therefor did not previously
exist, or the def end ant was not aware of the grounds for the motion, or the
interests of justice require it." Pa.R.Crim.P. 106(D).
Additionally, a trial court must consider the following factors in
rendering its decision to grant or deny a request for a continuance in order to
procure a witness:
{1) the necessity of the witness to strengthen the
defendant's case;
(2) the essentiality of the witness to the defendant's
defense;
(3) the diligence exercised to procure his or her
presence at trial;
{4) the facts to which he or she could testify; and
(5) the likelihood that he or she could be produced at
court if a continuance were granted.
Commonwealth v. Bozic, 997 A.Zd 1211, 1225 (Pa.Super. 2010).
In this case, O'Donnell made this request for a continuance
immediately prior to the commencement of trial. It was untimely and violated
Rule 106(D) as it was not made more than 48 hours before the time that his
trial was set for. In addition, he knew the identity of the proposed reputation
witnesses, one being his son. He offered no explanation as to why he waited
until the moments before trial to make a continuance request. Accordingly, this
Court did not properly denied O'Donnell's continuance request.
10
IV. This Court properly denied O'Donnell nominal bail prior to trial.
Lastly, O'Donnell contends that this Court erred in failing to grant
him nominal bail prior to trial."
On December 29, 2015, 21 days prior to trial, O'Donnell filed a
petition for nominal bail pursuant to Rule 600. The Commonwealth filed a
response. It was argued on the mormngof trial, January 19, 2016. Defense
counsel argued that O'Donnell had been placed in custody on May 21, 2015 and
that from that date to the present date, he has been in custody for 243 days,
with 37days subtracted out for a defense continuance, puts him at 206 days,
which is above the 180-day nominal bail rule. (Trial by Jury, V. 1, 1/19/16 pp. 3
- 4).
In response, the Commonwealth argued that from the date the
initial complaint was filed to the present date, 298 days had elapsed and that
any delay that occurred in this case is attributable to O'Donnell. The
r-
Conunonwealth explained that 86 days should be subtracted out because he
fled to the state of Oregon; 3 7 days should also be subtracted out due to a
defense request for a relist. According to the Commonwealth that puts
O'Donnell at 175, which is within the rule. Id. at 4.
At that time, this Court took the matter under advisement. Id. The
motion was later denied.
6
Appellate counsel states in the Concise Statement that he will also submit and Anders
brief as to this issue. but that it was raised so that it would be preserved.
n
···-······-----
As an issue involving a question of law, the standard of review is de
nova and the scope of review is plenary. Commonwealth v. Dixon, 907 A.2d
468, 4 72 (Pa. 2006).
O'Donnell's request for nominal bail is governed by Pa.R.Crim.P.
600. The Rule provides in pertinent part, as follows: "[e]xcept in cases in which
the defendant is not entitled to release on bail as provided by law, no defendant
shall be held in pretrial incarceration in excess of ... 180 days from the date on
which the complaint is filed." Pa.R.Crim.P. 600(B)(l). In calculating the length of
any pretrial incarceration, "only periods of delay caused by the defendant shall
be excluded from the computation" and any other periods of delay shall be
included." Pa.R.Crim.P. 600(()(2).
'(
The Rule provides the following procedure:
[e]xcept in cases in which the defendant is not entitled
to release on bail as provided by law, when a defendant
is held in pretrial incarceration beyond the time set
forth in paragraph (B), at any time before trial, the
defendant's attorney, or the defendant if
unrepresented, may file a written motion requesting
that the defendant be released immediately on nominal
bail subject to any nonmonetary conditions of bail
imposed by the court as permitted by law. A copy of
the motion shall be served on the attorney for the
Commonwealth concurrently with filing. The judge
shall conduct a hearing on the motion.
Pa.R.Crim.P. 600(D)(2).
In this case, by the time the petition was heard on January 19,
•
2016, the issue-was moot since trial was.tocommence imminently, within
minutes of this pretrial motion. In addition, even if it was not moot at the time
12
it was heard, it is now moot on appeal because O'Donnell has been convicted
,; ,·
and is incarcerated. See, Commonwealth v. Samuel, 102 A.3d 1001, 1006
(Pa.Super. 2014).
CONCLUSION
Based on the forgoing analysis, the judgment of sentence imposed
on June 30, 2016, should be affirmed.
BY IBE COURT:
M~~
, COURT OF COMMON PLEAS
MONTGOMERY COUNTY
PENNSYLVANIA
3STH JUDICIAL DISTRICT
Copies sent on September 27, 2016
By Interoffice Mail to:
Court Administration
By First Class Mail to:
Thomas C. Egan, Esquire
13
-------·--- | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131646/ | The Attorney General of Texas
December 22, 1981
MARK WHITE
This Obinion Overrules LA-63
Attorney General
Supreme Court Building
Honorable Henry Wade opinion No. MW-415
P. 0. Box 12546
Dallas Criminal District Attorney
Austin. TX. 76711 Condemnation Section Re: Whether one person may
5121475.2501 6th Floor Records Building serve at same time as deputy
Telex 9101674-1367 Dallas, Texas 75202 district clerk and deputy
TelecoDier 51214750266
county clerk
Dear Mr. Wade:
1607 Main St., Suite 1400
Dallas, TX. 75201 At the request of the Commissioners Court of Dallas County, you
2141742-6944 have asked whether a person may serve as a deputy district clerk at
the same time the person serves as a deputy county clerk.
4624 Alberta Ave., Suite 160
El Paso, TX. 79905 Unlike counties with a population of less than 8,000, Dallas
9151533-3464 County is not authorized by the Texas Constitution to elect a single
"clerk" who performs the duties of both district clerks and county
clerks; Dallas County elects both officers. Tex. Const. art. V. $99,
1220 Dallas Ave., Suite 202
Houston, TX. 77002
20. Each of them is given statutory authority to appoint deputies.
71316500666 -See V.T.C.S. arts. 1898, 1938, 3902.
Deputies so appointed, however, exercise power in the name of the
606 Broadway, Suite 312
Lubbock, TX. 79401
officer who appointed them and not in their own right; they do not
6061747-5236
succeed to the office if it becomes vacant. Cf. V.T.C.S. arts. 1896,
1936 (clerks pro ternpore); Code Grim. PrE. art. 2.22 (duties
performed by deputies). Such deputies are employees, not officers.
4309 N. Tenth, Suite B Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Attorney General Opinion
McAllen, TX. 76501
5121662.4547
H-1144 (1978). Cf. Donges V. Beall, 41 S.W.2d 531 (Tex. Civ. App. -
Ft. Worth 1931, wfit ref'd) (impliedly overruled per Green V. Stewart,
supra) .
200 Main Plaza, Suite 400
San Antonio, TX. 76205 We do not believe that express statutory authorization is
5121225-4191
necessary in order for one person to serve as both deputy district
clerk and deputy county clerk. However, he may not hold both
An Equal OppOrtunityI positions if he would thereby violate article XVI, section 40 of the
Affirmative Action Employe! Texas Constitution.
Article XVI, section 40 of the Texas Constitution generally
prohibits one person from holding or exercising more than one civil
office of emolument at the same time, but if the positions held by the
deputies do not constitute "civil offices," their occupancy by a
single person would not violate the provision. In 1973, before the
Green V. Stewart case, supra, was decided, this office issued Letter
p. 1415
Honorable Henry Wade - Page 2 (MW-415)
Advisory No. 63, which made a distinction between a "civil office," as
used in section 40, article XVI of the constitution, and a "public
office," as used elsewhere in the constitution. The distinction was
based upon the different treatments accorded those terms by the Texas
Supreme Court with respect to the several constitutional rights of
school district tax assessors. Compare Pruitt V. Glen Rose
Independent School District, 84 S.W.Zd 1004 (Tex. 1935), with Aldine
Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955).
However, cases decided since Letter Advisory No. 63 was issued render
its analysis inappropriate in deciding article XVI, section 40 dual
office questions. Accordingly, since the positions of deputy county
clerk and deputy district clerk are not "public offices," they cannot
be "civil offices" within the meaning of article XVI, section 40 of
the constitution.
The Texas Supreme Court in Aldine Independent School District,
supra, discussed, but did not expressly overrule, a prior inconsistent
holding in Pruitt. It merely- noted that the two cases involved
different constitutional provisions (sections 30 and 40 of article
XVI). This distinction suggested that a "public officer" in section
30 of article XVI was something different from the holder of a "civil
office" in section 40, and prompted the conclusion of Letter Advisory
NO. 63 that a "'civil office' is something more than a 'public
employment' and something less than a 'public office."'
In Green V. Stewart, a, the supreme court declared that the
Aldine Independent Scho'
01 District case impliedly overruled Donges V.
Beall, sup+a. If the Aldine! Independent School District decision did
not also impliedly overrule Pruitt v. Glenrose Independent School
District, supra, in our opinion the Green V. Stewart case did. The
latest case to follow them in defining "public officer" for various
purposes is Pena V. Rio Grande City Consolidated Independent School
District, 616 S.W.Zd 658 (Tex. Civ. App. - Eastland 1981, no writ).
See also Harris County V. Schoenbm, 594 S.W.2d 106 (Tex. Civ. App.
- Houston 1979, writ ref. n.r.e.); Ruiz V. State, 540 S.W.2d 809 (Tex.
Civ. ADD. - Cornus Christi 1976. no writ). Cf. Attornev General
Opinion'MW-39 (19'79);Letter Advisbry No. 137 (lG7). The I&z court
applied the Aldine Independent School District definition of "public
officer" to section 40 "civil offices." Insofar as is necessary here,
Letter Advisory No. 63 (1973) is overruled.
It is possible, of course, that the common law doctrine of
incompatibility would prevent one person from holding the two deputy
positions, but "incompatibility" is ordinarily a fact question. See
State V. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no
writ); Letter Advisory No. 137 (1977). This office is not equipped to
pass upon disputed matters of fact in its opinion process. Absent
"incompatibility," no provision of law has been brought to our
attention that would prevent one person, if qualified, from holding
both positions if the district clerk of Dallas County and the county
clerk of Dallas County agree to appoint the person as their joint
deputy. Compensation for the joint employment should be set by the
p. 1416
Honorable Henry Wade - Page 3 (Mw-415)
commissioners court pursuant to article 3912k, V.T.C.S. See V.T.C.S.
arts. 3902, 3912k; Renfro v. Shropshire, 566 S.W.2d 6883s~. Civ.
APP. - Eastland 1978, writ ref'd h.r.e.). An employee who serves in
this dual capacity is not necessarily entitled to the compensation
that would be earned by two persons each serving full time as a deputy
clerk.
SUMMARY
Texas law does not prevent one person from
serving in the dual capacity of deputy county
clerk and deputy district clerk of Dallas County.
Compensation for the joint employment should be
set by the commissioners court. An employee who
serves in this dual capacity is not necessarily
entitled to the compensation that would be earned
by two persons each serving full time ss a deputy
clerk.
MARK W H-I T E
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1417 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4171359/ | Richard A. Edwards v. State of Maryland, No. 47, September Term, 2016. Opinion by Greene,
J.
CRIMINAL JUSTICE—POST-CONVICTION DNA TESTING
Pursuant to § 8-201 of the Criminal Procedure Article, persons convicted of crimes of violence
are entitled to post-conviction DNA testing upon a showing that “a reasonable probability exists
that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence
relevant to a claim of wrongful conviction or sentencing and the requested DNA test employs
a method of testing generally accepted within the relevant scientific community.” The statute
does not require a petitioner to show that the outcome of his or her case necessarily would have
been different, had the jury been presented with the evidence the petitioner seeks to obtain
through the requested DNA testing. In other words, the petitioner need not show that the DNA
testing has a reasonable probability to exonerate the petitioner. Instead, as clearly delineated
in the statute, the petitioner need only show that there is a reasonable probability that the testing
has the scientific potential to produce exculpatory or mitigating evidence. Exculpatory
evidence is evidence that tends to establish the innocence of the petitioner. It need not
definitively prove the petitioner’s innocence but only tend to prove or disprove a disputed
material fact.
The Circuit Court applied the incorrect legal standard in ruling that there was no possibility that
DNA testing of the requested items would “exonerate” the Appellant.
Circuit Court for St. Mary’s County IN THE COURT OF APPEALS
Case No. 18-K-10-000193
Argued: January 6, 2017 OF MARYLAND
No. 47
September Term, 2016
______________________________________
RICHARD A. EDWARDS
v.
STATE OF MARLAND
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: May 24, 2017
This is a direct appeal pursuant to the DNA testing provisions of the DNA Evidence-
Post Conviction Review. Md. Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the
Criminal Procedure Article (Crim. Pro.). Appellant Richard A. Edwards seeks our review
of the denial, by the Circuit Court for Saint Mary’s County, of his Petition for Post-
Conviction DNA Testing. For the reasons set forth below, we shall vacate the judgment
of the Circuit Court and remand this case to that court with directions to order the DNA
testing of the cigarette lighter.
BACKGROUND
Procedure
On May 12, 2010, a grand jury sitting in the Circuit Court for Saint Mary’s County
returned an indictment in three counts charging Appellant with committing attempted first-
degree rape, third-degree sexual offense, and second-degree assault.1 These charges went
before a Circuit Court jury for trial on February 8 and 9, 2011, following which the jury
convicted Appellant on all counts. On February 9, the trial court sentenced Appellant to
life imprisonment for the attempted first-degree rape, and imposed a concurrent ten years’
imprisonment for the third-degree sexual offense. The second-degree assault merged.
Appellant lodged a direct appeal with the Court of Special Appeals, which, in an unreported
opinion, affirmed in all respects.
1
Md. Code (2002, 2009 Supp.), § 3-309 of the Criminal Law Article (Crim. Law)
(attempted rape in the first degree); Crim. Law § 3-307 (sexual offense in the third degree);
Crim. Law § 3-203 (assault in the second degree).
On or about September 14, 2015, Appellant filed a Petition for Post-Conviction
Relief in the Circuit Court for Saint Mary’s County. On January 4, 2016, the Circuit Court
granted Appellant’s motion to withdraw this first Petition, and on that date Appellant’s
Petition for Post-Conviction DNA Testing was filed pursuant to Crim. Pro. § 8-201 and
Maryland Rule 4-701.2 A hearing on the petition was held on June 14, 2016 before a
Circuit Court judge (“Post-conviction Court”), who, in a written opinion and order issued
on July 6, 2016 denied the petition.3 On July 21, 2016, Appellant noted a direct appeal to
this Court pursuant to § 8-201(k)(6).4
Facts
The operative facts are not in dispute.5 At the trial, the jury heard testimony that,
on the evening of February 12, 2010, the complainant, J.K.,6 went to the Big Dogs Paradise
bar in Mechanicsburg. She arrived at 9:00 p.m. and remained there until the bar closed at
2:00 a.m. the next morning. After leaving the bar, Ms. K., accompanied by some friends,
went outside to smoke a cigarette and socialize. Soon thereafter, the others left, and Ms.
2
Title 4, Chapter 700 of the Maryland Rules governs “Post-Conviction DNA
Testing.”
3
The Post-conviction Court set forth its reasons in a separate “Statement of Reasons
and Opinion of Court.”
4
See Thompson v. State, 411 Md. 664, 681-82, 985 A.2d 32, 41-42 (2009). See also
Brown v. State, 431 Md. 576, 583, 66 A.3d 675, 679 (2013).
5
The Post-conviction Court held a hearing on Appellant’s Petition, but that
proceeding was limited to argument. The Post-conviction Court made no findings of
historical fact.
6
We shall refer to the Complainant by her initials (or “Ms. K.”) to protect her
privacy. See Thomas v. State, 429 Md. 246, 252 n. 4, 55 A.3d 680, 684 n. 4 (2012).
2
K. decided to call a friend, Alex, for a ride home because she had been drinking. She
returned to her car, locked the doors, and called another friend, Mark, to pass the time until
her ride arrived.
While Ms. K. was on the phone with Mark, a man approached her car and identified
himself as a “security guy” at Big Dogs. He claimed that he wanted to ensure Ms. K. had
a safe ride home. Ms. K. told the man that she had a friend on the way to give her a ride
and the man left. A few minutes later, however, while Ms. K. was still on the phone, the
man returned to her car with a cigarette in his hand and asked to borrow her lighter. When
Ms. K. gave the man her lighter, he asked to use her door to shield him from the wind while
he lit his cigarette. Ms. K. agreed. The man crouched down in front of the passenger door
to light the cigarette, but then he entered her car and sat down. When Ms. K. told the man
to get out of her car he did not comply.
Ms. K. then told the man she needed to go to the bathroom and that she was going
back to the bar to see if she could use the bathroom. The man responded, “Oh no, I work
for Big Dogs, they are closed. They won’t let you back in there.” Ms. K. then said “Well,
I’m gonna go check.” She then ended her phone call with Mark, opened her door and
started to get out.
The man got out of the car about the same time and pushed Ms. K. to the ground.
He then pulled Ms. K. back up and pushed her into the driver’s seat of the car. At that
point, he fondled her, kissed her neck, and attempted to pull down her pants, placed his
fingers in her vagina, and attempted to force her to have sexual intercourse with him. At
3
one point during the attack, the man took Ms. K.’s keys and threw them. Ms. K. managed
to retrieve her keys and start the ignition. She “gunned it” and the man fell out of the car
and ran toward the back of the bar. Ms. K. drove to the front of the bar and continuously
honked her horn until some of the Big Dogs bouncers came out. When these employees
asked what was wrong, Ms. K. reported that a man tried to rape her. The police were
summoned.
Officers processed Ms. K.’s car for fingerprints, and investigators also recovered
some items from the car that the suspect could have touched, including a Bic lighter, a
Forever 21 plastic shopping bag, and a pack of Marlboro Menthol cigarettes. Ms. K. did
not go to the hospital on the night of her attack and the police did not take her clothing for
examination. The police did not submit any evidence for DNA testing from Ms. K., her
car, or the items in the car.
Ms. K. testified that she had not known her attacker, but recalled that she had seen
him earlier that night inside the bar. Ms. K. described her attacker as having brown hair
and dark eyes, being in his late thirties to forties, and wearing a long-sleeve denim button-
up shirt. Based on Ms. K’s description of her assailant and on interviews with the
employees and owners of Big Dogs, the police had initially identified a man named Richard
Wathen as a suspect. The police showed Ms. K. two photo arrays, each containing a photo
of a St. Mary’s county resident named Richard Wathen. Ms. K. was unable to make a
positive identification from these arrays.
The police later identified Appellant as a possible suspect and compiled a photo
array with Appellant’s picture, which they showed to Ms. K. She positively identified
4
Appellant as the man who assaulted her in the parking lot outside of Big Dogs. Ms. K.
later testified that she was “positive” of her identification of Appellant as the man who
assaulted her. At trial, Ms. K’s friend Mark, who was on the phone with her that evening
during her interaction with her assailant, recounted that Ms. K. had said she was at Big
Dogs and that during their conversation, Mark could hear a person with a male voice asking
for a light or a cigarette.
The co-owner of Big Dogs, Victoria Adkins, had been working at the bar that
evening and testified that she had spoken with Ms. K. about the incident. Ms. Adkins
testified that after hearing Ms. K. describe the man who attacked her, Ms. Adkins came to
the conclusion that the man was Ricky Edwards, who was at the bar that evening and
wearing a denim button-up shirt. Brian Adkins, who also owns Big Dogs, testified that
when he heard Ms. K.’s description, he thought the person’s name was Ricky. Mr. Adkins
also said Ricky was at the bar that evening and was wearing a blue denim button-up shirt.7
A bar employee named James Dougherty testified that he believed the man who Ms. K.
described was Appellant, a man with whom Mr. Dougherty had had an altercation on the
night in question. Before trial, Mr. Dougherty positively identified Appellant in a photo
array shown to him by police as the man he saw in the bar that evening.
At trial, Appellant called the investigating detective, Det. Thomas Hedderich, as a
defense witness. Det. Hedderich testified that he interrogated Appellant and that Appellant
7
Mr. Adkins initially told police the man’s name was Ricky Wathen, but later
discovered that his last name was not Wathen. Mr. Adkins testified at trial that Appellant
was known as “Ricky.”
5
did not confess to the crime despite the fact that the detective lied to Appellant, claiming
that police had obtained DNA evidence, that the incident was captured on video, and that
an undercover narcotics officer had seen the incident. Appellant also testified in his own
defense and acknowledged that he was at Big Dogs from 12:30 am to 1:30 am, when he
left the bar in the car that his wife drives. Appellant denied having any contact with Ms.
K. on the night in question. Appellant finally testified that he has green eyes, and that he
has a rotten tooth and missing teeth, which he displayed at trial for the jury.
The Post-Conviction Petition
In his post-conviction Petition, Appellant asserted that there was a reasonable
probability that DNA testing of the requested items has the scientific potential to produce
exculpatory evidence relevant to his claim of wrongful conviction. Appellant noted that
the victim testified that the perpetrator used her lighter and two witnesses testified that the
victim told them the perpetrator asked her for a cigarette. Appellant maintained that it is
likely that the perpetrator transferred epithelial cells to the lighter when he used it and that
the perpetrator could also have touched the Forever 21 bag and the cigarette pack given his
proximity to those items when he sat in the passenger seat. 8
Appellant contended that “even with minute or degraded quantities of DNA, it is
‘frequently possible to obtain successful DNA results from cellular material transferred
from the skin of an individual who has simply touched an object.’” (quoting Ray A.
Wickenheiser, Trace DNA: A Review, Discussion of Theory, and Application of the
8
Appellant used the term “skin cells,” but for the sake of clarity and consistency
with the statute, we equate skin cells with the synonymous term “epithelial cells.”
6
Transfer of Trace Quantities of DNA Through Skin Contact, 3 J. FORENSIC SCI. 442
(2002)). The petition noted Wickenheiser’s observation that cigarette lighters specifically
are an “unusual exhibit material yielding successfully DNA profiles using polymerase
chain reaction (PCR) and short tandem repeat (STR) typing.”
Appellant further asserted that the testing could show that his DNA was absent on
all of the tested items but that the DNA profile of another individual may instead be present
on the items. Appellant argued that this would not only support his testimony that he was
falsely identified as the perpetrator but it also has the potential to identify the actual
perpetrator. Finally, the petition asserted that the DNA testing requested, including
polymerase chain reaction (PCR) and short tandem repeat (STR) testing, are generally
accepted as reliable in the relevant scientific community.
As noted, a hearing on the petition was held on June 14, 2016 in the Circuit Court
for St. Mary’s County. At the hearing, the State did not challenge whether the DNA testing
requested by Appellant is employed by a method generally accepted within the relevant
scientific community. Rather, the focus of the hearing was whether there was a reasonable
probability that the testing requested has the scientific potential to produce exculpatory
evidence relevant to Appellant’s claim that he was not the individual who assaulted Ms. K.
On July 6, 2016, the Post-conviction Court issued an order denying Appellant’s
petition for DNA testing. The order was accompanied by a written opinion, which stated
in pertinent part:
As previously stated, the standard in CP § 8-201(d)[(1)](i) is that there must
be a “reasonable probability . . . that the DNA testing has the scientific
potential to produce exculpatory or mitigating evidence.” Because of the
7
highly speculative nature of what petitioner hopes to gain from DNA testing
of these items, this [c]ourt can see no possibility that a DNA test performed
on the items requested would exonerate Petitioner. Even if petitioner’s
DNA is not found on the items and other persons’ DNA is found, that does
not prove or even suggest that any of those other people committed this
crime, even if one of them turns out to be a convicted sex offender.
Here, there is no instrument that was used to commit the crime, and
therefore, no relevance to finding the DNA of random people on the items
Petitioner seeks to have tested. The [c]ourt need not “conduct a fishing
expedition to indulge every permutation” that Petitioner might imagine.
The Post-conviction Court continued:
In this case, it is noteworthy and even dispositive that, at trial, the victim
positively identified Petitioner as the perpetrator. She was able to give the
police a description of him and what he was wearing. She testified that she
got a good look at him because “[h]e was in my face quite a bit . . . I had
seen him earlier in the bar . . . I said that guy looks like a creeper because he
kept looking at me as we were dancing.” In addition, the victim identified
Petitioner for the jury and testified to identifying Petitioner in a photo array.
Trial counsel cross-examined the victim and she did not waiver in her
identification of Petitioner.
The judge distinguished cases where relief had been granted:
This is clearly different than Gregg where it was highly probative that the
killer had handled a gun which was the murder weapon and the DNA on the
gun would have a reasonable probability of producing exculpatory evidence
that would corroborate defendant’s claim that he was not the shooter. This
was especially true given the ambivalent evidence which did convict the
Petitioner. It is also different than Brown where the defendant was
challenging whether the crime had actually happened and wanted the items
tested to disprove it had. Here, there is no such probability that the testing
would produce exculpatory or mitigating evidence for the Petitioner.
(citations omitted).
On July 21, 2016, Appellant noted a direct appeal to this Court pursuant to § 8-
201(k)(6), and presents the following question on appeal:
Did the Circuit Court err when it denied Mr. Edwards’ Petition for Post-
8
Conviction DNA Testing, where a reasonable probability exists that the
requested testing has the scientific potential to produce exculpatory evidence
relevant to Mr. Edwards’ claim of wrongful conviction?
For the following reasons, we shall answer the Appellant’s question in the affirmative and
remand the case to the Post-conviction Court for to order testing.
DISCUSSION
Standard of Review
There is some dispute as to the appropriate standard of review. The State insists at
length that our review of the Post-conviction Court’s ruling is for an abuse of discretion.
We do not agree. Because we are asked to interpret the language in the post-conviction
DNA testing statute, and to determine whether the hearing judge applied the correct
standard of law in denying Appellant’s petition, our review is plenary.9 See Fuster v. State,
437 Md. 653, 671, 89 A.3d 1114, 1124 (2014) (“An appellate court reviews without
deference the legal standard that a trial court uses in ruling on a petition.”). See also, e.g.,
Howard v. State, 440 Md. 427, 434, 103 A.3d 572, 576 (2014).
The cases cited by the State in support of its version of the appropriate standard of
review for an abuse of discretion, do not support its argument on this record. Brown v.
State, 431 Md. 576, 66 A.3d 675 (2013); Washington v. State, 424 Md. 632, 37 A.3d 932
(2012); Arrington v. State, 411 Md. 524, 983 A.2d 1071 (2009). In each of the cases upon
which the State relies, we were asked to review the circuit court’s denial of a motion for a
9
Specifically, we shall review the statute to determine when and whether a post-
conviction DNA petitioner is entitled to DNA testing of evidence in the State’s possession
and the meaning of the terms “reasonable probability” and “exculpatory” under the statute.
9
new trial. By contrast, in the case before us, the Post-conviction Court concluded that the
sought after DNA testing could not yield results that would exonerate Appellant. The Post-
conviction Court effectively denied Appellant’s Petition as a matter of law.
Parties’ Contentions
On appeal, Appellant maintains that a reasonable probability exists that the testing
has scientific potential to produce exculpatory evidence relevant to Appellant’s claim of
wrongful conviction. Ms. K. told the jury that her attacker used her lighter and moreover,
photographs of the crime scene show a Forever 21 bag and a pack of cigarettes on the edge
of the passenger seat where the attacker sat before the assault. Appellant maintains that it
is likely that the perpetrator of the crime transferred epithelial cells onto the lighter when
he touched it and that it is also likely the perpetrator could have touched the cigarette pack
or Forever 21 bag given his proximity to those items.
Further, Appellant urges that the hearing judge applied the wrong standard in
denying the petition when the judge ruled that “the [c]ourt can see no possibility that a
DNA test performed on the items requested would exonerate the Petitioner.” Appellant
insists that the proper standard is not whether DNA testing would “exonerate" him or that
such testing would “prove” someone else committed the crime. Instead, Appellant
contends that the proper inquiry is whether a reasonable probability exists that the testing
has the scientific potential to produce exculpatory or mitigating evidence relevant to the
claim of wrongful conviction or sentencing. Appellant posits that this case turns upon the
meaning of exculpatory, which, he argues, sweeps more broadly than the term exonerating.
Appellant also argues that the inclusion of the terms “or mitigating” and “or sentencing”
10
in the statute show that the standard is one of exculpatory evidence and not exonerating
evidence. Finally, Appellant avers that the absence of his DNA on an item where one
would expect the perpetrator’s DNA, although not necessarily exonerating, is certainly
exculpatory to the extent that it would tend to establish that Appellant was not the person
that assaulted Ms. K. In other words, negative DNA results would satisfy the broader, less
stringent threshold for entitlement to DNA testing than the standard advocated by the State
and applied by the post-conviction court.
Urging that we affirm, the State avers that Appellant’s hoped-for outcome of DNA
testing would not be exculpatory. The State first notes that there is no evidence that the
assailant touched the Forever 21 bag and the cigarette pack, thus the absence of his DNA
on these items would in no way tend to exonerate him. The State explains that the testing
would reveal one of two things—either Appellant’s DNA is on the lighter or it is not—and
argues that neither is exculpatory. The State contends that the best result for Appellant is
that Appellant’s DNA is not on the lighter and notes that the jury was already told that
there was no DNA evidence in this case inculpating Appellant.
Crim. Proc. § 8-201
We agree with Appellant that the standard to be employed by a post-conviction court
in the analysis of a petition for DNA testing does not require the proponent to establish that
the results must, in all instances, exonerate the defendant. We also conclude that our
decision in Brown is, on this record, inapposite.
Maryland’s post-conviction DNA testing statute, which was enacted by the General
11
Assembly in 2001, is codified at § 8-201 of the Criminal Procedure Article.10 “Section 8-
10
Section 8-201 provides in relevant part:
§ 8-201. DNA evidence – Postconviction review.
***
(b) Filing of petition. -- Notwithstanding any other law governing
postconviction relief, a person who is convicted of a crime of violence under
§ 14-101 of the Criminal Law Article may file a petition:
(1) for DNA testing of scientific identification evidence that the State
possesses that is related to the judgment of conviction; or
(2) for a search by a law enforcement agency of a law enforcement data
base or log for the purpose of identifying the source of physical evidence
used for DNA testing.
(c) New trial. -- A petitioner may move for a new trial under this section on
the grounds that the conviction was based on unreliable scientific
identification evidence and a substantial possibility exists that the petitioner
would not have been convicted without the evidence.
(d) Findings requiring DNA testing. --
(1) Subject to subsection (e) of this section, a court shall order DNA testing
if the court finds that:
(i) a reasonable probability exists that the DNA testing has the scientific
potential to produce exculpatory or mitigating evidence relevant to a claim
of wrongful conviction or sentencing; and
(ii) the requested DNA test employs a method of testing generally
accepted within the relevant scientific community.
(2) A court shall order a data base search by a law enforcement agency if
the court finds that a reasonable probability exists that the data base search
will produce exculpatory or mitigating evidence relevant to a claim of
wrongful conviction or sentencing.
***
12
201 entitles persons convicted of certain serious crimes to pursue DNA testing of physical
evidence that is in the possession of the State and might produce exculpatory or mitigating
evidence relevant to a claim of wrongful conviction or sentencing.” Simms v. State, 409
Md. 722, 727, 976 A.2d 1012, 1015–16 (2009). See also Md. Rule 4-703(2)(A).
The statute was enacted “in line with a nationwide trend to adopt post-conviction
DNA testing statutes designed to provide an avenue for the exoneration of the actually
(i) Disposition upon receipt of results. --
(1) If the results of the postconviction DNA testing are unfavorable to the
petitioner, the court shall dismiss the petition.
(2) If the results of the postconviction DNA testing are favorable to the
petitioner, the court shall:
(i) if no postconviction proceeding has been previously initiated by the
petitioner under § 7-102 of this article, open a postconviction proceeding
under § 7-102 of this article;
(ii) if a postconviction proceeding has been previously initiated by the
petitioner under § 7-102 of this article, reopen a postconviction proceeding
under § 7-104 of this article; or
(iii) on a finding that a substantial possibility exists that the petitioner
would not have been convicted if the DNA testing results had been known
or introduced at trial, order a new trial.
(3) If the court finds that a substantial possibility does not exist under
paragraph (2)(iii) of this subsection, the court may order a new trial if the
court determines that the action is in the interest of justice.
(4) If a new trial is granted, the court may order the release of the petitioner
on bond or on conditions that the court finds will reasonably assure the
presence of the petitioner at trial.
13
innocent.” Blake v. State, 395 Md. 213, 219, 909 A.2d 1020, 1023 (2006). We have stated
that the purpose of Crim. Proc. § 8-201 is to “facilitate the establishment of claims of actual
innocence for serious crimes.” Thompson v. State, 395 Md. 240, 252, 909 A.2d 1035, 1042
(2006).11
Under Crim. Proc. § 8-201, persons convicted of certain crimes of violence may file
a petition requesting “DNA testing of scientific identification evidence that the State
possesses that is related to the judgment of conviction.”12 Crim. Proc. § 8-201(b)(1).
“Scientific identification evidence” is defined in Crim. Proc. § 8-201(a)(5) as evidence that
(i) is related to an investigation or prosecution that resulted in a judgment of
conviction;
(ii) is in the actual or constructive possession of a law enforcement agency
or agent of a law enforcement agency; and
(iii) contains biological evidence from which DNA may be recovered that
may produce exculpatory or mitigating evidence relevant to a claim of a
convicted person of wrongful conviction or sentencing if subject to DNA
testing.
11
“The statute has undergone a number of amendments since its enactment in 2001,
and because we have discussed its legislative history on several occasions, we do not repeat
that discussion here.” Simms v. State, 409 Md. 722, 727–28, 976 A.2d 1012, 1016 (2009)
(citing Gregg v. State, 409 Md. 698, 708–12, 976 A.2d 999, 1004–07 (2009)). See also
Jackson v. State, 448 Md. 387, 395–401, 139 A.3d 976, 980–84 (2016) (discussing the
most recent amendments to Crim. Proc. § 8-201). The statute was most recently amended
by 2015 Md. Laws, ch. 369, § 1, which took effect on October 1, 2015, before Appellant
filed his petition for DNA testing. Accordingly, any reference made to Crim. Proc. § 8-
201 in this opinion is to the version of the statute current through the date of this opinion,
unless otherwise specifically noted.
12
Maryland Rules 4-701 et seq. govern post-conviction DNA testing procedures.
Maryland Rule 4-704 governs the contents of a petition for DNA testing.
14
Crim. Proc. § 8-201(a)(5).13 “Biological evidence” is defined as evidence that “includes,
but is not limited to, any blood, hair, saliva, semen, epithelial cells, buccal cells, or other
bodily substances from which genetic marker groupings may be obtained.” Crim. Proc. §
8-201(a)(2). The statute mandates that a court grant a petition for DNA testing if the court
finds:
(i) a reasonable probability exists that the DNA testing has the scientific
potential to produce exculpatory or mitigating evidence relevant to a claim
of wrongful conviction or sentencing; and
(ii) the requested DNA test employs a method of testing generally accepted
with in the relevant scientific community.
Crim. Proc. § 8-201(d)(1).
Here, the parties do not disagree that the requested DNA test employs a method that
is generally accepted within the relevant scientific community. Hence, there is no dispute
that Crim. Proc. § 8-201(d)(1)(ii) is satisfied. At issue in this case is whether a reasonable
probability exists that the requested testing has the scientific potential to produce
exculpatory evidence relevant to the Appellant’s claim of wrongful conviction.
Again, in denying the petition, the post-conviction judge reasoned:
Because of the highly speculative nature of what Petitioner hopes to gain
from DNA testing of these items, this [c]ourt can see no possibility that a
DNA test performed on the items requested would exonerate Petitioner.
Even if Petitioner’s DNA is not found on the items and other persons’ DNA
is found, that does not prove or even suggest that any of those other people
13
All of the evidentiary items at issue in this case, the Forever 21 bag, the cigarette
pack, and the lighter, meet the statutory definition of “scientific identification evidence.”
Md. Code (2001, 2008 Repl. Vol., 2015 Supp.), § 8-201(a)(5). These items are related to
the investigation of Appellant to the extent that the police collected these items from the
scene of crime for processing. See generally, Wallace v. State, ___ Md. ___, ___, ___ A.3d
___, ___, 2017 WL 1422828 *8 (filed April 21, 2017).
15
committed this crime, even if one of them turns out to be a convicted sex
offender.
(Emphasis added). The theory of the court’s denial, that the proposed DNA analysis would
not exonerate Appellant, leaves no room for the broader reach of the statute as indicated
by the term “exculpatory.” The State argues that the hearing judge applied the appropriate
standard. On this point, the parties are in disagreement, specifically over the meaning and
application of the term “exculpatory.”
The term “exculpatory” as employed in the statute embraces a far broader scope of
relief than the “zero sum” standard characterized by the term “exonerate” and advanced by
the State and applied by the Post-conviction Court. The sought after testing of objects
described by Ms. K., most notably the cigarette lighter, have the “scientific potential to
produce exculpatory or mitigating evidence.” Nothing in the plain language of the statute
suggests that the testing results must “exonerate” a petitioner or “prove” that someone else
committed the crime.
Although the General Assembly did not define the word “exculpatory” in the statute,
we are able to discern the term “exculpatory” with its plain and ordinary meaning. See Ali
v. CIT Tech. Fin. Servs., Inc., 416 Md. 249, 262, 6 A.3d 890, 897–98 (2010) (“When the
Court can ascertain the Legislature’s intent from the plain meaning of the verbiage, the
Court need not delve deeper. . . . In seeking to apply the plain-meaning rule, it is proper to
consult a dictionary or dictionaries for a term’s ordinary and popular meaning.”). Black’s
Law Dictionary defines exculpatory as “evidence tending to establish a criminal
16
defendant’s innocence.” BLACK’S LAW DICTIONARY at 577 (7th ed. 1999). This is
consistent with the policy of the statute - to facilitate claims of actual innocence.
Our cases confirm this conclusion. In Gregg v. State, 409 Md. 698, 976 A.2d 999
(2009), we discussed § 8-201(d)(1) and noted that:
Given that the statute only requires a showing that the desired testing has a
reasonable probability that the DNA testing of the epithelial cells has the
scientific potential to produce relevant exculpatory or mitigating evidence,
the petition, on its face, satisfies that standard. Appellant was not required
to show that the outcome of his case necessarily would have been different,
had the jury been presented with the evidence he seeks to obtain through the
requested DNA testing. That is why the State’s argument on appeal, that the
evidence at trial “overwhelmingly” established Appellant’s guilt, does not
defeat the prima facie case that the petition makes for satisfaction of the
requirement set forth in § 8-201(c)(1).
Gregg, 409 Md. at 720, 976 A.2d at 1011 (emphasis added).
Our decision in Thompson v. State, 411 Md. 664, 985 A.2d 32 (2009), is also
instructive. The defendant in that case filed for post-conviction relief, asserting that the
results of DNA testing established that he had been convicted of rape, felony murder and
associated offenses in error. One issue before us was whether the “more liberal” standards
for the granting of a new trial should apply to Thompson’s case. 14 In 2008, the General
Assembly amended the DNA provisions of the Criminal Procedure Article by adding, inter
alia, the following standard for the post-conviction court to apply in assessing a motion for
a new trial:
A petitioner may move for a new trial under this section on the grounds that
the conviction was based on unreliable scientific identification evidence and
14
See 2008 Laws of Maryland, chap. 337, § 1, abrogated December 31, 2013. See
id., § 4.
17
a substantial possibility exists that the petitioner would not have been
convicted without the evidence.
Md. Code (2009 Supp.), § 8-201(c). We held that, although Thompson had filed for post-
conviction relief prior to the effective date of the amendment, January 1, 2009, the
appropriate standard for the post-conviction court to apply should be the above provision,
Section 8-201(c), as added in 2008. Thompson, 411 Md. at 683-84, 985 A.2d at 43. In a
footnote, we further commented on the appropriate standard, and this note is particularly
relevant to the case before us:
We note that this is in keeping with the standard employed by many
other jurisdictions. See, e.g., Bedingfield v. Commonwealth, 260 S.W.3d 805,
814-15 (Ky. 2008) (determining that DNA evidence that would “probably”
produce a different result was sufficient to warrant a new trial, and need not
explicitly exculpate the petitioner); People v. Jackson, 283 N.W.2d 648, 650
(Mich. Ct. App. 1979) (employing standard of whether new testing could
make a different result “possible” on retrial); Brewer v. State, 819 So. 2d
1169, 1173 (Miss. 2002) (citation omitted) (stating that standard is whether
DNA evidence will “probably produce a different result”); Commonwealth
v. Reese, 663 A.2d 206, 209 (Pa. Super. Ct. 1995) (quoting statutory standard
that DNA evidence must “have affected the outcome of the trial”); State v.
Hicks, 549 N.W.2d 435, 439 (Wis. 1996) (explaining that different result at
trial not necessary if the court concludes that the “real controversy” was not
fully tried); In re Bradford, 165 P.3d 31, 33-34 (Wash. Ct. App. 2007) (using
“will probably change the result of the trial” standard in evaluating DNA
evidence).
Thompson, 411 Md. at 684 n. 10, 985 A.2d at 43 n. 10. Although we were concerned, inter
alia, with the “new trial” provision set forth in Section 8-201(c) (2009), the decision in
Thompson informs our analysis of the sum and substance of the term “exculpatory” and its
place in a remedial statute.
In Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008), cited with approval
in Thompson, the Supreme Court of Kentucky ruled that the defendant was entitled to a
18
new trial on a rape charge after newly discovered DNA test results ruled out the presence
of his DNA in sperm recovered from the victim’s rape kit. After surveying decisions from
other jurisdictions on the issue, the Kentucky high court elaborated:
It would seem that this Court has never thoroughly examined the exculpatory
effect of newly discovered DNA evidence in this context. However, many of
our sister jurisdictions, acknowledging the accuracy, effectiveness, and
implicit interests of justice inherent in DNA testing have recognized the
exculpatory effect that such evidence may have in post-conviction criminal
proceedings.
Bedingfield, 260 S.W.3d at 811. In securing Bedingfield’s conviction, the prosecutor had
emphasized that semen analyzed from the rape kit was crucial proof of Bedingfield’s
identity. A police lab technician, who could not prove Bedingfield as the source of the
semen, nevertheless prompted the “supposition” that he was in any event the perpetrator.
The lab technician’s analysis buttressed an already suspect circumstantial evidence case,
which would have been undermined by the precision of the later DNA test results. The
Kentucky Supreme Court’s conclusion as to the clarifying impact of the DNA testing
merits quotation at length:
Ultimately, the substantive exculpatory nature of the newly discovered DNA
evidence coupled with the blatant testimonial inconsistencies of the material
witnesses and the substantial impact which this newly discovered evidence
has upon said testimony, along with the fact that this evidence would
probably induce a different conclusion by a jury, all serve to warrant a new
trial to avoid a substantial miscarriage of justice.
***
For clarity's sake we emphasize: the presence of sperm which DNA testing
proves did not belong to Appellant does not exonerate him; however, the
presence of this new evidence does cast a long shadow and assuredly merits
consideration in the form a new trial. It cannot be overlooked that in
Appellant's initial trial, all other arguments were enhanced and corroborated
19
by the supposition that the sperm found belonged to Appellant. Indeed, this
theme was central to the Commonwealth's prosecution. Because the
technology was not available for Appellant to refute that claim, Appellant
was left to rely on his word against that of the Commonwealth. This new
evidence is substantial, if not pivotal, and we are inclined to believe that it is
precisely the type of evidence that is envisioned by the rule and that may
change the result if a new trial were granted.
Bedingfield, 260 S.W.3d at 814–15 (emphasis added) (statutory citation omitted).
The Bedingfield Court’s analysis of the “exculpatory effect” of the DNA evidence
applies with substantial force to our inquiry into the proper assessment of the term
“exculpate” as written in our statute.
The Kansas Supreme Court’s opinion in State v. Hernandez, 366 P.3d 200 (Kan.
2016), also helps to inform our analysis. Hernandez was convicted of raping and
sodomizing his daughter. Hernandez, 366 P.3d at 202. At trial, evidence showed that the
assaults took place on the victim’s bed and on the petitioner’s bed. Id. Evidence also
showed that the petitioner sometimes used condoms and sometimes did not. Id. During
the investigation of the crime, police recovered a sheet from the victim’s bed and bedding
from the petitioner’s bed, but neither item of evidence was tested for DNA at that time.
Hernandez, 366 P.3d at 203. After his conviction, the petitioner filed a petition seeking
DNA testing of the sheets and bedding. Id. Kansas’s post-conviction DNA testing statute
is similarly worded to our own, and provides that “[a] court shall order DNA testing
pursuant to a petition made under subsection (a) upon a determination that testing may
produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that
the petitioner was wrongfully convicted or sentenced.” KAN. STAT. ANN. § 21-2512;
20
Hernandez, 366 P.3d at 204. The trial court denied his petition and petitioner appealed to
the Kansas Supreme Court. Hernandez, 366 P.3d at 203.
The prosecution argued that the absence of Hernandez’s DNA on the evidence
“would not have changed the verdict.” Hernandez, 366 P.3d at 206. In rejecting the state’s
argument, the Kansas high court defined exculpatory as evidence that “tends to disprove a
fact in issue which is material to guilt or punishment.” Id. The court noted that evidence
can be exculpatory without being exonerating and that “[t]o be exculpatory evidence, it
need not definitively prove the petitioner’s innocence but only tend to disprove a disputed
material fact.” Hernandez, 366 P.3d at 208 (emphasis added). The Hernandez court’s
interpretation of the term “exculpatory” applies with equal force to the case before us. This
is consistent with the interpretation of this term by our intermediate appellate court. See
Jackson v. State, 207 Md. App. 336, 357, 52 A.3d 980, 992 (“[E]xculpatory evidence is
that which is capable of clearing or tending to clear the accused of guilt.”) (citations and
internal quotation marks omitted), cert. denied, 429 Md. 530, 56 A.3d 1242 (2012).
We thus hold that “exculpatory” under § 8-201(d)(1) means evidence that would
tend to clear the accused of guilt, or tend to establish his or her innocence. We further hold
that “exculpatory” under this provision does not require a petitioner to establish that the
result would have been different if the DNA results sought were known at the time of the
trial. Accordingly, we hold that the hearing judge erroneously applied the wrong standard
when she ruled that there was “no possibility that a DNA test performed on the items
requested would exonerate [Appellant].”
Recently, in Wallace v. State, this Court had the occasion to address the definition
21
of “scientific identification evidence” for purposes of the evidence retention provisions of
the Postconviction DNA testing statute. See Crim. Proc. §§ 8-201(a)(5), 8-201(j). In that
case, we examined the different thresholds that a petitioner must satisfy in showing the
State’s duty to preserve certain evidence, Crim. Proc. § 8-201(j), and in demonstrating
entitlement to DNA testing, Crim. Proc. § 8-201(d). Wallace, ___ Md. at ___, ___ A.3d at
___, 2017 WL 1422828 *7.
We concluded in Wallace that the correct legal standard for holding the State to the
obligation to preserve evidence was not stringent:
The threshold that a petitioner must satisfy in order to show that the
State had a duty to preserve certain evidence under the Postconviction DNA
Testing Statute is lower than the threshold that a petitioner must satisfy in
order to be entitled to DNA testing on that evidence. In other words,
evidence that satisfies the “reasonable probability” standard of subsection
(d), and is therefore subject to DNA testing, is a subcategory of evidence that
satisfies the definition of “scientific identification evidence” in subsection
(a), and is therefore subject to the State's duty of preservation. “Scientific
identification evidence” includes all evidence that “contains biological
evidence from which DNA may be recovered that may produce exculpatory
or mitigating evidence relevant to a claim of a convicted person of wrongful
conviction or sentencing if subject to DNA testing.”
Wallace, ___ Md. at ___, ___ A.3d at ___, 2017 WL 1422828, at *7 (footnote omitted).
We went on to hold in Wallace that the T-shirt in question did not qualify as
“scientific identification evidence” because there was “no possibility, or chance, that DNA
testing could have produced exculpatory or mitigating evidence. Wallace, ___ Md. at ___,
___ A.3d at ___, 2017 WL 1422828, at *9. By contrast, the articles described by Ms. K. in
the case before us, particularly the cigarette lighter, were not merely random items that
22
would be the subject of a “fishing expedition,” but potentially relevant material that may
satisfy the slightly higher threshold for demonstrating entitlement to DNA testing.
The State argues that the absence of Appellant’s DNA on the lighter does not
“prove” he was not the assailant because Appellant “was charged with sexual assault; he
was not charged with touching a lighter” and that “[a]ny assessment of the exculpatory
value of lighter-related evidence must be understood in that context—the lighter (unlike,
say, the murder weapon in Gregg) was of marginal relevance.” (emphasis added). This
contention confuses the concept of exculpatory evidence. The fact that the jurors were
informed, even repeatedly, that there was no forensic evidence linking Appellant with the
incident, does not detract from the fact that DNA testing might rule out the presence of
Appellant’s DNA on the items tested.
The State posits that our decision in Brown v. State, 431 Md. 576, 66 A.3d 675
(2013), is apposite. In that case we held that DNA test results showing an absence of the
defendant’s DNA on an assault weapon “did not contradict or undercut any information
presented to the jury at trial.” Brown, 431 Md. at 589, 66 A.3d at 683. In denying Brown’s
motion for a new trial, the post-conviction court in that case determined that negative
results from DNA testing did not undermine the prosecution’s case, because the jury heard,
at length, evidence that there was no forensic evidence linking Brown to the crime. We
affirmed.
We explained that, in the context of a motion for a new trial, the post-conviction
court “did not abuse its discretion in finding that the absence of Brown’s DNA on [the
23
evidence in question] did not provide a substantial possibility that the jury would have
reached a different conclusion with respect to Brown’s guilt.” Brown, 431 Md. at 589, 66
A.3d at 683. The distinction between Brown and the case before us is that Brown’s petition
was evaluated in the context of a motion for a new trial and the evidence of trial was such
that the post-conviction court was satisfied that, in light of the DNA evidence, Brown failed
to demonstrate a “substantial possibility that he would not have been found guilty if the
DNA evidence had been introduced at trial,” while the post-conviction court in the case
applied an incorrect legal standard. 431 Md. at 590, 66 A.3d at 683-84.
The State further posits that the absence of trace evidence only proves that there was
no trace evidence. The State claims that DNA cannot establish a negative, meaning that
although the presence of Appellant’s DNA on the lighter would tend to establish he was
the perpetrator, the absence of his DNA would not tend to establish that he was not the
perpetrator; the absence of a DNA match effectively proves nothing, according to the State.
The absence of Appellant’s DNA has the potential to exculpate Appellant to the
extent that it would tend to prove that he either did or did not use the lighter that Ms. K.
testified was used by the man who assaulted her. Where criminal agency is an issue, such
as in this case, evidence tending to prove or disprove that the accused’s DNA is present on
items that the perpetrator touched or may have come into contact with has a great potential
to exculpate. Thus, the State’s attempt to distinguish Gregg on the basis that the item to
be tested in that case was the instrument of the crime, is not dispositive with respect to all
24
cases of DNA testing.15 Although the absence of Appellant’s DNA on the lighter would
not conclusively prove that Appellant did not assault Ms. K., as the attacker may not have
transferred any trace DNA to the lighter, absolute certainty is not the standard.
In assessing whether there is a reasonable probability that DNA testing may produce
exculpatory or mitigating evidence, where the State has possession of an item that a
perpetrator allegedly touched, a court may take into account factors such as the nature of
the item (e.g., whether it is an instrumentality of the crime), the physical proximity between
where the item was located and where the crime occurred, and the temporal proximity
between when the perpetrator touched the item and when the crime occurred. Applying
these factors to the instant case, we conclude that Appellant has established that DNA
testing is warranted as to the cigarette lighter. Although the cigarette lighter is not an
instrumentality of the crime, the physical proximity between where the lighter was located
and where the crime occurred and the temporal proximity between when the perpetrator
touched the lighter and when the crime occurred are factors that weigh heavily in favor of
granting Appellant’s request. The perpetrator gained access to Ms. K.’s vehicle by asking
15
This is only true with respect to the cigarette lighter. Under our interpretation of the
DNA statute, Appellant would not be entitled to testing of the Forever 21 bag and the
cigarette pack. Appellant’s contention that the perpetrator “could have” transferred
epithelial cells due to his “proximity” to these items speaks to a mere possibility and is
insufficient to satisfy the reasonable probability standard. These items were items that the
perpetrator could have possibly or conceivably come into contact with, but the trial record
in this case contains no evidence that the perpetrator actually did come into contact with
these items. Unlike the cigarette lighter in this case, the absence of Appellant’s DNA on
these items would not tend to establish that he was not the perpetrator of this crime, as the
perpetrator of this crime was never alleged to or shown to have come into contact with
these items.
25
to borrow her lighter, and the crime occurred immediately after the perpetrator touched the
lighter. In sum, as discussed above, the standard is simply whether there is a reasonable
probability, or fair likelihood, that the testing has the potential to produce exculpatory
evidence, which in turn, is evidence that tends to disprove or negate a petitioner’s guilt.
CONCLUSION
The hearing judge incorrectly applied a more stringent standard that would require
Appellant to show that the DNA testing he seeks would exonerate him. Given the extant
record, we conclude that Appellant has established that DNA testing is warranted in light
of the proper standard set forth above. Accordingly, we shall vacate the order of the hearing
judge and remand the case to the Circuit Court to enter an order directing DNA testing on
the cigarette lighter. Crim. Proc. § 8-201(d). See Gregg v. State, 409 Md. at 721, 976 A.2d
at 1012 (remanding a post-conviction DNA case for circuit court to direct DNA testing).
Cf. Simms v. State, 409 Md. at 733-34, 976 A.2d at 1019–20 (holding petition facially
sufficient to warrant DNA testing; remanding for Circuit Court to direct State to respond
to petition).
JUDGMENT OF THE CIRCUIT COURT
FOR ST. MARY’S COUNTY VACATED.
CASE REMANDED TO THAT COURT
WITH DIRECTION TO ISSUE AN
ORDER FOR DNA TESTING
CONSISTENT WITH THIS OPINION.
STATE TO PAY THE COSTS.
26 | 01-03-2023 | 05-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4155472/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
342
CAF 15-01710
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.
IN THE MATTER OF WILLIAM LANTZ,
PETITIONER-RESPONDENT,
V ORDER
CYNTHIA PETERS, RESPONDENT-APPELLANT.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
KELIANN M. ARGY, ORCHARD PARK, FOR PETITIONER-RESPONDENT.
EMILY A. VELLA, ATTORNEY FOR THE CHILD, SPRINGVILLE.
Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered September 18, 2015 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, directed
that petitioner shall have primary physical placement of the subject
child.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs for reasons stated at Family Court.
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 03-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288774/ | United States Court of Appeals
For the First Circuit
No. 15-1900
UNITED STATES OF AMERICA,
Appellant,
v.
ÁNGEL GABRIEL FERNÁNDEZ-JORGE,
Defendant, Appellee.
No. 15-1975
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN PÉREZ-TORRES,
Defendant, Appellant.
____________________
No. 15-2001
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. DE LA CRUZ-VÁZQUEZ,
Defendant, Appellant.
____________________
No. 15-2104
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN OTERO-DÍAZ,
Defendant, Appellant.
____________________
No. 15-2168
UNITED STATES OF AMERICA,
Appellee,
v.
ISAÍAS MENDOZA-ORTEGA,
Defendant, Appellant.
____________________
No. 15-2244
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN OTERO-MÁRQUEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Víctor P. Miranda-Corrada, for appellant Fernández-Jorge.
Ramón M. González, on brief for appellant Pérez-Torres.
Humberto Guzmán-Rodríguez and Guzmán & Rodríguez-López Law
Office, on brief for appellant De la Cruz-Vázquez.
Edgar L. Sánchez-Mercado, on brief for appellant Otero-Díaz.
Juan A. Albino-González, with whom Albino & Assoc. Law Office,
PC was on brief, for appellant Mendoza-Ortega.
Lauren E.S. Rosen, Assistant Federal Public Defender, with
whom Patricia A. Garrity, Research and Writing Specialist, Eric A.
Vos, Federal Public Defender, and Vivianne M. Marrero-Torres,
Assistant Federal Public Defender, Supervisor, Appeals Section,
were on brief, for appellant Otero-Márquez.
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Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
June 26, 2018
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TORRUELLA, Circuit Judge. After a jury trial, Ángel
Gabriel Fernández-Jorge, Brian Pérez-Torres, José A. De La Cruz-
Vázquez, Edwin Otero-Díaz, Isaías Mendoza-Ortega, Edwin Otero-
Márquez, and Rafael Martínez-Trinidad (collectively, the
"Defendants") were found guilty of possessing firearms in a school
zone.1 The jury also found Mendoza-Ortega and Otero-Márquez guilty
of possessing firearms as convicted felons. All of the Defendants
then brought motions for acquittal, but the district court granted
only that of Fernández-Jorge. Now, the government appeals the
district court's grant of Fernández-Jorge's motion, while Pérez-
Torres, De La Cruz-Vázquez, Otero-Díaz, Mendoza-Ortega, and Otero-
Márquez (collectively, the "Defendant-Appellants") appeal the
district court's denial of their motions for acquittal. We also
consider whether the district court's jury instructions concerning
aiding and abetting liability were erroneous.
After considering all of this, we hold the following:
(1) sufficient evidence supported the Defendant-Appellants'
convictions for possession of a firearm in a school zone (Count
Three); (2) sufficient evidence did not support Fernández-Jorge's
conviction for possession of a firearm in a school zone; (3) the
district court's erroneous jury instructions on aiding and
1 Martínez-Trinidad elected not to pursue an appeal following his
conviction.
-4-
abetting liability require us to vacate the Defendant-Appellants'
convictions for Count Three; and (4) sufficient evidence did not
support the convictions of Mendoza-Ortega and Otero-Márquez for
possession of a firearm as convicted felons, which requires us to
reverse their convictions for Count One.
I. Background
We begin with a brief summary of the facts and procedural
events leading up to this appeal, into which we shall delve with
greater detail in taking up the various issues the parties have
raised. Because this appeal pertains, in part, to the Defendants'
motions for acquittal before the district court, we recount the
facts here "in the light most favorable to the government." See
United States v. Acevedo, 882 F.3d 251, 257 (1st Cir. 2018).
A. The shootout
A shootout took place in front of the Jardines de Oriente
public housing project, in Humacao, Puerto Rico, during the late
morning of February 16, 2012. Officers from the Puerto Rico Police
Department arrived at Jardines de Oriente shortly after the gunfire
stopped. They observed several people in dark clothing abscond -
- jumping the housing project's perimeter fence and entering the
large concrete tunnel behind the fence into which the Mabú creek
drains. That tunnel runs between the Jardines de Oriente and the
Rufino Vigo public elementary school (the "School"). It ends at
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the Doctor Palou public housing project. Officers positioned
themselves outside of the tunnel's entrance. Two men attempted
to escape from the top of the tunnel through a manhole. After
police fired a warning shot, one of these men, De la Cruz-Vázquez,
dove into some nearby bushes and was promptly arrested, searched,
and found to be carrying ammunition. The other man retreated back
down the manhole in response to the warning shot.
Meanwhile, the officers waiting at the entrance to the
tunnel heard voices and the sound of gunfire from inside the
tunnel. The officers ordered anyone inside the tunnel to exit
with their hands up. The six remaining Defendants -- all shirtless
and unarmed -- emerged from the tunnel and were arrested. Officers
then searched the tunnel and recovered seven firearms, ammunition,
and various articles of clothing. Ballistics analyses would later
link four of these weapons to the shootout at Jardines de Oriente.
Five of the Defendants stated that they lived at the
Doctor Palou public housing project, located at the end of the
tunnel opposite where the shootout occurred. Mendoza-Ortega lived
elsewhere in Humacao. Fernández-Jorge was not from Humacao, but
rather from San Juan.
B. The trials
In February 2012, a grand jury returned an indictment
against the seven individuals arrested in connection with the
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shootout. Count One of the indictment charged Otero-Márquez and
Mendoza-Ortega with possessing firearms as convicted felons, in
the principal and aiding and abetting forms. See 18 U.S.C. §§ 2,
922(g). Count Three accused all seven Defendants of possessing
firearms within a school zone, also in the principal and aiding
and abetting forms. See 18 U.S.C. §§ 2, 922(q)(2)(A).2
All of the Defendants proceeded to trial, and the jury
found all of them guilty on all counts. However, it then came to
light that, through unsanctioned research, one or more members of
the jury had discovered that two people died during the shootout.3
This forced the district court to declare a mistrial.
A second trial ensued, and the jury again found all
Defendants guilty on Count Three, and found Mendoza-Ortega and
Otero-Márquez guilty on Count One as well. The jury filled out
general verdict forms, which did not distinguish between the
principal and aiding and abetting forms of the charged offenses.
The Defendants proceeded to file motions for acquittal. See
Fed. R. Crim. P. 29. In an omnibus order, the district court
denied those motions in their entirety, except as to Fernández-
2 The district court granted the Defendants' motion for acquittal
on Count Two of the indictment, possession of a stolen firearm,
and the government did not appeal that decision.
3 Evidence of these deaths had been excluded from trial.
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Jorge. According to the district court, the government had not
brought forth sufficient evidence that Fernández-Jorge -- who,
unlike his codefendants, did not live in Humacao -- knew or should
have known that he was in a school zone. The court sentenced each
of the remaining Defendants to 60 months' imprisonment for Count
Three. It also sentenced both Mendoza-Ortega and Otero-Márquez
to an additional 120 months' imprisonment for Count One, to be
served consecutively with their sentences for Count Three.
Now, the government appeals Fernández-Jorge's acquittal
and the Defendant-Appellants appeal their convictions, challenging
both the sufficiency of the evidence and the district court's jury
instructions. We first consider whether sufficient evidence
supported all of the Defendants' convictions on Count Three, and
the convictions of Mendoza-Ortega and Otero-Márquez on Count One.
We then address whether the district court correctly instructed
the jury on aiding and abetting liability.
II. The motions for acquittal
We review a district court's ruling on a Rule 29 motion
de novo, viewing the evidence in the light most favorable to the
jury's guilty verdict. United States v. Santos-Soto, 799 F.3d 49,
56-57 (1st Cir. 2015). The "verdict must stand unless the evidence
is so scant that a rational factfinder could not conclude that the
government proved all the essential elements of the charged crime
-8-
beyond a reasonable doubt." United States v. Rodríguez-Vélez, 597
F.3d 32, 39 (1st Cir. 2010) (emphasis in original).
Because Counts One and Three charged the Defendants in
the principal and aiding and abetting forms, we also find it useful
to review the essentials of aiding and abetting liability.
18 U.S.C. § 2 provides that anyone who aids or abets a crime
against the United States "is punishable as a principal."4 One
"is liable under § 2 for aiding and abetting a crime if (and only
if) he (1) takes an affirmative act in furtherance of that offense,
(2) with the intent of facilitating the offense's commission."
United States v. Encarnación-Ruiz, 787 F.3d 581, 587 (1st Cir.
2015) (quoting Rosemond v. United States, 134 S. Ct. 1240, 1245
(2014)). To be guilty of aiding and abetting a crime, a defendant
need not have actually assisted the principal in committing each
element of the crime. Id. But, the defendant does need to have
"intend[ed] to facilitate 'the specific and entire crime
charged.'" Id. (quoting Rosemond, 134 S. Ct. at 1248). As a
4 The overwhelmingly preferred nomenclature for this form of
criminal liability -- which the indictment also used -- is the
conjunctive "aiding and abetting." Yet, 18 U.S.C. § 2 applies to
anyone who "aids, abets, counsels, commands, induces or procures
[the underlying offense's] commission." Id. (emphasis added).
This distinction seems to lack significance, though, as it is
difficult to imagine a case in which a defendant has "aided" the
commission of an offense without also having "abetted" it, or vice
versa.
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result, the defendant must have had "advance knowledge" of the
crime he or she facilitated to be guilty of aiding and abetting
it. Id. at 588 (quoting Rosemond, 134 S. Ct. at 1249); see also
United States v. Ford, 821 F.3d 63, 69 (1st Cir. 2016). Finally,
"[p]roving beyond a reasonable doubt that a specific person is the
principal is not an element of the crime of aiding and abetting."
United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982).
A. The Defendant-Appellants' motions for acquittal on Count
Three
In attacking the district court's denial of their Rule
29 motions as to the possession of a firearm in a school zone
count, the Defendant-Appellants advance three categories of
arguments. First, all of the Defendant-Appellants argue that the
government did not introduce sufficient evidence that they
possessed the firearms recovered from the tunnel. Second, De la
Cruz-Vázquez and Otero-Díaz assert that the government failed to
sufficiently establish that they were, in fact, within a school
zone. Finally, Pérez-Torres, De la Cruz-Vázquez, Mendoza-Ortega,
and Otero-Díaz argue that sufficient evidence did not support the
conclusion that they knew or should have known that they were in
a school zone.
1. Possession of firearms
We begin by considering whether any rational fact-finder
could have concluded beyond a reasonable doubt that the Defendant-
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Appellants possessed firearms or aided and abetted each other in
doing so with advance knowledge of this element.5 See Rosemond,
134 S. Ct. at 1249; Rodríguez-Vélez, 597 at 39.
"'Knowing possession of a firearm' may be proven through
either actual or constructive possession." United States v.
Guzmán-Montañez, 756 F.3d 1, 8 (1st Cir. 2014). Proving
constructive possession, in turn, requires proving that the
defendant had "the power and intention of exercising dominion and
control over the firearm." Id. (citing United States v. DeCologero,
530 F.3d 36, 67 (1st Cir. 2008)). Constructive possession may be
joint. DeCologero, 530 F.3d at 67. Additionally, it is possible
to prove constructive possession by relying entirely upon
circumstantial evidence. Guzmán-Montañez, 756 at 8 (citing United
States v. Wight, 968 F.2d 1393, 1398 (1st Cir. 1992)). However,
"mere presence with or proximity to weapons or association with
another who possesses a weapon" is insufficient to
circumstantially establish constructive possession. United States
v. Rodríguez-Lozada, 558 F.3d 29, 40 (1st Cir. 2009). Rather, it
is necessary to show "some action, some word, or some conduct that
5 None of the Defendant-Appellants have challenged the district
court's holding that, for Rule 29 purposes, the government
succeeded in establishing that the firearms in question had
traveled through interstate commerce, an element of Counts One and
Three. See 18 U.S.C. § 922(g), (q)(2)(A).
-11-
links the individual to the contraband and indicates that he had
some stake in it, some power over it." United States v. McLean,
409 F.3d 492, 501 (1st Cir. 2005) (quoting In re Sealed Case, 105
F.3d 1460, 1463 (D.C. Cir. 1997)). For example, valid
circumstantial evidence of constructive possession includes
evidence of an individual's "control over the area where the
contraband is found." Id.
Though no witnesses testified to having seen any of the
Defendant-Appellants possessing a weapon, the government contends
that it introduced ample circumstantial evidence of possession.
We now review that evidence.
First, Officer Ángel Fontánez testified that he was on
motorcycle patrol near Jardines de Oriente on the morning of
February 16, 2012, when he heard the sound of gunfire emanating
from the housing project. Fontánez took cover behind the
supporting column of a nearby bridge, and once the gunfire
subsided, he approached Jardines de Oriente on his motorcycle.
Though some buildings partially obstructed his view, he saw seven
or eight individuals -- several of them wearing dark clothing --
running towards a fence at the back of Jardines de Oriente. He
said that he then observed three or four people scale that fence
and head toward the entrance of a tunnel located on the other side.
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Fontánez hurried to the tunnel's entrance, where several other
officers had also gathered.
Fontánez then testified that, while positioned outside
the entrance, he heard voices and the sound of gunfire from within
the tunnel. According to Fontánez, two people then emerged from
a manhole atop the tunnel and attempted to flee. When those two
did not heed Fontánez's order to freeze, he fired a warning shot.
In response, one of the two individuals retreated back down the
manhole, while the other dove into some nearby bushes. The bushes,
however, provided ineffective cover, and officers arrested this
individual (later identified as De la Cruz-Vázquez) -- whom
Fontánez described as wearing a black jacket and gloves -- and
discovered a magazine containing around 30 bullets in his pocket.
Officer Víctor Cruz-Sánchez corroborated Officer Fontánez's
testimony about arresting De la Cruz-Vázquez and finding
ammunition on him after he surfaced from the manhole.6
Agent José López-Ortiz testified that he was on patrol
when he received a radio call about the events transpiring at
Jardines de Oriente. He approached the housing project in his
6 Cruz-Sánchez himself did not testify during the second trial.
Rather, the district judge's two law clerks read Cruz-Sánchez's
testimony from the first trial into the record. One clerk played
the part of Cruz-Sánchez, and the other the various attorneys who
questioned him during that proceeding.
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vehicle and waited underneath the same bridge as Fontánez, along
with other officers, until the sound of gunfire coming from
Jardines de Oriente relented. López-Ortiz testified that, as he
and Fontánez approached Jardines de Oriente together, he saw three
people dressed in black jump over a fence and into a ditch on the
other side. From there, López-Ortiz explained, those individuals
ran into a tunnel, at which point he lost sight of them.
The jury also heard testimony from Puerto Rico Police
Agent Abdel Morales-De León, another of the officers who responded
to the shootout at Jardines de Oriente. He too testified about
hearing male voices and gunfire from within the tunnel as he
approached its entrance alongside other officers. Six shirtless
males then emerged from the tunnel and were promptly detained.7
Morales-De León recovered a .233-caliber bullet -- which he
described as appearing recently discharged -- from the ground where
7 We note that the record is not entirely clear as to whether De
la Cruz-Vázquez and his companion attempted to escape from the
manhole before or after the remaining six Defendants were arrested
after emerging from the tunnel's entrance. This is largely
because no one officer testified about both events. The parties
and the district court, however, all seem to have treated the
"manhole escape" as having occurred first. Particularly because
nobody has made arguments concerning the possibility that anyone
remained in the tunnel after the seven Defendants were detained,
we do not see any reason to depart from this assumption.
Additionally, insofar as this sequence of events is more favorable
to the jury's verdict, the standard for reviewing Rule 29 motions
would also require us to construe the facts in this manner.
-14-
these individuals were arrested. He then entered the tunnel with
a group of officers, using a small flashlight to light their way.
Morales-De León explained that their search of the tunnel turned
up seven firearms, a fanny pack containing several loaded
magazines, and various articles of dark clothing. He added that
the officers noticed fresh mud prints on the steps leading up to
a manhole connecting the tunnel to the surface, and that the
manhole cover had been removed.
Officer Daniel Rosas-Rivera also provided an account of
his role in responding to the shootout and subsequent events. He
described hearing gunfire from within the tunnel as he approached
it alongside other officers. He then told the jury that he
observed six shirtless men emerge from the tunnel with their hands
up, exclaiming "don't shoot us." Rosas-Rivera was also among the
officers who entered the tunnel with a flashlight immediately after
the Defendants' arrest. He testified that their sweep of the
tunnel revealed that it was possible to exit the tunnel via a
manhole, and that they found that manhole open, its cover having
been moved aside. Rosas-Rivera also explained that the officers'
search of the tunnel yielded a bullet, loaded firearms, and
magazines.
Gualberto Rivas-Delgado testified about the
investigation of the tunnel that he undertook as a member of the
-15-
Puerto Rico Police's Technical Services Division. He arrived on-
scene at around 4:00 p.m. on the day of the shootout, after Rosas-
Rivera and Morales-De León had completed the initial sweep of the
tunnel about which they testified. Rivas-Delgado found more
ammunition inside of the tunnel -- some of it submerged in puddles,
and some sealed in a plastic bag -- as well as additional articles
of clothing, most of them dark in color.
Finally, the jury heard testimony from Edward
Pérez-Benítez, a firearms examiner and tool marks expert from
Puerto Rico's Institute of Forensic Sciences. He explained that
he had examined the weapons recovered from the tunnel and bullets
recovered from the site of the shootout at Jardines de Oriente.
His investigation led him to conclude that four of the guns found
in the tunnel had been used in the shootout.
In synthesis, the jury heard the following: (1) a
shooting had occurred in the Jardines de Oriente on the morning of
February 16, 2012; (2) seven or eight individuals in dark clothing
were seen fleeing the scene of the shooting; (3) officers saw three
or four of these men enter a tunnel; (4) De la Cruz-Vázquez was
arrested, shirtless, after trying to escape from a manhole atop
the tunnel, and was found to be carrying a loaded magazine; (5)
officers standing at the entrance to the tunnel heard weapons
discharge inside the tunnel; (6) the remaining six Defendants then
-16-
emerged, shirtless, from the tunnel and were arrested; (7) officers
recovered seven firearms, ammunition, and various articles of dark
clothing from within the tunnel; and (8) a ballistics expert linked
four of those firearms to the shootout at Jardines de Oriente.
All of this is sufficient evidence for a rational fact-
finder to conclude that at least one of the Defendant-Appellants
possessed a firearm, while the remainder aided and abetted him.
See Campa, 679 F.2d at 1013 (identity of principal not an element
of aiding and abetting). And that is sufficient to sustain the
Defendant-Appellants' Count Three convictions. The first component
of this conclusion, that at least one of the seven Defendants
possessed a firearm, is particularly unavoidable given that four
of the weapons found in the tunnel had been fired during the
shootout. Further, keeping in mind that advance knowledge of each
element of the underlying offense is an element of aiding and
abetting, see Rosemond, 134 S. Ct. at 1249, we agree with the
government that the evidence here does tend to suggest that the
Defendant-Appellants had advance knowledge of, and participated in
some form in, the shootout. Thus, we think that the evidence
would allow a rational fact-finder to conclude that any Defendant-
Appellants who were not principals (because they did not possess
firearms) nonetheless facilitated the principal or principals'
-17-
possession, with advance knowledge of this element. We now turn
to the remaining elements of Count Three.
2. Actual presence in a school zone
We now take up the assertion of De La Cruz-Vázquez and
Otero-Díaz that the government failed to establish that they were,
in fact, in a school zone when they allegedly possessed a firearm.
A "school zone" is the area within 1,000 feet from the grounds of
any school. United States v. Nieves-Castaño, 480 F.3d 597, 603
(1st Cir. 2007) (quoting 18 U.S.C. § 921(a)(25)). We note that
the proper inquiry here -- given the possibility for aiding and
abetting liability -- is whether any of the Defendants found
himself in a school zone while possessing a firearm.
At trial, government witness and Puerto Rico Police
Officer José Hiraldo-Benítez explained his conclusion, which he
reached by employing distance-measuring laser equipment, that 710
feet separated the School's perimeter fence and the point in the
tunnel where the weapons were found. He likewise explained that
804 and 837 feet separated the School's fence from two points where
spent shell casings from the shootout had been found.8 Finally,
according to Hiraldo-Benítez, the margin of error for these
measurements was less than one inch.
8 Hiraldo-Benítez's measurements relied on other officers'
representations of where the weapons in the tunnel.
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We find this to be sufficient evidence to support the
conclusion that one or more of the Defendants possessed firearms
within a school zone. De La Cruz-Vázquez stresses that Hiraldo-
Benítez may have arrived at his figure of 710 feet by measuring
from a point atop the tunnel that did not necessarily lay precisely
over the point in the tunnel where the weapons were found. This
theoretical possibility does not, however, mean that no reasonable
fact-finder could have concluded that any of the Defendant-
Appellants possessed firearms anywhere within 1,000 feet of the
School.
First, a reasonable fact-finder could well have
concluded that Hiraldo-Benítez did measure from the correct point
atop the tunnel. This is particularly so given the paucity of
reasons that De la Cruz-Vázquez offers to believe that Hiraldo-
Benítez measured from an incorrect point. Second, even if
Hiraldo-Benítez did measure from the wrong point, that still would
not foreclose the reasonable conclusion that the Defendant-
Appellants possessed firearms in a school zone. Given that at
least four of the guns traveled from the site of the shootout to
the tunnel, the precise location in the tunnel where they were
found is of lesser importance. We further note that De la Cruz-
Vázquez does not dispute that shell casings were found within the
school zone. And this strongly suggests that the shootout involved
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guns being fired, and therefore possessed, within a school zone.
De la Cruz-Vázquez and Otero-Díaz, therefore, come up quite short
in attempting to convince us that no reasonable factfinder could
have concluded that any of the Defendants possessed a firearm
within 1,000 feet of the School. Having resolved that point, we
now take up the final disputed element of Count Three.
3. Knowing presence in a school zone
We next consider whether each of the Defendant-
Appellants knew or should have known that they were in a school
zone while they were possessing a firearm or, alternatively, that
each of them was aiding and abetting such possession of a firearm
in a school zone with the requisite advance knowledge. See
18 U.S.C. §§ 2, 922(q)(2)(A). Circumstantial evidence may serve
as the solitary proof of one's culpable knowledge. United States
v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). However, in
Guzmán-Montañez, we overturned the defendant's conviction under
§ 922(q)(2)(A) when the government, in attempting to establish the
defendant's knowledge that he was in a school zone, relied solely
upon the school's proximity to the location where the defendant
was found armed. 756 F.3d at 11-12. In concluding that a rational
factfinder could not have made this "giant leap of faith," we
stressed in particular that the defendant was not a resident of
that area. Id. at 12. This contrasts with our holding in Nieves-
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Castaño. There, in reaching the opposite conclusion about the
defendant's knowledge, we emphasized that "three minor children
lived with the defendant, and it would be easy for a jury to
conclude that she knew there were two schools nearby, within or
just outside her housing project and less than 1000 feet away, and
that she regularly passed by those schools." 480 F.3d at 604.
Here, the evidence of the Defendant-Appellants' knowledge of the
school zone seems to fall between these two poles.
The government makes a number of arguments in support of
the district court's determination that sufficient evidence
established that the Defendant-Appellants either knew or should
have known that they were in a school zone. First -- pointing
largely to the same evidence we considered in addressing their
actual presence in a school zone -- the government stresses that
the Defendant-Appellants found themselves in close proximity to
the School at the relevant times. Specifically, the government
highlights that the School's basketball court was approximately 50
feet from the fence that the Defendant-Appellants scaled en route
to the tunnel. The government adds that the basketball court's
roof was also visible from Jardines de Oriente. But, on its own
-- especially given that nothing about the roof of this basketball
court suggested that it was part of a school -- this evidence would
not suffice. See Guzmán-Montañez, 756 F.3d at 11-12. However,
-21-
this is not the extent of the evidence that the government
introduced.
The government also avers that it would be reasonable
for the jury to have inferred that the Defendant-Appellants put
some amount of forethought into the shootout and their subsequent
escape. The swiftness of the Defendant-Appellants' flight from
Jardines de Oriente and into the tunnel, the government says,
suggests they had planned out this endeavor beforehand. And as a
result, the government tells us, a rational fact-finder could
certainly infer that, in undertaking all of this planning, the
Defendants would have realized that there was a school nearby.
Furthermore, the government reminds us that all of the
Defendant-Appellants were residents of Humacao, and that all of
them except for Mendoza-Ortega lived at Dr. Palou, 9 and that
9 We pause to address what appears to be a mistake in the district
court's order on the Defendants' Rule 29 motions. In that order,
the district court first stated that Otero-Márquez lived in the
Dr. Palou housing project, while Mendoza-Ortega did not, though he
did live elsewhere in Humacao. But in the next paragraph, after
considering the arguments of the residents of the Dr. Palou
projects, the district court remarked that "Edwin Otero-Márquez
was a resident of Humacao and had been spotted with several co-
defendants at the Dr. Palou housing project on another occasion.
Hence, one can reasonabl[y] conclude that [he] knew the area well
and was aware that the [School] was located on the same street as
Dr. Palou . . . ." Thus, in this paragraph, the court appears to
have confused Otero-Márquez, who was a resident of the Dr. Palou
project, with Mendoza-Ortega, who was not. Ultimately though,
this error is harmless, because we, like the district court,
conclude that sufficient evidence established that Mendoza-Ortega
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Government witness Officer Lebrón-Delgado testified that he had
seen Mendoza-Ortega at Dr. Palou before the date of the shootout.
And this is all particularly important because the School, a two-
story building, is located on the same street as Dr. Palou.
Additionally, the front of the School features signage identifying
it as an elementary school.
We think that all of this would allow a reasonable fact-
finder to conclude that all of the Defendant-Appellants either
knew or should have known that they were in a school zone. It is
difficult to imagine that the four Defendant-Appellants who lived
at Dr. Palou were unaware of the existence of a school on the same
street. Though Mendoza-Ortega did not live at Dr. Palou, we
nonetheless find it reasonable to conclude that -- as a resident
of Humacao who had visited Dr. Palou before -- he at least should
have known that he was in a school zone. And for these same
reasons, we also find it reasonable to conclude for Rule 29
purposes that the Defendant-Appellants all had "advance knowledge"
of the School's location for purposes of aiding and abetting
liability.
In summary, given the evidence at trial, a rational fact-
finder could conclude the following: (1) at least one of the
and Otero-Márquez should have known they were in a school zone.
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Defendant-Appellants possessed a firearm, while the others aided
and abetted him with advance knowledge; (2) the Defendant-
Appellant(s) who possessed a firearm did so while in a school zone;
and (3) all of the Defendant-Appellants had advance knowledge of
the School's location. Thus, we hold that the government did
introduce sufficient evidence of the Defendant-Appellants'
culpability on Count Three, and that the district court did not
err in denying their Rule 29 motions as to that Count.
B. Fernández-Jorge's motion for acquittal on Count Three
We now take up the government's challenge to the district
court's grant of Fernández-Jorge's motion for acquittal. The
thrust of the government's challenge is that, while not a resident
of Humacao like the Defendant-Appellants, Fernández-Jorge
nonetheless had ample reason to know he was in a school zone. In
so arguing, the government leans on evidence that the School
(though not any signage identifying it as such) was visible from
the entrance to Jardines de Oriente and nearby roads, and on the
ostensibly planned nature of the shootout and the Defendants'
flight from it -- which, according to the government, suggests a
certain level of familiarity with the area.10
10 The government also maintained in its brief that the evidence
of Fernández-Jorge's knowledge of the school zone was particularly
strong "given the district court's observation that . . . 'the
route passing in front of the school is a principal way to arrive
at Dr. Palou.'" But the district court order does not indicate
-24-
But a number of considerations cut in the opposite
direction. For one, as Fernández-Jorge stresses, none of the
police officers who testified at trial had ever seen him in Humacao
before the shootout. In fact, the government did not introduce
any evidence that Fernández-Jorge had ever visited Humacao before
the morning of the shootout. And we recall that the only part of
the School actually visible from Jardines de Oriente is the roof
of its basketball court, which, again, provides no indication that
it is part of a school. Additionally, while it is possible that
Fernández-Jorge, who lived in San Juan, may have passed the
School's front entrance and seen the signs identifying it as a
school on his way to Humacao, this is not necessarily so. For,
Fernández-Jorge posits that in traveling to Jardines de Oriente
from San Juan, one "would ordinarily take the more direct route,"
which does not involve driving past the School's front entrance.
Setting aside the question of whether this route is in fact the
when at trial this was established, and the government has declined
to provide a citation that would illuminate us on that score. We
also observe that the government similarly cited only the district
court order -- which, again, does not contain citations to the
record -- for the proposition that the "front of the school
contains the school's name and clearly identifies [it] as being an
elementary school." We feel compelled to emphasize that --
particularly in the context of arguments concerning the
sufficiency of the evidence -- neglecting to provide citations to
the record in support of factual assertions is a poor strategic
choice.
-25-
most intuitive or direct, we do take note of the existence of an
alternative route -- a point the government concedes -- that would
not have taken Fernández-Jorge past the front of the School.
In sum, the government's arguments do not differ
significantly from those that we rejected in Guzmán-Montáñez. See
756 F.3d at 11-12. The government's only arguments that are not
a variation of imputing knowledge of a school zone though mere
physical proximity to a school involve the shootout's apparent
premeditation and coordination, and the possibility that
Fernández-Jorge drove past the front of the School on his way to
Jardines de Oriente.11
But, even assuming that the Defendants did plan the
shootout together, this would not have required them to have all
visited Jardines de Oriente and its surrounding area with
Fernández-Jorge in tow. Additionally, the School's seeming
irrelevance to both the apparent objective of the Defendants' plan
(to go to Jardines de Oriente and shoot firearms), and their
11 In its brief, the government also tells us that the word
"school" appears nearly 450 times in the trial transcript, and
that while "some fraction of those mentions were at sidebar or
otherwise outside the jury's hearing, the overall number is
nonetheless indicative of the thoroughness with which the location
of the school, its position relative to events, and its visibility
were presented to the jury." Out of fear of inadvertently
dignifying this argument with a longer discussion of it, we simply
say here that we do not find it persuasive.
-26-
attempted escape through the tunnel, also weakens the suggestion
that their advance planning would imply Fernández-Jorge's
knowledge of the school zone. And we also find the less-than-
certain possibility that Fernández-Jorge would have driven past
the School en route to Jardines de Oriente insufficient to tip the
scales towards the reasonable conclusion that he knew or should
have known of its location. This inferential "leap," see id. at
12 -- particularly in the absence of any evidence that Fernández-
Jorge had previously been to Humacao, or about how and from where
he arrived at Jardines de Oriente on the day of the shootout -- is
too large for a rational fact-finder to have made. Therefore,
because the government fails to convince us that sufficient
evidence supported the conclusion, beyond a reasonable doubt, that
Fernández-Jorge knew or should have known of the School's location,
we affirm the district court's grant of his motion for acquittal.
C. Mendoza-Ortega and Otero-Márquez's motions for acquittal on
Count One
Turning now to Count One -- which charged Mendoza-Ortega
and Otero-Márquez with possessing firearms as felons in the
principal and aiding and abetting forms -- we begin by highlighting
that Mendoza-Ortega and Otero-Márquez, and nobody else, stipulated
that they had been previously convicted of crimes potentially
punishable with over one year of imprisonment, a necessary element
of that offense. See 18 U.S.C. § 922(g). Now, in reviewing the
-27-
district court's denial of their motions for acquittal as to that
count, we ask if a rational fact-finder could have reached either
of the following conclusions: (1) that Otero-Márquez and Mendoza-
Ortega both possessed firearms; or (2) that one of these
individuals possessed a firearm while the other aided and abetted
him. This is so because these two are the only previously convicted
felons among the Defendant-Appellants. And this is a crucial
point. For, while Count Three required only that someone have
possessed a firearm and that the rest of the Defendants have aided
and abetted that person, Count One requires that at least one of
two specific individuals -- that is, those with prior felony
convictions -- possessed a firearm.
Harkening back to our earlier discussion of the
government witnesses' trial testimony, see supra § II.A.1, while
it is plain that at least one of the Defendants possessed firearms,
there is scant evidence providing insight into who among the
Defendants that may have been. Perhaps recognizing that it would
face an uphill battle in attempting to show that any particular
Defendant possessed a firearm, the government maintains that the
evidence "permits the inference" that each of the seven Defendants
possessed one of the seven firearms that police later found in the
tunnel. And because the evidence that any one Defendant in
particular possessed a firearm would be equally applicable to the
-28-
remaining Defendants,12 it seems that the only possible conclusions
to draw, for Rule 29 purposes, are that: (1) all seven Defendants
possessed their own firearm; or (2) it is impossible to know which
of the Defendants possessed firearms. As a result of all of this,
our inquiry becomes this: Could a rational fact-finder have
concluded beyond a reasonable doubt that each of the seven
Defendants possessed exactly one firearm? Or, alternatively, we
can frame the question as whether the government introduced
sufficient evidence that none of the Defendants were unarmed.
In assessing whether the jury could permissibly conclude
that, because the number of Defendants corresponds to the number
of guns, each Defendant had one gun, we find it significant that
only four of the guns were linked to the shootout. In theory, one
of the strongest arguments against the notion that one or more of
the Defendants was unarmed is essentially "who in the world would
participate in a planned shootout unarmed?" But, while convincing
in theory, this argument loses much of its persuasiveness here,
when applied to the facts established at trial.
We are confident in our conclusion, as discussed with
respect to Count Three, that a rational fact-finder could have
12 True, De la Cruz-Vázquez had ammunition on his person when he
was arrested, but because he had not been previously convicted of
a felony, this does not impact our analysis here.
-29-
concluded on the basis of the evidence at trial that the Defendant-
Appellants had advance knowledge that one of their number possessed
a firearm during the shootout in which they participated in some
form. But, it does not follow that the evidence that all seven
Defendants were involved in the shootout -- in some form -- was
strong enough to serve as the basis for the further inferential
leaps that are still necessary to land at the conclusion that all
seven Defendants possessed a firearm. This is particularly so in
light of our reluctance to "stack inference upon inference in order
to uphold the jury's verdict." United States v. Burgos, 703 F.3d
1, 10 (1st Cir. 2012) (quoting United States v. Valerio, 48 F.3d
58, 64 (1st Cir. 1995)); see also United States v. Ruiz, 105 F.3d
1492, 1500 (while circumstantial evidence alone may provide
sufficient evidence to uphold a verdict, we disfavor stacking
inferences to uphold a conviction on the basis of purely
circumstantial evidence).
Keeping in mind, once more, that only four of the seven
guns were linked to the shootout, we are left with competing
explanations as to why. It could be because three of the
Defendants, while armed, simply elected not to shoot during the
shootout. Or, it could also be that the Defendants who fired the
guns that were linked to the shootout also possessed additional
firearms that they did not use during the shootout. Or a
-30-
combination of these two things is also possible (e.g., two
Defendants were unarmed, and two Defendants each possessed two
guns, but only fired one).13 We thus conclude that there was not
sufficient evidence for a rational jury to have concluded, beyond
a reasonable doubt, that any of these scenarios was actually the
case here. See United States v. Flores-Rivera, 56 F.3d 319, 323
(1st Cir. 1995) (reversal is required when "an equal or nearly
equal theory of guilt and a theory of innocence is supported by
the evidence viewed in the light most favorable to the prosecution,
[because in such a case] a reasonable jury must necessarily
entertain a reasonable doubt") (alteration in original).
In summary, as the only Defendants previously convicted
of felonies, to convict Otero-Márquez and Mendoza-Ortega on Count
One, the government needed to show that at least one of those two
possessed a firearm. And, in the absence of any evidence that
either was more likely than the remaining Defendants to have
possessed firearms, to show that either of those two individuals
possessed a firearm, the government needed to put on sufficient
evidence that all seven Defendants did so. To arrive at that
conclusion, the jury would have had to first infer from
13 It is also theoretically possible that the Defendants were not
responsible for bringing the three unfired guns into the tunnel,
and that those guns were already there when they reached the
tunnel. We find this less probable, though.
-31-
circumstantial evidence that all seven Defendants were involved in
the shootout in some capacity, and then reject the possibility
that any of the Defendants possessed more than one firearm. Thus,
upholding the jury's verdict would require us to sanction both
stacking inferences and choosing between two "equal or nearly
equal" theories. Flores-Rivera, 56 F.3d at 323; see Burgos, 703
F.3d at 10. We decline to do so here, and hold that a rational
fact-finder could not have found beyond a reasonable doubt that
Otero-Márquez or Mendoza-Ortega possessed a firearm. We therefore
hold that the district court erred in denying those two
individuals' motions for acquittal on Count One.
III. The Jury Instructions for Count Three
Having concluded that sufficient evidence supported the
Defendant-Appellants' Count Three convictions, we now take up the
question of whether the district court's jury instructions for
that Count were erroneous.14 At the end of the trial, Mendoza-
Ortega filed a motion requesting that the district court's
forthcoming jury instructions reflect Rosemond's "advance
knowledge" requirement, see 134 S. Ct. at 1249. Otero-Márquez
joined that request at the charge conference. On appeal, Mendoza-
14 Because we conclude that insufficient evidence supported the
Count One convictions, we need not reach the question of whether
the district court's aiding and abetting instructions for Count
One were erroneous.
-32-
Ortega and Pérez-Torres both assert that, because they failed to
take Rosemond into account, the district court's aiding and
abetting instructions for Count Three were erroneous.
This argument having been duly preserved, we must now
determine de novo whether the requested instruction was
"substantially covered by" the instruction that the district court
actually gave. United States v. Baird, 712 F.3d 623, 628 (1st
Cir. 2013); see also United States v. Godin, 534 F.3d 51, 56 (1st
Cir. 2008) (our review of whether a trial court's jury instructions
captured the elements of the relevant offense is de novo).
Moreover, it is of no import that the jury returned a general
verdict here that did not distinguish between the principal and
aiding and abetting forms of the offense. A general guilty verdict
cannot stand when it may have rested on constitutionally invalid
grounds. See Griffin v. United States, 502 U.S. 46, 53 (1991)
("[W]here a provision of the Constitution forbids conviction on a
particular ground, the constitutional guarantee is violated by a
general verdict that may have rested on that ground.") (citing
Stromberg v. California, 283 U.S. 359, 568 (1931)).
In light of the request made below, we must determine
whether the district court's instructions adequately captured and
impressed upon the jury Rosemond's requirement that to be guilty
of aiding and abetting an offense, a defendant must have had
-33-
advance knowledge of each element of the offense. As Rosemond
clarifies, "advance knowledge" is "knowledge that enables [a
defendant] to make the relevant legal (and indeed, moral) choice."
134 S. Ct. at 1249. That is, the would-be accomplice must know
of the principal's plan to commit the underlying offense with
sufficient anticipation to be able to "attempt to alter that plan
or, if unsuccessful, withdraw from the enterprise." Id. Only
then may aiding and abetting liability attach.
Here, the district court instructed the jury that, to
find the Defendants guilty of Count Three in the aiding and
abetting modality, it needed to find, beyond a reasonable doubt,
first that a principal committed the crimes charged, and "[s]econd,
that the charged defendants consciously shared the other person's
knowledge of the crimes charged in the indictment, intended to
help each other, and took part in the endeavor, seeking to make it
succeed."
Whether this formulation runs afoul of Rosemond depends
on whether "seeking to make it succeed" applies to all of the
clauses that precede it, or only to its immediate predecessor:
"took part in the endeavor." If it applies to all of the preceding
clauses, then we have no Rosemond problem because the instructions
would require the jury to find that an alleged aider and abettor
knew that the principal was to commit the crime of possessing a
-34-
gun in a school zone when he leant his assistance with the intent
to make the criminal endeavor succeed. That would be consistent
with Rosemond's advance knowledge requirement. But if the pronoun
"it" in "seeking to make it succeed" refers only to "the endeavor,"
then we do have a Rosemond problem. In that case, the instructions
would allow the jury to find a defendant guilty of aiding and
abetting when the defendant (1) "took part in the endeavor, seeking
to make it succeed" by (2) assisting the principal in bringing a
gun to a particular location, and only then, upon realizing that
this location was in a school zone, (3) "consciously shared" the
principal's knowledge of the crime. That is, this interpretation
of the instruction does not require the government to have proven
that the aider and abettor shared the defendant's knowledge of the
crime before or even at the moment when he chose to lend his
assistance.15 And that would conflict with Rosemond.
15It may be helpful to visualize these alternative interpretations
in this manner. The instructions comported with Rosemond if this
is their proper interpretation: "that the charged defendants
[(consciously shared the other person's knowledge of the crimes
charged in the indictment, intended to help each other, and took
part in the endeavor), seeking to make it succeed]."
The instructions did not comport with Rosemond, though, if we
interpret them this way: "that the charged defendants
[(consciously shared the other person's knowledge of the crimes
charged in the indictment), (intended to help each other), and
(took part in the endeavor, seeking to make it succeed)]."
-35-
This second possible interpretation seems the more
likely of the two because the instruction uses the singular
"seeking to make it succeed," making it unlikely that this clause
was meant to apply to the entire list of things preceding it, which
includes the plural "crimes charged in the indictment." At a
minimum, it is distinctly possible that the jury interpreted the
instructions this way. As the Supreme Court has explained, when
faced with ambiguous jury instructions, the proper inquiry is
"'whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way' that violates the
Constitution." Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(quoting Boyde v. California, 494 U.S. 370, 380 (1990)). And it
would indeed violate the Constitution if the jury convicted the
Defendants on Count Three without the government having proven all
of the offense's elements -- including "advance knowledge" --
beyond a reasonable doubt. See Patterson v. New York, 432 U.S.
197, 210 (1977) ("[T]he Due Process Clause requires the prosecution
to prove beyond a reasonable doubt all of the elements included in
the definition of the offense of which the defendant is charged.").
Finally, before vacating convictions as the result of
instructional error, we must assess whether that error was
harmless. See Koonce v. Pepe, 99 F.3d 469, 473 (1st Cir. 1996);
accord Hedgpeth v. Pulido, 555 U.S. 58, 61 (2008). When jury
-36-
instructions fail to account for an element of the crime charged,
that error is harmless only if we can conclude "beyond a reasonable
doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been
the same absent the error." United States v. Pizarro, 772 F.3d
284, 297-98 (1st Cir. 2014) (quoting Neder v. United States, 527
U.S. 1, 17 (1999)). Here, this does not allow us to conclude that
the district court's instructional error was harmless.
First, given the centrality at trial of the question of
whether the Defendants knew of the School's location, we cannot
describe the element of "advance knowledge" as uncontested.
Moreover while we have concluded that, for Rule 29 purposes, a
rational fact-finder could have found that the Defendants knew or
should have known they were in a school zone, that requires far
less than "overwhelming" evidence. In the end, we cannot say that
overwhelming evidence established that the Defendant-Appellants
had advance knowledge that the principal was to possess a firearm
within 1,000 feet of a school. And so the error that infected the
district court's aiding and abetting instructions was not
harmless.
To conclude, there is a "reasonable likelihood" that the
jury interpreted the district court's aiding and abetting
instructions in a way that violates Rosemond. See Estelle, 502
-37-
U.S. at 72. That error was not harmless. See Pizarro, 772 at
297-98. Therefore, because the jury's general verdict could have
rested on a constitutionally impermissible ground, see Griffin,
502 U.S. at 53, we must vacate the district court's judgments of
guilty as to Count Three for all of the Defendant-Appellants.16
16 We have one last loose end to tie up. Not all of the Defendant-
Appellants requested a Rosemond instruction below, and not all of
them claim on appeal that the district court's aiding and abetting
instructions were erroneous. But we do not think that this means
that only those Defendant-Appellants who have raised this issue
should have their convictions vacated. First, the government has
not taken this position. See United States v. Burhoe, 871 F.3d
1, 28 n.33 (1st Cir. 2017) (finding that the government had
forfeited any argument that the defendants had waived a particular
issue). The purpose behind our "waiver" doctrines also supports
this conclusion. Appellate courts are typically loath to consider
forfeited arguments for two reasons. The first concerns our
institutional role as a court of review: we review the decisions
that a lower court (or agency) has actually made. See Miller v.
Nationwide Life Ins. Co., 391 F.3d 698, 701 (5th Cir. 2004) ("We
have frequently said that we are a court of errors, and that a
district court cannot have erred as to arguments not presented to
it."); see also HTC Corp. v. IPCom GmbH & Co., KG, 667 F.3d 1270,
1281-82 (Fed. Cir. 2012) (emphasizing finality and judicial
economy). The second justification stems from the idea that it
is unfair to allow parties to surprise one another with new
arguments that they did not make at the appropriate procedural
juncture. See Prime Time Int'l Co. v. Vilsack, 599 F.3d 678, 686
(D.C. Cir. 2010) (quoting Hormel v. Helvering, 312 U.S. 552, 556
(1941)).
But here, vacating the convictions of only those Defendant-
Appellants who have raised the Rosemond issue would vindicate
neither of those interests. The district court considered this
issue and issued a ruling on it. And the government -- both
because this issue arose below and because some of the Defendant-
Appellants took it up in their opening briefs -- certainly had
sufficient notice of this issue at the appellate stage. We
therefore think that the district court's instructional error
requires vacating all of the Defendant-Appellants' convictions on
-38-
IV. Conclusion
While the Defendant-Appellants have raised additional
claims of evidentiary error and challenges to their sentences, we
need not reach them. See United States v. Sasso, 695 F.3d 25, 31
& n.1 (1st Cir. 2012) (vacating because of instructional error and
then declining "to rule gratuitously upon the defendant's
remaining assignments of trial and sentencing error" because "[i]t
is unlikely that any of these claims will arise in the same posture
if the case is retried"). With regard to Fernández-Jorge, the
district court's judgment is affirmed. With regard to the
Defendant-Appellants, the district court's judgment is reversed as
to Count One and vacated as to Count Three.
Affirmed, Reversed, and Vacated.
Count Three. See United States v. Cardales-Luna, 632 F.3d 731,
736 (1st Cir. 2011) (explaining it is in the interests of justice
to treat "materially identical cases alike"); cf. Nat'l Ass'n of
Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995)
(appellate courts may exercise their discretion to forgive waiver
when "the equities heavily preponderate in favor of such a step").
Lastly, we note that other courts faced with similar situations
have invoked Fed. R. App. P. 2 -- which authorizes courts to
suspend other rules sua sponte -- to forgive a defendant's failure
to incorporate by reference arguments advanced in a co-defendant's
brief pursuant to Rule 28(i). See United States v. Olano, 394
F.2d 1425, 1439 (9th Cir. 1991), rev'd on other grounds, 507 U.S.
725 (1993); United States v. Rivera-Pedin, 861 F.2d 1522, 1526 n.9
(11th Cir. 1988) (invoking Fed. R. App. P. 2's authorization "to
relieve litigants of the consequences of default where manifest
injustice would result"); United States v. Gray, 626 F.2d 494, 497
(5th Cir. 1980); United States v. Anderson, 584 F.2d 849, 853 (6th
Cir. 1978).
-39- | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4147478/ | RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0043p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SCOTT ANDREW WITZKE, ┐
Petitioner-Appellant, │
│
> No. 15-2437
v. │
│
│
SHAWN BREWER, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court for
the Eastern District of Michigan at Detroit.
No. 2:15-cv-12429—Denise Page Hood, Chief District Judge.
Argued: February 2, 2017
Decided and Filed: February 22, 2017
Before: GIBBONS, COOK, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Sam Scaritt-Selman, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL
APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant. Raina I. Korbakis,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON
BRIEF: Sam Scaritt-Selman, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW
SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for
Appellant. Raina I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
No. 15-2437 Witzke v. Brewer Page 2
_________________
OPINION
_________________
COOK, Circuit Judge. Petitioner Scott Witzke seeks habeas relief under 28 U.S.C.
§ 2254, asserting that a Michigan order revoking his parole violated his due process rights. The
district court dismissed his petition for failure to exhaust state remedies, and a panel of this court
later issued a certificate of appealability on that issue. After Witzke appealed, however, the
Michigan Parole Board released him on parole. Because there is no longer any remediable
injury, we DISMISS the appeal as MOOT.
I.
Witzke is currently serving four sentences in the Michigan Department of Corrections
(MDOC) for “uttering and publishing,” that is, using forged financial instruments. See Mich.
Comp. Laws § 750.249. In May 2013, the Parole Board released Witzke on parole for a 15-
month term. But a year later, authorities arrested him for eight alleged parole violations,
including a new criminal conviction for using a fake check at a guitar store. Following his arrest,
Witzke appeared before an MDOC agent, who found probable cause for all eight counts. Witzke
pled guilty to two of them. At a second hearing in August 2014, another MDOC officer
dismissed all remaining counts except the fraudulent check violation. Finding Witzke guilty of
that violation, the officer recommended that the Parole Board revoke Witzke’s parole. In
September, the Parole Board adopted the recommendation.
Without seeking relief in Michigan courts, Witzke filed a pro se habeas petition under
28 U.S.C. § 2254 in the Eastern District of Michigan, challenging the September 2014 parole
revocation as a violation of his due process rights and requesting a new hearing before the Parole
Board. He claimed entitlement to “relief . . . [due to] the failure of the Michigan Parole Board to
provide [him] with an in-person hearing before the decision maker on the question of whether
parole should be revoked.” The district court summarily dismissed his petition without prejudice
for failure to exhaust state remedies.
No. 15-2437 Witzke v. Brewer Page 3
Following the district court’s decision, Witzke filed a motion for a certificate of
appealability in this court. In May 2016, the court granted his motion, concluding that
reasonable jurists could disagree on whether Witzke must exhaust state remedies, citing the
limited availability of habeas relief in Michigan. Witzke v. Brewer, No. 15-2437 (6th Cir. May
10, 2016) (order). Around this time, however, the Parole Board re-released Witzke on parole.
He will finish serving his sentence for his underlying criminal conviction in May 2017.
II.
The State argues that Witzke’s re-release on parole deprives this court of jurisdiction over
his appeal challenging the 2014 parole revocation. We agree.
Federal courts may review only actual cases or controversies, U.S. Const. art. III, § 2,
cl.1, and thus “have no power to adjudicate disputes which are moot,” McPherson v. Mich. High
Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc) (quoting Crane v. Ind. High
Sch. Athletic Ass’n, 975 F.2d 1315, 1318 (7th Cir. 1992)). “[A]n actual controversy must be
extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for
Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395,
401 (1975)). Accordingly, if a case becomes moot during an appeal, the reviewing court must
dismiss it. Rosales-Garcia v. Holland, 322 F.3d 386, 394 (6th Cir. 2003) (en banc).
In Spencer v. Kemna, 523 U.S. 1 (1998), the Supreme Court addressed mootness in the
context of a habeas petition challenging a parole-revocation proceeding. Id. at 3. In that case,
petitioner Spencer asserted a due process challenge to a Missouri order revoking his parole. Id.
at 5. But before the district court ruled on the petition, Spencer “was re-released on parole, and,
two months after that . . . the term of his imprisonment expired.” Id. at 6. The Court concluded
that these developments mooted his habeas petition. Id. at 18. As it explained, “[o]nce the
convict’s sentence has expired . . . some concrete and continuing injury other than the now-ended
incarceration or parole—some ‘collateral consequence’ of the conviction—must exist if the suit
is to be maintained.” Id. at 7 (citing Carafas v. LaVallee, 391 U.S. 234, 237–38 (1968)).
Although a court may presume such collateral consequences when a released petitioner contests
his underlying criminal conviction, this presumption does not extend to parole-revocation
No. 15-2437 Witzke v. Brewer Page 4
challenges. Id. at 12–14. Accordingly, a petitioner who disputes a parole revocation, but has
already completed his term of reincarceration, must demonstrate collateral consequences
stemming from the revocation or else face dismissal of his claims. Id. at 14. Since Spencer
failed to make this showing, the Court dismissed his case as moot. Id. at 14–18.
Witzke’s habeas petition, like Spencer’s, challenges his parole revocation on due process
grounds and requests a new hearing before the Parole Board. But Witzke has already served the
period of reincarceration imposed upon the revocation. This reincarceration “cannot be undone.”
Spencer, 523 U.S. at 8. And since he contests only his parole revocation (and not his underlying
criminal conviction or current parole status), we cannot presume Witzke suffers other collateral
consequences from the 2014 Parole Board decision. See id. at 12. In light of these facts, it
appears that no continuing injury remains for this court to redress.
Witzke nevertheless makes two arguments in an attempt to salvage his petition. Both fail
to persuade us.
First, Witzke argues that Spencer’s collateral-consequences rule does not apply to him.
He claims Spencer is distinguishable because the petitioner in that case served the entire term of
his sentence and was no longer in custody; Witzke, on the other hand, will be a parolee until May
2017. Witzke reasons that, since parolees are still “in custody” as required to bring a § 2254
petition, see United States v. Williams, 15 F.3d 1356, 1359 (6th Cir. 1994), his challenge to the
2014 parole revocation remains a live controversy.
But satisfying § 2254’s “in custody” requirement does not necessarily establish a case or
controversy when a petitioner seeks habeas relief. See Spencer, 523 U.S. at 7; Rosales-Garcia,
322 F.3d at 395 n.6. For Witzke, all that the “in custody” provision mandates is his incarceration
by reason of the parole revocation at the time of filing his petition. See Spencer, 523 U.S. at 7
(citations omitted). Article III’s case or controversy clause demands something more: the
continued existence of a remediable injury at all stages of review. See id.; Arizonans, 520 U.S.
at 67. Here, no one disputes that Witzke satisfies § 2254’s “in custody” condition. The relevant
issue, rather, is whether Witzke suffers any harm from the allegedly unconstitutional parole-
revocation hearing now that the Parole Board has already re-released him on parole. Since “[t]he
No. 15-2437 Witzke v. Brewer Page 5
reincarceration that he incurred as a result of that [revocation] is now over,” Spencer, 523 U.S.
at 8 (emphasis added), Spencer’s collateral consequences rule still applies, his current custody
status notwithstanding, id. at 14.
Second, Witzke contends that, even if Spencer does apply, he can show a collateral
consequence to defeat mootness. As he posits, “[i]t is highly probable that the revocation of [his]
parole could be used against him in a future parole proceeding.”
The Supreme Court, however, rejected a similar argument in Spencer. There, the
petitioner asserted “that the [challenged] revocation could be used to his detriment in a future
parole proceeding,” but the Court concluded this harm was too speculative—“a possibility rather
than a certainty or even a probability”—to keep his controversy alive. 523 U.S. at 14. Witzke
attempts to distinguish Spencer, claiming that the potential for his revocation to be used against
him in a future parole proceeding is more concrete than it was in Spencer. Specifically, he
argues that the discretion of the Michigan Parole Board is “more constrained” than that of the
Missouri counterpart at issue in that case. He points to guidelines requiring the Michigan Parole
Board to take into consideration prior criminal conduct, including parole failures, when deciding
whether to release a prisoner. See Mich. Admin. Code R. 791.7716(3)(b). He reasons that the
Michigan Parole Board’s limited discretion makes the potential future harm from his revocation
more probable than Spencer’s asserted injury-in-fact.
Despite his attempts to distinguish Michigan’s and Missouri’s parole procedures,
Witzke’s purported collateral consequence is still too speculative to satisfy Article III’s case or
controversy requirement. Although Witzke suggests that the Michigan Parole Board’s decision-
making process is “constrained,” the state’s parole guidelines direct the Board to evaluate many
factors in addition to a past revocation when determining whether to modify a prisoner’s status.
See Mich. Admin. Code R. 791.7716. His 2014 parole revocation would thus constitute “simply
one factor, among many” that would be “considered by the [Parole Board] in determining
whether there is a substantial risk that [he] will not conform to reasonable conditions of parole.”
Spencer, 523 U.S. at 14 (quoting Lane v. Williams, 455 U.S. 624, 632 n.13 (1982)). Moreover,
Michigan’s guidelines afford the Board discretion to release a prisoner on parole who may not
otherwise qualify. See Mich. Admin. Code R. 791.7716(5). The conjectural nature of Witzke’s
No. 15-2437 Witzke v. Brewer Page 6
alleged future harm means that “there is nothing for [this court] to remedy.” Spencer, 523 U.S.
at 18.
III.
We DISMISS this appeal as MOOT. | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131422/ | The Attorney General of Texas
July 25, 1983
JIM MATTOX
Attorney General
Honorable Bob Bush Opinion No. JM-45
S”preme Co”r! Building
P, 0. BOX 12548 Chairman
A”S11”. TX. 78711- 2548 Committee on Judiciary Re: Whether an outside auditor
5,2,475-2501 Texas House of Representatives who contracts to perform for a
Teiex 9101674~1367 P. 0. Box 2910 school district is subject to
Telecopier 5121475-0266
Austin, Texas 78769 article 5996a, V.T.C.S., the
nepotism statute
1607 Main St.. suite 1400
Dallas. TX~ 75201-4709 Dear Representative Bush:
2141742-8944
You have requested a construction of article 5996a. V.T.C.S.,
4824 Alberta Ave.. Suite 160 which deals with "nepotism." The facts are as follows: in April,
E, Paso. TX. 79905.2793 1982, an individual was elected as a trustee of an independent school
9151533.3484 district. This trustee is a first cousin of a certified public
accountant (CPA) who serves as the school district's auditor.
Accordfng to a letter from the superintendent of this school district,
this CPA "was first awarded a contract to perform the School
District's annual audit in 1972 and he has served continuously in this
capacity for the past eleven (11) years." This letter also states
that the trustee has no financial interest in the audit firm in which
806 Broadway. Sutfe 312
the CPA is employed.
Lubbock. TX, 79401-3479
8061747-5238
Article 5996a provides in part:
4309 N. Tenth. swte 8 No officer. . . any. . . school district. . .
McAllen. TX. 78501.1685
shall appoint, or vote for, or confirm the
5121682-4547
appointment to any office, position, clerkship,
employment or duty, of any person related within
200 Main Plaza. suite 400 the second degree by affinity or within the third
San Anlonm TX~ 782052797 degree by c"nsang"inity to the person so
5121225-4191
appointing or so voting, or to any other member of
any such board. . . of which such person so
A” Equal Opporlullltyl appointing or voting may be a member, when the
Afllrmafive AC,,O”Empluyer salary, fees, "t compensation of such appointee is
to be paid for, directly or indirectly, out of or
from public funds or fees of office of any kind or
character whatsoever; provided, that nothing
herein contained. . . shall prevent the
appointment, voting for, or confirmation of any
person who shall have been continuously employed
in any such office, position, clerkship,
p. 196
Honorable Bob Bush - Page 2 (JM-45)
employment or duty for a period of two (2) years
prior to the election or appointment of the
officer or member appointing, voting for, or
confirming the appointment, or to the election or
appointment of the officer or member related to
such employee in the prohibited degree. (Emphasis
added).
You have asked whether, in the situation outlined above, any violation
of article 5996a has occurred. We assume that the CPA in question is
currently serving as the school district’s auditor.
In the aforementioned letter, the superintendent indicated that
one of his concerns is whether, under article 5996a, it makes any
difference that the CPA is an “independent contractor” rather than an
“employee” of the school district. We think not. In our opinion, the
legislature, in enacting this statute, chose the extremely
comprehensive words “office, position, clerkship, employment or duty”
in an effort to cover every conceivable situation in which a
governmental body might hire someone to perform some service for it.
It sought, in other words, to make it clear that nepotism questions
should not turn on technical distinctions between “employee” and
“independent contractor”; instead, the relevant question should be
whether the governmental body employed the individual in question to
perform some service for it. Thus, even assuming arguendo that this
CPA is an independent contractor, this employment situation is covered
by article 5996a, because the CPA (1) is related to a school trustee
within the prohibited degree; (2) was hired, i.e., “appointed” by a
school board containing this trustee to perform a service for the
school district; and (3) occupies a “position” or “employment” or is
performing a “duty” for the district within the meaning of this
statute.
Recause this employment relationship is governed by article
5996a, the CPA may, while his relative is serving on the school board,
continue to be hired by that school board to perform as the school
district’s auditor only if the two-years’ continuous employment
proviso in article 5996a is applicable. He may be reemployed, in
other words, only if he was “continuously employed” by the school
district for two years prior to the date on which his first cousin
officially became a school trustee. -See Attorney General Opinion
M-857 (1971).
In his letter, the superintendent advises that the CPA conducts
the annual audit for the school district. We have been unable to
locate a prior opinion dealing wf,th a situation quite like this one,
in which the question is whether the “continuous employment” proviso
can apply where sn individual is hired to perform a service during one
portion of each year rather than throughout the entire year. We
p. 197
Honorable Bob Bush - Page 3 (JM-45)
conclude, however, that the proviso applies in this instance if,
during the two years immediately preceding the qualification of the
CPA’s first cousin as a trustee, the CPA was continously in the employ
of the school district as its auditor, regardless of whether he was
actually rendering auditing services for the district.
Webster’s New International Dictionary, 2nd Edition, defines
“continuous” as “without break, cessation, or interruption; without
intervening space or time.” In Attorney General Letter Advisory No.
151 (1978)) which concluded that the express refusal by a school
district to rehire a teacher’s aide before her current term of
employment ended constituted a break in her employment for purposes of
the two-year proviso, this office quoted the following statement from
Cox v. Brown, 50 S.W.2d 763, 764 (MO. App. 1932):
Continuously in. . . employ does not mean
continuously in. . . service. To be employed in
anything means not only the act of doing it, but
also to be engaged to do it, or to be under
contract or orders to do it.
These authorities establish that an individual who performs
services on a seasonal or periodic basis may be protected by the
two-years’ continuous service proviso. For the proviso to apply,
however, the individual must have been “employed” by, &, “engaged”
by or operating under a contract with, the governmental entity that
hired him for the entire two years immediately preceding the election
or appointment of his relative (within the prohibited degree) to the
governing board of that entity.
If, during the entire 730 days immediately preceding the
qualification of his first cousin as trustee, this CPA was
continuously under contract with the school district to perform
auditing services for it, we believe that no violation of article
5996a occurred when the school board thereafter continued to reemploy
him as its auditor. The fact that the auditor was hired to perform a
periodic service does not mean that he cannot be deemed to have been
“continuously employed” by the school district as its auditor for that
two-year period. Of course, the question of whether the CPA was
employed by the school district for the required two year period is a
fact question which cannot be resolved in the opinion process.
SUMMARY
No viol~ation of article 5996a. V.T.C.S.,
occurred where a CPA who had served as the school
district’s auditor since 1972 was reemployed in
that capacity after his first cousin was elected
to the school board, if the CPA was “continuously
p. 198
honorable Bob Bush - Page 4 (33-45)
employed" by the school district as its auditor
for two consecutive years prior to the election of
his cousin as trustee.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 199 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144474/ | “.,C
OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Ronorable~Orville S. Carpenter
Chairman and Executive Director
Tisx& Unemployment Compensation Commission
xustin, Texas
Dear Sir:
on of this Department
s predicated upon
to certain logging
You have Pomaraed
ng to present the facts
re certain l&t& to be
sound in Arts;;; ;:21-b,
t is shown to the satisfaction of the
dividual has been and will aontinue to
trol or direction over the performance
, both under his contract of service
and in fact; and
iion.cnille 5. Carpenter, Pete E
W(3) ouch IenlQe lo elthur outaldu the uswl
oourso ct ths busicerr for *hlch such ~ervlce is >er-
romed or that ruch rervloe le perfomied outofde of all
the pleoss of buslnst8 ot the enter&mire for Welch such
Beni i6 petitarmed;c&d
"(C) euoh in6lvldual is cu~toxzerllylwa eed in en
independ6notlyeatabllohed, trade, ocoupatlon, profeo-
rlori,or buainase.'
The Infornstlon rocompmylng ycur reCurnetreveals a de-
.tailed ~tetmnent of fats subniltted by ycur mdltor. You also
sIibt&ted 8tateRanta e56 affldevits prepared &Ed exeCUted by
offlolalr of Kirby Luzber Corporation sod by certaIa of the log-
ging oontraotore. You asked thet Uetermlnstion of llobllity be
barredupon a&l of the data subnltted. The conclusion ot your
z&dltor~8 roport states thet *when sworn testimony le'taksn it
plli mugport a iindlng that the indl~ld~als under eoneideretion
lre under ths supirvlsion end control oi ilrby Luzbcr torporetlcn,
thus em4 in their ~~zplopc;ent~~. So hearing was ha6 in this
lnrtanor.
Fhe statements conflict in certain lnetences, however, in
lnatakom where there 1s doubt In our mlnd;ue find eitidavlts
nade by snb on behalf oi thi Xlrby Luxber Corpcretion to eupport
their representation of facts. Thle, we think, entitles thm
~to mru credence thm indlreot lniornatlun or conclusions. The
harean of Internal ;?cvtnue had this aeme loformetiongnd relied
apon it in their ruling of July Zl, .1939. That rQuJly@aa8 that
the lndlvlduals in this iaetual situation were n6t mployeee
for the purpoea of toxae untlerTitles VIII and IX of the Social
Security 6ct.
A r sr lo u0r the data labmltted dlrrcloeer that tmo or
the contractors asntlonod in your autltor*e report have amde
affldavita regarding thelr oontraot and ralettionahlpwith the
filrby Lumber Corporation.
‘&e pork of cutting timber into logs rewires a cartaln
degree oi rklllt if the work 1s not handled la the proper manner
there 16 an unneoe+ary amount of raeto. It appear6 from the
oontreat forms and atatemcnts that tha contractors ln queetlon
oontrect to 9roduoo the result of cutting the tree8 into loee
lo aocorder,cs with the spealtioetions oi the corporation end to
promptly deltrer thaE.at deal@eted placer. Such contractors
use their own meens, methods end sculpaeot;~ ead erploy their
own help to perform such ?.Orkwithout any &ttarr?tby the corpore-
tlon to control the betel18 of ttelr xork. The contractors
Eon. Orville s. Carpenter, pagr S
purohcao and 0~x1all of the appllaaoea, cuob 68 Ease, axca, log-
6lng truoks tr66tora'lloa6ora, md otter equipmentfor do*
the work. +hb corporation dose not now, and never has, okneb.
cny 106 trucks to do its logging. The rbmuncratton of the log-
glrq oootraotora la det8rnhod upon a paantitatlve beala, In
lcoorda~oc ulth the retrb act out In the contraota botwoon the
corporatloc and the contraator.
The ltildavit ot oae Cacar Baker, dated tiotobsr ZO, 1938,
one of the contn~tora in Question, reoltee ttet he bought his
own lq ulp mnt end the Zlrby Lunbor Corporation has QO olalm
thereto; that hc taaintt~lns klis own cmp ra6iutiea ror hi8 log-
ging crcwt that ho oparatea on bla own Credit;, th a h t elployed
ncohcnloa en6 others to xdnt6ln hi6 equlpaant ah4 hs pays all
or the bill6 for such repair. ttr.Faker elco had done work ror
othor lndltlduolo but at the present tlno has autiiclent work
vlth the iilrby lumb+r Corporetlon to keep hi6 crew and all of
hlc equipment busy, but there lo no obll.getioc OL bs6 part to
eontraat ercluslvoly with thlc corporatlor. This lndltldual hat
been laalgLbd an employbr~c ldcntlfloatlcn nureberunder the
boo161 Leourlty iict tnd tier tte &%ployzent Ccmpeneatlon kct
o? TbIbr. The-,itildavltfurther certlflea thct the corporation
does not etercIso sny~dsgree ol oontrol over Lr. i3cker*a e,rrploycca
by lndlcatlng the cmployoes to be hired or dlaohcrged, or to
bbalgmt* t&e hours of work. The namaa or tie cxcployeeaare not
iurnlahe4 to the corporation. The booka end reoorde ot his
bualneaa are kept by one of hla e~loyecc rhoao errldprlt ha to
the oorrcotncas or &. Lakar.8 8tctcmnt la'alto la btldenoo.
lz. L. IZoClcnahan tlao one OS tba lo&ng
f. contrectorc
bxeouted an atildarlt under date of October 1s. 19SB, stating
that ho had dona buelneca alth the lilrby ‘Lumber Corporation, its
receiver,and its tivrtbo and.had gPa0 aontraota tree tIm to
tl&e wlth rofbrenos to logging on UliierczA tracts with tbo
Kirby Lambor Company.
Er. >.'cClancbanstetoa tbct ln the operation of there
loeglng contract8 he directs tbo details of the work unb roaelres
fro& the Klrby~LtlP;berCorporctlon only the apeciflcatloca with
whloh.he~la to co~.ply. Hc states tbat the ISlrby~LurPber Corpore-
tlon nor Its agent bed tny control over the dctalla ot his worka
that he cm8 his orn tmoka, hires and dlechargca his own cICplOyce6,
doec hi6 own tlnenclng, and merely oontraatb to do the ultIaiat0
job es bet out in the contract he la then ptrforaUg. The atflcnt
further atctea that, from tIam to tlm, ho oontra&c Mth other
lndlvlduala, and, at the present time, he he6 contracts with
571
Bon. Orvilla 5. Cerpenter, page 4
several other eoapanlea; that he carrier bit own worlfxen*a oom-
pensatlon lnsurenoa with the 'Paxasmployer*a Inauraaos Asaoole-
tion. Ur. b:oClanahanstates thet ha la en employer under the
yabaral Law and la an&earorlAg to par all tuea upon l mployeea
under both the Pe~aral and Stats Xawa.
%a lnfor&atlon supplied by Meaera. Laker amI L'OClmahaA
la certified to by lfflda~lte of dtbar persons femlller with tha
opcratfon of theaa tuo men. Ii there be other contractorsor
persona repraoaAtlAg the~aalvea es contreotors ulth the Llrby
Lumbar Corporatloa whoPa raletlonahlp wlth that corporation Is
6lfferant trot the Nlatlonshlp of ~aaara. Baker and LoClenahaa,
we have no datallad lnioraiatlonabout tbea. Kc, therCror6, take
the atatezenta of those two men and the copies 'of oontreota
exlatlng betsean tham aAd Urby Lumber Corporation as being repre-
aeatatira of the ralationahlp of the Kirby Lumber Corporatlot
and the lndlrlduala doing the logging work.
Other iArOI%&tiOA submittad di60lu668 that there la
coma writ to your irudltor*astatartsntthat thi Kirby lumber
Corporation requlrae that the loegw CoAtraotor oarry his rork-
miA*a oorzlp6naatlonlAauraAer wlth a oompany 0r its approval.
A portion of paragraph IX of t&a contraot of February 1, 1936,
ereouted by and between Oaoar Baker and the ILtrby Lumbar Corpore-
tlon provldea that *should olrouastenoea cake it neoe~aaary, In
the #&meat to Qiaoontlnue
of the uniIaralgneiI, pqo~eretlon,
cutting must be stopped inzealately rolloulng rooslpt of Aotloe
from the un4aralene&. . .-
Thla CaOtioA Of the oontraot 1AdlOataa that tha oompa~y
m&y btop the work @f the ~SrSOA.do:ly the OOAtrCOtiA~ at Amy
tlma that It, in its judgment, thlnka brat. @a entlolpate a
OOACtrUCtiOA or thla portloh 0r the oontr8ot by aome.tU be a
rather broad uerolae of power ovar~oAa whose relatlonrhlp is
that of a0 independent oontraotor.
Therr la other inforaxttlonet hand that a 8aw - forimn
of Klrby*a ohoioe is aometlmea plaood with the orewa without tha
contraotorfa oonaant. .AA lttelrpt 1s xade to explain this bf
raaeoA or the nature of the nmrk. The'tlmbsr bolng cut la, la
meny lnatanoea, on land owned in fee by the Kirby~ Lumber Cor-
poration, a~&, in other iAf3t&AO88 OR lIiAdleased by this CO+
poration, and, by having an experisnoed &LIA to pick out the trees
to be out and marklnq them for the-oonrmlence of the contractors
and their orawa, much waste la olimlnated. This la known as
8elootIre euttlng a~& has the additional advantage of glrlng the
emaller timber lbdltlonal time to mature.
&xi. Orville S. Carpenter, pace 6
+e oonienow to the teat to be l pplied to tbe feota et
hoAd. IA an OQ~A~OA by thie Cepartzeat under dare Or Jenuery
24, 194Q, to Onllle Carpenter, & 0-l2eOO,.we a&opted the OOXCIOA
lew toat of independent ooAtraotor es e beala for detemlrstlon
or liability. he think th a teatt lquallr fitticg here, end we
will AOt dCQCrt rn>X it.
The &erinitiOA of en lndepeadent oontraotor generally
used by our oourta end quoted in lone Star Ccc Coxpeny vs.
Kelly, 46 2. i%. I2d) 656, la 88 follows:
"Aa detlned by the authorltlea, eA independent
oontreotor la one, who, exeroialAg en lntlependrnt
exploymsnt, contracts to do a piece of work according
to tic OUR met&ode, an& vAtbout belat: aubbjaot to the
oontrol or hi6 employer exoept es to the result 0r
his work. 14 Z.C.L. p. 67, par. ,2.*
The editore of the Reatato~mt of the Law of bgaaoy hare
Meted a number of teats to be used in daterxlni~ the true re-
latloAahlp between eA alleged prltolpsl anC indOpeAdOnt contrac-
tor. They are enumreted in that work .$a Volmze 1, & 220, pages
483-465, ee follows I
*411 ii carvent 1s 8 psreon .elcployedto perform
aenlor for another in his atralra ona uho, with.
respect to his ph7eleal oonduot in the Q4rrOnb%AOO
or the aenloe, 16 aubjeot to the other's oontrol or
right to control.
"(2) XA deteruin~ag a-bathero&e notbig for another
is a cement or en ladepemIent~ooatreotor, the follow-
ing esttere or reot, among otham), are oonaldered~
*(a) the extent of oontrolwhloh, by the aereemmt,
the zeatar ney exercise c.irer the detella of the work;
*(a) whether or tot the one enploJe4’ls engaged
in a dlatlnct ocoupatlon or b~alaeaa;
"(a) the kind of OOOU~tiOA, with refer6nOe to
whether, ILathe looellty, the work la uaumll~ done
under th.e dlreotloa of.the eqloler or br IIapeolellat
rlthout aopenlslon;
*(a) the aklll required in the~partioular OOOUQ&-
tiOA;
57:
hr.. (rnllls 5. Carpenter, pege 6
"(8) nhothcr tha employer cc the worksan auppUaa
tbe laatrwncntalItIea, tools, 0Ad the plooe of work
ror the person doti& the Work;
*(r) the length or tlsreror whloh‘the person la
8mQlOy86 8
*(g) the method of peymeat, whathcr by tbe time or
by the job;
*(h) whether or not the work la a part of the
ragulsr bU6lAeCC of the eI%ployer~and
"(1) whether or Aot tha parties belleve they cm
oreating the reletlonrhlp of msatar IIAd atm8nt."
The case of ~eahiA&toA Eeeord ?ub. CC., ~a. Ernest, Fl
5'ao. (2d) 726, baara the closest reaenblanct to our faots~, It
has the @ape daflnltioA btfprc it that we have; it has rsota
that, in corm reep~ota, lndloctc ooritrolby the party of the
rlrst part, as 60 we; however, we tblnk the faote in that oeee
lrlbo~oc e greater degree or control ovar the workors than la
present here, Acrertheleaa the court held there was AO lleblllty
ror taxes. A.8oloac the above once for the addltloAel reaaoA
that they wart ooAatruing &A uAelEQlO)a8AtoompeAaetloA lew aA&
not a question or tort llmblllt~.
bianiroatl~,8 comparleon or ell our taota--with eeoh toet
aupplleb by the iicrstatexent of the ter 0r &sop rould be onerous
to both thla DoQertEeAt end the reader; & reauut of the orart
recta ludloate that ths co-oalled contracton hire eeploxee6 of
tbelr oholoa, fir8 th8E at their OVA 8laOtlOAl that they alone
keep pyroll raoorda~ that they furAlah all lqulpaiecnt urd it8
repaIri that they act the hours for work; that they choose thalr
om a&hod of cutting that they are aAs=erablt to the Xlrby
Lwcbar Corporation on iJ in &aapeot to delivery of a lpeolfled
amount 0r timber at the 8em8a the, and th8t they ere paid on
8 Job baala.
i%cterrlngagain to (e) (5) .(a)or the 68flAitIOA or
aerviota to detemlne whether these lndlvldunlaare free from
oontrol under the eoatrcot and lr faot. ?& think they are. The
preponderanor or the data before us lrlnoea a olear intentIon
&A& underatendlng betwetn tts Kirby Luaber Corporation at6 OOA-
*rector thct e esntrmotor relatloAahIp la IAt8Aded. %friOitAt
evldenoe 0r exerolae of company 0oAtrolof the method 0r dOiA,Q
the work is not berorc us.
574
.
Eon. Orvlllt 5, CarQtAtCr, QC&t 7
sget%OA (6) (5) (B) of OuP 6cflAltiOA rogulr:Ag t3at the
aervlca 1s outeldc the usual course of the bUSiAt66 for v.tlch
such aervlee is QtrfCrXCd or that the CervIce Is performed out-
side of the pleoea of bt;slAesaof Xlrby Luzbcr Corporctlon ofrere
AO aif ri0ulty. The 1AforratloA nubtitted by Xlrby Lumber Car-
poratlon attelrptato eeteblleh the "lo@ng coAtraotlngw es a
dlgtlnct bualneag outalde of the course of mllllng eAd atlllng
luicbtr. Xhcthcr that be true, the faote shotithet copitof the
work 1s doAt on property of Kirby LuzsbcrCorporation end other
work dons off their fee. nc think the oploicn of Justice L;lllsrd
of the Luprena Court of ~~eahingtoA,ln the heretofore cited oaat
or ~raahlngtonGecorder ?ubllshlAE Co. v. Hmat, ccxlueivt on
this QOint. The pcrformunce of ao1teabrk CA the prtzices of
iilrby Lumber Corporation doos not change the status of a OOA-
tractor to that of o servant.
The lest CtCtiOA 0r the defloltlon of Servlcc, (g) (6)
(C) thct we m6t~Satlafy 1s whether the Individual 1s cuetomrlly
en&aced in en lndeptAdaAtly eetabllrhed traEe, occupation or
bualAeaa. is meld in the XashlAgtoA Becorder Pub. Co. cece,
"if he Aever earvea t:ort than one parson there 1s usually a
presumption that he has no independent occupation; but this pre-
auAptloA la AOt coAoluslve . . . the OR8 IAdisQCAEable 8+cAtAt
to his character es a~ lAdepeAdeAt contractor 16 that he zust
have contracted to do e epeolfled work and have the right to
control. the c.odcand rzanner of dOlAg it.” ?-
1.nOUT faetuel situation both Asker &Ad KoCleAehaA are
QtEtdtted to oontrect with firm of their ohoioe,and at the time
or his 8fria~~it, IjcClaAeheA~66 doing 60. kc presume other
iAdiii&UClC contracting with Xlrby Luuber Corporation enjoyed the
aeme 'prlvIlage. The fccte t6tabllah that they were customerlly
engaged in &A indeptndtatly e6tabll6hed busiAe66.
i%ially, we will dISQO68 0r the two facts heretofore
r;eAtloacd 86 erldenoln~ a oontrol ln&loatIng e servant rcletloc-
ship. First the power of Xlrby Lumber Corporation to ttrn;lnate
lo 1~6 at rfll; aeoood the choice by Kirby LuxzberCorporation
org&he loge to be cut. ‘Such were the fcotc in the oacc of
Crosby Lumber Me. Co. v. fiurhem, 179 so. 265, xhercin~tht court
Said:
'The power given en 8Eployer under a OoAtrEtCtiOr
acrvloea to termlcats it at r:Ill 1s h fact for con-
alteration in dctcmlnlng r;het&cr the oontreot creates
the relation of xeetor a~0 cement, but, of itself
alone, is not determinative, end the Germ faot thet
whet loge Stocketlll ehculd haul were for the deter-
. ,
Eon..Gnllla s. Carpenter, psge 8
ainetion Of frorbf iuber 4. ~6lJUf6CtUritlg COQ6Xly
did nCt COUBtitUt6 EUCh OOUtrOl OI8r him 6E t0 Z&8
the rO&tiOn b6tW88n them that Of Es68t.r and 68l’V6.rit.”
‘Ph6t iS OUr 6ll8W8rt0 the prOpOSitiOn her6.
You arr, therefore, edvieed that only Upon the basis of the
laots before ~6 the indirldu616 doI% the logging work were, prior
to April 1, 1939 Independent contractors, and there 16 no liability
on blrby Lumber lorporation Sor taxes bhsed upon aoounta peld to
those p6rUOIX.
If the f&CtS Srt Cthr tti6D r8pr8S8Zlt6d :n tbt iIlfOlT~CtiOXl
b6fCI-6 ~6, we do not peas upor ths llabillty of Zlrby Lumber
COrpOrEtiOn or any other elaplcyerfor tax86.
Yours very truly | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288775/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1952
ROBERT M. KOWALSKI,
Plaintiff‐Appellant,
v.
SHAUNA BOLIKER, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 560 — Virginia M. Kendall, Judge.
____________________
ARGUED NOVEMBER 8, 2017 — DECIDED JUNE 26, 2018
____________________
Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐
cuit Judges.
WOOD, Chief Judge. Robert Kowalski is dissatisfied with his
treatment by judges and sheriff’s personnel during his di‐
vorce proceedings. He especially accuses an Illinois judge,
Shauna Boliker, of engaging in extrajudicial efforts designed
to prejudice the state court against him and in favor of her best
2 No. 17‐1952
friend, Kowalski’s wife. While Kowalski’s allegations are trou‐
bling, in the end we conclude that the district court was cor‐
rect to dismiss his case.
I
Kowalski and his former spouse have been waging a di‐
vorce and child‐custody battle in the Circuit Court of Cook
County, Illinois. Believing that several state judges and offi‐
cials have deprived him of a fair proceeding, Kowalski filed
this suit under 42 U.S.C. §§ 1983 and 1985. The defendants in‐
clude Judges Shauna Boliker and Grace Dickler, both of the
Circuit Court, as well as the Sheriff of Cook County and two
members of his staff. (We refer collectively to the sheriff and
his deputies as the sheriff, since no distinctions between them
are pertinent to this case.)
Judge Boliker, whom Kowalski describes as his wife’s
“BFF” (i.e., her “best friend forever”), allegedly engaged in a
series of improper communications with Judge David Haracz,
who was originally assigned to Kowalski’s domestic‐relations
case. The first incident occurred during a show‐cause hearing
held after Judge Boliker refused to comply with a subpoena
for her deposition by Kowalski. At the hearing,
Judge Boliker’s counsel slipped Judge Haracz a “Secret Let‐
ter” from Judge Boliker to the sheriff. The letter, which Kow‐
alski later obtained, described Kowalski as a security threat.
Kowalski believes that Judge Boliker had several pernicious
motives for writing the letter: to deprive Kowalski of his at‐
torney identification card; to produce evidence harmful to
Kowalski in his domestic‐relations case; and to justify her
own improper interference in Kowalski’s divorce.
No. 17‐1952 3
At the hearing, Judge Boliker’s attorney denigrated Kow‐
alski by describing him as dangerous, accusing him of habit‐
ually staring at the judge in her courtroom, and noting that
the judge had posted Kowalski’s picture as a warning notice.
Kowalski also accuses Judge Boliker of submitting a “courtesy
letter” with these warnings to Judge Haracz. (This may be the
same as the “Secret Letter.”) Finally, when Kowalski moved
for a substitution of judges based on these ex parte communi‐
cations, Judge Boliker’s counsel submitted an affidavit to the
court, presumably on Judge Boliker’s behalf, opposing the
substitution. The affidavit reiterated Judge Boliker’s conten‐
tions that Kowalski posed a security risk, had sent her threat‐
ening emails, had stared at her while on the bench, and had
stalked her. It also confirmed that Judge Boliker circulated
Kowalski’s photo and displayed it in her courtroom as a
warning.
Judge William S. Boyd ultimately replaced Judge Haracz
in the underlying case. Kowalski accuses Judge Dickler, the
Presiding Judge of the court’s Domestic Relations Division, of
prejudicing Judge Boyd. Kowalski’s attorney had written to
Judge Dickler, asking her to send him a “courtesy copy” of
Kowalski’s citation to remove his children’s guardian ad litem.
The letter requested that Judge Dickler refer the citation “to
the body responsible for the appointment list for the guardian
ad litem.” After Kowalski received no response, his attorney
complained to Timothy Evans, Chief Judge of the Circuit
Court, who referred the matter back to Judge Dickler.
Judge Dickler responded to Kowalski, copying Judge Boyd
and all interested parties on the response. Judge Dickler de‐
scribed Kowalski’s letter as “an ex parte communication, es‐
sentially seeking that [Judge Dickler] exercise [her] adminis‐
trative authority to rule upon a pending motion instead of …
4 No. 17‐1952
the … assigned judge … without notice” to concerned parties.
Judge Dickler also wrote that the letter to Chief Judge Evans
had made “baseless and false allegations impugning
[Judge Dickler’s] integrity which [she] w[ould] not dignify
with a response.”
Kowalski’s complaint also raises claims against the sheriff.
He focuses on the sheriff’s refusal to renew his attorney iden‐
tification card—which provides security‐free access to the
courthouse—and the sheriff’s failure to comply with a sub‐
poena duces tecum in Kowalski’s divorce case to produce doc‐
uments related to Judge Boliker’s alleged machinations
against Kowalski. Kowalski’s briefs frame these actions as
part of a broader effort to deprive him of his federal constitu‐
tional right to an impartial judge. He is apparently asserting
that the sheriff was working to bolster Judge Boliker’s claims
that Kowalski posed a danger out of malice toward Kowalski
and a desire to cover up Judge Boliker’s alleged misconduct.
The district court dismissed Kowalski’s complaint. Unfor‐
tunately, it did so before the date on which Kowalski’s re‐
sponse to the sheriff’s motion to dismiss was due and before
having received that response. The court held that absolute
judicial immunity barred Kowalski’s claims against the
judges. It also ruled that Judge Boliker could not be held liable
for her communications with the court because she was a wit‐
ness, Kowalski having subpoenaed her (unsuccessfully) to
testify. As for the sheriff, the court concluded that he had not
violated Kowalski’s due process rights by denying the identi‐
fication card, because Kowalski had neither a liberty nor
property interest in the card. The court also opined that the
Rooker‐Feldman doctrine barred Kowalski’s claim that the
No. 17‐1952 5
sheriff had violated his rights by failing to respond to his sub‐
poena because the state court had quashed it. Finally, the
court suggested in the alternative that it lacked jurisdiction to
hear the entire case because of the domestic‐relations excep‐
tion to federal jurisdiction.
II
We assess de novo a suit’s dismissal for failure to state a
claim or for want of subject‐matter jurisdiction. Gogos v. AMS
Mech. Sys., Inc., 737 F.3d 1170, 1172 (7th Cir. 2013); Joyce v.
Joyce, 975 F.2d 379, 382 (7th Cir. 1992). When doing so, we may
affirm a dismissal on any ground supported by the record.
Sykes v. Cook Cnty. Circuit Court Probate Div., 837 F.3d 736, 740
(7th Cir. 2016); Griffin v. Summerlin, 78 F.3d 1227, 1230 (7th Cir.
1995). Three questions are before us with respect to jurisdic‐
tion: whether we lack appellate jurisdiction because the dis‐
trict court’s dismissal was without prejudice; whether the dis‐
trict court lacked subject‐matter jurisdiction under the Rooker‐
Feldman doctrine, see Rooker v. Fidelity Tr. Co., 263 U.S. 413
(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);
and whether it lacked subject‐matter jurisdiction because of
the so‐called domestic‐relations exception to federal compe‐
tence.
A
We first consider whether lack of finality precludes appel‐
late jurisdiction. A plaintiff generally may not appeal unless
the district court has dismissed his case with prejudice. Tay‐
lor‐Holmes v. Office of Cook Cnty. Pub. Guardian, 503 F.3d 607,
609–10 (7th Cir. 2007); Kaplan v. Shure Bros., Inc., 153 F.3d 413,
417 (1998); see also 28 U.S.C. § 1291. That did not happen here.
6 No. 17‐1952
The district court stated that Kowalski’s complaint was dis‐
missed “without prejudice” and invited Kowalski to refile “in
the future” if he obtained “facts that support any of the
claims” he had made. At first glance, that statement appears
fatal to Kowalski’s appeal. Moreover, while we permit appel‐
lants to avoid this jurisdictional bar by stipulating that they
will not refile their case, see Arrow Gear Co. v. Downers Grove
Sanitary Dist., 629 F.3d 633, 637 (7th Cir. 2010), Kowalski de‐
clined to do so during oral argument.
Nonetheless, the absence of a dismissal with prejudice
does not always impede appellate review. Our fundamental
concern is that the district court’s order “ends the suit so far
as the district court is concerned.” Taylor‐Homes, 503 F.3d at
610. Thus, “if there is no amendment [a plaintiff] could rea‐
sonably be expected to offer to save the complaint” following
its dismissal, we may treat the dismissal as final and permit
an appeal. Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir. 2005).
Here, the district court entered judgment in favor of the de‐
fendants, signaling that it had finished with Kowalski’s case.
While it invited Kowalski to file a new suit in the future if he
obtained new evidence that supported his claims, it dismissed
his complaint on legal grounds that make it difficult to imag‐
ine what kind of evidence it had in mind. Kowalski could not
tweak his complaint and refile it. Cf. Arrow Gear Co., 629 F.3d
at 637. In reality, the invitation to refile was illusory. The dis‐
trict court was finished with this case, and so our appellate
jurisdiction is secure.
Moreover, a dismissal for want of subject‐matter jurisdic‐
tion is necessarily without prejudice because it does not pre‐
clude pursuit of the action in a different forum. T.W. by Enk v.
Brophy, 124 F.3d 893, 898 (7th Cir. 1997). Such a dismissal is,
No. 17‐1952 7
however, appealable. S. Austin Coal. Cmty. Council v. SBC
Commc’ns Inc., 191 F.3d 842, 844 (7th Cir. 1999). Therefore, to
the extent that the district court’s reasons for dismissing Kow‐
alski’s suit implicated its own subject‐matter jurisdiction, we
are free to entertain his appeal.
B
The first theory relating to subject‐matter jurisdiction that
the district court invoked was the Rooker‐Feldman doctrine.
Rooker‐Feldman is “confined,” however, to “cases brought by
state‐court losers complaining of injuries caused by state‐
court judgments rendered before the district court proceed‐
ings commenced and inviting district court review and rejec‐
tion of those judgments.” Exxon Mobil Corp. v. Saudi Basic In‐
dus. Corp., 544 U.S. 280, 284 (2005). It does not apply inde‐
pendently to interlocutory orders. TruServ Corp. v. Flegles, Inc.,
419 F.3d 584, 591 (7th Cir. 2005). But see Harold v. Steel, 773
F.3d 884, 886 (7th Cir. 2014) (describing the issue as undecided
in this circuit). In the present case, the state court had not ren‐
dered a judgment before the district court proceedings began.
Therefore, Rooker‐Feldman does not bar this case.
Moreover, even if Rooker‐Feldman applied to interlocutory
orders, the doctrine still would have no bearing on Kowalski’s
appeal because he has not asked us to reject any such order.
Kowalski has disclaimed any attempt to challenge or circum‐
vent the state court’s decision to quash Kowalski’s subpoena
of the sheriff. He seeks not information from those defendants
but rather damages for interference with his state proceeding.
8 No. 17‐1952
C
That leaves the domestic‐relations exception to federal ju‐
risdiction. Although the present dispute arises out of a di‐
vorce and custody proceeding, that alone is not enough to
trigger that exception. The exception covers a “narrow range
of domestic relations issues involving the granting of divorce,
decrees of alimony,” and child custody orders. Ankenbrandt v.
Richards, 504 U.S. 689, 701–02 (1992). It is “materially identi‐
cal” to the probate exception. Struck v. Cook Cnty. Pub. Guard‐
ian, 508 F.3d 858, 859 (7th Cir. 2007). These exceptions apply
to both federal‐question and diversity suits. Jones v. Brennan,
465 F.3d 304, 306–07 (7th Cir. 2006) (probate exception); Allen
v. Allen, 48 F.3d 259, 262 n.3 (7th Cir. 1995) (domestic relations
exception). Both are construed narrowly, with a focus on the
need to prevent federal courts from “disturb[ing] or af‐
fect[ing] the possession of property in the custody of a state
court.” Marshall v. Marshall, 547 U.S. 293, 311 (2006) (quoting
Markham v. Allen, 326 U.S. 490, 494 (1946)). They “do[] not bar
federal courts from adjudicating matters outside those con‐
fines.” Id. at 312.
The Supreme Court held in Marshall that a claim of tor‐
tious interference with expectancy did not trigger the probate
exception. Id. at 314. It stressed that the litigation “s[ought]
an in personam judgment … not the probate or annulment of a
will” and, therefore, would not “reach a res in the custody of
a state court” or determine a matter about which probate
courts have particular expertise. Id. at 312. Likewise, in Lloyd
v. Loeffler, we concluded that a suit for tortious interference
with child custody and conspiracy was not barred by the do‐
mestic‐relations exception. 694 F.2d 489, 490 (7th Cir. 1982).
Marshall and Lloyd point the way for our case. Kowalski seeks
No. 17‐1952 9
an in personam judgment against persons who allegedly inter‐
fered with his rights in a tortious manner. He does not seek to
alter an in rem custody award or to undo a divorce decree. The
fact that the alleged interference with Kowalski’s rights oc‐
curred during a family‐law proceeding does not require a dif‐
ferent result. Kowalski complains of alleged attempts to cur‐
tail his procedural rights in family court, but he does not at‐
tack any application of Illinois family law.
Finally, Kowalski’s suit differs fundamentally from the su‐
perficially similar case of Jones v. Brennan, 465 F.3d 304 (7th
Cir. 2006). In Jones, the plaintiff alleged a conspiracy among
probate judges and guardians “to deprive her of property
without due process of law in the course of probate proceed‐
ings,” which were held first to manage her father’s estate dur‐
ing his senility and then to distribute it following his death.
Id. at 305. The guardians allegedly had ex parte communica‐
tions with the judges, mismanaged the estate, engaged in self‐
dealing, illegally searched the plaintiff’s belongings, inter‐
fered with her relationship with her father, and hastened the
father’s death through neglect. Id. The judge had denied the
plaintiff notice and a hearing before appointing the problem‐
atic guardians. Id. Although we permitted some tort claims
against the guardians for breach of their fiduciary duty to go
forward, the probate exception applied to the extent that
“maladministration of her father’s estate by the … probate
court” undergirded the plaintiff’s claims. Id. at 307 (emphasis
added). Thus, the plaintiff could not sue the guardians for de‐
priving her of property without due process if the relevant
acts were undertaken “in the course of administering the es‐
tate.” Id. Nor could the plaintiff complain that the guardians
deprived her of a “liberty interest in her relationship with her
10 No. 17‐1952
father” if that deprivation was caused by a court order de‐
signed to prevent her “from interfering with the probate pro‐
ceedings.” Id. at 308. Finally, she could not challenge their il‐
legal search if it was conducted pursuant to a warrant issued
by the probate court to facilitate administration of the estate.
Id.
In contrast to the situation in Jones, Kowalski does not
challenge any action taken by the court and its officers in the
course of adjudicating his marriage or custody action. He
complains only about outside actors who allegedly interfered
in his case. We need not pass on the state court’s application
of family law in order to adjudicate Kowalski’s case. The dis‐
trict court had jurisdiction over the case, and so we may turn
to the merits.
III
The district court dismissed Kowalski’s complaint before
the date it had set for him to respond to the sheriff’s motion
to dismiss the claims against them. It should not have done
so.
When a court dismisses a complaint “sua sponte, it [i]s re‐
quired to give [the plaintiff] notice of its intent to do so and
an opportunity to respond.” Stewart Title Guar. Co. v. Cadle
Co., 74 F.3d 835, 836 (7th Cir. 1996). A failure to follow these
steps deprives the litigant of his day in court, denies the judge
the benefit of the litigant’s analysis, and “tend[s] to transform
the district court into ‘a proponent rather than an independ‐
ent entity.’” Id. (quoting Horn v. City of Chicago, 860 F.2d 700,
703 n.6 (7th Cir. 1988)). Although we have recognized a nar‐
row exception for dismissals of certain patently frivolous at‐
tempts to invoke federal jurisdiction, English v. Cowell, 10 F.3d
No. 17‐1952 11
434, 437 (7th Cir. 1993), Kowalski’s case did not fall within
that narrow class of suits. The fact that the district court did
not act sua sponte, but instead acted upon defendants’ motions
to dismiss and with the benefit of defendants’ arguments, is
even more troubling. The dismissal of a complaint before the
deadline set for a plaintiff’s response is normally, and was
here, an error, Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918,
924 (7th Cir. 1992).
A premature dismissal often will require a remand to pro‐
vide the plaintiff with an opportunity to develop and present
a defense of his complaint to the district court. See Stewart Ti‐
tle Guar. Co., 74 F.3d at 836–37. Nonetheless, the normal rules
of harmless error apply. See FED. R. CIV. P. 61; English, 10 F.3d
at 438; Stewart Title Guar. Co., 74 F.3d at 837; Uni*Quality, Inc.,
974 F.2d at 924. A premature ruling may be harmless “when
the district court is found to have entertained the non‐mo‐
vants’ arguments on a prior or subsequent motion.” English,
10 F.3d at 438. Likewise, the district court may neutralize its
error if it has “carefully considered” a plaintiff’s “detailed mo‐
tion to amend the judgment and for leave to amend its com‐
plaint” and the plaintiff had enjoyed “ample opportunity to
make its arguments both in the district court” and on appeal.
Uni*Quality, Inc. 974 F.2d at 924.
Although Kowalski did not have another opportunity to
present his position to the district court, we do know precisely
what Kowalski intended to argue because he timely filed his
brief after the district court had ruled. That brief is part of the
record, and its arguments match those that Kowalski has pre‐
sented on appeal. No one has argued that Kowalski has
waived any of these arguments nor would we accept such an
argument given the course of events. Thus, we can consider
12 No. 17‐1952
all of Kowalski’s arguments as part of our de novo assessment
of the legal sufficiency of his complaint. The district court’s
premature ruling was, therefore, harmless.
IV
Turning to the merits of Kowalski’s underlying complaint,
we begin by addressing whether absolute immunity pre‐
cludes Kowalski’s suit against either Judge Boliker or
Judge Dickler. We conclude that Judge Boliker cannot claim
the protection of judicial immunity but that Judge Dickler’s
alleged actions fall within its scope. We reject Judge Boliker’s
assertion of witness immunity.
A
Judge Boliker opens with the assertion that she is entitled
to judicial immunity because “she was acting to ensure the
security and integrity of the court.” That strikes us as a step
too far. Although judicial immunity is broad, it is not limit‐
less. A judge does not enjoy immunity if he or she is acting in
the “clear absence of all jurisdiction,” Stump v. Sparkman,
435 U.S. 349, 357 (1978) (quoting Bradley v. Fisher, 80 U.S. 335,
351 (1871)), rather than simply in “excess of [the judge’s] au‐
thority,” id. at 356. A judge is also amenable to suit for non‐
judicial acts. Id. at 360–62. Both exceptions to immunity apply
here.
First, Judge Boliker acted in the clear absence of jurisdic‐
tion. We assume that she may have immunity in cases arising
out of security measures she took in her own court or in con‐
nection with one of her own cases. Judge Boliker, however,
gratuitously inserted herself into a case proceeding before an‐
other judge. She had no authority to control that colleague’s
case. That is a real problem for her: we have looked for at least
No. 17‐1952 13
a modicum of authority over matters arising from a case as a
prerequisite for judicial immunity.
For example, in Dellenbach v. Letsinger, a judge accused of
ex parte attempts to block an appeal pending the purchase of
duplicate trial transcripts had already entered final judgment
and therefore had technically lost jurisdiction to the appellate
court. 889 F.2d 755, 757, 760 (7th Cir. 1989). In nonetheless af‐
fording the judge immunity, we emphasized that he had at
most acted in excess of his jurisdiction by blocking the appeal
in “a criminal matter tried in his court.” Id. at 760. He had at
least had jurisdiction and could reasonably believe that he re‐
tained some control over the case. Id. The case of Bradley v.
Fisher, 80 U.S. 335 (1871), also helps to illustrate where the
lines are drawn. In Bradley, the attorney for a criminal defend‐
ant accosted his client’s judge after trial recessed one day,
complaining about comments the judge had made from the
bench. After the jury was discharged, the judge disbarred the
offending attorney, who then sued the judge. The Supreme
Court held that the judge’s action had been undertaken “in
the lawful exercise and performance of his authority and duty
as [the] presiding justice.” Id. at 346–47. The judge thus en‐
joyed immunity for his actions. In contrast to Dellenbach and
Bradley, Kowalski’s complaint against Judge Boliker centers
on her interference in a case to which she was never assigned
and over which she had no responsibility. Judge Boliker can‐
not assert judicial immunity over matters so far removed from
matters under her jurisdiction.
Judge Boliker’s intervention in Kowalski’s trial was like‐
wise an unprotected non‐judicial act. Judicial acts are distinct
from the “administrative, legislative, or executive functions
that judges may on occasion be assigned by law to perform.”
14 No. 17‐1952
Forrester v. White, 484 U.S. 219, 226 (1988). Selection of jurors,
promulgating rules of professional conduct, enforcement of
those rules, and personnel decisions all fall on the non‐judicial
side of this divide. Id. at 228–29. In assessing the judicial na‐
ture of an action, we consider “whether it is a function nor‐
mally performed by a judge” and the “expectations of the par‐
ties, i.e., whether they dealt with the judge in his judicial ca‐
pacity.” Stump, 435 U.S. at 362. We have also asked whether
the act “involves the exercise of discretion or judgment, or is
rather a ministerial act which might as well have been com‐
mitted to a private person as to a judge.” Dawson v. Newman,
419 F.3d 656, 661 (7th Cir. 2005) (quoting Lowe v. Letsinger, 772
F.2d 308, 312 (7th Cir. 1985)). Finally, we have cautioned
against liberally categorizing acts as judicial, requiring that
they “involve the judicial process so that a fear exists that free‐
dom of judicial decisionmaking may be stifled.” McMillan v.
Svetanoff, 793 F.2d 149, 154 (7th Cir. 1986). Judge Boliker’s in‐
terference in Kowalski’s trial does not qualify as judicial from
any of these perspectives.
Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980), pro‐
vides a helpful analogy to Kowalski’s case. Lopez held that a
judge acted judicially despite having maliciously, corruptly,
and illegally arraigned, convicted, and sentenced his former
tenant in an irregular court consisting only of himself. Id. at
1234. But the judge was not entirely off the hook. To the extent
that he had acted as a prosecutor—by selecting the charge,
preparing a “Notice to Appear,” securing the preparation of
a complaint form, forging a guilty plea and jury‐trial waiver,
and then presenting them to himself as judge—he could not
claim judicial immunity. Id. at 1235. Judge Boliker’s interven‐
tion in Kowalski’s case looks more like that of a party or in‐
vestigator than a judge. She was a potential witness in the
No. 17‐1952 15
case, and her lawyer actively tried to thwart Kowalski’s mo‐
tion for substitution. These actions had nothing to do with
Judge Boliker’s judicial decision‐making function. She was al‐
legedly acting as an advocate for her close friend.
Judge Boliker cites only one case, Barrett v. Harrington, 130
F.3d 246 (6th Cir. 1997), to support her argument to the con‐
trary. In Barrett, a judge received immunity for writing a letter
to prosecutors that triggered the criminal investigation of a
litigant. 130 F.3d at 259. There the similarities end. The Sixth
Circuit admitted that “the instigation of a criminal investiga‐
tion by the filing of a complaint [was] not itself a paradigmatic
judicial act.” Id. at 257. Nonetheless, the judge’s letter quali‐
fied for immunity because it responded to harassment from a
litigant who aimed to force the judge to recuse herself, “un‐
doubtedly an act that concerns judicial decision‐making.” Id.
at 258. A “direct relational nexus” linked the judge’s “judicial
decisions,” the litigant’s harassment of the judge, and the
judge’s ultimate “response in contacting the prosecuting at‐
torneys.” Id. at 259. Thus, the court held that when “a judge
reasonably perceives a threat to himself or herself arising out
of the judge’s adjudicatory conduct, the judge’s response, be
it a letter to a prosecutor or a call to the Marshall’s office for
security, is a judicial act within the scope of judicial immun‐
ity.” Id. In contrast to Barrett, Judge Boliker had never adjudi‐
cated a case involving Kowalski nor did she expect to. Even
according to Judge Boliker, the conflict between them arose
out of personal matters: Kowalski accused her of ruining his
marriage as the “BFF” of Kowalski’s wife. Her involvement in
the case—and the alleged threats against her—had nothing to
do with her judicial role.
16 No. 17‐1952
B
Unlike Judge Boliker, Judge Dickler acted neither in the
clear absence of jurisdiction nor in a non‐judicial capacity.
This court has rejected the argument that a chief judge acts
without jurisdiction when overseeing or directing the busi‐
ness of the court. See Dellenbach, 889 F.2d at 760–61. For exam‐
ple, the chief judge in Dellenbach did not act in the absence of
jurisdiction when he blocked an appeal assigned to other
judges until the appellant paid transcript fees to the trial court
because “control of a docket is a key function to the proper
workings of a court.” Id. at 760. Similarly, Judge Dickler di‐
rected a motion to her colleague for resolution, keeping him
apprised of relevant information that came to her attention as
president of the family division. Her communiqué also served
as an official notice from the court, akin to an order or docket
entry, to all parties interested in the case. She acted within the
bounds of her judicial role as presiding judge.
Likewise, forwarding the letter to Kowalski’s assigned
judge and the parties to his case qualified as a judicial act. A
judge can be expected to circulate an ex parte communication
to all relevant parties. In fact, the Cook County Circuit Court
requires a judge to disclose such communications if received
“in connection with any matter pending before the judge.”
COOK COUNTY CIRCUIT COURT, COURT RULES, R. 17.2. Alt‐
hough the rule did not oblige Judge Dickler as president of
the family division to disclose the communications, her dis‐
closure could hardly be described as non‐judicial when it mir‐
rored that which was required of judges in other contexts.
Judge Dickler is thus immune from suit.
No. 17‐1952 17
C
We also conclude that Judge Boliker cannot take ad‐
vantage of witness immunity. Our primary reason is waiver:
she failed to present this defense to the district court, and “we
will not affirm a judgment based on an affirmative defense
raised for the first time on appeal.” McDonald v. Adamson, 840
F.3d 343, 347 (7th Cir. 2016).
Even if she had raised it below, the defense would fail.
Witnesses “enjoy absolute immunity” to ensure that they tes‐
tify truthfully without fear of reprisal. Canen v. Chapman, 847
F.3d 407, 415 (7th Cir. 2017). The scope of their immunity is
broadly construed to include preparation of testimony, id.,
testimony at pretrial proceedings, Curtis v. Brembenek, 48 F.3d
281, 285 (7th Cir. 1995), depositions, and affidavits, Griffin v.
Summerlin, 78 F.3d 1227, 1230 (7th Cir. 1995). Witness immun‐
ity even covers out‐of‐court conspiracies to present false tes‐
timony—at least with respect to the individual who will pre‐
sent the testimony. House v. Belford, 956 F.2d 711, 720–21 (7th
Cir. 1992).
Had Judge Boliker appeared at her deposition or testified
at the show‐cause hearing and there impugned Kowalski’s
character, he could not have sued her over those statements.
Yet that did not happen: she was never deposed, and she
never testified. Kowalski’s entire complaint centers on her
submitting information to the court in an ad hoc and irregular
fashion, rather than as a witness. For example, rather than tes‐
tify or submit evidence at her show‐cause hearing, Judge
Boliker had her counsel submit the “Secret Letter” as a so‐
called “courtesy copy” and represent—in an unsworn conver‐
sation—that Kowalski was a security threat. Later, she again
relied on the “courtesy copy” procedure to submit materials
18 No. 17‐1952
to the court. That will not do: she cannot simultaneously
evade offering proper testimony and claim the protections af‐
forded to those who testify.
V
Although we have ruled in part for Kowalski on the im‐
munity questions, this is of no avail if his complaint fails to
state a claim. In order to survive a motion to dismiss, the com‐
plaint’s “well‐pleaded factual allegations [must] ‘plausibly
give rise to an entitlement of relief.’” Silha v. ACT, Inc., 807
F.3d 169, 174 (7th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)). A threshold requirement under section 1983
is the existence of “a right secured by the Constitution and
laws.” Baker v. McCollan 443 U.S. 137, 140 (1979) (quotation
marks omitted). In order to state a claim under the Due Pro‐
cess Clause, Kowalski must allege a deprivation of protected
liberty or property interests. Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 571 (1972); LaBelle Winnetka, Inc. v. Vill. of
Winnetka, 628 F.3d 937, 943–44 (7th Cir. 2010).
That is where Kowalski’s section 1983 claim stumbles. Ad‐
mittedly, the Supreme Court has treated a parent’s interest in
child custody as a form of liberty interest for purposes of
Mathews v. Eldridge, 424 U.S. 319 (1975), and has described the
termination of custody as a “unique kind of deprivation” in
which the parent has a “commanding” interest. Lassiter v.
Dep’t of Soc. Servs. of Durham Cnty., 452 U.S. 18, 27 (1981).
Kowalski therefore has a right to due process before an ad‐
verse decision in his custody case, which presumably in‐
cludes a right to an impartial judge. See Goldberg v. Kelly, 397
U.S. 254, 271 (1970). Yet as things stand, Kowalski has not al‐
leged that he suffered any adverse consequences to his paren‐
tal (or other) rights as a result of his allegedly prejudiced
No. 17‐1952 19
judge. Therefore, Kowalski’s section 1983 claim cannot pro‐
ceed.
Nor does section 1985 cover Kowalski’s situation. In rele‐
vant part, section 1985(2) bars “conspir[acies] for the purpose
of impeding, hindering, obstructing, or defeating, in any man‐
ner, the due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of the laws.”
42 U.S.C. § 1985(2). A plaintiff “must allege class‐based ani‐
mus to state a claim for denial of access to state courts” under
section 1985(2). Wright v. Ill. Dep’t of Children & Family Servs.,
40 F.3d 1492, 1508 (7th Cir. 1994). Kowalski never asserted
that any of the defendants targeted him because of his mem‐
bership in a class—protected or otherwise. The district court
thus correctly dismissed his section 1985 claim.
Kowalski faces a similar roadblock under section 1985(3),
which requires the complaint to assert four elements:
[T]he defendants did (1) “conspire or go in disguise on
the highway or on the premises of another” (2) “for the
purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the
laws.” … [O]ne or more of the conspirators (3) did, or
caused to be done, “any act in furtherance of the object
of [the] conspiracy,” whereby another was (4a) “in‐
jured in his person or property” or (4b) “deprived of
having and exercising any right or privilege of a citizen
of the United States.”
Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971) (quoting 42
U.S.C. § 1985(3)) (alteration in original). To satisfy the second
element, the complaint must allege “some racial, or perhaps
20 No. 17‐1952
otherwise class‐based, invidiously discriminatory animus be‐
hind the conspirators’ action.” Id. at 102. Kowalski’s com‐
plaint has not done so. Therefore, to the extent that he at‐
tempts to invoke section 1985(3), he has not stated a valid
claim.
We AFFIRM the district court’s dismissal of Kowalski’s suit,
which we modify to be a dismissal with prejudice. | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4288776/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3351
JENNIFER DIPERNA,
Plaintiff-Appellant,
v.
THE CHICAGO SCHOOL OF
PROFESSIONAL PSYCHOLOGY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:14-cv-00057 — John Z. Lee, Judge.
____________________
ARGUED APRIL 19, 2018 — DECIDED JUNE 26, 2018
____________________
Before RIPPLE, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. Jennifer DiPerna was a student
pursuing a master’s degree in clinical psychology at The
Chicago School of Professional Psychology (TCSPP), a pri-
vate, non-profit institution. After TCSPP disciplined DiPerna
for posting an image to her personal Instagram account that
TCSPP considered offensive, DiPerna filed this lawsuit alleg-
ing breach of contract and negligence.
2 No. 17-3351
The year after DiPerna filed her complaint, one of her
professors accused her of plagiarism. A hearing was held
before a school committee, and DiPerna was dismissed. She
amended her complaint to include claims related to her dis-
missal.
In the proceedings below, DiPerna voluntarily withdrew
some of her claims, and the district court granted summary
judgment to TCSPP on all the others. DiPerna now challeng-
es the district court’s conclusions. We affirm.
I.
A. Background
DiPerna’s issues with TCSPP began in the spring of 2013.
That semester, DiPerna enrolled in a course titled “Diversity
in Clinical Practice.” One of the assignments in that course
was a group project. DiPerna, a white woman, was in a
group with a student named Shakira, 1 a black woman. While
they were together, DiPerna and Shakira got into a discus-
sion about “privilege.” This discussion prompted Shakira to
email their instructor, Dr. Patricia Perez, with “concerns
about [DiPerna’s] ability to work with clients of a diverse
background.” 2 When DiPerna’s group met with Dr. Perez,
DiPerna again got into a discussion about privilege, this time
with a different student.
After these incidents, DiPerna complained to various
TCSPP officials that she was the subject of harassment and
bullying. She claimed people were calling her “color blind,”
1 The parties have not informed us of Shakira’s last name.
2 DiPerna v. Chicago Sch. of Prof’l Psychology, 222 F. Supp. 3d 716, 719
(N.D. Ill. 2016).
No. 17-3351 3
making comments, and pointing at her. Despite her com-
plaints, TCSPP took no action. DiPerna tried to withdraw
from the class, but was told she could not as it was too far
into the semester.
That summer, DiPerna posted an image with a racial slur
on her personal Instagram account. Two black students at
TCSPP complained to a professor. On August 1, 2013, Di-
Perna met with Dr. Virginia Quiňonez, Department Chair,
and Dr. Luke Mudd, Associate Department Chair. DiPerna
defended herself on the grounds that the posting was sup-
posed to be humorous. She also objected to being punished
when Shakira, whose posts contained similar language, was
not.
Drs. Quiňonez and Mudd referred DiPerna to the Stu-
dent Affairs Committee (SAC). After a hearing, the SAC or-
dered DiPerna to complete an Academic Development Plan
(ADP) 3 and delayed her entry into an internship program.
Though TCSPP allowed for an internal appeal of that deci-
sion, DiPerna did not pursue one. On January 3, 2014, Di-
Perna filed the instant lawsuit, citing the federal diversity
jurisdiction statute and alleging claims for breach of contract
and negligence.
DiPerna continued in school while the lawsuit was pend-
ing. In 2015, she took a required seminar course taught by
Dr. Kristin Davisson. As part of that course, DiPerna com-
pleted a “Clinical Competency Examination” (CCE), which
required her to set out a specific psychological theory and
3 DiPerna’s ADP required her to write two papers, including “a 10
page review of derogative terms associated [with] minority groups … in
the U.S.” (R. 96-6 at 5.)
4 No. 17-3351
discuss how she applied it to her clinical experiences with a
patient.
The portion of the CCE in which she discusses the theory
she applied was called the “Conceptualization” or “Case
Formulation” section. When Dr. Davisson was reviewing
DiPerna’s CCE, she began to suspect DiPerna had plagia-
rized that section. Dr. Davisson noticed the writing style in
that section was different from other sections of the paper
and from DiPerna’s previous work. Dr. Davisson particular-
ly noted it was more sophisticated in word choice and fre-
quency of sources.
Dr. Davisson’s suspicions caused her to input some sen-
tences from the paper as the terms in a Google search. After
that search revealed a match, Dr. Davisson decided to run
the paper through turnitin.com (Turnitin), a web-based pro-
gram that compares submitted writings against a database of
potential sources. This was the first time Dr. Davisson had
used Turnitin in some time.
Dr. Davisson only had a hard copy of DiPerna’s paper, so
she personally typed DiPerna’s conceptualization section
(about two pages of text) into Turnitin. Turnitin returned a
92% similarity score, meaning it concluded 92% of the con-
ceptualization section was similar to material found in other
sources. Turnitin provided a list of sources that included
psychology publications, a website, and other student pa-
pers.
Dr. Davisson reported these results to then Interim De-
partment Chair Dr. Mudd. Dr. Mudd told Dr. Davisson to
request an electronic copy of the paper from DiPerna so that
she could run the entire paper through Turnitin, rather than
No. 17-3351 5
just the one section. Dr. Davisson did so, and that reduced
the similarity score to 10%. Nevertheless, the conceptualiza-
tion section was still extensively flagged. Dr. Mudd per-
formed some independent verification of Turnitin’s results
and referred DiPerna to the SAC.
Prior to her hearing before the SAC, DiPerna received no-
tice that nine people would make up the committee. When
she showed up for her hearing on May 12, 2015, the commit-
tee did not have nine members. Nevertheless, the hearing
proceeded. DiPerna argued she was being retaliated against
for her lawsuit and that her 10% similarity score was insuffi-
cient to have justified a referral. The day after the hearing,
DiPerna was informed she had been dismissed.
Ten days after learning of the SAC’s conclusion, DiPerna
sent an email to Dr. Azara Santiago-Rivera, the Dean of Ac-
ademic Affairs. DiPerna characterized her email as an appeal
of the SAC’s decision and argued Dr. Davisson had improp-
erly singled her out for scrutiny, the SAC had not been
properly composed, and she was being targeted because of
her lawsuit against the school. Neither Dr. Santiago-Rivera
nor anyone else at TCSPP ever responded to DiPerna’s
email.
B. Procedural History
On June 1, 2015, DiPerna amended her complaint in this
lawsuit to include claims relating to her dismissal. As
amended, DiPerna’s complaint made claims for breach of
contract and negligence arising from six events: (1) TCSPP’s
failure to respond to bullying and harassment; (2) TCSPP’s
decision to discipline DiPerna for her Instagram post; (3) the
SAC’s development of DiPerna’s ADP; (4) the SAC’s deci-
6 No. 17-3351
sion to delay DiPerna’s entry into an internship program; (5)
the reporting of DiPerna for plagiarism; and (6) DiPerna’s
dismissal.
TCSPP moved for summary judgment. In response to the
motion, DiPerna conceded she was barred from pursuing
her claims based on the development of her ADP and the
decision to delay her entry into an internship program be-
cause she had failed to internally appeal those decisions. She
also conceded her claim for negligence.
On November 28, 2016, the district court denied TCSPP’s
motion in part and granted it in part. The district court de-
termined there were genuine issues of material fact concern-
ing DiPerna’s claims relating to the harassment and her pun-
ishment for the Instagram post. However, the district court
granted summary judgment to TCSPP on DiPerna’s claims
relating to her dismissal, concluding there was no evidence
the SAC decided to dismiss DiPerna without a rational basis.
The district court also granted summary judgment to TCSPP
on DiPerna’s claims for tuition and living expenses as dam-
ages. The district court reasoned that any extra tuition Di-
Perna had paid was the result of her ADP and her delayed
internship. She had conceded her claims relating to those
punishments, so she could not recover for her extra tuition.
As for the living expenses, DiPerna had submitted a contract
between DiPerna and her mother requiring DiPerna to repay
those expenses incurred “as a result of [DiPerna’s] expul-
sion.” 4 Because the court had already concluded DiPerna’s
expulsion was not improper, it determined DiPerna could
not recover expenses arising from it.
4 (R. 182 at 6.)
No. 17-3351 7
After this order, the case continued toward trial on the
harassment and Instagram claims. In August 2017, TCSPP
filed a number of motions in limine, three of which are per-
tinent here. In those three motions, TCSPP sought to prevent
DiPerna from presenting: (1) evidence relating to damages
resulting from her dismissal; (2) evidence relating to damag-
es for tuition, living expenses, emotional distress, and attor-
ney’s fees; and (3) the testimony of her expert witness, Dr.
Stan V. Smith. The district court granted all three motions.
The district court granted the motion on evidence related
to DiPerna’s dismissal by simply referring to its earlier con-
clusion that the dismissal was lawful. DiPerna attempted to
argue that her dismissal was at least partly based on her In-
stagram post, but the district court found no evidence of that
and reasoned that, even if it were true, the plagiarism was a
sufficient cause for her dismissal.
Concerning the tuition and living expenses, the district
court again referred to its conclusions in its prior order. The
court also barred DiPerna from presenting evidence of emo-
tional damages because Illinois does not allow them in con-
tract actions absent special circumstances. Nor would the
court allow DiPerna to present evidence relating to attor-
ney’s fees, because DiPerna had shown no entitlement in law
or contract to such fees.
Finally, the court determined Dr. Smith’s testimony
would not be helpful to the jury. Dr. Smith, a forensic econ-
omist, intended to testify to DiPerna’s lost earnings and he-
8 No. 17-3351
donic damages. 5 On lost earnings, the court again relied on
its decision that DiPerna’s dismissal was lawful. On hedonic
damages, the court determined Dr. Smith had reached his
conclusion based on all of DiPerna’s experiences at TCSPP,
not just her experiences relating to the claims going to trial.
The court also saw Dr. Smith’s testimony, which went to Di-
Perna’s “enjoyment of life,” as a ploy to recover emotional
distress damages. In sum, the court concluded that whatever
probative value Dr. Smith’s testimony may have had, it was
sufficiently outweighed by the risk of undue prejudice and
jury confusion.
In light of those rulings, DiPerna conceded that she was
effectively barred from presenting any evidence of damages.
Accordingly, the district court entered summary judgment
for TCSPP on the remaining claims. 6 DiPerna now appeals,
focusing on the district court’s November 28 order, the mo-
tions in limine, and the final grant of summary judgment. 7
5 Hedonic damages are “[d]amages that attempt to compensate for
the loss of the pleasure of being alive.” Hedonic damages, Black’s Law Dic-
tionary (10th ed. 2014).
6 See generally In re Ill. Bell Tel. Link-Up II, 994 N.E.2d 553, 559 (Ill.
App. Ct. 2013) (“Damages are an essential element of a breach of contract
action and a claimant’s failure to prove damages entitles the defendant
to judgment as a matter of law.”).
7 DiPerna’s opening brief states a laundry list of orders she is alleg-
edly challenging, but we will not address the orders on which she did
not develop argument. See Anderson v. Hardman, 241 F.3d 544, 545 (7th
Cir. 2001) (“[A] brief must contain an argument consisting of more than a
generalized assertion of error … .”).
No. 17-3351 9
II.
A. Summary Judgment
We review first the November 28 grant of summary
judgment. Federal Rule of Civil Procedure 56 “mandates the
entry of summary judgment … against a party who fails to
make a showing sufficient to establish the existence of an el-
ement essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). “We review de novo the grant of
summary judgment, and we construe all facts in the light
most favorable to … the nonmoving party,” who “must
point to specific facts showing that there is a genuine issue
for trial, and inferences relying on mere speculation or con-
jecture will not suffice.” Stephens v. Erickson, 569 F.3d 779,
786 (7th Cir. 2009). If we conclude “the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party,” we will affirm the entry of summary
judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
The parties do not dispute that Illinois law governs the
claims in this diversity suit. See generally Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 427 (1996) (“[F]ederal courts
sitting in diversity apply state substantive law … .”). In Illi-
nois, “a college or university and its students have a contrac-
tual relationship, and the terms of the contract are generally
set forth in the school’s catalogs and bulletins.” Raethz v. Au-
rora Univ., 805 N.E.2d 696, 699 (Ill. App. Ct. 2004). However,
given that “courts are reluctant to interfere with the academ-
ic affairs and regulation of student conduct in a private uni-
versity setting,” breach of contract claims brought by a stu-
dent against a private college or university are subject to a
10 No. 17-3351
distinct standard: “a student may have a remedy for breach
of contract when it is alleged that an adverse academic deci-
sion has been made concerning the student but only if that
decision was made arbitrarily, capriciously, or in bad faith.” Id.
This requires the student to show the school’s action was
“without any discernable rational basis.” Id. (internal quota-
tion marks omitted) (quoting Frederick v. Nw. Univ. Dental
Sch., 617 N.E.2d 382, 387 (Ill. App. Ct. 1993)); see also Brody v.
Finch Univ. of Health Sciences/The Chicago Med. Sch., 698
N.E.2d 257, 266 (Ill. App. Ct. 1998). Or, put another way, the
student must show the decision was “such a substantial de-
parture from accepted academic norms as to demonstrate
that the person or committee responsible did not actually
exercise professional judgment.” Raethz, 805 N.E.2d at 699
(quoting Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214,
225 (1985)).
1. Dismissal for Plagiarism
At oral argument in this case, DiPerna asserted she creat-
ed genuine disputes of material fact as to whether she pla-
giarized and whether she violated TCSPP’s plagiarism poli-
cy. In her brief and at argument, she emphasized that
Turnitin scores are not conclusive proof of plagiarism and
TCSPP’s policy on what constituted plagiarism sufficient to
warrant referral to the SAC was unclear. In support of her
arguments on the latter point, she presented a syllabus from
her “Diversity” class stating that a student would automati-
cally be reported for plagiarism if something they turned in
received a Turnitin score of 20% or higher. 8 Because DiPer-
8 (R. 96-6 at 42.)
No. 17-3351 11
na’s paper only received a 10%, she believes her referral was
arbitrary and capricious.
These arguments are red herrings. Concerning TCSPP’s
policy on referrals for plagiarism, the Academic Catalog and
Student Handbook (Handbook) states: “All suspected inci-
dents [of academic dishonesty, which includes plagiarism,]
must be immediately referred to the Department Chair/Lead
Faculty or designee who will then refer the matter to the
Student Affairs Committee.” 9 The Diversity class syllabus
does not put that express policy in doubt. All it does is pro-
vide students in that course what amounts to a Turnitin-
score safe harbor—the instructor will automatically suspect
plagiarism solely on the basis of a Turnitin score only if it is
greater than or equal to 20%. The syllabus does not negate
TCSPP’s policy that “all suspected incidents” must be re-
ported, and it certainly does not call into question Dr. Davis-
son’s actions here. Dr. Davisson suspected plagiarism based
on her observations of DiPerna’s work (i.e., the more sophis-
ticated word choice), and from that moment a referral was
not only appropriate but mandated by the Handbook. Di-
Perna’s quibbling about required Turnitin percentages is just
a distraction.
So is DiPerna’s argument concerning whether there is a
genuine issue of material fact as to whether she plagiarized.
That was the question for the SAC to decide based on
TCSPP’s policy, which is explicitly broad, covering inten-
tional and unintentional conduct, down to “a single example
of failing to use quotation marks.” 10 We will only disturb the
9 (R. 96-1 at 77.)
10 (Id.)
12 No. 17-3351
SAC’s decision that DiPerna plagiarized if it was made
without a rational basis. The only evidence we have relating
to DiPerna’s plagiarism that could have been available to the
SAC are DiPerna’s arguments about unfair treatment, Dr.
Davisson’s observations, a Turnitin report suggesting almost
complete similarity in the conceptualization section of Di-
Perna’s paper, and Dr. Mudd’s statement that he did some
independent verification before he made the referral. Given
this evidence, we are not prepared to say it was irrational for
the SAC to conclude DiPerna had plagiarized. DiPerna
stresses to us that Turnitin is not the most authoritative tool
for detecting plagiarism, and that may be true. But the
Turnitin score is undeniably some evidence that plagiarism
occurred, particularly in light of Dr. Mudd’s independent
verification of the Turnitin report. DiPerna cannot meet Illi-
nois’s high burden for student plaintiffs in relation to the de-
cision to dismiss her for plagiarism, and summary judgment
was proper. 11
11 DiPerna also argues TCSPP’s failure to respond to her appeal and
the fact that the SAC was not made up of nine members shows that the
dismissal decision was arbitrary and capricious. First, we fail to see how
the failure to respond to an appeal makes the SAC’s initial decision irra-
tional. Perhaps DiPerna would have an independent claim for an irra-
tional decision not to address her appeal, but she does not even mention
the appeal in her complaint. (See R. 59.) Neither does DiPerna explain
how the SAC’s composition affected the rationality of the SAC’s deci-
sion. See Raethz, 805 N.E.2d at 700 (refusing to accept the argument that
“any failure by a university to comply with the terms set forth in the
university’s catalogs or manuals [amounts] to per se arbitrary and capri-
cious conduct”).
No. 17-3351 13
2. Damages
Summary judgment was also appropriate concerning Di-
Perna’s entitlement to living expenses and tuition as damag-
es. In responding to TCSPP’s motion for summary judgment,
DiPerna submitted a contract between herself and her moth-
er providing that DiPerna was obligated to pay her mother
back for living expenses incurred “as a result of [DiPerna’s]
expulsion from The University of Chicago [sic].” 12 The mis-
nomer aside, the contract shows that DiPerna’s claim for liv-
ing expenses arose from her dismissal. We have just con-
cluded her dismissal was not improper, so she is not entitled
to recover for living expenses incurred because of it.
Concerning her claims for tuition, the district court con-
cluded they arose from the punishment—the ADP and the
delay in entering her internship—she received from the SAC
after her first referral to that body for her Instagram post.
Because DiPerna conceded her claims relating to the ADP
and the internship delay, the district court held that she
could not seek tuition damages.
DiPerna argues the district court missed a fine distinc-
tion: she only conceded her claims based on the develop-
ment of her ADP and the imposition of delaying her intern-
ship, and it was the referral to the SAC itself that caused her
to incur extra tuition. That argument defies common sense.
The referral to the SAC, alone, did not cause DiPerna to in-
cur any extra tuition costs. The Handbook makes clear the
SAC is a forum for accused students to receive “an impartial
12 (R. 182 at 6.)
14 No. 17-3351
committee review.” 13 A punishment resulting in increased
tuition costs, or even the decision to render some form of
punishment at all, was not a guaranteed result of the refer-
ral. The SAC could have concluded DiPerna did nothing
wrong, or it could have imposed a punishment that did not
require her to extend her time in school. Accordingly, it was
the SAC’s decision to impose the specific punishments of the
ADP and delayed entry into an internship, not the mere re-
ferral to that body or a general decision to punish, that
caused DiPerna’s increased tuition expenses. She withdrew
her claims addressing the imposition of those punishments.
As she had no claims arising from conduct that caused her
tuition damages, summary judgment on her right to recover
such damages was and is appropriate. 14
B. Motions in Limine
We turn now to the motions in limine. “We review [a]
district court’s rulings on motions in limine for an abuse of
discretion.” Heft v. Moore, 351 F.3d 278, 283–84 (7th Cir.
2003). Here, DiPerna challenges the grant of three motions:
one relating to her ability to present evidence of damages
relating to her dismissal, one relating to evidence of various
other damages, and one relating to her expert, Dr. Smith. But
DiPerna appeals the district court’s decisions only as they
relate to her entitlement to present evidence of damages aris-
ing from her dismissal. We therefore consider only that ar-
gument. See Grandberry v. Smith, 754 F.3d 425, 428 (7th Cir.
13 (R. 96-1 at 74.)
14 DiPerna suggests she also incurred living-expenses damages from
the punishment, but that argument fails for the same reason.
No. 17-3351 15
2014) (“Arguments must be presented in the briefs; these
were not and have been forfeited … .”).
DiPerna’s argument is twofold. First, she argues her dis-
missal for plagiarism was unlawful. We already decided it
was not, so we may move to her second point: her dismissal
was caused at least in part by her first referral to the SAC for
the Instagram post. Her evidence in support of this theory is
that the SAC requested information from her first hearing
before it dismissed her for plagiarism. But, as the district
court found, even if the SAC concluded that DiPerna should
be dismissed partially for her Instagram post, its conclusion
that she plagiarized was a sufficient reason to dismiss her
anyway. Consequently, she is not entitled to damages as the
result of a dismissal that was not improper.
Her tuition and living-expenses claims fail for the same
reason. DiPerna raises the same arguments she did against
the district court’s summary judgment decision, and they are
just as unavailing. The same holds true concerning the tes-
timony of her expert, Dr. Smith. DiPerna has relied on her
attempt to convince us summary judgment was improper.
We are unconvinced and will not disturb the district court’s
rulings.
III.
Despite DiPerna’s arguments she did not plagiarize, our
role in her case against TCSPP was not to decide whether
TCSPP “exercised its academic judgment unwisely,” but on-
ly whether it “exercise[d] its academic judgment at all.” Rae-
thz, 805 N.E.2d at 700. We conclude there is no genuine issue
of material fact on that point, nor is there any merit to Di-
16 No. 17-3351
Perna’s other arguments. Therefore, the challenged decisions
are AFFIRMED. | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4154102/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT DALE ALEXANDER, No. 13-36197
Plaintiff-Appellant, D.C. No. 6:11-cv-06215-PK
v.
MEMORANDUM *
MAX WILLIAMS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak II, Magistrate Judge, Presiding
Argued and Submitted March 9, 2017
Portland, Oregon
Before: O’SCANNLAIN, FISHER, and FRIEDLAND, Circuit Judges.
Prisoner Robert Alexander brought suit against several prison personnel
alleging deliberate indifference to his serious medical needs in violation of the
Eighth Amendment. The district court granted the defendants’ motion for
summary judgment. Alexander appealed the grant of summary judgment to four of
the defendants: Dr. Gulick, Dr. Hansen, Dr. Shelton, and Nurse Gruenwald
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(collectively, “Defendants”). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
A grant of summary judgment is reviewed de novo, with the evidence
viewed in the light most favorable to the nonmoving party. Toguchi v. Chung, 391
F.3d 1051, 1056 (9th Cir. 2004).
To succeed on a claim of medical mistreatment under the Eighth
Amendment, “a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 106 (1976). The plaintiff must show more than “a difference of medical
opinion”; instead, he must show that the defendant’s conduct was “medically
unacceptable under the circumstances” and that the defendant consciously
disregarded the excessive risk to the plaintiff’s health. Jackson v. McIntosh, 90
F.3d 330, 332 (9th Cir. 1996).
There is no evidence that Defendants recognized Alexander’s need for
treatment and yet acted with deliberate indifference to that need. Instead, the
evidence shows that Alexander received constant or near-constant treatment during
the time period at issue. Defendants prescribed medication, pursued testing,
requested consultations, and ordered a variety of treatments to help Alexander.
Alexander has not presented evidence to suggest that the treatment he received was
medically unacceptable. Alexander’s reliance on Snow v. McDaniel, 681 F.3d 978
2
(9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076
(9th Cir. 2014) (en banc), to demonstrate that Dr. Gulick acted with deliberate
indifference in deciding to reduce Alexander’s Neurontin dosage is unavailing;
unlike in Snow, there is no evidence that the challenged treatment decision was
medically inappropriate. See id. at 990 (reversing a grant of summary judgment to
a physician’s assistant when he had denied plaintiff pain medication but a doctor
reviewing the decision later “totally disagree[d]”).
AFFIRMED.
3 | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154104/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND ALFORD BRADFORD, No. 16-15899
Plaintiff-Appellant, D.C. No. 1:15-cv-01918-AWI-
DLB
v.
C. OGBUEHI and NIETAS, MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
California state prisoner Raymond Alford Bradford appeals pro se from the
district court’s judgment denying him leave to proceed in forma pauperis in his 42
U.S.C. § 1983 alleging deliberate indifference to Bradford’s ulcerative colitis and
celiac disease. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the district court’s interpretation and application of the “three-strikes” rule of the
Prison Litigation Reform Act, 28 U.S.C. § 1915(g), Andrews v. Cervantes, 493
F.3d 1047, 1052 (9th Cir. 2007), and for an abuse of discretion its denial of leave
to proceed in forma pauperis, O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.
1990). We reverse and remand.
The district court abused its discretion in denying Bradford leave to proceed
in forma pauperis because Bradford plausibly alleged that he was “under imminent
danger of serious physical injury” at the time he lodged the complaint. See 28
U.S.C. § 1915(g); see also Andrews, 493 F.3d at 1056-57 (discussing the imminent
danger exception to § 1915(g)); see also Williams v. Paramo, 775 F.3d 1182,
1189-90 (9th Cir. 2015) (court should liberally construe prisoner’s “facial
allegations” and determine if the complaint “makes a plausible allegation” of
imminent danger).
We do not consider facts or documents not presented to the district court.
See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts
not presented to the district court are not part of the record on appeal.”).
REVERSED and REMANDED.
2 16-15899 | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150630/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CASANDRA SMITH,
Plaintiff,
v. Case No. 1:15-cv-472 (CRC)
LINDA MCMAHON,1
Administrator, Small Business
Administration,
Defendant.
MEMORANDUM OPINION
Plaintiff CaSandra Smith was a longtime employee of the U.S. Small Business
Administration (“SBA”) when in May 2013 she learned through a desk audit that she was,
literally, working above her paygrade. In response, Smith’s supervisor—relying on advice from
an SBA job classification specialist—sought to create a new position for her. However, due to a
mix-up in the SBA’s Human Resources office and a subsequent hiring freeze, the position was
never posted, and the SBA solved the problem instead by relieving Smith of her above-grade
duties. Believing that her non-promotion was the product of discrimination on the basis of her
gender and race (African-American), Smith filed a complaint with the agency’s Equal
Employment Opportunity (“EEO”) office. Subsequently, the SBA took a number of actions—
including the denial of Smith’s requests for a transfer and a private office—that Smith viewed as
attempts to retaliate against her for the EEO activity. She brought suit in this Court, challenging
the non-promotion, the alleged retaliatory actions, and other non-selections.
1
By operation of Fed. R. Civ. P. 25(d), the current Administrator of the Small Business
Administration, as former Administrator Contreras-Sweet’s successor, has been “automatically
substituted as a party.”
1
While acknowledging the complexity of the facts underlying this case, the Court
ultimately concludes that Smith has failed to produce sufficient evidence permitting a reasonable
jury to find that any of the adverse actions she alleges were motivated by discrimination or
retaliation. See McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012); Calhoun v. Johnson,
632 F.3d 1259, 1261 (D.C. Cir. 2011). The Court will therefore grant summary judgment for the
SBA.
I. Background
Smith has been an employee of the SBA since 1989. See Def.’s Mem. Supp. Mot.
Summ. J. (“MSJ”), Ex. 1 at 11:20–21. She began her tenure with the agency at its headquarters
in Washington, D.C., but after several years, she relocated to the SBA’s North Carolina District
Office in Charlotte. See id. at 12:16–25. Between 1994 and 2009, Smith’s positions varied
significantly, and they included some supervisory roles. See id. at 12:16–13:16; 157:23–158:14.
In 2009, though still posted in Charlotte, Smith took a position as a Program Analyst with the
SBA’s Washington-based Office of Certification and Eligibility. See id. at 13:22–24, 14:13–15;
Def.’s MSJ, Ex. 3. That Office is located within the Office of Business Development, which in
turn is a subdivision of the Office of Government Contracting and Business Development
(“GCBD”). See Def.’s MSJ, Ex. 4.
A. Desk Audit, Promotion Efforts, and Reassignment of Duties
Although Smith’s Program Analyst job was a GS-13 position, she was soon assigned IT
project management responsibilities that former GS-14 employees had performed. Pl.’s Mem.
Opp’n Def.’s MSJ (“Pl.’s Opp’n), Ex. 18 at 254–59. By early 2013, Smith was convinced that
she was doing above-grade work, and she voiced that concern to management. Compl. ¶ 15. In
response, Robert Watkins—Smith’s supervisor for nearly all of the time period relevant here,
2
Def.’s MSJ, Ex. 1 at 15:21–16:2—requested that the Human Resources office conduct a “desk
audit,” Def.’s MSJ, Ex. 26, which is “a formal review of [an employee’s] duties and
responsibilities . . . [to] [d]etermine[] what knowledge, skills, and abilities are necessary to
perform[ing] [the] job,” Def.’s MSJ, Ex. 25 at 16. Kia Wyche, in Human Resources, began the
desk audit in April 2013. Def.’s MSJ, Ex. 1 at 73:1–5, 76:10–12. The next month, Wyche
emailed Watkins to convey that she had completed the desk audit, and that the “correct
classification for [Smith’s] position” was at a GS-14 level. Def.’s MSJ, Ex. 27. But Wyche
went on to note that Smith’s performance of GS-14-level duties was considered the result of “a
planned management action, since GS-14 duties [had been] assigned to a GS-13 employee,”
rather than simply being acquired due to increased need over time. Id. As a result, under agency
human resources policy, any grade promotion for Smith could not be automatic, since
“competition would apply to filling [the newly recognized GS-14] position.” Id.
Heeding Wyche’s advice, Watkins assembled the paperwork necessary to initiate a
personnel action for the GS-14 position, and on May 20—less than two weeks after the
completion of the desk audit—a recruitment action request was submitted to Human Resources
for processing. See Def.’s MSJ, Ex. 29. Nearly four months later, Human Resources emailed to
apologize: There had been a mix-up involving two separate recruitment actions, which had
caused a processing delay. Def.’s MSJ, Ex. 30. Roughly a week later, Watkins and his
supervisor, Darryl Hairston, completed a second personnel action request, this time clarifying
that the position was open only to GCBD employees (including Smith) and was subject to an
alternative work site (like Smith’s). Def.’s MSJ, Ex. 31. That was emailed to Human Resources
the same day. Id.
3
Mild dysfunction in the SBA’s Human Resources department preceded major
dysfunction, at the federal government writ large. Only a few days after the Human Resources
snafu had been resolved, from October 1 through October 16, 2013, all federal government
agencies—including the SBA—underwent a budget-related shutdown. Soon after the shutdown,
in light of continuing budgetary uncertainty, the SBA implemented an agency-wide hiring freeze,
which lasted through early 2014. See Def.’s MSJ, Ex. 17 at 62:13–18, 114:11–115:5. During
that period, all final hiring decisions were made by the Administrator, see id. at 58:19–59:5;
Def.’s MSJ, Ex. 11 at ¶ 37, and to facilitate that process, in November 2013, SBA senior
administrators and office heads were instructed to submit priority hiring lists for their respective
divisions. See Def.’s MSJ, Ex. 35. On November 25, GCBD submitted its list, which included
the GS-14 post intended for Smith. Id. In January 2014, the SBA’s Acting Administrator
released an agency-wide priority hiring memorandum, approving hiring at GCBD for ten
positions, but only for the purpose of “complet[ing] the transition to HQ of the centralized 8(a)
portfolio review.” Def.’s MSJ, Ex. 37. The GS-14 position intended for Smith did not fall
within that category, and accordingly, it was cancelled. See id. (email from SBA Chief Human
Capital Officer to GCBD leadership seeking “[a]pproval to cancel any . . . job announcement”
not relating to the portfolio review transition and “[a]pproval to cancel your one internal hire”);
see also Def.’s MSJ, Ex. 6 at 88:7–11.
No longer able to raise Smith’s position grade, Watkins set about reducing her
responsibilities (again, on the advice of Human Resources). See Def.’s MSJ, Exs. 38–39.
According to agency protocol, this approach—removing above-grade duties—is one acceptable
means of responding to a desk audit that reveals a mismatch between an employee’s current
grade and current responsibilities. See Def.’s MSJ, Ex. 25 at 16; Ex. 17 at 96:6–14. Throughout
4
January and February 2014, Watkins worked with Human Resources to draft a new position
description for Smith. See Def.’s MSJ, Exs. 38–39. In March 2014, Watkins notified Smith
that, effective the following month, she would be reassigned from the GS-13 “Program Analyst”
position to the GS-13 “Business Systems Support Specialist” position. Def.’s Ex. 40. The notice
also made clear that Smith’s grade and salary would not be affected. Id. Because Smith was on
medical leave when this first notice of reassignment was sent, the notice was reissued in May.
See Def.’s MSJ, Exs. 41, 43.
B. Non-Selections for Two Positions
Smith complains not only of the SBA’s failure to create a new GS-14 position for her, but
also of her non-selection for two existing positions.2 First, in April 2013, at the same time the
SBA was conducting the desk audit for her position, Smith applied for the GS-15 position of
Director of Certification and Eligibility. Def.’s MSJ, Ex. 1 at 51:10–23. As specified in the job
posting, applicants for the position were evaluated along two tracks—“Merit Promotion” and
“Delegated Examining”—each with its own set of hiring criteria. See Def.’s MSJ, Ex. 21.
Smith submitted her application only through the latter, “Delegated Examining” track, under
which military veterans are given preference. Def.’s MSJ, Ex. 11 at ¶ 20. Because Smith did not
identify herself as a veteran in her application, Human Resources did not include her on the
certified list of eligible “Delegated Examining” candidates. Id. at ¶ 30. Smith was not listed
among eligible “Merit Promotion” candidates, either, because she did not submit her application
under that category. Id. at ¶ 31. In contrast, the candidate selected for the position—Ms. Van
2
Smith complained of other non-selections as well, but she has not responded to SBA’s
arguments as to three of these claims, and so has effectively conceded them. See Def.’s MSJ 21–
23, 23–24, 29–30; Def.’s Reply Supp. MSJ (“Def.’s Reply”) 2.
5
Tran—applied under both application tracks, and was ultimately chosen from a list of “Merit
Promotion” qualified individuals. Id. at ¶ 32.
Smith also challenges her non-selection for a Business Opportunity Specialist position in
the SBA’s Los Angeles District Office. Even though the position had been previously classified
as GS-13, a December 2014 vacancy announcement elevated the post to GS-14. See Def.’s MSJ,
Ex. 74 at 17:17–20, 23:13–19.3 Smith applied for that position. Id. at 16:9–15. However, soon
after the vacancy announcement was published, the Office of Field Operations in the SBA’s
headquarters cancelled the position, indicating that it would not be hiring any business
opportunity specialists at the GS-14 level. See id. at 36:20–22, 37:18–38:16. The position was
eventually re-advertised, but at the GS-13 level, and Smith opted not to apply for it. See Def.’s
MSJ, Ex. 1 at 167:10–12.
C. Smith’s EEO Activity and the SBA’s Alleged Retaliation
On August 29, 2013—after the completion of the desk audit, and during the SBA’s
protracted attempts to create a GS-14 position for her—Smith contacted the agency’s EEO
Office, complaining of race- and sex-based discrimination. Compl. ¶ 39. The Office
interviewed her about a week later, id. at ¶ 40, and Smith participated in an unsuccessful
mediation on December 20, 2013, see Pl.’s Opp’n, Ex. 4 at 15, 18. Smith subsequently
submitted a formal EEO complaint—dated December 30, and received January 2, 2014. Def.’s
MSJ, Ex. 68 (Formal EEO Complaint); Ex. 69 (Acknowledgment of Receipt). Smith argues that,
3
Smith contends that the Los Angeles District Director, Victor Parker, raised the
position’s grade specifically to entice her to apply for the position, but he was apparently
unaware that she had applied until after the GS-14 position was cancelled. See Def.’s MSJ, Ex.
74 at 35:5–11.
6
beginning with her first EEO contact in August 2013 and after, the SBA engaged in a series of
acts aimed at retaliating against her for engaging in that protected activity.
1. Office Space
As discussed above, during the period relevant here, Smith was based in the SBA’s
Charlotte District Office. Until 2013, although Smith was permitted to telework nine of every
ten days, see Def.’s MSJ, Ex. 54, she was assigned a cubicle in the “Answer Desk” section of the
office, which functioned as a national call center. Def.’s MSJ, Ex. 1 at 190:2–5. In fall 2013,
Smith had a conversation with Lynn Douthett, the North Carolina District Director, about an
upcoming renovation of the office. According to Smith, Douthett offered to assign her a private
office, and “even showed [her] two potential” office locations. Def.’s MSJ, Ex. 1 at 186:5–13.
Douthett recalls, instead, that she only offered to “see what [she] could do” about obtaining
office space for Smith, and further clarified that “there were no guarantees,” since the office
would be “downsizing from 11,000 square feet to around 5,000.” Def.’s MSJ, Ex. 44 at 50:12–
15.
Regardless, the renovations took place from January to April 2014, and during that time,
there was considerable confusion—involving roughly a half-dozen upper-level managers—
regarding where Smith’s desk would ultimately be located. See Def.’s Statement of Facts
(“SOF”) at ¶¶ 209–27. In the end, due to the significant reduction in the office’s size, Smith was
assigned a cubicle in the same “Answer Desk” section where she had previously been located,
though—like all other cubicles in the office—it was smaller after the renovation. See Def.’s
MSJ, Ex. 1 at 196:22–24; Ex. 17 at 108:6–8. Only one employee in the “Answer Desk” area had
a stand-alone office after the renovation: She had occupied a private office before the renovation
and, unlike Smith, was a supervisor. Id. at 109:14–22, 123:7–18.
7
2. Training Requests
Smith submitted three requests for training that were denied—at least initially—
following her contact with the EEO office.4 First, in fall 2013, Smith sought to attend two
project management training sessions in Washington, D.C. Watkins initially denied that request
due to lack of funding, and also initially advised Smith that she could not travel to D.C. on her
own dime, since that would require reimbursement from the SBA. See Def.’s MSJ, Ex. 78.
However, after Smith spoke to agency counsel and explained that she had an independent reason
for traveling to D.C., she was permitted to attend the training. See id.; Def.’s MSJ, Ex. 75 at 6–
7. Smith also complains that Watkins was nonresponsive to two 2014 training requests—one
submitted in January for a free online seminar, and one submitted in April for a project manager
re-certification course. Id. at 7–8. A different manager ultimately approved both of those
trainings, however. Id.
3. Reasonable-Accommodation Request
In May 2014, Smith submitted a reasonable-accommodation request to the SBA’s EEO
Office, seeking a 100-percent telework schedule (an increase from her 90-percent telework
arrangement) and a transfer to another SBA department. See Def.’s MSJ, Ex. 55. After some
back and forth, including a request for additional medical documentation, the SBA granted
Smith’s telework request in October 2014. See Def.’s MSJ, Ex. 58. However, in July 2014,
Tran—Smith’s supervisor at the time—denied her request for a transfer, citing agency policy that
a reassignment is a reasonable accommodation of “last resort,” to be used only “when an
employee is unable to perform the essential functions of [her] position.” Def.’s MSJ, Ex. 56. In
4
Smith also claims to have submitted numerous requests which were denied prior to her
first EEO contact, see Def.’s MSJ, Ex. 75 at 6–8, but for obvious reasons those denials could not
have been retaliatory.
8
September 2014, Tran’s decision was reviewed and affirmed by the SBA’s Reasonable
Accommodation Review Committee. Def.’s MSJ, Ex. 57. Finally, in January 2015, the Federal
Occupational Health Service also weighed in: After a thorough review of Smith’s medical
documentation, it agreed that Smith had not justified a reasonable-accommodation request,
because she had not shown an inability to perform essential functions of her position. Def.’s
MSJ, Ex. 61. The Chair of the SBA’s Reasonable Accommodation Review Committee
communicated those results to Smith in a February letter, explaining that “[t]he provided
documentation [did] not establish that [she was] suffering from a substantial impairment, only
that she believe[d] she [was] being treated unfairly by her managers.” Def.’s MSJ, Ex. 62.
Accordingly, the agency denied the transfer request. Id.
4. Train-the-Trainer Events
The SBA operates “Train-the-Trainer” sessions, where SBA employees visit district
offices throughout the country and train participants, who in turn train other employees within
their local office. See Pl.’s Opp’n, Ex. 19 at 35:17–38:8. Smith had been a trainer at these
events, and in June 2014, she was slated to participate again, albeit via webinar. See Def.’s MSJ,
Ex. 81.5 However, soon before the event, Smith was notified via email that there would be no
call-in at the event, and that she would no longer be presenting. Def.’s MSJ, Ex. 82. It is unclear
whether the email sender—another SBA employee—or Watkins made the decision to cancel the
call-in. See Pl.’s Opp’n, Ex. 18 at 227:9–228:25. The record also reveals alternate explanations
for the decision. Watkins suggested Smith’s expertise was unnecessary for the training. Pl.’s
5
The other trainers scheduled to attend the June 2014 sessions presented in person, and it
is unclear why it was arranged for Smith to present virtually. However, one likely explanation is
that Smith was the only SBA employee slated to present at three sessions, each of which was
located in a different U.S. city and none of which was in Charlotte. See Def.’s MSJ, Ex. 81.
9
Opp’n, Ex. 25 at 8:9–21. Tran was under the impression that Smith did not participate “due to
[the] lack of proper technology.” Def.’s MSJ, Ex. 83 at ¶ 5.
D. Procedural History
Smith filed a complaint in this Court in April 2015, alleging that the SBA had engaged in
discrimination based on her sex and race, and had retaliated against her for seeking redress from
the EEO. A period of discovery followed, and the SBA now moves for summary judgment,
contending that there can be no genuine dispute that, in acting as it did, the agency was
motivated by legitimate, nondiscriminatory considerations. For instance, it maintains that
Smith’s supervisors did what they could to promote her after the desk audit, but that their efforts
were frustrated by mix-ups at Human Resources, followed by a budget crisis. See Def.’s MSJ
15–21. Likewise, the agency explains that the actions Smith views as “retaliatory” were, in some
cases, not materially adverse, and in others, not demonstrably linked in any way to Smith’s EEO
activity. Id. at 32–44. Smith opposes the agency’s motion. She argues that the processing
mishaps and budget-related hiring issues constitute an “amazing” and “incredible” constellation
of circumstances, less plausible than her own account—i.e., that she was repeatedly denied
promotions because she was a woman and African-American. Pl.’s Opp’n 3–4, 11–28. And
Smith urges the Court to view the retaliatory acts she alleges in their “entirety”; under that
analysis, she argues, they are cognizably adverse. Id. at 4, 34–44.
The Court ultimately agrees with the SBA: Although the agency’s personnel process was
hardly a model of transparency or efficiency, there is insufficient direct or circumstantial
evidence in this record permitting a reasonable juror to infer that Scott was denied promotions
due to her sex or race. Furthermore, the retaliatory acts Smith alleges are not similar enough to
10
be grouped together, nor is there sufficient evidence that those acts were motivated by a
retaliatory purpose.
II. Legal Standards
A court will grant summary judgment if the movant “shows that there is no genuine
dispute as to any material fact,” such that “judgment as a matter of law” is proper. Fed. R. Civ.
P. 56(a). A material fact is one that could affect a suit’s outcome under the relevant law, and a
genuine dispute is one that a reasonable juror could resolve in favor of the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[A] party seeking summary
judgment . . . bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of [the record] which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). But
“after adequate time for discovery and upon motion,” a court must enter summary judgment
“against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id.
at 322.
III. Analysis
As outlined above, Smith brings claims that her non-promotion and two non-selections
were discriminatory, and also that several of the agency’s actions following her EEO activity
were retaliatory. The Court will discuss each set of claims in turn.
A. Non-Promotion and Non-Selection Claims
Because the SBA has “assert[ed] a legitimate, non-discriminatory reason” for the non-
promotion and non-selections that Smith challenges, “the question whether [Smith] actually
made out a prima facie case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the
11
picture.’” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008) (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511 (1993); Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000)). Accordingly, the Court “need not—and should not—
decide whether [Smith] actually made out a prima facie case under McDonnell Douglas.” Brady,
520 F.3d at 494. Rather, that “framework falls away[,] and the court must decide one ultimate
question: ‘Has the employee produced sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason [for the termination] was not the actual reason[,]
and that the employer intentionally discriminated against the employee[?]’” DeJesus v. WP Co.
LLC, 841 F.3d 527, 532–33 (D.C. Cir. 2016) (quoting Brady, 520 F.3d at 494). That “ultimate
question” is really two: the first addressing whether the proffered reason is pretextual or genuine,
and the second evaluating whether the actual reason was discrimination.
1. Non-Promotion to Position at GS-14 Level
The lion’s share of Smith’s complaint and Opposition brief is devoted to the argument
that the agency’s failure to create a GS-14 position for her following the desk audit—and to hire
her for that position—was discriminatory. As Smith frames it, that non-promotion was actually
the result of three separate agency actions: the decision not to automatically promote Smith
following the desk audit; the delay in posting the GS-14 position intended for her; and the
ultimate cancellation of the position.
a. No Automatic Promotion
As recounted above, see supra section I.A, when Wyche in Human Resources completed
Smith’s desk audit and confirmed via email that Smith had been performing above-grade duties,
she also noted that the GS-14-level work had resulted from “a planned management action, since
GS-14 duties were assigned to a GS-13 employee.” Def.’s MSJ, Ex. 27. For that reason, Wyche
12
explained that “competition would apply to filling [the newly recognized GS-14] position.” Id.
Watkins sought clarification of that determination the same day: “How did we determine that
this was a planned management action?” he asked. Def.’s MSJ, Ex. 28. Wyche responded:
“Whenever management assigns duties from one position to another, it is considered a planned
management action [subject to competition].” Id. On the basis of this advice, rather than simply
promoting Smith on the spot, Watkins went about completing and submitting the paperwork
necessary for creating a new GS-14 position—intended for Smith, but open to others. See Def.’s
MSJ, Ex. 29.
According to Smith, Watkins’ decision to create a competitive GS-14 position rather than
automatically promote her was discriminatory. In support of that view, she points to an agency
policy stating that, following a desk audit revealing above-grade responsibilities, the human
resources classifier “will upgrade” the position. Def.’s MSJ, Ex. 25 at 16 ¶ 5. She also cites
deposition testimony from two senior SBA officials, to the effect that the competition
requirement following the desk audit was “a new HR rule.” Pl.’s Opp’n, Ex. 20 at 15:17–16:12;
see also Pl.’s Opp’n, Ex. 23 at 39:10–18.
There are two fundamental reasons why this evidence could not ground a reasonable
juror’s conclusion that Watkins’ decision not to promote Smith automatically was motivated by
discrimination. First, as the SBA discusses at length in its Reply, it is reasonably clear that in
advising Watkins to subject the new GS-14 position to competition, Wyche was correctly
applying a long-recognized distinction between above-grade duties resulting from “accretion,”
on the one hand, and “planned management actions,” on the other. See Skrobot v. United States,
534 F.2d 237, 242–43 (Ct. Cl. 1975) (explaining that, under the Federal Personnel Manual, an
employee may be promoted non-competitively when “the newly created position [is] the result of
13
[an] ‘accretion of additional duties,’” rather than a “planned management action”). As Wyche
explained, because a manager assigned Smith above-grade duties formerly belonging to other
GS-14 employees, those duties resulted from a “planned management action,” subject to
competitive promotion. See Def.’s MSJ, Ex. 28; Def.’s Reply, Ex. 84. On the other hand, if the
desk audit had revealed that Smith’s above-grade duties resulted from “accretion” (as opposed to
reassignment), then it appears she could have been promoted non-competitively. This at least
helps to explain both the SBA’s policy that desk audits can warrant grade increases, see Def.’s
MSJ, Ex. 25 at 16 ¶ 5, as well as the impression of senior management officials that promotions
happened as a matter of course following desk audits, see Pl.’s Opp’n, Ex. 20 at 15:17–16:12;
Ex. 23 at 39:10–18.
Even more to the point, assuming arguendo Smith has shown a genuine dispute as to
whether Wyche correctly applied agency policy in advising Watkins against an automatic
promotion, there is no evidence suggesting Watkins was motivated by discrimination in relying
upon that advice. Watkins was clearly instructed by Wyche—a Human Resources specialist in
classification—that competition should apply to any potential promotion for Smith. Even then,
Watkins did not simply take Wyche’s word for it: He sent a follow-up email asking how she
“determine[d] that this was a planned management action,” and Wyche responded with an
explanation. Def.’s MSJ, Ex. 28.6 Surely, Watkins’ decision at that point was “justified by a
reasonable belief in the validity of the reason given,” regardless of that rationale’s ultimate
accuracy. George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005). On this basis alone, it is clear
6
Smith’s assertions to the effect that Watkins “immediately accepted [Wyche’s]
unsupported and unexplained statement,” Pl.’s Opp’n 14, and that he proceeded to create a
competitive position “without further inquiry or discourse,” id. at 16, are at odds with the record.
14
that Smith has not produced sufficient evidence that Watkins’ decision not to promote her
automatically was discriminatory.
b. Delay in Position Posting
The SBA’s processing of the GS-14 recruitment action intended for Smith was, as
described above, hardly a model of efficiency. See supra section I.A. Although the GS-14
hiring request form was completed by Watkins and submitted only about ten days after the
completion of the desk audit, it appears that Human Resources failed to take any action on the
matter until nearly four months later—on September 19, 2013—when it emailed to apologize for
a mix-up. See Def.’s MSJ, Ex. 30. Watkins completed and submitted another hiring request
within a week, but then—starting October 1, 2013—the SBA was subject to a federal
government shutdown, and then a hiring freeze, which lasted through early 2014. See Def.’s
MSJ, Ex. 17 at 62:13–18, 114:11–115:5. This, combined with the Human Resources mix-up,
caused the delay, and ultimately the cancellation, of the GS-14 position intended for Smith.
Under Smith’s reading of these events, however, the protracted processing period was
intentional rather than unfortunate: She argues that the delay in posting her position was actually
part of a deliberate scheme to deny her a promotion. In support, Smith highlights the extent of
the delay (which presumably goes to pretext) by pointing to agency guidance advising that the
time between the submission of a personnel action request and the posting of the requested
position should be no longer than eight calendar days. See Pl.’s Opp’n, Ex. 6. She further posits
that the delay was aimed not only at denying her a promotion, but also at facilitating the transfer
of her substantive duties to another SBA employee, Kimberly Russell. See Pl.’s Opp’n 18–21.
These arguments do not hold water. The fundamental flaw underlying them is that
Watkins is the only agency official Smith alleges to have acted with a discriminatory motive in
15
denying her a promotion. Accordingly, if Watkins had been to blame for the extended delay in
processing the hiring request—which the parties concede was substantially longer than what
policy or practice prescribed—then Smith might have a case for pretext. The record reflects
quite the opposite, though: Watkins completed the initial hiring request five days after the desk
audit’s completion, and saw to its submission to Human Resources another five days after that.
See Def.’s MSJ, Exs. 29, 31. Similarly, in September, roughly one week after Human Resources
emailed about the mix-up, Watkins completed and oversaw the submission of a second, follow-
up request form. Def.’s MSJ, Ex. 31. Smith faults Watkins for submitting this second request in
“surprisingly sparse” form, Pl.’s Opp’n 16–17, but there is no evidence suggesting that the form
was considered incomplete by Human Resources, and it appears from the record that the second
form was submitted as a supplement to the first. See Def.’s MSJ, Ex. 31. In other words, the
record illustrates that Watkins—the alleged discriminatory agent—far from being to blame for
the delay, was actually making timely efforts to press the hiring request.
This defuses Smith’s main arguments regarding pretext. First, it is largely irrelevant that
the delay violated agency guidance. The parties agree that the delay was substantial, and well
out of step with agency policy and practice. The material point is that no record evidence
suggests that Watkins caused that delay.7 And Smith’s attempts to frame the delay as a
calculated means of reassigning her duties to Russell, another SBA employee, fail for the same
reason: Watkins was not responsible for that, either. See Def.’s MSJ, Ex. 5 at 77:14–17
(explaining that Watkins could not have assigned duties to Russell because he was not her
supervisor); Pl.’s Statement of Disputed Facts (“SOF”) at ¶ 5 (undisputed that Watkins was
7
The Court therefore need not address the SBA’s arguments that the agency policy is
only discretionary, and that the guidance should not be considered because it was not previously
identified during discovery. See Def.’s Reply 13–14.
16
never Russell’s supervisor). Smith’s theory of pretext, in short, is that Watkins, Russell’s
supervisor (Calvin Jenkins), and Human Resources all conspired to delay the GS-14 posting,
thus buying time to assign away her duties. But the record contains no evidence of such a
conspiracy.
c. Position Cancellation
Above, the Court discussed the events leading up to the ultimate cancellation of the GS-
14 position intended for Smith. See supra section I.A. Soon after the Human Resources mix-up,
from October 1 through October 16, 2013, all federal government agencies underwent a budget-
related shutdown. The SBA then implemented an agency-wide hiring freeze, effective through
early 2014. See Def.’s MSJ, Ex. 17 at 62:13–18, 114:11–115:5. In November 2013, SBA senior
administrators and office heads submitted priority hiring lists. See Def.’s MSJ, Ex. 35. GCBD
submitted its list on November 25, which included the GS-14 post intended for Smith. Id. The
SBA’s Acting Administrator, in January 2014, approved hiring at GCBD for ten positions, but
only for the purpose of “complet[ing] the transition to HQ of the centralized 8(a) portfolio
review.” Def.’s MSJ, Ex. 37. While neither party explains what this “portfolio review
transition” entailed, there is no dispute that it was unrelated to the GS-14 position intended for
Smith. The SBA proffers this as its legitimate, non-discriminatory reason for cancelling Smith’s
intended position. See Def.’s MSJ, Ex. 6 at 88:7–11.
Smith challenges that explanation in two main ways. First, she insists that Watkins
actually cancelled the position before the Acting Administrator did, and that his motivations
were discriminatory and retaliatory. See Pl.’s Opp’n 21–24. Second, Smith asserts that every
other position on the priority hiring list was filled, including at least one that also was unrelated
17
to the portfolio review transition. Id. at 26.8 Neither of these contentions is grounded in the
record.
Smith points to two documents supposedly showing that Watkins cancelled the GS-14
position before the Administrator did. The first is a November 2013 email from Watkins to
Bridget Bean, the SBA’s Chief Human Capital Officer, see Def.’s MSJ, Ex. 17 at 6:16–7:1,
attaching Smith’s desk audit results, listing other basic information about the desk auditor
(Wyche) and the date of the audit, and noting as “background” that “[w]e had several concerns
regarding moving forward with the announcement including preselection, potential EEO
complaint, etc[.] that we raised[,] but we were still advised to move forward with competing the
position.” Def.’s MSJ, Ex. 33B. Smith suggests that this email indicates Watkins’ desire for the
GS-14 position—as of November 2013—not “to proceed to competition.” Pl.’s Opp’n 22. But
that is a clear misreading of the email: Watkins wrote in the past tense (he “had . . . concerns”
which he previously “raised” and was “advised” about), not the present. In context, he was
clearly referring to his concerns in May 2013, at the time of the desk audit, not any concerns he
presently had about the posting of the position. His deposition testimony confirms this. See
Def.’s MSJ, Ex. 88 at 46:7–50:21.
The second document Smith points to is a December 26, 2013 email from Watkins to
Wyche, Smith’s desk auditor. See Def.’s MSJ, Ex. 38. Watkins writes: “As you may be
aware[,] we weren’t able to get this announcement out to get a GS-14 advertised. We are
8
Smith also complains that her position was listed “dead last” on the GCBD’s hiring
priority list, framing this as evidence of pretext. Pl.’s Opp’n 27. But the position is actually
included in a separate, unranked category for internal recruits, so on the face of the document, it
is unclear how the position relates in priority to the others. See Def.’s MSJ, Ex. 35.
Furthermore, as SBA points out, including the position intended for Smith on a shortlist of
priority hires would be an odd way of discriminating against her in hiring. See Def.’s Reply 17–
18.
18
looking now at removing the work that is considered 14[-]level work from this employee and
adding it to the responsibilities of a grade 14 employee that we previously hired.” Id. Surely,
this email demonstrates that Watkins knew in late December that Smith’s position would not be
posted, and that he then began the process of removing her GS-14-level duties. However, what
no document shows is that Watkins himself made that decision. Indeed, Smith concedes that
during the hiring freeze, final hiring authority was vested in the SBA Administrator. Pl.’s SOF
at ¶ 154; see also Def.’s MSJ, Ex. 11 at ¶ 37. And Smith has pointed to nothing in the record
even suggesting that Watkins had influence over that decision.
Smith’s other main pretext argument is that hers was “the only position on the entire
priority list submitted by GCBD which was not approved.” Pl.’s Opp’n 26. Purportedly, that
follows because all positions on the list except for Smith’s and another internal hire were related
to the portfolio review transition. Id. The priority hiring document, however, appears to list
numerous positions that are not linked to the 8(a) portfolio review transition, see Def.’s MSJ, Ex.
35, and Smith points to no evidence suggesting they were (or indicating whether any such
positions were actually filled). Smith also asserts that the only other internal hire on the priority
list was (1) filled, despite (2) being unrelated to the portfolio review transition. Pl.’s Opp’n 26.
But Smith has pointed to no record evidence establishing either of those premises.9 Finally,
9
The deposition testimony Smith cites in support establishes only that Jeanne Crepeau, in
GCBD, applied for that position. See Pl.’s Opp’n, Ex. 21 at 49:14–18. Smith also cites
deposition testimony from Calvin Jenkins, but the cited page number was not included in the
exhibit. See Pl.’s SOF at ¶ 169 (citing Jenkins Dep. [Pl.’s Ex. 23] at 78:19–80:9). Smith’s best
evidence is a January 14 memo to the SBA Administrator from the Chair of the Executive
Resources Board recommending the approval of “60 [agency-wide] internal hiring actions [then]
pending” with Human Resources, under certain conditions. Pl.’s Opp’n, Ex. 8. But there is
nothing further confirming whether Crepeau’s position was among those sixty. By the time
Bean—SBA’s Chief Human Capital Officer—emailed the head of GCBD on January 16 to
approve only 10 positions for the portfolio review transition, she sought “approval to cancel
19
Smith cites to agency-wide, internal and external hiring totals (60 and 39, respectively),
apparently to show that the agency hired more than the ten portfolio review positions during the
freeze. See Pl.’s SOF at ¶ 168. Those numbers, however, in no way contradict the agency’s
position that the portfolio review positions were the only spots filled within GCBD, the
subdivision where Smith was employed. See Pl.’s Opp’n, Ex. 8 (January 2014 memorandum to
the SBA Administrator recommending 60 internal and 39 external agency-wide hires, to include
10 hires within GCBD).
As explained above, Smith has failed to show that the SBA’s explanations for creating a
competitive GS-14 position following her desk audit; for the agency’s delay in posting her
position; or for its ultimate cancellation of that position were explained by pretexts, let alone
pretexts for race or gender discrimination. The Court turns now to Smith’s remaining claims of
discriminatory non-selection.
2. Non-Selection for GS-15 Director of Certification and Eligibility Position
Smith applied for the GS-15 position of Director of Certification and Eligibility in April
2013. See supra section I.B. Even though applicants for the position were evaluated along two
tracks, “Merit Promotion” and “Delegated Examining,” see Def.’s MSJ, Ex. 21, Smith submitted
her application only through the latter, Delegated Examining track, which gives military veterans
a preference. Def.’s MSJ, Ex. 11 at ¶ 20. Smith indicated no such preference, and accordingly,
Human Resources did not certify her as an eligible Delegated Examining candidate. Id. at ¶ 30.
Of course, because she did not apply for consideration under Merit Promotion, she was excluded
from that list as well. Id. at ¶ 31.
[GCBD’s] one internal hire,” referring to Smith’s position. Def.’s MSJ, Ex. 37 (emphasis
added). It is unclear what happened to the other internal position.
20
Despite this rather straightforward—and undisputed, see Pl.’s SOF ¶ 75—account for
why Smith was not selected for the position, she insists that her non-selection was
discriminatory. She asserts that she was better qualified than the selectee, and argues that she
should have been included in the Merit Promotion track’s certification list because she had been
performing GS-14-level work (thereby satisfying the relevant time-in-grade requirement). See
Pl.’s Opp’n 29–32. The obvious flaw with both of these arguments is that Smith never applied to
be considered under Merit Promotion. Her arguments about her relative qualifications and her
eligibility for the Merit Promotion certification list are therefore beside the point.10 And there is
nothing in the record suggesting that her non-selection for the GS-15 Director position was
discriminatory.
3. Non-Selection for GS-14 Business Opportunity Specialist Position
Smith also applied and was not selected for a GS-14 Business Opportunity Specialist
position in the SBA’s Los Angeles District Office. See supra section I.B. The position had been
previously classified as GS-13, but in December 2014, when Smith applied, it was advertised at
the GS-14 level. Def.’s MSJ, Ex. 74 at 23:13–19. Soon after the posting and the submission of
Smith’s application, however, the SBA’s Office of Field Operations cancelled the position,
explaining that it would not hire any business opportunity specialists at the GS-14 level. See id.
at 36:20–22, 37:18–38:16. When the position was re-advertised at the GS-13 level, Smith did
not apply for it. See Def.’s MSJ, Ex. 1 at 167:10–12.
10
For a variety of reasons, as SBA explains, those arguments also lack merit. See Def.’s
Reply 4 (noting that the desk audit results revealing Smith’s above-grade work were released
after Human Resources generated the certificate lists of eligible candidates, meaning that no
deciding official could have known to give Smith time-in-grade credit).
21
Essentially, Smith’s challenge to this non-selection boils down to chronology—i.e., the
fact that the position was cancelled soon after she submitted her application. See Pl.’s Opp’n 33
(arguing that the “amazing timing and sequence of these events points to the obvious conclusion
that the position was cancelled at the GS-14 level, in yet another . . . attempt to block . . . Smith
from advancing.”). The problem is that there is no evidence that anyone in the agency was even
aware that she had applied for the position until after it was cancelled. That includes Victor
Parker, the deciding official. See Def.’s MSJ, Ex. 74 at 35:5–11. Nor is there any evidence
connecting the cancellation of the Los Angeles position with any other incident Smith alleges, or
any other official relevant to this case. Without evidence that the cancellation was more than a
simple management decision to keep a position at the grade it previously had been, Smith cannot
sustain her claim.
B. Retaliation Claims
Smith argues that, in addition to passing her over for promotions and open positions for
discriminatory reasons, the SBA retaliated against her in various ways because she reached out
to the EEO, in August 2013. Pl.’s Opp’n 34. In particular, she complains that she was denied a
location transfer, private office space, and the opportunity to attend and facilitate training
sessions. Id.11
A prima facie retaliation case requires showing that “[an employer] took materially
adverse action against [an employee] because he participated in protected activity.” Bridgeforth
v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (citing McGrath v. Clinton, 666 F.3d 1377, 1380
11
Smith’s Complaint suggests that these allegedly retaliatory actions were also
discriminatory. See Compl. at ¶¶ 60–66. However, she makes no such arguments in her
Opposition. See Pl.’s Opp’n 34–44 (no mention of allegedly retaliatory actions being
discriminatory).
22
(D.C. Cir. 2012)). A materially adverse action, for purposes of a retaliation claim, is one that
would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.”
Bridgeforth, 721 F.3d at 663 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68 (2006)). To show that an employer acted because of the protected activity, “the employee
must proffer evidence from which a reasonable jury could infer the employer’s retaliatory
intent.” McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012). Provided that the employer
has proffered a legitimate, non-retaliatory reason for the action, “the ‘central question’ is whether
‘the employee produced sufficient evidence . . . that the employer’s asserted [non-retaliatory]
reason was not the actual reason and that the employer intentionally [retaliated] against the
employee” in violation of Title VII. Id. (quoting Calhoun v. Johnson, 632 F.3d 1259, 1261
(D.C. Cir. 2011)) (alterations in original).
1. Retaliatory Hostile Work Environment
Before addressing each of the retaliatory actions Smith alleges, the Court first addresses a
threshold legal issue. Simple retaliation claims—like those alleged in Smith’s complaint—rest
on “discrete” and “distinct” adverse actions. See Franklin v. Potter, 600 F. Supp. 2d 38, 76–77
(D.D.C. 2009); Lester v. Natsios, 290 F. Supp. 2d 11, 33 (D.D.C. 2003). In Smith’s Opposition
brief, however, she advances a new theory of retaliation: retaliatory hostile work environment.
See Pl.’s Opp’n 36. This is a “special type of retaliation claim,” with its own set of doctrinal
elements. Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015); see also Román v. Castro, 149
F. Supp. 3d 157, 166–67 (D.D.C. 2016) (summarizing the elements of a retaliatory hostile work
environment claim). Retaliatory hostile work environment claims permit courts to consider the
“cumulative effect” of “several individual acts,” which “may not be actionable on [their] own.”
Baird, 792 F.3d at 168 (citations omitted). But what the claim gives with one hand, it takes a
23
way with the other. Under the theory, plaintiffs must allege acts that are “adequately linked”—
as evidenced by timing, nature, or type—and they must be severe or pervasive enough to “create
an abusive working environment.” Id. at 168–69.
Smith’s retaliatory hostile work environment claim fails to satisfy these latter two
conditions. First, the adverse actions are not thematically connected: They did not, for example,
“involve the same type of employment actions, occur relatively frequently, [or involve] the same
managers.” Baird, 792 F.3d at 169 (quoting Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir.
2011)). Rather, Smith alleges a motley mix of adverse actions, spread out over the course of
nearly a year, and carried out by different managers.12 Second, the alleged adverse actions were
not “of such severity or pervasiveness as to alter the conditions of [Smith’s] employment and
create an abusive working environment.” Baird, 792 F.3d at 169 (quoting Hussain v. Nicholson,
435 F.3d 359, 366 (D.C. Cir. 2006)). The actions are not particularly severe or frequent, let
alone threatening or humiliating. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Smith
points to the medical leave she took from January to April 2014 during the office renovation as
evidence of the hardship she suffered, but the severity standard is objective—not subject to the
heightened sensitivities of individual plaintiffs. Besides, half of the adverse actions Smith
complains of occurred after her return from medical leave.
12
Douthett allegedly reneged on the promise of a private office between fall 2013 and
early 2014. Def.’s MSJ, Ex. 1 at 186:5–13. Watkins denied or failed to respond to the training
requests between November 2013 and April 2014. Def.’s MSJ, Exs. 75, 78. Stanley Jones, Jr.,
cancelled Smith’s virtual participation in the train-the-trainer event in June 2014 (although Smith
alleges this was Watkins’ decision). Def.’s MSJ, Ex. 82. And Van Tran denied the transfer
request in July 2014. Def.’s MSJ, Ex. 56.
24
In short, even if Smith had properly alleged a retaliatory hostile work environment claim
in her complaint—which she did not—that claim would fail on the merits, for the reasons just
described.
2. Discrete Retaliation Claims
The Court now considers individually the adverse actions Smith alleges were retaliatory.
a. Office Space
Recall that the SBA office in Charlotte underwent a renovation in early 2014; that prior
to the renovation, Smith was allegedly promised a private office; but that she ended up in a
cubicle in the “Answer Desk” area of the office. See supra section I.C.1. That was also her
situation prior to the renovation, except that now—thanks to a significant overall downsizing of
the office—her cubicle was smaller. See Def.’s MSJ, Ex. 17 at 108:6–8; Def.’s MSJ, Ex. 1 at
196:22–24. Smith’s account ties her assignment to this cubicle and the denial of a private office
to her EEO activity, which had begun several months prior.
The problem for Smith is that she has not identified evidence, direct or circumstantial,
that would permit a reasonable jury to conclude that her cubicle assignment was the product of
retaliation. See McGrath, 666 F.3d at 1383. The only employee in the “Answer Desk” area with
a private office after the renovation, despite having a lower grade-level than Smith, was the
area’s supervisor. Def.’s MSJ, Ex. 17 at 109:14–22, 123:7–18. Such an arrangement is typical
at the SBA, for the common-sense reason that managers often need to have confidential
conversations with the employees they supervise. See id. at 110:10–12. At the time, Smith had
no such managerial role—indeed, she was teleworking nine out of every ten days. Def.’s MSJ,
Ex. 1 at 194:15–16, 210:13–15. The only other SBA employees in Charlotte with private offices
25
after the renovation had them prior to the renovations. See Def.’s Reply, Ex. 90 at 28:1–10.13
Absent any relevant comparators—or any other evidence suggesting that the treatment Smith
received during and after the renovation was materially different from any other employee in
Charlotte—Smith’s claim that her office space assignment was retaliatory cannot survive.
b. Training Requests
Following her EEO activity, Smith submitted three requests for training that were denied,
at least at first. See supra section I.C.2. Watkins initially denied the first request, for training
sessions in December 2013 and February 2014, citing a lack of funding, but Smith ultimately
attended those trainings when she explained that she would be in Washington anyway during her
leave. See Def.’s MSJ, Ex. 75; Ex. 78 at 6–7. Smith also alleges that Watkins failed to respond
to two 2014 training requests, but a different manager ultimately approved both of them. See id.
at 8.
Smith’s claim regarding training requests fails for at least two reasons. First, as a result
of the denials or non-responses, she does not appear to have suffered any harm that would
“dissuade[] a reasonable worker from making or supporting a charge of discrimination.”
Bridgeforth, 721 F.3d at 663. The training requests were ultimately approved, and Smith points
to no evidence that she was adversely affected by a longer-than-desired waiting period prior to
their approval. Second, Smith points to no evidence permitting a reasonable inference of
retaliatory motive—for instance, in the form of similarly situated comparators. On the other side
of the scale, there is evidence supporting the agency’s legitimate explanation for initially denying
13
The SBA claims these assignments were made as reasonable accommodations, but the
cited deposition testimony either does not support that contention or is not in the record. See
Def.’s MSJ 37 (citing Ex. 44 at 64:6–8 [not in record]); Def.’s Reply 22 (citing Ex. 90 at 28:2–10
[inapposite]).
26
her requests: Smith’s Charlotte location meant that travel funding was almost always necessary
to attend the SBA training, and the agency’s budgetary strain during this period meant such
funds were scarce. See Def.’s MSJ, Ex. 8 at 147:11–21; Ex. 17 at 62:13–18. This is consistent
with Smith’s concession that, well in advance of her EEO activity, her requests for training were
being denied. See Pl.’s Opp’n, 42 n.8. For these reasons, Smith fails to make out a successful
claim that the (initial) denials of her training requests were retaliatory.
c. Reasonable-Accommodation Request
Smith submitted a reasonable-accommodation request to the EEO Office in May 2014,
seeking a 100-percent telework schedule and a transfer to another SBA department. See supra
section I.C.3. The SBA granted Smith’s telework request but denied the transfer request, on the
grounds that there was “no indication that [Smith] [was] unable to perform any essential
functions of her positions.” Def.’s MSJ, Ex. 62.
On this record, no reasonable inference is possible that Tran, Smith’s supervisor at the
time, denied her transfer request for retaliatory reasons. Indeed, it is difficult to see how the
SBA’s legitimate rationale for the denial—compliance with the agency’s reasonable
accommodation policy—could be more airtight. The SBA’s Standard Operating Procedure for
reassignment as a reasonable accommodation provides that reassignment should “be used only as
a last resort in cases where there is no other effective form of reasonable accommodation,” and
where an “employee becomes unable to perform the essential functions of [a] position, even with
[other] reasonable accommodation[s].” Def.’s MSJ, Ex. 52 at 41–42. This was the policy Tran
relied upon when she first denied Smith’s request, explaining that Smith had shown no indication
she was unable to perform any essential job functions. See Def.’s MSJ, Ex. 56. And, after
further review of Smith’s medical documentation, Tran’s decision was affirmed twice on the
27
same grounds—first by the SBA’s Reasonable Accommodation Review Committee, see Def.’s
MSJ, Ex. 57, and then by the Federal Occupational Health Service, see Def.’s MSJ, Ex. 61. For
her part, Smith points to no evidence of pretext.
d. Train-the-Trainer Event
The Court previously explained that in June 2014, the SBA had planned for Smith to help
facilitate certain “train-the-trainer” sessions via webinar, but that soon before the date of the
event, Smith was notified that there would be no call-in (and that she would no longer be
participating). See supra section I.C.4.
Admittedly, it is unclear from the evidence who made the decision to cancel Smith’s
participation, and why that decision was made. (Watkins indicated Smith’s particular expertise
was not needed for the training, Pl.’s Opp’n, Ex. 25 at 8:9–21, while Tran was of the view that
Smith did not participate “due to [the] lack of proper technology,” Def.’s MSJ, Ex. 83 at ¶ 5.)
However, Smith’s claim still fails because she has not identified any harm resulting from her
inability to help facilitate a single training series that would “dissuade[] a reasonable worker
from making or supporting a charge of discrimination.” Bridgeforth, 721 F.3d at 663. Indeed,
she received an overall “extraordinary” or “5” rating—the highest available—for the relevant
evaluation period, stretching from October 2013 to September 2014, along with a performance
bonus based on that award. See Def.’s MSJ, Exs. 63–64. Separately, because Smith was
excluded from the training nearly six months after she filed her EEO complaint, the action “is
not likely to qualify for . . . a causal inference” of retaliation. Moore v. Castro, 192 F. Supp. 3d
28
18, 44 (D.D.C. 2016). For these reasons, her claim regarding the “train-the-trainer” event cannot
be sustained.14
IV. Conclusion
For the reasons outlined above, the Court will grant the SBA’s Motion for Summary
Judgment. An appropriate Order accompanies this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: March 7, 2017
14
Smith also complains that her computer equipment was not connected in the Charlotte
office when she returned from medical leave in 2014. No reasonable inference of retaliation is
possible regarding this action. Watkins sent Smith’s computer to the Office of the Chief
Information Officer for updating and other IT fixes, and contemporaneous emails show he was
engaged with Smith in trying to resolve the issue. See Def.’s MSJ, Ex. 7 at 55:5–12; Ex. 9B at
23:5–24:10; Ex. 50B at 76.
29 | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150682/ | J-S93020-16
2017 PA Super 58
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD A. CHAMBERS
Appellant No. 2389 EDA 2015
Appeal from the Judgment of Sentence dated June 4, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006404-2014
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
OPINION BY SOLANO, J.: FILED MARCH 07, 2017
Appellant, Richard A. Chambers, appeals from the judgment of
sentence imposed by the trial court after it convicted him at a bench trial of
aggravated assault, conspiracy, possession of an instrument of crime (PIC),
terroristic threats, simple assault, and recklessly endangering another
person.1 Appellant challenges the sufficiency of the evidence supporting his
convictions, and specifically contends that the trial court erred in its
characterization of mace as a deadly weapon. Upon review, we affirm.
Appellant’s convictions arose from a physical altercation with Mr.
Calvin Wilson that occurred on the evening of May 15, 2014, at North 15th
Street in Philadelphia. Mr. Wilson was in his car, returning to his apartment
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2702, 903, 907, 2706, 2701 and 2705.
J-S93020-16
with his girlfriend and her two grandchildren, when he observed a white Jeep
blocking the driveway. Mr. Wilson saw Appellant standing by the driver’s
door of the Jeep. He explained:
As I approached the driveway, I blew my horn and I
wanted to turn into the driveway. But you couldn’t turn in
because the white jeep was sitting there. So I rolled my
window down and I asked [Appellant] can he – why are
you blocking the driveway? Can you move from the
driveway?
N.T., 3/23/15, at 13. Appellant and the white Jeep did not move, so Mr.
Wilson attempted to drive around them.
Mr. Wilson then exited his car and exchanged words with Appellant.
He noticed two women inside the Jeep. Then Mr. Wilson saw Appellant
“raise his arm” and “throw the first punch,” which resulted in “fists flying”
between the two men. N.T., 3/23/15, at 18, 34, 39. Next, an individual or
individuals, including one or more of the women, pulled off Mr. Wilson’s
eyeglasses and sprayed him with mace. Id. at 19, 39 (“people were around
macing”), 43 (“a girl with floral shoes sprayed me with mace”). As a result
of being sprayed with mace, Mr. Wilson no longer could see clearly, but
Appellant, who had pushed him flat onto the street and knelt on him, kept
punching and kicking Mr. Wilson while someone “kept spraying” him. Id. at
43. Mr. Wilson described “feeling everything” and being punched and kicked
until police arrived. Id. at 20-22, 58-59, 62-63. Appellant kept shouting
that he was “going to kill” Mr. Wilson. Id. at 59.
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Afterwards, Mr. Wilson was transported to the hospital, where he was
treated for three hairline rib fractures, a concussion, a laceration requiring
stitches, and “a burnt retina in my eye from mace.” N.T., 3/23/15, at 23.
He stated that his eye “drooled” as a result of being sprayed with mace. Id.
at 24. At trial, the Commonwealth introduced into evidence three
photographs of Mr. Wilson after the altercation, as well as Mr. Wilson’s
medical records. Id. at 71.
Mr. Wilson’s girlfriend, Carol Mitchell, confirmed that the altercation
began when “words started flying” and Mr. Wilson and Appellant “got to
fighting,” although “it wasn’t just [Appellant].” N.T., 3/23/15, at 47. Ms.
Mitchell said that “everybody jumped in” including “one male and a bunch of
thick women.” Id. at 48-49. She saw someone spray mace, but she did not
know who it was because she just saw the person’s hand. Id. at 49-50.
She described Mr. Wilson afterwards as bleeding, and recalled him spending
a day or two in the hospital.
Philadelphia Police Officer Henry Schoch2 was called to the scene of the
altercation. He observed “a pile of people on top” of Mr. Wilson, and “a
number of females out there.” N.T., 3/23/15, at 60-61. He stopped the
____________________________________________
2
The officer’s name is spelled “Schoch” in the notes of testimony from the
March 23, 2015 bench trial, although the trial court in its February 19, 2016
opinion spells the officer’s name “Schock.”
-3-
J-S93020-16
altercation, and “was left with [Appellant] on top of [Mr. Wilson].” Id. at 61.
He arranged for Mr. Wilson to be transported to the hospital. Id. at 67.
One of the neighborhood residents, Jeffrey Jones, witnessed the
encounter from his apartment window and saw Appellant talking with his
girlfriend in the white Jeep. He noticed that Appellant’s attention was
diverted “towards the driveway.” N.T., 3/23/15, at 75-76. A “yelling
conversation” ensued, and he saw Appellant “go down” and both men “fall
into the street.” Id. at 76. Mr. Jones went outside and saw “everybody in
the middle of the street.” Id. at 77. He also saw “[Appellant’s] girlfriend
and whoever, she was – they seen – they had spray. Trying to pepper spray
this guy because he’s a pretty big guy.” Id.
Following the testimony presented at trial and the trial court’s verdicts,
Appellant was sentenced to 1½ to 3 years of incarceration, followed by 3
years of reporting probation.3 Appellant filed a post-sentence motion that
the trial court denied. He then filed this timely appeal.
Appellant states his three issues for review as follows:
[1.] Was not the evidence insufficient to convict appellant of
aggravated assault with a deadly weapon in that 1) appellant,
who was involved in a fist-fight with the complainant, was not
criminally liable as an accomplice for another person’s conduct of
spraying the complainant with mace; and 2) mace was not
proven to constitute a deadly weapon?
____________________________________________
3
The trial court sentenced Appellant to 1½ to 3 years’ incarceration for
aggravated assault and 3 years’ probation for PIC; the trial court imposed no
further penalty for the other convictions.
-4-
J-S93020-16
[2.] Was not the evidence insufficient to convict appellant of
conspiracy to commit aggravated assault with a deadly weapon
where the Commonwealth failed to prove that: 1) mace was a
deadly weapon; 2) appellant had a shared intent to commit an
assault with a deadly weapon; or 3) appellant was a party to a
prior agreement to commit such an assault?
[3.] Was not appellant erroneously convicted of possessing an
instrument of crime where the bill of information specified a
knife, and the trial court explicitly found the evidence insufficient
to prove the crime as charged, but nevertheless convicted him of
possessing an uncharged instrument of crime, a can of mace?
Appellant’s Brief at 3.
Each of these issues challenges the sufficiency of the evidence
supporting Appellant’s aggravated assault, conspiracy, and PIC convictions.
A claim challenging the sufficiency of the evidence is a question
of law. 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. . . . When reviewing a sufficiency claim the
court is required to view the evidence in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
Commonwealth v. Sullivan, 820 A.2d 795, 805 (Pa. Super. 2003) (citation
omitted), appeal denied, 833 A.2d 143 (Pa. 2003). As a reviewing court,
we many not weigh the evidence or substitute our judgment for that of the
fact-finder, who is free to believe all, part, or none of the evidence.
Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003).
In his first two issues, Appellant claims that the Commonwealth failed
to prove the elements of aggravated assault and conspiracy to commit
aggravated assault. The relevant assault statute states:
-5-
J-S93020-16
§ 2702. Aggravated assault
(a) Offense defined.—A person is guilty of aggravated
assault if he:
(1) 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 . . . .
(4) attempts to cause or intentionally or knowingly causes
bodily injury to another with a deadly weapon;
18 Pa.C.S. § 2702.
Criminal conspiracy is governed by Section 903 of the Crimes Code:
(a) Definition of conspiracy.--A person is guilty of
conspiracy with another person or persons to commit a crime if
with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
(b) Scope of conspiratorial relationship.--If a person guilty
of conspiracy, as defined by subsection (a) of this section, knows
that a person with whom he conspires to commit a crime has
conspired with another person or persons to commit the same
crime, he is guilty of conspiring with such other person or
persons, to commit such crime whether or not he knows their
identity.
18 Pa.C.S. § 903.
In his third issue, Appellant challenges his conviction for PIC, which is
defined as:
(a) Criminal instruments generally.--A person commits a
misdemeanor of the first degree if he possesses any instrument
of crime with intent to employ it criminally.
-6-
J-S93020-16
...
(d) Definitions.--As used in this section, the following words
and phrases shall have the meanings given to them in this
subsection:
...
“Instrument of crime.” Any of the following:
...
(2) Anything used for criminal purposes and possessed by
the actor under circumstances not manifestly appropriate
for lawful uses it may have.
18 Pa.C.S. § 907.
Accomplice and Conspirator Liability
The trial court determined that “under the circumstances of this case
. . . Appellant and a group of others, by way of their relationship to each
other, agreed to commit a crime, and with shared intent, committed overt
acts in furtherance of the conspiracy to physically assault the Complainant
through the use of mace.” Trial Court Opinion, 2/19/16, at 22. Since the
evidence is uncontroverted that Appellant did not spray the mace,
Appellant’s convictions rest upon a theory of accomplice liability. See
Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa. Super. 2003).
The Crimes Code provides:
Liability for conduct of another; complicity
(a) General rule.--A person is guilty of an offense if it is
committed by his own conduct or by the conduct of another
person for which he is legally accountable, or both.
(b) Conduct of another.--A person is legally accountable for
the conduct of another person when:
-7-
J-S93020-16
(1) acting with the kind of culpability that is sufficient for
the commission of the offense, he causes an innocent or
irresponsible person to engage in such conduct;
(2) he is made accountable for the conduct of such other
person by this title or by the law defining the offense; or
(3) he is an accomplice of such other person in the
commission of the offense.
(c) Accomplice defined.--A person is an accomplice of
another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it; or
(2) his conduct is expressly declared by law to establish his
complicity.
(d) Culpability of accomplice.--When causing a particular
result is an element of an offense, an accomplice in the conduct
causing such result is an accomplice in the commission of that
offense, if he acts with the kind of culpability, if any, with
respect to that result that is sufficient for the commission of the
offense.
18 Pa.C.S. § 306.
The trial court correctly held that the evidence in this case, viewed in a
light most favorable to the Commonwealth as the verdict-winner,
demonstrates Appellant’s active participation in the physical altercation, in
which he was aided by the unidentified person or persons who sprayed the
mace and facilitated the aggravated assault of Mr. Wilson. See
Commonwealth v. Vining, 744 A.2d 310, 321 (Pa. Super. 2000)
(transcending mere association, accomplice liability requires active and
-8-
J-S93020-16
purposeful participation in criminal activity with others), appeal dismissed
as improvidently granted, 774 A.2d 1246 (Pa. 2001). Appellant, when he
began punching Mr. Wilson, prompted one or more of his unidentified
cohorts to spray mace at Mr. Wilson, and is therefore criminally liable as an
accomplice for their acts. 18 Pa.C.S. § 306.
Appellant also is liable as a co-conspirator. Accomplice liability and
conspiracy are not one and the same crime. Commonwealth v.
McClendon, 874 A.2d 1223, 1229 (Pa. Super. 2005). Conspiracy requires
proof of an additional factor which accomplice liability does not: the
existence of an agreement. Commonwealth v. Murphy, 795 A.2d 1025
(Pa. Super. 2002), aff’d, 844 A.2d 1228 (Pa. 2004). To sustain a conviction
for criminal conspiracy, the Commonwealth must establish that 1): the
defendant entered into an agreement to commit or aid in an unlawful act
with another person or persons; 2) he did so with a shared criminal intent;
and 3) an overt act was done in furtherance of the conspiracy.
Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011), citing
Commonwealth v. Barnswell Jones, 874 A.2d 108, 121 (Pa. Super.
2005) (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1037–38 (Pa.
Super. 2002), aff’d, 844 A.2d 1228 (Pa. 2004)). However, an “explicit or
formal agreement to commit the crimes can seldom, if ever, be proved and
it need not be, for proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its activities.”
Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008) (emphasis
-9-
J-S93020-16
added), quoting Commonwealth v. Swerdlow, 636 A.2d 1173, 1177 (Pa.
Super. 1994). Therefore —
Circumstantial evidence may provide proof of the conspiracy.
The conduct of the parties and the circumstances surrounding
such conduct may create a web of evidence linking the accused
to the alleged conspiracy beyond a reasonable doubt.
Additionally:
An agreement can be inferred from a variety of
circumstances including, but not limited to, the relation
between the parties, knowledge of and participation in the
crime, and the circumstances and conduct of the parties
surrounding the criminal episode. These factors may
coalesce to establish a conspiratorial agreement beyond a
reasonable doubt where one factor alone might fail.
Commonwealth v. Greene, 702 A.2d 547, 554 (Pa. Super. 1997) (internal
citations and quotation marks omitted). With respect to the overt act:
“This overt act need not be committed by the defendant; it
need only be committed by a co-conspirator.”
[Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.
Super. 2000)]. “The intent required for criminal
conspiracy is identical to that required for accomplice
liability. In both crimes a defendant must act with the
intent of promoting or facilitating the offense.”
Commonwealth v. Davenport, 307 Pa. Super. 102, 452
A.2d 1058, 1062 (1982).
Commonwealth v. Murphy, 795 A.2d at 1038.
The trial court referenced the “web of evidence” in this case and stated
that Appellant did not need to commit an “overt act; a co-conspirator may
commit the overt act.” Trial Court Opinion, 2/19/16, at 19-20, citing
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002),
appeal denied, 805 A.2d 521 (Pa. 2002). The court continued:
- 10 -
J-S93020-16
“circumstances such as an association between alleged conspirators,
knowledge of the commission of the crime, presence at the scene of the
crime, and/or participation in the object of the conspiracy, are relevant to
prove a conspiracy, when ‘viewed in conjunction with each other and in the
context in which they occurred.’” Id. at 20 (citing Lambert, supra). The
trial court concluded:
Here, the evidence is sufficient to support a finding that
[Appellant] was a co-conspirator in assaulting the Complainant
with mace. [Appellant] (1) entered into an agreement to
commit or aid in an unlawful act with the woman or women who
sprayed the mace when he engaged in a fight with the
Complainant; (2) with a shared criminal intent to assault the
Complainant following a heated argument between the
Complainant and [Appellant] over moving his co-conspirators[‘]
vehicle to unblock the driveway; and (3) the use of mace on the
Complainant was done in furtherance of the conspiracy to blind
him so that the Complainant could not defend himself and
[Appellant] could physically assault him further.
Id. We agree with the trial court’s analysis and conclude that the court did
not err in holding Appellant liable as both an accomplice and a conspirator.
Possession of Instrument of Crime
As to Appellant’s PIC conviction, the trial court explained:
In the present case, the bill of information states that
[Appellant] was charged with Possession of an Instrument of
Crime specifying a knife as the instrument. However, this court
concluded there was not enough evidence to establish that a
knife was possessed and used by [Appellant] to assault the
Complainant. Still, Defense made no argument at trial about the
bill of information specifying the knife as the instrument for
Possession of an Instrument of Crime. Moreover, there was
ample evidence that [Appellant] was involved in a conspiracy to
assault [Mr. Wilson] with mace as the facts established the
necessary elements of the charges as stated above.
- 11 -
J-S93020-16
Additionally, the criminal complaint and the discovery
materials presented to [Appellant] adequately placed him on
notice that mace was allegedly used in the incident. From the
institution of the proceedings, [Appellant] and his counsel were
aware that the Complainant alleged that mace was used against
him by [Appellant’s] co-conspirators. The affidavits of probable
cause supporting the criminal complaints are sources of the
Commonwealth’s factual allegations alerting [Appellant] to the
alleged use of mace on the Complainant. As such, adequate
notice was provided to [Appellant] and no violation of state and
federal due process and the rules of criminal procedure occurred.
Moreover, if the bills of information were defective in any
way, [Appellant] could have raised that claim at any stage of the
proceedings. Rather, no claim was raised that the court erred in
naming mace as the instrument of crime in lieu of the knife
named in the bills of information until now. Accordingly, under
examination of the facts, it was proper for this court to find that
the [Appellant] had notice that the mace used in the assault may
be considered an instrument of crime regardless of whether or
not it was specified in the bill of information. Any additional
claim is waived.
[Appellant] argues in the third part of his third issue on
appeal that he was not proven to be an accomplice or a co-
conspirator to the possession of mace. As discussed earlier in
this opinion, this court found that there was sufficient evidence
that [Appellant] was a co-conspirator to the assault using mace
on the Complainant. Additionally, [Appellant] may be found
guilty of both Possession of an Instrument of Crime and
Conspiracy. See Commonwealth v. Bullock, 2009 WL 7325775
(Pa. Com. Pl. 2009), aff’d, 998 A.2d 1025 (Pa. Super. Ct. 2010)
Trial Court Opinion, 2/19/16, at 23-24. We agree with the trial court’s
analysis, which disposes of the bulk of Appellant’s third issue.
Although it is uncontroverted that Appellant did not spray the mace at
Mr. Wilson, Appellant is criminally liable for the actions of his cohorts
because he was a full participant in a conspiracy, and conspirators are
responsible for one another’s actions. Commonwealth v. Saunders, 946
- 12 -
J-S93020-16
A.2d 776, 781 (Pa. Super. 2008) (the actions of one co-conspirator may be
imputed to another conspirator, and a conspirator is criminally responsible
for those actions of his co-conspirator that are accomplished in furtherance
of the common design). Responding to Appellant’s argument that he “was
not proven to be an accomplice or co-conspirator to the possession of
mace,” the trial court expressly disagreed, stating that it “found that there
was sufficient evidence that [Appellant] was a co-conspirator to the assault
using mace on the Complainant [and] may be found guilty of both
Possession of an Instrument of Crime and Conspiracy.” Trial Court Opinion,
2/19/16, at 24. We see no error in the trial court’s holding.
Mace as a “Deadly Weapon” and “Instrument of Crime”
We now turn to gravamen of Appellant’s three issues: that the trial
court erred in finding mace to be a deadly weapon and an instrument of a
crime. We hold that under the facts presented, mace was a deadly weapon
and an instrument of a crime. Appellant assails the trial court’s treatment
and characterization of the mace sprayed at Mr. Wilson, asserts that the
Commonwealth failed to prove the mace was a deadly weapon, and argues
that the trial court merely “erroneously deemed” the can of mace [to be] a
deadly weapon.” Appellant’s Brief at 8. We disagree.
- 13 -
J-S93020-16
Mace is a type of pepper spray that is commonly used as a self-
defense agent.4 Appellant characterizes it as “[a]n instrument which is not
inherently a deadly weapon and which . . . [is] intended to temporarily
incapacitate the victim of [an] assault,” and observes that no evidence was
presented at trial regarding the nature of mace or its chemical composition.
Appellant’s Brief at 15-16. The trial court did not say that mace is inherently
a deadly weapon, but that mace qualified as a deadly weapon in this case
because of the way it was used:
[M]ace is an instrument which is likely to cause serious bodily
injury if used in a manner such as that used against the
Complainant, Mr. Wilson. If one sprays mace directly into the
eyes of another person there is a high probability that the victim
will be seriously hurt especially while being simultaneously
stomped on the ground on a driveway, a place where motor
vehicles frequent, by multiple individuals. It may blur vision to
cause temporary blindness, burn the eyes, cause redness and
swelling. Thus, the mace used to blind the victim became a
deadly weapon at the moment [Appellant’s] accomplices used it
on the Complainant, Mr. Wilson, during the altercation between
him and [Appellant]. Here, mace temporarily blinded Mr. Wilson.
As a result, Mr. Wilson was unable to defend himself against his
attackers.
Tr. Ct. Op. at 18. The court therefore characterized mace as a deadly
weapon under the final clause of the definition of “deadly weapon” in Section
____________________________________________
4
“Mace” is claimed as a trademark of Mace Security International, which
describes it as “the original trusted brand for personal defense sprays.” See
About Mace®, http://www.mace.com/about/?SID=ard2l7p07ntknr12mk512g
2n33 (2015). The name has acquired a dictionary meaning that refers
generally to any such disabling spray product. See “Mace,” Merriam-
Webster.com, https://www.merriam-webster.com/dictionary/mace
(Merriam-Webster 2017).
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2301 of the Crimes Code:
“Deadly weapon.” Any firearm, whether loaded or unloaded,
or any device designed as a weapon and capable of producing
death or serious bodily injury, or any other device or
instrumentality which, in the manner in which it is used or
intended to be used, is calculated or likely to produce
death or serious bodily injury.
18 Pa.C.S. § 2301 (emphasis added). We agree with the trial court’s
characterization.
No reported Pennsylvania appellate decision addresses this issue, but
in Commonwealth v. Spruill, 80 A.3d 453, 454-455 (Pa. 2013), the
Supreme Court of Pennsylvania, while not directly presented with this
question, recognized the rationale by which mace may be characterized as a
deadly weapon. The defendant in Spruill, with ten other women,
threatened to kill her three victims and repeatedly punched, kicked, and
maced them until bystanders interceded to stop the attack. The trial court
convicted the defendant of multiple charges that included aggravated
assault, conspiracy to commit aggravated assault, and PIC. In upholding the
convictions, the Supreme Court observed:
In its Rule 1925 opinion, the trial court addressed the sufficiency
of the evidence by noting that the evidence showed that appellee
and her ten cohorts repeatedly punched and kicked Derrell after
appellee had used mace to render Derrell defenseless. The trial
court concluded that appellee had “used the mace in such a
manner that it became a device which was likely to produce
serious bodily injury,” and that appellee’s use of the mace
satisfied the “deadly weapon element” of F2 aggravated assault.
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80 A.3d at 456 (citation and footnote omitted). The Supreme Court in
Spruill was not asked to rule on the correctness of the trial court’s analysis
of the deadly-weapon issue, but its summary dovetails with the analysis that
applies here.
The plain language of the Legislature’s definition of “deadly weapon”
makes clear that the weapon need not be a “firearm . . . or any device
designed as a weapon,” but may also be “any other device or instrumentality
which, in the manner in which it is used or intended to be used, is calculated
or likely to produce death or serious bodily injury.” 18 Pa.C.S. § 2301.
“Although deadly weapons are commonly items which one would
traditionally think of as dangerous (e.g., guns, knives, etc.), there are
instances when items which normally are not considered to be weapons can
take on a deadly status.” Commonwealth v. Scullin, 607 A.2d 750, 753
(Pa. Super. 1992), appeal denied, 621 A.2d 579 (Pa. 1992). These items
“take on such status based upon their use under the circumstances.”
Commonwealth v. Rhoades, 8 A.3d 912, 917 (Pa. Super. 2010); appeal
denied, 25 A.3d 328 (Pa. 2011), cert. denied, 565 U.S. 1263, 132 S.Ct.
1746, 182 L.Ed.2d 536 (2012). See Commonwealth v. McCullum, 602
A.2d 313, 323 (Pa. 1992) (holding “[a] deadly weapon need not be ... an
inherently lethal instrument or device”). Thus, “[a]n ax, a baseball bat, an
iron bar, a heavy cuspidor, and even a bedroom slipper have been held to
constitute deadly weapons under varying circumstances.” Commonwealth
v. Prenni, 55 A.2d 532, 533 (Pa. 1947); see Commonwealth v. Nichols,
- 16 -
J-S93020-16
692 A.2d 181, 184 (Pa. Super. 1997) (“[a] baseball bat, when swung at the
head, can be a very deadly weapon”). Even an egg can be a deadly weapon
when thrown from the roof of building at the windshield of a vehicle. See
Commonwealth v. Roman, 714 A.2d 440 (Pa. Super. 1998), appeal
denied, 729 A.2d 1128 (Pa. 1998). See also Commonwealth v.
Raybuck, 915 A.2d 125 (Pa. Super. 2006) (holding that mouse poison
became deadly weapon when included in sandwich for husband to consume;
fact that amount was insufficient to cause serious bodily injury was
irrelevant to classification as deadly weapon).
Therefore, even if mace is not an inherently deadly instrumentality, its
use in this case played a critical role in the assault of Mr. Wilson, and it
became a deadly weapon because it was used to render Mr. Wilson
defenseless against Appellant’s sustained attack. See Scullin, 607 A.2d at
753 (the definition of deadly weapon does not demand that the person in
control of the object intend to injure or kill the victim; instead, it gives
objects deadly weapon status on the basis of their use under the
circumstances). Appellant’s actions in this case — his stated intent,
repeated punching, infliction of physical injuries, and, until Officer Schoch
physically intervened, unrelenting attack of Mr. Wilson — support the trial
court’s determination that the mace sprayed by Appellant’s unidentified
cohort or cohorts was a deadly weapon as that classification pertains to
Appellant’s convictions of aggravated assault and conspiracy.
- 17 -
J-S93020-16
Mr. Wilson testified that during the fight, his “eyes started burning”
and, because of his military background, he “knew it was mace.” N.T.,
3/23/15, at 19. He said that he “didn’t see nothing after that.” Id. Mr.
Wilson’s girlfriend, Carol Mitchell, testified that she tried to stop the fight,
but was unsuccessful because “everybody jumped in.” Id. at 48. She
stated that she saw “the spray but I didn’t know who did it” and that “they
were constantly spraying his face . . . [and when Mr. Wilson] stood up, he
was bleeding.” Id. at 50. Officer Schoch testified that when he arrived at
the scene, he saw Appellant “kneeling on [Mr. Wilson’s] chest and punching
him in the face.” Id. at 58. Officer Schoch stated:
[Appellant] was enraged, Your Honor. He might have said he
was going to kill that mother-fucker five or six times just in my
presence. I had the opportunity to secure [him]. . . . And
when I came back to the [Appellant], he reiterated that if that
guy is going to come at me, I’m going to kill that mother-fucker.
Id. at 59. This evidence demonstrates that mace was used to incapacitate
Mr. Wilson while Appellant repeatedly punched him and threatened his life,
an attack that stopped only when Officer Schoch intervened. Because the
mace was used to render Mr. Wilson defenseless, it was integral to
Appellant’s criminal actions. Accordingly, we hold that, under these
circumstances, the mace was a deadly weapon under 18 Pa.C.S. § 2301, for
the use of which the trial correctly court found Appellant criminally liable. 5
____________________________________________
5
Our holding that mace is a deadly weapon when used in circumstances like
those here is consistent with numerous decisions across the United States.
(Footnote Continued Next Page)
- 18 -
J-S93020-16
For similar reasons, we also hold that mace was an “instrument of
crime” for purposes of the PIC conviction. The mace was “used for criminal
purposes” and it was possessed and used “under circumstances not
manifestly appropriate for lawful uses it may have.” 18 Pa.C.S. § 907(d).
See, e.g., Commonwealth v. Brown, 23 A.3d 544 (Pa. Super. 2011) (toy
gun was an instrument of crime where defendant employed it criminally by
pointing it at the robbery victim and demanding money); Commonwealth
v. Lester, 722 A.2d 997 (Pa. Super. 1998) (clothes iron was an instrument
of crime where defendant broke off its plastic handle and used its plate on
the victim’s head); Commonwealth v. Vida, 715 A.2d 1180 (Pa. Super.
1998) (paint stick was an instrument of crime where it was used to write
graffiti inconsistent with its intended lawful use), appeal denied, 736 A.2d
604 (Pa. 1999).
Because the trial court’s verdicts are supported by the record, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
Some of the cases are collected in People v. Blake, 11 Cal.Rptr.3d 678,
688-90 (Cal. App. 2004). Although we are not bound by decisions from
other jurisdictions, we may consider them for their persuasive value. Trach
v. Fellin, 817 A.2d 1102, 1115 (Pa. Super. 2003) (recognizing that while we
are not bound by the decisions of other jurisdictions, we may “use them for
guidance to the degree we find them useful and not incompatible with
Pennsylvania law”).
- 19 -
J-S93020-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
- 20 - | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150698/ | FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 7, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
PARIS LaPRIEST POWELL,
Plaintiff - Appellee,
v. No. 16-6026
ROBERT BRADLEY MILLER,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:10-CV-01294-D)
_________________________________
Submitted on the briefs:*
Murray E. Abowitz, Doerner Saunders Daniel & Anderson, LLP, Oklahoma City,
Oklahoma; Kayce L. Gisinger, Phillips Murrah P.C., Oklahoma City, Oklahoma; and
Richard N. Mann, Assistant Attorney General, Oklahoma Attorney General’s Office,
Litigation Section, Oklahoma City, Oklahoma, for Defendant-Appellant.
Mark Barrett, Norman, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
_________________________________
TYMKOVICH, Chief Judge.
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
_________________________________
After his release from death row, Paris LaPriest Powell sued the prosecutor
responsible for his overturned conviction, Robert Bradley Miller. Powell charged
that Miller had suborned perjury from a key witness at his trial, Derrick Smith; had
hidden from the defense evidence of Miller’s agreement to help Smith with his own
criminal charges; and had failed to disclose the efforts Miller made on Smith’s behalf
with regard to those charges. Miller filed a motion to dismiss. The district court
granted the motion in part, but denied qualified immunity on certain claims. Miller
did not appeal the ruling. Years later, Miller filed a motion to reconsider the denial
of qualified immunity. The district court denied that motion as well. Miller now
appeals from the denial of his motion to reconsider.
Because we lack appellate jurisdiction over the district court’s order denying
Miller’s motion to reconsider, we dismiss Miller’s appeal.
* * *
A summary of the procedural posture of the case provides context.
In 2010, Powell filed this 42 U.S.C. § 1983 action against Miller and other
defendants, alleging the defendants violated his constitutional rights in connection
with Powell’s 1997 murder conviction. In this case and a companion case involving
Powell’s co-defendant, Yancey Lyndell Douglas, Miller moved to dismiss the claims
asserted against him in his individual capacity based on various defenses, including
qualified immunity. The district court denied Miller’s qualified immunity defense as
to “Miller’s post-trial actions in which he did not act as an advocate for the State and
2
was no longer employed as a prosecutor, including his alleged wrongful efforts on
behalf of Derrick Smith.” App. Vol. 2 at 413.
Nearly three years later, on October 26, 2015, Miller filed his “Motion for
Rehearing of Defendant Robert Bradley Miller in His Individual Capacity and Brief
in Support.” App. Vol. 5 at 1206. In the motion, Miller sought reconsideration of
the district court’s prior order denying him qualified immunity. The district court
denied Miller’s motion because he had “presented no substantive basis for the Court
to change its opinion.” Id. at 1227–28. Miller now appeals the district court’s order
denying his motion to reconsider.
It is well established that a district court’s pretrial denial of a qualified
immunity defense, to the extent it turns on an issue of law, is an appealable “final
decision” within the meaning of 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). But Miller does not appeal from the district court’s order denying
his qualified immunity defense—that decision was issued in 2013 without appeal.
Rather, Miller appeals from the district court’s order denying reconsideration of that
ruling almost three years later. Under these circumstances, we lack jurisdiction to
consider the district court’s order denying Miller’s motion to reconsider.1
1
We recently encountered a factual situation similar to that in this case:
the unappealed denial of qualified immunity, followed by a later purported appeal
from the denial of reconsideration. Williams v. Akers, 837 F.3d 1075 (10th Cir.
2016). In Williams, we dismissed the appeal because the appellants’ notice of appeal
was untimely to appeal the underlying denial of qualified immunity, and they had
failed to designate the reconsideration order they belatedly claimed they were
appealing from. See id. at 1078-80. Due to that jurisdictional defect, we did not
(continued)
3
Mitchell does not apply here. In Mitchell, the Supreme Court held that a
decision denying qualified immunity, to the extent it turns on an issue of law, “falls
within ‘that small class [of decisions] which finally determine claims of right
separable from, and collateral to, rights asserted in the action, too important to be
denied review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.’” Id. at 524-25
(quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). The
Court reasoned that interlocutory orders denying qualified immunity satisfy the three
Cohen criteria for immediate appeal because they (1) conclusively determine the
disputed question; (2) resolve an important issue separate and collateral to the merits
of the underlying action; and (3) are effectively unreviewable from a final judgment.
Id. at 525-30.
An order denying reconsideration of the denial of qualified immunity does not,
however, by itself satisfy the elements of the collateral order doctrine. As the Second
Circuit explained in Lora v. O’Heaney, 602 F.3d 106 (2d Cir. 2010):2
have occasion to discuss the issue here: whether an interlocutory denial of
reconsideration was even immediately appealable. Of relevance to this case,
however, we emphasized the role of the appellants’ appeal from a particular order,
rather than from a particular issue. See id. at 1079.
2
Other courts agree that such orders are not immediately appealable.
See, e.g., Phillips v. Montgomery Cty., 24 F.3d 736, 738 (5th Cir. 1994) (“[W]e hold
that the defendants in this case cannot fail to appeal and then restart the appellate
clock by refiling substantially the same motion.”); Taylor v. Carter, 960 F.2d 763,
764 (8th Cir. 1992) (dismissing appeal for lack of jurisdiction); Fisichelli v. City
Known as Town of Methuen, 884 F.2d 17 (1st Cir. 1989) (reasoning that if courts
(continued)
4
Unlike the substantive ruling on qualified immunity, the determination by
the district court whether to reconsider that ruling does not raise important
issues of the type allowing interlocutory appeal. The legal question before
us on appeal from an order denying reconsideration is whether the district
court abused its discretion when denying reconsideration. . . . Denial of
reconsideration does not resolve an important issue, but merely resolves
whether to revisit an important issue.
Id. at 111-12.
Accordingly, Miller cannot use his motion for reconsideration, filed almost
three years after the fact, to resurrect his right to appeal the district court’s order
denying him qualified immunity. And Miller has failed to make any showing that the
order denying his motion to reconsider is otherwise immediately appealable. We
note, however, that our conclusion does not affect Miller’s right to timely appeal an
order denying summary judgment on the defense of qualified immunity. See Behrens
v. Pelletier, 516 U.S. 299, 307 (1996) (“Thus, Mitchell clearly establishes that an
order rejecting the defense of qualified immunity at either the dismissal stage or the
summary judgment stage is a ‘final’ judgment subject to immediate appeal.”); see
also Weise v. Casper, 507 F.3d 1260, 1265 (10th Cir. 2007).
Based on the foregoing, we DISMISS Miller’s appeal because we lack
jurisdiction. Appellant’s motion to supplement the appendix is DENIED.
were required to consider appeals whenever a defendant unsuccessfully asked for
reconsideration, “a dilatory defendant would receive not only his allotted bite at the
apple, but an invitation to gnaw at will.”). Cf. Sinclair v. Schriber, 834 F.2d 103, 105
(6th Cir. 1987) (“[While] Mitchell v. Forsyth has permitted two bites of the appellate
apple, at the pleading [stage] and at the discovery stage, it did not contemplate that
the underlying finality requirement of Cohen and of section 1291 would be
ignored . . . .”).
5 | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4359279/ | Case: 17-31006 Document: 00514796956 Page: 1 Date Filed: 01/16/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-31006 United States Court of Appeals
Fifth Circuit
FILED
January 16, 2019
UNITED STATES OF AMERICA,
Lyle W. Cayce
Plaintiff-Appellee, Clerk
v.
ERNESTO MORENO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CR-76-7
Before JONES, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
On the eve of trial, Ernesto Moreno pleaded guilty to knowingly
conspiring to distribute more than 500 grams of methamphetamine in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. This drug-trafficking crime
triggers a mandatory minimum sentence of 120 months and a maximum of life.
See 21 U.S.C. § 841(b)(1)(A)(viii). The district court sentenced Moreno to 372
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-31006 Document: 00514796956 Page: 2 Date Filed: 01/16/2019
No. 17-31006
months. Moreno argues the district court misapplied the Guidelines. We
affirm.
I.
A grand jury indicted Moreno for knowingly conspiring to distribute (and
possess with intent to distribute) 500 or more grams of methamphetamine.
The district court set the case for trial. On the scheduled first day of trial,
however, Moreno pleaded guilty. He did so without a plea agreement.
Moreno signed a nine-page factual basis to support his plea. In it,
Moreno admitted participating in a drug-trafficking conspiracy from 2011 to
2015. He further admitted he was a “leader” of the conspiracy. He admitted
conspiring with family members and others to distribute drugs from California
to Louisiana, Texas, and Tennessee. At times, Moreno shipped the drugs
himself. Other times, he directed one of his co-conspirators to ship the drugs.
The factual basis did not, however, identify the quantity of drugs Moreno
trafficked.
The final presentence report (“PSR”) did. The PSR described a series of
narcotics seizures and undercover purchases on various dates and in various
places. It specified the types and weights of the various drugs attributable to
Moreno. The PSR concluded the “conspiracy involved the trafficking of at least
17.95941 kilograms of methamphetamine, 3.34 kilograms of cocaine
hydrochloride, 17.38 grams of marijuana, and 5.10 grams of alprazolam.”
Based on those drug quantities, the PSR assigned a base offense level of
36. See U.S.S.G. § 2D1.1(c)(2). The PSR applied a four-level enhancement for
Moreno’s leadership role and recommended a two-level reduction for
acceptance of responsibility. That yielded a total recommended offense level of
38.
2
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At the sentencing hearing, the district court started with the PSR. It
accepted the PSR’s estimate of the drug quantities attributable to Moreno.
Moreno did not object.
Then the district court considered whether Moreno was a “leader” of his
family’s drug-trafficking organization. Moreno admitted as much in the
factual basis for his plea. But the initial PSR had failed to recommend a four-
level leadership enhancement under U.S.S.G. § 3B1.1(a). The Government
objected. The probation officer reconsidered and revised the final PSR to
recommend the four-level leadership enhancement. That obviously mooted the
Government’s objection to the initial PSR. But it also confused the record of
who objected to what:
[THE COURT:] [T]he probation officer’s response [to the
Government’s objection] indicates that the role assessment in the
offense level computation sections for the final PSR have been
amended to reflect a four-level enhancement pursuant to
guidelines, Section 3B1.1(a). Thus, [the Government’s] objection
would also be moot. Is that correct?
[AUSA]: Correct.
THE COURT: And, likewise, any objection from the defendant.
[MORENO’S ATTORNEY]: Yes.
It is unclear whether Moreno’s attorney was saying “Yes, I agree any objection
is moot,” or “Yes, I object.” In all events, Moreno’s attorney said nothing else.
And the district court acted as if no objection was made. It imposed the four-
level leadership enhancement.
The district court next considered whether Moreno was entitled to a
reduction for acceptance of responsibility. The Guideline on acceptance of
responsibility has two subsections. See U.S.S.G. § 3E1.1(a)–(b). The PSR
recommended a two-level reduction under subsection (a) because the probation
officer believed Moreno “clearly demonstrate[d] acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). Subsection (b) allows the Government to
3
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No. 17-31006
request an additional one-level reduction where the defendant “timely” accepts
responsibility, “thereby permitting the government to avoid preparing for trial
and permitting the government and the court to allocate their resources
efficiently.” U.S.S.G. § 3E1.1(b). The Government did not request the
subsection (b) reduction because it “had fully prepared for . . . trial and
expended countless hours and significant government resources,” including
flying two state witnesses to the trial location, prior to Moreno’s “change of
heart.” The district court accepted the Government’s explanation under
subsection (b). The district court also concluded the same rationale precluded
a two-level reduction under subsection (a). Moreno did not object. Accordingly,
he received no reduction under either subsection of § 3E1.1.
Finally, the district court received evidence on whether Moreno
possessed a firearm during his drug deals. A witness testified that he saw
Moreno pull out a firearm and place it on a table while delivering drugs. The
Government also presented evidence that Moreno posted pictures of drugs and
firearms on a social media page. After considering this evidence, the district
court concluded by a preponderance of the evidence that Moreno possessed a
firearm during drug-trafficking activity. It therefore applied a two-level
firearm enhancement under U.S.S.G. § 2D1.1(b)(1).
That brought Moreno’s offense level to 42. That’s 36 (base offense) plus
4 (leadership role) plus 2 (firearm). Moreno’s criminal history placed him in
category III. That yielded a guideline range of 360 months to life. The district
court sentenced Moreno to 372 months in prison. Moreno timely appealed.
II.
Moreno raises four claims on appeal. He argues the district court
erroneously found (A) the quantity of Moreno’s drugs, (B) Moreno was a
“leader” of the drug-trafficking organization, (C) Moreno possessed a firearm,
4
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No. 17-31006
and (D) Moreno did not timely accept responsibility. Some of these claims are
preserved. Others are not. All are meritless.
A.
We start with drug quantity. The PSR attributed to Moreno 14.68
kilograms of methamphetamine recovered from a stash house in El Centro,
California. Moreno argues those drugs should be excluded from his sentence.
Doing so would reduce his base offense level from 36 to 32.
Moreno affirmatively waived his right to appeal this issue. When a
defendant “intentionally relinquishe[s] or abandon[s] a known right, the issue
is waived.” United States v. Rico, 864 F.3d 381, 383 (5th Cir. 2017). And when
a defendant waives an objection, it is “entirely unreviewable” and “we cannot
address it.” Id. (citation omitted). In Moreno’s sentencing memorandum, he
argued the applicable base level was 30 and sought to “preserv[e] his right to
argue” that not all of the drugs should be attributed to him. But at the
sentencing hearing, Moreno twice told the district court he had no objection to
a sentence based on the drug amounts included in the PSR. This shows that
Moreno “consciously decided to forgo that objection at sentencing.” Id.
Accordingly, this issue is entirely unreviewable. See id.; United States v. Cupit,
670 F. App’x 273, 273 (5th Cir. 2016) (per curiam).
B.
Next, we turn to Moreno’s leadership enhancement. Moreno argues he
was merely a drug supplier, not a drug-trafficking leader. He also attacks the
reliability of the Government’s evidence.
As an initial matter, the standard of review is unclear. If Moreno
properly preserved the issue, “[a] trial court’s finding that a defendant is a
leader or organizer is a factual finding reviewed for clear error.” United States
v. Haines, 803 F.3d 713, 744 (5th Cir. 2015). But where the defendant fails to
preserve a claim, we are “strictly circumscribed” to plain-error review. Puckett
5
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No. 17-31006
v. United States, 556 U.S. 129, 134–35 (2009). That is because the defendant’s
failure to object at sentencing deprives the district court of the “opportunity to
clarify its reasoning or correct any potential errors in its understanding of the
law at sentencing.” United States v. Hernandez-Martinez, 485 F.3d 270, 272
(5th Cir. 2007). Plain-error review likewise applies to “objections that are too
vague [to] . . . alert the court to the legal argument [the party] now presents.”
United States v. Dominguez-Alvarado, 695 F.3d 324, 327–28 (5th Cir. 2012)
(quotation omitted). Here, the district court confirmed the Government’s
objection to the initial PSR was mooted by the probation officer’s decision to
include a leadership enhancement. Then the district court said, in a
declarative sentence, “And, likewise, any objection from the defendant.” To
which Moreno’s attorney replied “Yes.”
We think plain error applies. That’s for two reasons. First, it appears
that Moreno’s attorney was simply agreeing the Government’s previous
objection had been mooted in the final PSR. Second, in any event, an
unadorned one-word “yes” is insufficient to alert the district court to the basis
for the objection. In either event, plain error would apply. See id.
But Moreno’s claim would fail under either standard of review. The
aggravating-role “sentencing enhancement is applicable if the defendant is a
leader and not the leader.” United States v. Olguin, 643 F.3d 384, 402 (5th Cir.
2011). Several factors are relevant in assessing whether the defendant is one
of the leaders of a conspiracy:
[1] the exercise of decision making authority, [2] the nature of
participation in the commission of the offense, [3] the recruitment
of accomplices, [4] the claimed right to a larger share of the fruits
of the crime, [5] the degree of participation in planning or
organizing the offense, [6] the nature and scope of the illegal
activity, and [7] the degree of control and authority exercised over
others.
U.S.S.G. § 3B1.1, cmt. n. 4. Being “a buyer and seller of illegal drugs” alone is
6
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No. 17-31006
not enough to show a defendant is a leader. United States v. Betancourt, 422
F.3d 240, 245 (5th Cir. 2005). But “[a] person’s status as a distributor in a drug
conspiracy is relevant in determining both the degree of participation in
planning or organizing the offense and the nature and scope of the illegal
activity.” Haines, 803 F.3d at 744 (quotation omitted).
In this case, several factors support the district court’s imposition of the
aggravating-role enhancement. Moreno admitted he was a “leader” of the
drug-trafficking organization. A Government witness also testified to that
effect. Furthermore, the PSR detailed an instance where Moreno instructed a
co-conspirator to “find a safe location to store the narcotics and await further
instructions.” See United States v. Akins, 746 F.3d 590, 610 (5th Cir. 2014)
(concluding the district court did not err in applying an aggravating-role
sentencing enhancement when the defendant provided instructions “on what
to do with the drugs”). The PSR also detailed Moreno’s responsibilities for the
drug-trafficking organization’s financial affairs, including directing deposits of
funds and planning a potential expansion to Nashville. See United States v.
Benavidez, 360 F. App’x 525, 527 (5th Cir. 2010) (per curiam) (explaining
“[s]omeone with major responsibilities on the financial side of a criminal
enterprise” qualifies for “the leadership enhancement under Section
3B1.1(a)”). And at least on one occasion, Moreno “fronted” some drugs to a co-
conspirator so he could make enough money to repay Moreno a previous debt.
See United States v. Wilson, 622 F. App’x 393, 402–03 (5th Cir. 2015) (per
curiam) (considering a defendant’s fronting of drugs to be evidence of control).
Based on this evidence, it was not clear error, much less plain error, for the
district court to impose the four-level sentencing enhancement.
Moreno argues this evidence was too unreliable or conclusory for the
district court to rely on it. We disagree. The PSR did not merely conclude
Moreno was a leader; it provided detailed examples of how Moreno organized
7
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No. 17-31006
the conspiracy and exercised control over co-conspirators. And “[f]indings of
fact included in a ‘PSR are considered reliable and may be adopted without
further inquiry if the defendant fails to present competent rebuttal evidence.’ ”
United States v. Tisdale, 264 F. App’x 403, 409 (5th Cir. 2008) (quoting United
States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998)). Moreno did not do so.
C.
We turn now to Moreno’s gun possession. Under the Guidelines, “the
defendant’s sentence should be increased by two levels whenever, in a crime
involving the manufacture, import, export, trafficking, or possession of drugs,
the defendant possessed a dangerous weapon.” United States v. Cooper, 274
F.3d 230, 245 (5th Cir. 2001) (citing U.S.S.G. § 2D1.1(b)(1)). This two-level
enhancement should be applied if the Government shows “by a preponderance
of the evidence that a temporal and spatial relation existed between the
weapon, the drug trafficking activity, and the defendant.” Id. (quotation
omitted). Moreno preserved this claim of error, so our review is for clear error.
There is none. A witness testified he saw Moreno take out a gun while
Moreno was delivering drugs. Moreno contends that testimony was unreliable,
in part because the witness was a drug addict. But “[c]redibility
determinations in sentencing hearings are peculiarly within the province of
the trier-of-fact.” United States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996)
(quotation omitted). And the district court did not clearly err by crediting the
witness’s testimony despite his drug use. Cf. United States v. Armendariz, 663
F. App’x 350, 352–53 (5th Cir. 2016) (affirming judgment of district court when
it was based, in part, on an admission made by a defendant who used heroin).
Furthermore, separate photographs posted on social media of Moreno, drugs,
money, and guns corroborated Moreno’s use of a firearm in connection with his
drug transactions. Because it is more than plausible Moreno used a gun while
distributing methamphetamine, the district court did not clearly err by
8
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No. 17-31006
applying the firearm enhancement. See Cooper, 274 F.3d at 238 (“A factual
finding is not clearly erroneous if it is plausible in light of the record read as a
whole.”).
D.
Finally, Moreno argues the district court clearly erred by declining to
award a two-level reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a). Again, we disagree.
As a threshold matter, our standard of review is something tougher than
clear error. That’s for two reasons. First, “[t]his Court will affirm a sentencing
court’s decision not to award a reduction [under § 3E1.1(a)] unless it is without
foundation, a standard of review more deferential than the clearly erroneous
standard.” United States v. Hott, 866 F.3d 618, 620 (5th Cir. 2017) (alteration
omitted) (quotation omitted). Second, plain-error review applies whenever a
defendant forfeits his objection—as Moreno did here. See Puckett, 556 U.S. at
134. When the district court sua sponte declined to apply the two-level
reduction, Moreno did not object. Nor did he object later in the sentencing
hearing when the district court gave the parties a final opportunity to present
arguments or objections to the Guidelines calculations.
Under either standard—“without foundation” or plain error—Moreno’s
claim fails. “This court has routinely upheld the denial of a reduction for
acceptance of responsibility when a defendant waits until the eve of trial to
enter a guilty plea.” United States v. Taylor, 331 F. App’x 287, 288 (5th Cir.
2009) (per curiam) (collecting cases). That is what happened here. And that
is more than enough to warrant rejecting Moreno’s claim.
Moreno’s only counterargument is out-of-circuit precedent suggesting a
late guilty plea alone is insufficient to deny a reduction under § 3E1.1. See
United States v. Hollis, 823 F.3d 1045, 1049 (6th Cir. 2016) (per curiam);
United States v. Kumar, 617 F.3d 612, 637 (2d Cir. 2010). It is not obvious that
9
Case: 17-31006 Document: 00514796956 Page: 10 Date Filed: 01/16/2019
No. 17-31006
either case stands for that proposition. See Hollis, 823 F.3d at 1049
(acknowledging a guilty plea “on the eve of or during trial” might indicate a
defendant is not truly accepting responsibility); Kumar, 617 F.3d at 637
(acknowledging that “under certain circumstances the lateness of a plea might
indeed weigh against the defendant”). Moreover, even assuming (without
deciding) a court may not deny a § 3E1.1(a) reduction solely due to a late guilty
plea, other reasons support the denial here. See United States v. Diaz, 39 F.3d
568, 571 (5th Cir. 1994) (explaining that if a valid reason supports the district
court’s ruling, it can be affirmed). The most obvious reason is Moreno
“blame[d] others”—namely, his family—“for his criminal activity” during his
statement at sentencing. See United States v. Wilder, 15 F.3d 1292, 1299 (5th
Cir. 1994) (concluding a defendant did not show “sincere contrition” when he
blamed others and downplayed his own participation in the offense). Moreno
therefore “[has] not show[n] plain error and, in any event, the district court
had foundation to deny the reduction.” Hott, 866 F.3d at 620.
AFFIRMED.
10 | 01-03-2023 | 01-16-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4147479/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DARRYL K. HARROD, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-2287-RC
)
)
BOB GUINEY et al., )
)
Defendants. )
MEMORANDUM OPINION
In this action, Plaintiff, proceeding pro se, states that this “case is in reference to Under
payment of Wages to [him].” Compl. at 1. He seeks $2 million in damages for alleged
violations of the Davis-Bacon Act, 40 U.S.C. §§ 3141-48. Pending before the Court are the
separate motions to dismiss brought on behalf of Defendants Bob Chilcoat and Chilmar
Corporation (“Corp. Defs.”), ECF No. 8, and Defendant Bob Guiney, ECF No. 10. In separate
orders issued on December 23 and December 29 of 2016, ECF Nos. 9, 11, Plaintiff was informed
about his obligation to respond to each motion by January 31, 2017, and February 10, 2017,
respectively. Plaintiff has not complied with either order, and he has not requested additional
time to comply.
Consistent with the advisements in the orders, the Court finds that Plaintiff has conceded
Defendants’ valid arguments for dismissal. Specifically, Defendants contend that the Davis-
Bacon Act does not authorize a private cause of action in federal court “to recover the difference
between actual wages paid and the required prevailing wage under [the Act].” Corp. Defs.’
Mem. ¶ 4 (citing cases); see Ibrahim v. Mid-Atl. Air of DC, LLC, 802 F. Supp. 2d 73, 75-76
1
(D.D.C. 2011), aff'd, No. 11-7150, 2012 WL 3068460 (D.C. Cir. July 19, 2012) (noting that
“[t]he ‘majority of courts that have addressed the issue’ have concluded that no private right of
action exists under 40 U.S.C. § 3142,” but declining to “decide the issue” upon finding that
plaintiff had conceded the argument “by failing to contest [it]”) (citations omitted)).
Furthermore, Plaintiff has not disputed that “the Complaint contains no allegations whatsoever
relating to Mr. Guiney, and thus fails to state any claim against [this defendant] upon which
relief may be granted.” Guiney’s Mem. at 1; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Consequently, the Court will grant the motion of each defendant and
dismiss this case. A separate order accompanies this Memorandum Opinion.
________/s/____________
RUDOLPH CONTRERAS
United States District Judge
Date: February 22, 2017
2 | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7606069/ | Affirmed. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4131444/ | 4
. ‘
1
The Attorney General of Texas
April 8, 1983
JIM MATTOX
Attorney General
Honorable Henry Wade Opinion No. JM-23
Supreme Court Building
District Attorney
P. 0. BOX 12546
Austin, TX. 76711. 2546
601 Elm Street Re: Use of repurchase agree-
5121475-2501 Dallas, Texas 75202 ments for short term investment
Telex 9101674.1367 of county funds
Telecopier 5121475.0266
Dear Mr. Wade:
1607 Main St.. Suite 1400
Dallas. TX. 75201-4709 You ask whether Dallas County may utilize "repurchase agreements"
2141742-6944 for short term investments of idle county funds. Your letter defines
a repurchase agreement as "an agreement for the sale of a specified
security to a county for a specified time at a specified rate of
4624 Alberta Ave.. Suite 160
El Paso. TX. 79905-2793
interest [with a provision that at] the maturity or due date, the
915/533-3464 seller automatically repurchases the specified security."
P
An in-depth explanation of the nature of a repurchase transaction
1220 Dallas Ave., Suite 202
Houston. TX. 77002.6966
is found in Securities and Exchange Commission v. Miller, 495 F. Supp.
7131650-0666 465 (s.D.N.Y. 1980). Although it is in the form of a sale, a
repurchase agreement is essentially a short-term collateralized loan.
See Matter of Legel. Braswell Government Securities Corporation, 648
SO6 Broadway. Suite 312 gd 321 (5th Cir. 1981). Cf. First National Bank of Las Vegas, New
Lubbock. TX. 79401-3479
Mexico v. Estate of Russell. 657 F.2d 668 (5th Cir. 1981). In
6061747-5236
essence. the county
. expects
. to advance cash to a financial institution
that will then be obligated to return the cash to the county, plus an
4309 N. Tenth. Suite 6 additional amount as interest, at a specified time. At the time the
McAllen. TX. 76501-1665 money is advanced, government securities of a value equal or nearly
5121682.4547
equal to the amount advanced will be "sold" to the county by the
financial institution and later "resold" by the county to the bank in
200 Main Plaza, Suite 400 return for repayment of the sum advanced (plus interest).
San Antonio. TX. 76205.2797
5121225-4191 The law is settled that a county may only do that which the
constitution and statutes expressly or impliedlv authorize it to do.
An Equal Opportunity/ Canales v. Laughlin, 214 S.W.2d 451, 453 (Tei. 1948); Anderson v.
Affirmative Action Employer Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). Thus. the threshold question
is whether any statute authorizes Dallas County to utilize the
repurchase agreement that you have described. The only statute found
that arguably applies is article 2549, V.T.C.S., subsection (c) of
which reads:
(c) Unless expressly prohibited by law or
unless it is in contravention of any depository
contract between a county and any depository bank,
p. 101
Honorable Henry Wade - Page 2 (JM-23)
the Commissioners Court may direct the county
treasurer to:
(1) withdraw any amount of funds of the county
that are deposited in a county depository and that
are not required immediately to pay obligations of
the county or required to be kept on deposit under
the terms of the depository contract; and
(2) invest those funds in direct debt
securities of the United States. (Emphasis
added).
Does a "buyer" in a repurchase transaction "invest" funds in
securities of the United States? In Fithel v. Saltes, 11 S.W.2d 815
(Tex. Civ. App. - Galveston 1928, writ ref'd), the "sale" and
"repurchase" of a partnership interest was deemed a security
arrangement rather than a bona fide transfer of the business. In
Texas, the nature of a transaction is determined by its substance, not
its form. Notwithstanding the terminology used by the parties, we
believe the described "repurchase" transaction is a loan of money
secured by government securities rather than an investment in such
securities.
In view of our conclusion that neither article 2549 nor any other
statute authorizes the proposed transaction, we need not determine
whether a statute allowing such a transaction would be
constitutionally valid. See Tex. Const., art. III, 052; Brazoria
County v. Perq, 537 S.W.2d9 (Tex. Civ. App. - Houston [lst Dist.]
1976, no writ) (prohibition against lending the credit of the state or
any political subdivision thereof). Cf. Lina v. Eastland County, 39
S.W.2d 599 (Tex. Comm'n App. 1931, holding approved); State ex rel.
Graham v. City of Olympia, 80 Wash.2d 672, 497 P.2d 924 (1972); Valley
National Bank of Phoenix v. First National Bank of Holbrook, 83 Aria.
286, 320 P.2d 689 (1958); Bannock County v. Citizens' Bank 6 Trust
Company, 53 Idaho 159, 22 P.2d 674 (1933).
Our attention has been drawn to the recent case of Bathe Halsey
Stuart Shields, Incorporated v. University of Houston, 638 S.W.2d 920
(Tex. App. - Houston [lst Dist.] 1982, writ ref'd n.r.e.), in which it
was held that an obligation undertaken by the university to sell and
then repurchase securities under a repurchase agreement did not
constitute a prohibited "debt" within the meaning of article III.
section 49 of the Texas Constitution. We do not think the holdings of
the court on the questions that were before it control the result
here.
A transaction may create a debt in the ordinary sense -- &, an
obligation to repay -- without creating a "debt" in the constitutional
sense because the Texas Constitution classifies as debts only those
obligations not expected by the parties to be repaid from current
p. 102
Honorable Henry Wade - Page 3 (JM-23)
revenues or from some fund already on hand. See Charles Scribner's
Sons v. Marrs, 262 S.W. 722, 725 (Tex. 1924); McNeil1 v. City of Waco,
33 S.W. 322 (Tex. 1895). The University of Houston court concluded
that the repurchase transaction at issue there generated funds from
which the university expected to discharge its obligation, and
observed:
all that is needed to avoid characterization as a
debt [in the constitutional sense] is an
expectation that the obligation will or can be
paid with current revenues or revenues created by
the transaction.
638 S.W.2d. at 925. The court's determination that such a transaction
does not create a debt in the constitutional sense is not inconsistent
with the conclusion of other courts that it is a collateralized loan
transaction.
The University of Houston opinion focused on the authority of the
university to sell, that is borrow against, government securities it
already owned. The court's attention was not directed to situations
where a public agency for the first time acquires possession of a
security as part of a repurchase agreement. It said a repurchase
agreement "is a reacquisition of an original investment and is.
therefore, an investment agreement involving government securities."
638 S.W.2d, at 926. Furthermore, it described repurchase agreements
as an "investment tool. . . consonant with the very general plenary
investment powers given the University." (Emphasis added). Id. In
the context of that case (from the seller's point of viewrboth
statements are accurate. Since the authority to borrow, however, may
exist whether or not there is any authority to invest, the
determination of the 'ipowerto invest" question was immaterial to the
outcome of the case. The court's discussion of the ooint is not
authoritative precedent. See Southern Union Life Insurance Company v.
White, 188 S.W. 266, 268 (Tex. 1916) (effect of dicta).
In our opinion, the "buyer" in a repurchase transaction invests
in the evidence of indebtedness (the repurchase agreement) and not in
1. Compare V.T.C.S. art. 2549(c) ("in direct debt securities of
the United States") with V.T.C.S. art. 6252-5a ("in direct obligations
or in certificate of deposit . . . secured by a pledge of
se&rities of the kind heretofore specified"). Taking out loans to
obtain cash with which to make investments in government securities is
certainly consonant with the possession of investment powers, but such
undertakings are not themselves investments. Borrowing does not
constitute- "investing." See Laurie v. Miller, 45 S.W.2d 172 (Tex.
Comm'n App. 1932, holding approved).
p. 103
Honorable Henry Wade - Page 4 (JM-23)
2
the securities temporarily surrendered to secure the indebtedness.
See Sims v. Russell, 236 Ala. 562, 183 So. 862. 864 (1938) (investment
oftrust funds in loans secured by bond and mortgage on realty is not
an investment in realty). For that reason, we advise that Dallas
County may not legally utilize repurchase agreements for short term
investments of idle county funds.
SUMMARY
Dallas County may not legally utilize
repurchase agreements for short term investments
of idle county funds.
-&j&l-&
MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Nancy Sutton
Bruce Youngblood
2. If the "buyer" disposes of the security in the interim and
gambles on replacing it later he has not made an investment in the
security disposed of or later acquired. He has merely engaged in
speculative trading of "futures." See Hopper v. Tancil, 3 S.W.2d 67,
70 (Tex. Comm'n App. 1928, judgmt adopted) (speculation).
p. 104 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131457/ | The Attorney General of Texas
March 14, 1983
JIM MATTOX
Attorney General
Supreme Court Building
Honorable James L. Chapman Opinion No. JM-10
P. 0. BOX 12546 District Attorney
Austin, TX. 76711. 2546 113 College Street Re: Revocation of probation
5121475.2501 Sulphur Springs, Texas 75482 under article 42.12, section
Telex 9101874-1367
8(c) for probationer’s failure
Telecopier 5121475.0266
to make court ordered payment
1607 Main St., Suite 1400 Dear Mr. Chapman:
Dallas, TX. 75201.4709
2141742.6944 In 1977, the Texas Legislature added section 8(c) to article
42.12 of the Code of Criminal Procedure. Acts 1977, 65th Leg., ch.
4624 Alberta Ave.. Suite 160 342, 52, at 909 and ch. 388, §2, at 1058. III 1981, the legislature
El Paso. TX. 79905.2793 amended this section. Acts 1981. 67th Leg., ch. 538, §2, at 2246.
9151533~3464 The following information furnishes the background for your question,
which is set out below.
.20 Dallas Ave., Suite 202
Houston. TX. 77002.6966 Prior to 1977, in order to revoke probation for nonpayment of
7131650-0666 fees, the state had to prove that the probationer was able to make fee
payments and that he intentionally failed to do so. See, e.g.,
Whitehead v. State, 556 S.W.2d 802 (Tex. Crim. App. 1977). Section
606 Broadway, Suite 312
Lubbock, TX. 79401.3479
S(c) changed this rule by making inability to pay certain fees an
6061747-5236 affirmative defense to the failure to pay them. When the 1977
legislature enacted this section, however, it enacted two versions of
it. One version provided:
4309 N. Tenth, Suite B
McAllen. TX. 76501~1665
5121682-4547
In a probation revocation hearing at which it
is alleged only that the probationer violated the
conditions of probation by failing to pay
200 Main Plaza. Suite 400 probation fees, court costs, restitution, or
San Antonio, TX. 78205.2797 reparations. the inability of the probationer to
5121225-4191
pay as ordered by the court is an affirmative
defense to revocation, which the probationer must
An Equal Opportunity/ prove by a preponderence of evidence. (Emphasis
Affirmative Action Employer added).
Acts 1977, 65th Leg., ch. 342, §2, at 909. The other version
provided:
In a probation revocation hearing at which it
is alleged the the probationer violated the
conditions of probation by failing to pay
p. 39
: ‘
Honorable James L. Chapman - Page 2 (JM-10)
compensation paid to appointed counsel, probation
fees, court costs, restitution, or reparations,
the inability of the probationer to pay as ordered
by the court is an affirmative defense to
revocation, which the probationer must prove by a
preponderance of evidence. (Emphasis added).
Acts 1977, 65th Leg., ch. 388, 52, at 1058.
As the underscored language indicates, these two versions
differed in two respects. In 1981, in an effort to clear up this
confusion, the legislature enacted House Bill No. 865. Acts 1981,
67th Leg., ch. 538, $2, at 2246. In its original form, this bill
purported only to repeal the chapter 342 version of section B(c).
During committee hearings on the bill, however, the word "only" was
added to the chapter 388 version. As a result, section 8(c) now
reads:
In a probation revocation hearing at which it
is alleged only that the probationer violated the
conditions of nrobation bv failine to nav . ,
compensation paid to appointed counsel, probation
fees, court costs, restitution, or reparations,
the inability of the probationer to pay as ordered
by the court is an affirmative defense to
revocation, which the probationer must prove by a
preponderance of evidence. (Emphasis added).
In your letter to this office, you asked:
What is the effect of the addition of the word
'only' to this section? I would like to take the
position that if there are technical allegations
alleging a failure to pay coupled with substantive
allegations alleging commission of another offense
that there is no defense to failure to pay.
However, there is another reading to the statute
as amended and that is if there are allegations of
failure to pay, coupled with allegations of a
substantive offense, then we are back under the
old law which requires the state of Texas to
prove, by a preponderence, the ability to pay.
Contrary to your assumption, the word "only" was not first added
to section 8(c) in 1981. This word appeared in one of the two earlier
versions of this section. In order to determine whether, as you
essentially argue, section 8(c) creates an affirmative defense to the
failure to pay fees only when nonpayment of fees is the sole ground
for revocation asserted in a revocation hearing, we must answer two
p. 40
Honorable James L. Chapman - Page 3 (JM-10)
C
questions: (1) was this the law under the 1977 amendments? and (2)
did House Bill No. 865 change this law?
We answer the second question in the negative. House Bill No.
865 simply combined the two 1977 versions of section 8(c). Two years
before this bill was enacted, however, the Texas Court of Criminal
Appeals said that these two versions should be treated as if combined.
In Jones v. State, 589 S.W.2d 419 (Tex. Crim. App. 1979), the court
stated that the 1977 legislature had "doubtless inadvertently" enacted
the two versions, but concluded that:
[t]he two amendments in question are reconcilable
and combine to make inability to pay the
enumerated fees an affirmative defense which the
defendant must raise and prove by a preponderance
of evidence. (Emphasis added).
589 S.W.2d at 421. Since section B(c), as amended by House Bill No.
865, reads the same as the 1977 amendments, as construed in Jones, we
believe it is apparent that the bill effected no substantive change in
the prior law. On the contrary, it simply made the explicit wording
of section 8(c) conform to the wording which Jones said was implicit
in this section. The remaining question, therefore, is: what was the
law under the 1977 amendments?
In addition to Jones, Champion v. State, 590 S.W.2d 495 (Tex.
Crim. APP. 1979), dealt with the 1977 amendments. Neither case,
however,..decided how these amendments were to be construed where
failure to pay fees was not the only ground for revocation of
probation asserted in a revocation hearing. In Jones, no other ground
was asserted. In Champion, additional grounds were urged, but the
court's holding is not clear. In its opinion, the court discussed
only the chapter 388 version of section B(c), without mentioning the
chapter 342 version. Thus, Champion affords no clue as to how the two
versions should be construed.
Since court cases do not answer our question, we must construe
these amendments in the manner which, in our opinion, best reflects
the legislature's intent. Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.
1974). These amendments, we believe, were susceptible of three
interpretations: (1) they created an affirmative defense where
failure to pay fees was the only basis for revocation asserted, but
left the law as it had been, see Whitehead v. State, supra, in
instances where additional groundswere asserted: (2) they created an
affirmative defense where failure to pay fees -was the -only ground
asserted, but afforded probationers no defense to nonpayment where
other grounds were also asserted; or (3) they created an affirmative
defense to the failure to pay fees even where, in addition to this
ground, other grounds for revocation of probation were urged.
p. 41
Honorable James L. Chapman - Page 4 (JM-10)
We reject the first interpretation. We believe the intent of the
1977 amendments was to facilitate the state's case in nonpayment-of-
fees cases by relieving the state of the burden of having to prove
that the probationer could make fee payments and that he intentionally
failed to do so. Given this intent, we can perceive no reason why the
legislature would have wanted to relieve the state of this burden
where nonpayment of fees is the & ground for revocation urged, but
require it to bear the burden where additional grounds are urged. In
our opinion, the legislature wanted to relieve the state of this
burden in all instances. Had the legislature's intent been otherwise,
we believe that clear evidence to this effect would appear in the
language or history of the 1977 amendments.
We also reject the second interpretation. This theory would
place probationers against whom multiple grounds for revocation are
asserted in a more tenuous position than they were in even under the
pre-1977 law. Under that law, the state had to prove ability to pay
and intent not to do so. Under the "no defenseu theory, however, the
state would only have to show that a probationer failed to pay
required fees. In our opinion, if the legislature had intended to
provide probationers with an affirmative defense where failure to pay
fees is the only ground for revocation asserted, but afford them "0
defense where additional grounds are urged, it would have provided
clear evidence to this effect. Absent any such evidence, we decline
to conclude that this was its intent.
The remaining interpretation is, in our judgment, correct.
First, we believe it is more reasonable to conclude that the
legislature intended to make inability to pay fees an affirmative
defense to nonpayment regardless of how many grounds for revocation of
probation are asserted. Second, for the reasons we have given, we
believe that neither of the other interpretations of section 8(c) is
as plausible. We therefore conclude that under the 1977 amendments,
inability to pay required fees was an affirmative defense to
nonpayment of fees even where other grounds for revocation of
probation were asserted. Because we believe that House Bill No. 865
did not effect any substantive change in the law, we conclude that the
law remains the same today.
Harris v. State, 629 S.W.2d 832 (Tex. Civ. App. - Houston [14th
Disc.] 1982) discretionary review refused, May 26, 1982, supports our
construction of section B(c). There, probation was revoked on three
grounds, one of which was nonpayment of fees. On appeal, the
probationer contended, inter alla, that the trial court should not
have considered his failure to pay the fees in revoking his probation,
since his testimony as to his inability to pay the fees was uncontro-
verted. The court, however, rejected this argument. It observed that
the only evidence of his inability to pay was his own testimony to
this effect, and concluded that the trial court could "disbelieve
p. 42
Honorable James L. Chapman - Page 5 (JM-10)
appellant's bare assertation of his inability to find work as the
basis for his failure to pay fees." 629 S.W.2d at 834.
The court's discussion and approach to the case show that it was
of the opinion that inability to pay fees is an affirmative defense to
nonpayment even where nonpayment is not the only ground for revocation
asserted. Had it thought that the state must prove ability to pay and
intent not to do so where additional grounds are urged, the court
could not have reached the conclusion it did, since the probationer's
testimony that he was unable to pay the fees was uncontroverted. Had
the court thought that inability to pay is "0 defense where additional
grounds are asserted, it would almost certainly have decided the case
on that basis, and not discussed the merits of the probationer's
testimony. The fact that the court concluded that the probationer did
not offer sufficient proof of inability to pay clearly shows that it
felt that inability to pay is an affirmative defense even where
nonpayment is not the only basis for revocation asserted. Several of
the court's comments, i.e., its observation that "[alppellant came
forward with no other evidence of witnesses in support of his defense
of inability to pay," 629 S.W.2d at 833 (emphasis added), support this
conclusion.
In answer to your question, then, the word "only" was in all
likelihood added to section 8(c) in 1981 to make this section read as
the Jones court said the 1977 versions of it should read. Under
section B(c), as amended in 1981, inability to pay fees is an
affirmative defense to the failure to pay them, regardless of whether,
in addition to failure to pay fees, other grounds for revocation of
probation are urged in a revocation hearing.
SUMMARY
Under section 8(c) of article 42.12 of the Code
of Criminal Procedure, inability to pay fees is an
affirmative defense to the failure to pay them,
regardless of whether, in addition to failure to
pay fees, other grounds for revocation of
probation are urged in a revocation hearing.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
p. 43
Honorable James L. Chapman - Page 6 (JM-10)
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jon Bible and
Barbara Lipscomb
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
p. 44 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144481/ | OFFICE OF THE A-HORNEY GENERAL OF TEXAS
AUSTIN
532
player reoover eny part or portion or the
money arter ceixure?
-3. 'ih3tis the etatus of money eeized id
@mbllng devices?
'4. 'Shatdis.gositioaMJ be lawfully made of
maney seized in @mbling 4eviou'p"
After diecwaiou of each of the above questions
you anewer the first in the Ciriraatlte,the meoond ip
the negativeg to the third that the xaomy Is in outattodir
le~ia, and to the fonrtk that the court oould om
m0ney &iSyliedt0 spy or fiOS UW@ -
(a) Charitable instltutionat
(b) To the state r0r 8pdri0 urea;
(0) Tot;; oounty to be rteedam ordered by the
(d) To any uauee that Is beaotolent in itn
nature;
(e) To any oauw that would be bemsfiolal to
t&e yublie et large.
You indicate ytmr belief that a writ of mndemus
muld lie to aompel the various dlstxiot judges entering
judgments aa above referred to, to proceed to enter a
further ‘brderdisposing of the momy NW held by the
olerk, for one of the ,x~poses nmaed by you.
Chapter Sir of Title ll of the Pea&l Code, 1926,
nitb awadments thereto ewriee the statutory prohibi-
tions and provide the rwasdiae against ganringZn Texan.
Provision is made through Arti0lea 6358to 658 for the
@~ppTpre~tsiori of violationS, end the WiWre, OOndS~atiOn
and daetruation or pr0prrty uwd r0r gaming purposee.
Pbe peflinent statutrs, and the ouly ones we here been
able to rind tnaiceting the di8pooitioa of prqmrtf la*
fully mlzed, ore Artroles 556, 5S9 and 638 ai the Funs1
coae.,
533
Article 6% require0 the afrioer serving 6
aeorch warrant to file a returu on same, with a liet
of pc;-pertyseized designatingthe place of seizure
SIXI nfi’3-3 Gf 0wIlOr or >8rS0ll irGXz!whCmpOSiS48.4iOn was
tXk4C. Thee notice met be issued and served on either
the omer or parson in :aess44ion omnding appearaoae
vdthln a designsted time, not less than fire day8 frcm
date of ismama, b ahow cauee why the seized a&l-
cles shm~lld3ot ba destropsd.
.kct:c1e637 is here quoted in fall:
"fat. 637. mmOy4a a Grd4r 0r OOut.
PC-
*If u?an a heerfw of the w.tter rofezrod
to in the preoeding artioi4, the juctilce0r
the pmico, aoontp judqe or dletriot judst,,
before uhoz the cause is pecding shall deter-~
mine that the prop4rty seizsd is 6 tpt3ifq
table or bank or Is used 88 equipment or pare-
phernelia for a t;a_mbling
house, and wee being
ueea r0r ganing 3~~~0440, ha shall cmbsr 84.434
to be destroyed, but any part of aeta mar, by
or&r or the court be held as eoldenoe to'ba
used in ang ease until the oaaa is finality dis-
posed of. Froperty not~of that oheraotQror
not no used'shall be ordered returned to the
person entitled to pons4eaion of th8 sasm. %?h*
orrioer within not lasll~thurfiftecln nor 1~02-8
than thirty dayn rrw tlia~,wtx-y 0r said or&m
shall destroy all prop&& the destructlo~of
wbieh haa been ordered:;J&y the court, unless
tke omer, lessee or pstiacut entitled to posserr-
sian under thie hu; shell, b4rort the deemto-
bh Or said gTOp3Z%pl file 6Uit t0 3%3OTSr
seas .m
In 1933, by the dets of the Irortp-fourtfi
l.e&is-
ltlture,begalar Se4sion, Qhapter 803, p. 490, SotIon 8
wes added to &&.ole $39. W quota Seotlon E P.B added3
*See. 8.. If upon 4 h4arH..np;of the nrattsr
refclrmclto in Artlala 636 Fenel Code of Texns
(lQZ3) the juretloe Of tb4 p6aO4, aoWlty jU&r?;rt
or district judge before *Ihas&hu cause is
Jmndfng &all d8t8min8 that the prqmrty
seized, or any part thereat, is not gambling
paraph8rAbliapew m, but that the aam OT
any pert there& uas used a@ aquipmnt QT
para@8rnalie ior e gtmbllng house and was
b8iAg uead for ganlng wur 0808 and that said
propsrty is eapablb or be P ng used tar scam
legal purpoma, he mny, in his dl8oretion, by
ord8r ai the court deolare the sass8OQdi8Wt-
a4 and oauee the muse to be doliversd to ths
stata or ~xim, or any Qoliticdl aubaiviaion
thereor or to 8ay State institution to bs kept
by it fW its iW!.lU88 end banefit.
me oftioer shall e!mw by tits r8tPm t&8
biSpOSitiOA 0r *a property Emde by hia whiah
~h0n ba IA 0aat~111512~6 .with tks 0zrdsr8 0r tht3
aQurt."
The mergenay alaaae Ot the enmndetaxy bill,
d6AOtiAs;th i8&&8tiV8 iAt8A$, rU8it8# -4sMSiioA
by peaae effieera throughout TWYSSof ~*cAaira, tablea,
oarpt8anu other kindsor furdtun 0r th40value of
theumnb8 of bolle~a~ nhioh, *us&s the present law
b8 held rm 8vid8AM or Usotroyed by en or&r ar
;Illt8t
the Oouti,f eta. lForhbxwla tha A& 8-e the LS&I&-
ttvs eVid0A48 0Ay il%fHIttQ di0m8 Of tb% ZKJXUJ0
CtBW.
telnml in ge 88~rios00s panaphmnalia,
ArtdQZ6 as3 gxmt6 the right 5r 6ny parsaanin-
ter8ste8 in or sntlttsd to prapertg ssiwd, to tixy the
iv!@. or whether web pm rty is e apdng table. or
bank or deriw, QOPwarn083 es equipment or porffphema-
liaoi any@ublin(3 home* rnd to rewver the samou~on
a ravorable detsrrdmtian th0reoi.
XA .OuTbIY%&tigatfQAOr tb.6;JAeStibAs., .~y6:-8ifi8r..i
a leOtar t3pi~lonwrivben by k0elskmt Attarney Qpbxal IL
L. Willirord lm Roaorable JII~,Izodgi~8, Cour~t~Aliter-
My et i&loMh, T6xes Qa Au&t-b ,& ~19s%,IkdAing that
the propr aoastxwcrtion or ~xti& 6SsI,Penn1 Code,
8u@ra, OO~telning thb l&iqw~ %Qp6tty not at fhet,
Oharecter or not 80 plsQde&a21 bs oxWra& mturmd %Q
astimid to porimaaiaa at th6 -~ema ,* woulU
the per6~t.t
raadsr it proper to hers cha oaurt entar BP ura0r ia
535
t&a procseding inetru0tingbh8 sheriil to return ths
HOll8y to th0 m50fl f%OSl WhcS the pOEZi8lSSiOll Or Qt9&8
was taken “inaamah ~8 the xomy fs not a gming tab16
or bank, *quipsant, or paraphamalla for e ~ambll*
hourn." (htter o&?iAiOA8, Attorney Cklaaral, Vol. %a,,
p. aeel.
IO the cam 0r Atterney cxmsral v. Justlcse of
tb miaipai court 0f the city 0r Boet0n, m3 ftat3d.
456 (&a~. Ct. Ease. 184Q) it a?pearathat e search war-
rent was isatmd out 0r th4 numic;lpalcawt, an6 upon
its sxeaution a quantity of gaabling Carapharnaliawta
wlm4 such a8 *one f'arotable, one lay-out, one 8+nf-
The 2kfm48humtC;e S6atut6 providsd~ r0r 6ha
wizen and U*struatioa at famicigapparatus a* i&e-
meat0 and far aeaU~etioa emI sale of otbnr grrraonal
proparty eeieed at *a atsact&m and fmxutha sesin
~?F+Xs1088,
The prooeebing wes far aandeurm8
to require tki
rrcaiaipelcourt to proma to ar6ar th4 ds*tmution of
of otrzarprsonel
the gsJing agjwmk6u~ a08 iwndsa3netlon
Th8 ju&ps ofthamn1l3ipa1cowttook the
ssm, although tha werrant wa$ iamt8d by them. The
Supreme Court hsld that the fgmbig a;parattU and lap&-
mast8 could be daetroyed end the otbdr pewtonal pro&MT-
6y eo~ademnsdsnd sol4 &r pxaper' not~bw buti wit&
xefwenoe to the rmmy in the iem bank, km awrt aaldr
536
wm be- opsratad in the plairrtiti*s;lace OS busi-
new, aad coctsined mormy t&at had baen played ther6in,
~e~d soleed by deputy sheriffs, and msohines uera be-
operated in viol&ion of lea et the tirasthey were
M zed, it was held that ;leiatifit
9 aould re0.0~~ from
the brsputisathe mormp contained in the rnaohine8at
the the of aeienm. TM oourt mid the mney vmd)not
~i&mMSy bad," that “it8 ordinary and austomary uBo
is not only lawful, but in met eeeea absolutely neoee-
8axy.w Be quote furtherr
V&I have no statute that provides tar its
ooadmnxati~ or oonfisaation. Where the plr-
pose and ordiaaxy iuseot pxspexty is lswful,
the plaintiff In aueh a oaae MJ the 0110at bar
is entitled to here hia proparty reetorsd m
returned to him * + * It is well established
that, rhila the law will not lend its aid to
one or the parties to an illegal transaction
or oontract, the rule baa appliaation a6 be-
tween the iwmdiate partfee only, and cue in
poeeesaion ot th6 fruit8 o? exaillegal tseim-
aotion or oontraot to az?iohhe UESSI
not a.pw%y
aamot invoke the rule. I,* * l
In the caee ot lbrrell Y. Clark 90 Kant. 566,
4P. (26) 7l.2, 7W Ar~L.B.lCfiC, oitd &yyi% in yomX
brief, the ehsriri of Wheatland County mleod tro~#lat
meahines n::iohbed been installed in t.heplelntifS*a
place oi bQaim6e under an agroesmntthat he would ay
to the amsr e pamontage or the saomy taken in, slli
arrested the plain~tiff, who pleaded &uilty to the chargs
of operd.ng them. The acurt oxdexed the saahinea ds-
etroyed and any monef ioand la thaw to be depooited
with the clerk OS the omzrt. After the dsrrtxuotlon of
the machiner, 8a41.85we ao deposited end on refu8el of
the clerk to tamitthe mazleyover to him, plaintiff
broup?;ht suit to recover the isoasy80 deposited, WWA
one judge disseutLne;, the Eupxwm Couxt or Kcmtaaa~held
that, while thx+etatut% eathori?$n& the seimre end de,-
struotlon of slot nsoblnee did k~#tauthorize the eeiaure
Of ao~ly 88 8UOh, t&J Shetiff t%$¬iWXdIdf t~i ~F~~ltS
in oarryin~ away the aonsy fmnd Lu ths ~rpaehiuee, and
that the plaiatifii aotion
coald net reoover it l.n(LB-
fox that puzrgOSQ*wita refemuas ta the Behamrul4 u
xo~. 3. a. t:om1asy,
PS@ 7
later mm:z~oed by the Claorg#a Oourt in CGzcppellv.
Stapl6ton, suyxa, the opinion points Q& that the foota
of the Fllegal enterpriseaf c+perritingthe elut rpcpohinae
wura neereeerll 618010twd tc th4 court by the plPin-
tiff In attempt fng to m&e a prims faah ~$0. Wm
quotrt
wnls the ppJlntE$f,edmitting a8 Yiolation
of t?..e law, asked thekid OS the very aowt
ohmgod with the duty of g9alahln$ that viola-
tion, and okioh bad pertorsnd that auty Zn
840~xln(i the rat8 0f hia tdia~, *pih hs
mlmittod &e *ioUd not be lntltledto rota&
under #a la+, had he reduced the aam to pan-
ae5Siozk.l I +
m P la i& iff aeaerts that tba geartal ml* is
that illsgalitycrmnot M set up by tithird
peram, tit is otiy available to a p&y to II.
acmtmot (IS c. J. 5008)
g but ha .i.d2o t0 mtb3
thet the kxt msdrr Vhic rn]Jsimofaottree
euhjeot to au sx0epticm,where it in attempted
to assert rights base4 oa tlm ocratraot.~ striat-
ly qetklng, there la 00 00mtxeet haxa inTQlTeu;
plaintitf rabrelyseek8 the aid of the aou%?t to,
mduoo to ~sssaion tb agofl.8 of th 18.~'~
violrtioa." __
¶%e KaHsaaa Cosat by a%gmes latqpxage,did not
pass uJ?uQ the UltLiPurba of the mo.wy, rxa
disgooiti6ri
wita4bastha rK&bwfn@lus(iae~~
53t
EQB. E. Q. &Toaeley,Fags 8
tramaation and seoure to the violatar the
zxuitllof CiS outlnwry."
While we haoe been unsbla to find anj'Tazas br-
oision equaraly in point, we bslleva~cartainlanmag@
used in the 08~ of Cam~ballY. Eood 55 S. Vf. (23%)93,
(Cum. App.) applicableto tha pxdplas hare under
amslderation, In that oaee the eouxt denied raaovery
for aomniasions on the aale of real estate, *hare a oor-
poration ritbcmt power to do so mada a oooltraotof pur-
Gh-0. Tha OpiBiOn revlere s?Ulydaoiaions, dieous8ing
the prlnoiplaseinvolved,of whiah the tollowing la a
typical axampler
Ttt is a aelntary prinoipla,unlvaraelly
a~~llad, that a court will dacliw to land ltr
aid to a parson seeking oompensatioa fox the
doing of an aat rhiah riolntee the publio
polioy of tha state as oxgreasly deolared by
tha law muldng power. A obar etatamnt of
thla principle in tlmt &iron by tE8 Supreme
Court of the United States IQ Bank of United
stetas v. OwenIL,8 Fat. 656, 7 L. Ed. 508,
wharela it is saldr
-%a oouxt 41 jostfca cu5 in it8 naturn
be made theaE&ndE8id or Iniquity. ceurfr
we in~itutad to saw into atiaot tbs
lava of a country;how aeatha than be-
come auxiliary tQ the ContmlnmR
x ion of
yiolatiorm of law7 * l * There can be
513oiril right, whore them CWJ ba no
lapel remdy; and tbera can be no lags1
remmdp, for that whioh la itself Illegal.'
*A&a,tha 881118
oourtin Cappall r,HdLl,
YUall.~,SS59,19 L.=d. 24& reaftinmd
this ,ilootr2na
in the baa of this langmqa:
rake prinaiple to be axtraated from
all the eases 16, that tb6 law will not
lend its support to a alaim faundsd
npcwaits tiolstion*'=
lion. ?L. 0. !,?Oou8lb)r,
Fa@3 3
g&U.ng duticea and depoeltsd with the alerk ai tIm
court, by order of th8 QOUPt, CCCUp166 tba Stat~U Ot
aoauy *in oustodia lb&a.- .
It has been generally eati that property is in
*custoMa legis” when it has been lawfully telbm by
euthority of legal pmoens, and n3a2ai~ in poa4wmion
of a publfa offloer or a ao*urtofficer ezupomeredby
law to hold It. Allmn'v, Hargadlne-8f6KittTlok Dxy
Goods Co., 925 lib.400, 2% S. W. (SC%)670, 6X3. See
also Union Indsanity QO. v. Florida Bank & Truot Co.,
48 ?a (Zd) 395, 697; BQUVIO~'U Lm DiotiOnw, 3rd R0V.i
and proparty seized by rirtuo of a abareh warrant haa
been 80 Qsnominated;~Dorrell '1.Clnrk, supra m&lo@ v.
Lawson, 146 Ore. BZl, 31 S. (Zd)-171,ZW; 6tate t.
Gambling 43 Aria. 1l.e.40 P. (Z-id) 746; 9471
Griete v. .., de 5. c. 369, 99 9.8. 703,
YTO!,ti
radio f&b oats8 urb aUthCWitib8 Qitbd,
and Othora, va agree 4th the anawur8 givea bp gou’ to
the first thrss ~aeetiona propoundedin your brie~f.
To axxmm~iae:
Pour fotwteh@$m~%ion prbssnt8 turthur dittiaulty to
whioh me ahalS no* advert.
540
Eon. Yz.0. !~'.osele+,
I-‘abp~
10
that
unable to follow your reo6ozxiae; ainos. -
=the ntnte is not batitled to tbs rmowy, that
the aousty is not entitled to_ th6 momy,.~that
_ _
aertalnlJrZIO~artlaclarpublla oTfiole1 is en-
titled to it a8 a natter ot right, end nslther
is any partiauler person, 60 the only dlspoai-
tian thet aan be mde of eaoh so-my is by order
Of the COtU?‘t in WhQS8 CU8todjr it 1~86 phObd
end held. .?&Faourt therefore, in &t-ndi8on-
tion, may ISEW any bonsfiaial. disporition
thsreof it
~6 my
iit, bbfq linitad odly to
the ate& such t&tUinpositiw should net bu
tmrea6oaeblbor ~1vOhU8, or a diSpO8d. that
would BhoQk th6 OOflFSCieXl~b Of 8 0-t Of
qnuity.*
We are lncllned to the beli8i that the prlnoipl8
enunolated in the following: lata@aagefro& the Suprraas
Court in the aaee of Withers tb Patteraaol, 27 Ter. 401,
86 Am. D80. 643, would control:
?Phe &rl6diatlon of the a6urt m6an8 the
power or authoritywhich f8 ooahrrad upon a
aan%, by the oonstituttonend laan8, to hear
and dmt6hLina Ba?mua b6tVI66n partis8, and to
s8rr;r it8 ,jU@iU3nt6 iQt0 eff#Ot. It i8 8
to the sstates or Qsoe&ntcl, aru all aoaferrud
by statute. Wbetsvsr the atatuts authariza8
the oourt to bo, it ump rfghtfallp do. But
it dues not folltm, because the etatnte eu-
thorizes the oourt to order the salb of land
under certain oir6wtenee8, that all 6albs
ai land by oxder of the ewrt are euthorizo&.*
a** (Bfipha6iS
Ours).
It is our apinion, wdst t&e radar a8 pra88ntiM
by ym, tbertthe writ of windannteaWd not bs euaaos8f'u1-
l~la4llnt6iu3a.f?% ‘f6X. JUT. %6&t, 9t Seq., aAd tiUthCQ?t-
ties oitad,
541
turn,by apprapriotsactlon doslgaates by etetute the
uee or function to wblah lt shot&% be a~plled‘. I+8en-
tertain no doubt, ?.%tthat, apprfersdor Its existence,
iansmutand present srtefns,a prompt aandate will ilau
zabst horrorablebody, direcrtiug ita spla,edy
dlopsn-
.
Upon mature reflsationand aarei\llaonslderatlon,
oath fo our rsaonmandation,rather then an attempted
awlaallsls
. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144527/ | IionorabloP. C. IWanson,
Eax-&ingCommissioner
Austin, Texas
3oar Sir-.
Opinion NO. O-1812
Ran Dui.liiiqand loan association6
-- Xigible invmtnents --
I?. ll. A., Tit13 1, ClZSS 3
insured mortqges.
'dehave ~OIW letter of January 18, 1940, .ad~is-
ing as follows:
*Your attention Is respectfully
CiiroCtedto the provisions of Sub-
section 2 of the lIuildi.ng
and Loan
Act, Subeeotfon 3 of the Building
and Loan Act, Section 3Sa anc'3Sb of
the Building and Loan Act, all relat-
w to invostn#nt of funds of build-
ing and loan associations in loans
insured by the National Housing Ad-
ministrator, and all Qffective prior
to July 1, 1030.
"Sffoctive July 1, 1939, Sub-
section B of Section 1703, Title 12
of the U.9.C.A (a prt of Title 1 of
the B. H. Act) 171~s amtied so as to
autborizo the insurance to the extent
of 16 of loans, not Gxcaeding $2,500.
00 iu mount, m&e for tho puqose of
erecting inpovooients on lanclowned
by, or (with cortnin rsstrictions)
Imld utier lease 13s t&3 borrolfer.
'Iliis
ametinont ~3lacesno linit on the
procnta,ge of the value of tilt3 p-op-wty
to 58 lOanEd.
Honorable P. C. Wanson - ?agc 2
Upon this statczsnt you subtit for a l,opal
opinion the follovin~ question:
*tiy a buil&ing and loan assccia-
tion, orgnniz& md existing m&r the
law of the State of Texas, invest
fun&s of such association in Title 1,
Class 3 loans, as above defined?.
It is the opinion of this departmnt that your
inquiry should be answered in the negative.
Under &ate of Seytefier 27, 1939, your then of-
fice counsel retiered you an opinion, ::o.882, saying:
.In ny opinion such loans are not
eligibla loans umler our Building J5Loan
Statutes. &2i$ciingSiLoan Association8
am quasi public corporations zml ore
lirnitsdin their powers of investment by
the term of the statutes regOating
then. Section 39 of the Euil&i.ng& Loan
Associations Act deals r?iththe subject
of investmnt of funcls. It specifically
enumrates the eligible securities and,
therefore, by necessary implication for-
bids all others. Those portions of Sec-
tion 38 dealing specifically aith respect
to the Xational ilousingAct, all require
such loans to be insured under the pro-
visions of that Act. Such requircrmnts
are found in Subdivisions 2, 3 and 5 of
Section 38.
mutier the povisions of the Xation-
al Bowing Act, as ammded June 3, 1839,~
the provision for insurance coverage is
not a ifullcoverage, but extenrisonly to
19$, for which reason such partially in-
surcd loans do not meet the requirement
of full insurance conteqlated by tha
&uildinr;5 Loan Associations Act.
OIt nil1 be borne in tind that at
of the zmen&3ent of cur 3uilb-
t&z tird.?
inp L:.
Loan Associations Act specifically
au&&zing invzstmnt in loans insured
Xionqrablzd; C. Branson - Page 3
under the Xationsl Housing Act, the
dot provided for full ccverage. The
National ilousingAct has been aDended
in this respect but the Building &
Loan Associations Act, from which our
associations obtain their authority
to invest, has not been amlrled car-
reepoadingly.
=Even as late as the 46th fiegisla-
ture (1939) the N. Li.A. loans as eligi-
ble tivestxients,were liberalized to
the extent of 9% of the appraised valu-
ation of the proparty, but they were
not liberalized so as to dispense with
the full insurance coverage existing
at the time our Uuil&in,r:
& Loan Associa-
tions Plotauthorized such loans in 1935."
Later, an& mder date of January 18, 1940, your
present office counsel r wsxainerl the question ati &vised
you as follows:
'C f *
SSf'feotiveXay 9, 1939, the Tesas
Legislature added Section 38-s, which
provides that until 1943 a building and
loan association may lend not oxaeeding
g($ on real estate, provid3cl*the loan
is insured by the F&era1 Housing Adminis-
trator.'
'For the reasons above mentioned,
it is w opinion that associations are
not authorized to invest in Title 1,
Class 3 loans. Obviously one cannot
be categorical in an opinion of this
nature, but we can absolutely be cer-
tain that an association is lidted in
that it cannot leml Eore than SO$ of
the appraised value on any character
of loan, even though insured fully by
the r'ederalUousins .Zkiinistrr.tor.*
,
Bonorable P. c. 233ranson
- ?age 4
it is not a question of the Soundness of the
investmrlt, rather it is a auestion of statutory con-
struction nit& respect to 0iigibie invcstsmnts. Thhis
is a utter exclusively for the Legislature. Ye oan-
not question its r&3dom.
Vary trulg yours
OS-ER | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144549/ | II OFFICE OF THE A’ITORNEY GENERAL OF TEXAS
23:
Ron. 0. 7. 8. Ell.in&fmb%ze 2
"If aatual flat tlma senrd is
more than 10 years end 1088 then 20
pars e 75.00
“it aotuel flat tlme served is
over 20 years s100.00
Tn eddItIo3to the pa9zaent11
shown abom,
the primmer ehcill
also rocelvethe preeorlbed
clothlnufor zelaeeeon diroherge.
*in cot-.putlqan lnmtO*B flat t&c43or
served, you shaul& fl@;uro
tina uotccilly rraa
the date lm wcm oentenoed, and not fron the
date he wea receivedat the penIteatIer9.
*Ifhena prl6ooaerreoolvesa Condltlonal
Pardon or Parole, regmdleor of when he 1s
releasedfzpn custody,he Ie to zsoelrol pay-
neat or $5.00, raiLroadtare rraa; the point of
re4lcaeoto plnct!ci ~convlotlon
ena the preecrlb-
ed olotfiing.
*%here 8 Candl t lw& Par&u or Per010has
boen revoklrrd
aad the prisoneris returnedto
prison ta serve h%a ~ntenae, the amount to be
paid hia upon dlsahar~ ehell be, (LOahown above,
baaed on the actual flat tlm froxcthe date of
his ap?rehemlon after revooatlonof olsa~ency
to the date of discharge. The time served prior
to i?eOelYlng the Condltlonal Z'ardon or Parole
connot be 00n6leer0e es ohe prisoner wan paid
et the t&se of his releeee,the stetutoryallow-
en80 of 85.00, reilroedtare from point of re-
lease to plea8 of oonolotitxi nne providedwith
the pnsoribe0 clothing. Xed tb oleaonoy(punt-
ed not been violated end the prisoner reaolned
out or prleon until he wae finallyeIaoherfg3e,
;;e;rthar psymmt would bare been wade by the
.
“mTRil?.?s:
When 0 p&toner Is granted a reprieve,
xqardleso of the length of time it aofars,no
peymc_at
of en9 nature 1s due hisa,and neither
is there any statutoryrequlre=eatfor cloth-
ing to be furnlehed.
wmae on extension of e reprieve not be
granted,or the reprieveis revokedand the IE-
rant8retwn0e to prison to fmrve the renaineer
of his sentence,the oontlnultyof tins soned
la not ocnsi8c~reebroken by the reprieve,and
in Uetarzlnlnp,the amount to be paid upon dls-
oharge, you should add the tlum served before
and after th.sropriovean& pay the imate in
aoooreancewith the aoheduleon the preoeelag
for flat tlm 60tually s0rveQ. The t&e
pair;8
servedbefore tho reprieveshould be oounted In
this aiiueaa the prleonerwas not given anything
whon he wua roleeeedon the reprlevo.
Where a reprieve1s revoked,the prlaoner
will not receivecredit on hS6 sentenoefor the
tlae he wu8 rcloaese on the reprieve, and hle
ornelt on the mcutenoewill 8top with the date
of his role&soon the roprleve.
“Eschq8 a
*lChen e prlucner esonpea, 1s reoeptureU
and returnedto prison to oompletehis sentenoe,
the amount due him at data of dleohar~ should
be orrlred at in the 8am manor as lf h? was re-
loaeod on a wprlsteI that 18, l.n doternrlniq
the flat time before and after the eno+pe,add
them toGether and then pay the fmounte in
the seheenls on pq6 1 for aotual flttt.‘time’ served.
AII1x1the uase et reprieves,the flat ttie before
the date of e8oape should be oounted in arrl91w
at total flat time nerved, as the prisonermm
not clven amhlag when he esoapetl.
=ln all of the above oases,the prisoner
5s entitledto withdraw en9 fun&s he ~a9 have
on deposit in the offloe or the SarQen or Semi
Eanagar upon his belng released."
you+ attent:onis dimm3e to Article 6166z(1)
Civil Statutesof Texas, nhioh statutegovernsthe
l?evleed
Hon. 0. z. 3. P,lUngabn,Togo 4
paymentson dlaohar berdon a8 est forth In
your above quo e
TaT%:: fu1r
*non a prImnor Is entitledto a din-
charEc trolaprI800,he or ehe abell be fur-
nished with IIwritten or printeddischargefro=
the snnegtw, with seol atilred,eI@ed by thr CCUL-
oear, glvlng prisoner98naas, date ol oentenoe,
fmm what County sentenced, enount or oaxautn-
tlon rooelvod,it any, the trade ho hen learnad,
ir CDJ, hie pmmion0y in 8a38, end auoh des-
oription60 say be praotlaable. Suah tliaoberg-
ad pemtm shall be turnlshodwith a daoent out-
fit of oitlzen’rolothingof good qunlityand
fit, end two suit8 OS unaem4ar; aad when a per-
aon and/or oonvloteotuelly servesover one year,
he shall mcnive Fifty Dollar8 ($50.00)IO mney
in vCdItIonto any Eoney held to his or her are-
&it, providedthat it e poraon end/or oonviot
doea not sotuallymrve one year Slat tine he
shall not reoelvePiftp Sllera (fMO.00);&ut
in llou thereef (L pcrrron 6erviag leara than one
year satual the ahall reoelve‘ik@nty-five Dol-
lam (&F&O) in money ti additionto any money
held to his or her oredit and a aeoent outfit
ai oitIeea*oolothlng ot geoQ quelltyand fit
and two ouits ai underwear, pmldod that lf
the natusl time rrorvdl exoebds ton (10) yeero,
the mm of money &ml1 bs Seventj-iIve fkllara
end ii the aatuol time served exceed8
h) years tho mm of rboney ehall be One
Eumlrod Dolles (8100.00). Aa far (LBmy be
praatloeblothe l’riaonIbard ray authorize a
are&ion of e Eureeu for tho purpose of plaoing
di6aharged priSoaera in oonneotion rIth ~cploy-
met&, providedouah will not be extra expense
to the YrIeon 3yat(h.g
Artiole 6603(10), Civil Statutesof Texas,
Revised
governing the 8eot:oaon ~4tion or wrole e8 mt
OOnait~0d
forth in year aInn4 quotail lottar-Pi,48 iollovm~
“Upon the dischargeOS eny prisoner upon
parole,either under the pro1ioion4 of tblo
Aet, or throw the exoroieo by the ~vemor
t?OD. 0. .',R. "lllD~8oa,Pap 5
o r lxeoutiveolemnoy, independentol t:ia Aot,
ruob prr8cn 80 percled,shall be rur-Asked by
the prcpar of~losrsof the State Ptlaon Fonrd
nit3 mob olotblnt PS Is usually furnlsbedto
prlronaraupon disohargsrroa prircn la thI8
State togathrr-; ith e railroad non-transferable
tlokrt rron t!m plaoe cr l;irdl6aha?gsto the
plaoe or his aonvSatIoDand 8entenae,am? In
addltloathereto the 8m or t5.09.a
AD opinionsddraeseb to 0. 2. 6. Ellingronby
foe i7.Alrup, Of Tantarp 6, lQS6, ocntained. In YOlme &69,
letter opi~icnsof the Attorney Gaceral,pe6c 877, holda
that where a aonvlat served less than one year and yes
relaaaedon E oondltioaalpardon1 and theraafier,was
arrestedand tuned anotherperiod of less than air month8
lrtsr havlag vlolatedt&a ocwl!rlonsor his pardon, upon
hi8 rubsequentdisotiarge, ha 1s entitledto oDly $gS.OO
tOr haring rtrwd lass than OIL@yea:, the oonstruotlonbe-
ing that the bgislsture intmd6d the aoovlotshould 8arve
ocnaaautlvatlae, 1~ o:der to x-aoalvathe paymentssat
forth in hrtlale61862(l),3evi8edClvll 6totutaeot Texnr,
Also, tbti de~artaicnt gives the additions1reason for the
hOldiBg in the alove opinionthat the ocnviot0111 have
reaeivedtTtcbtnetit8st tcrth In’Article6eOS(lO),Sevired
Cl011 StatutesOf Texas, above puottd, upon his raleaae on
4 ooaditionalBprdon.
The lubstanoao? the C&varnor~sproalaiaation
granting aleaenoyoontrolrits 0rre0t re~nPtilta8oi the
Be&la by ahleh it is designated. rr Part6 Elaak,.
69 s':i
tad
828.
It would 844~5 that Artiale 619G o? Title log,
R0lh.a Civil T;tDtutsr of Terss, a8 8et rortfiID rroo3pIled
Volwio 19 of ?awnon'rAanotatrd Clvll Statutes ct Texar,
would have aoze roroe and etttot with ruferanoeto the
dlaohargeof eonvlota. UO~?:ever luoh,is not true in hat.
At the regular aasnionof the 40th Lsylslature, Zcuse El11
59 ot.CbeptdrEl&, repealedall of Title 109, 3evIsed
Clrtl Statute8of Texas, cxceat article62OoJ.Thereafter,
at the tirrt oalled sessionof the 41st Leglslsturt,3mate
Bill Ea. 85, Se&loo '1,prcvldad en lswlmsnt of Artiah
6196, ?avlsod Clvll Statute8of Texas. The passage OS
Senate El11 83 dld not make an lnde endeat aat, but plaln-
ly stats8 an lnfeot!oato saend Artsole FlQ6,
: and sfnae
Your attonticn 3s direotad to that portion af
your nosaa~a whioh relatee:
-Zn oarputlngnn lnmte*s flat the or
t:r.eautually Berned,you ohould rlp,ure rror:
the date he mu senteaoed and not frcrr the
data 5.0WE moetoed at die penitentiury.*
?hlie stntcmnt In correat wlisrs the inmite ao-
eepte hls 89nteR00 UithOUt en UpJWtll. :ihnrtthe Imate
renaimtlin jail or was ia tho ponltcatiaryCuri% tls
appeal, hlr tlxo DoEins to run cn thr dote of tho ~Sabdr,tc.
There tha lnmte is at lar.go on bond or reco~niztmoe lend-
ing appeal hla tlm begins to run won hi6 arroet ead
the exeoutionot m oomftmont iamed by the trial oourt
upon receipt oi the nnndate. Art. 77fi, Cods of Cxldnal
Frocedura at Texan.
It is our opinionthnt ycur 3etter cor$eotly
ateteo the paysaonta due ooavlotswhen blaohnr@ or re-
loam34 on olemsncy. The Hatenents in your letter an4 the
reoitatfonaof the oplnlonaas rretforth herein are hereby
adoptod,
this to anawor yaui inquiry,we ure
Bolftwint,
Very truly prmro | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147477/ | Case: 15-60550 Document: 00513885441 Page: 1 Date Filed: 02/22/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-60550
Fifth Circuit
FILED
Summary Calendar February 22, 2017
Lyle W. Cayce
ESTEBAN POSCUAL-JIMENEZ, Clerk
Petitioner
v.
JEFF SESSIONS, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 006 221
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Through counsel, Esteban Poscual-Jimenez, a native and citizen of
Mexico, petitions for review of the decision of the Board of Immigration Appeals
(BIA) affirming the denial of his applications for withholding of removal and
protection under the Convention Against Torture (CAT). We review the
decision of the BIA and will consider the immigration judge’s decision only to
the extent it influenced the BIA. Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-60550 Document: 00513885441 Page: 2 Date Filed: 02/22/2017
No. 15-60550
2009). Questions of law are reviewed de novo and findings of fact are reviewed
for substantial evidence. Id. Under the substantial evidence standard, “[t]he
alien must show that the evidence was so compelling that no reasonable
factfinder could conclude against it.” Wang v. Holder, 569 F.3d 531, 537 (5th
Cir. 2009).
Poscual-Jimenez’s brief is virtually identical to the brief he filed with the
BIA. Furthermore, the arguments section contains only conclusory assertions
and no citations to the administrative record. See FED. R. APP. P. 28(a)(8)(A).
Because Poscual-Jimenez has not meaningfully challenged the BIA’s reasoning
that he was ineligible for withholding of removal and CAT protection, he is
deemed to have waived those claims. See Chambers v. Mukasey, 520 F.3d 445,
448 n.1 (5th Cir. 2008). Even if we were to overlook the waiver issue, Poscual-
Jimenez’s arguments regarding his request for withholding of removal and
CAT protection are without merit.
In order to be entitled to withholding of removal, an alien must show a
clear probability of persecution, i.e., that it is more likely than not that his life
or freedom will be threatened by persecution based on one of five enumerated
grounds, including membership in a particular social group. Roy v. Ashcroft,
389 F.3d 132, 138 (5th Cir. 2004); 8 C.F.R. § 208.16(b). To show persecution
based on membership in a particular social group, an alien must show that he
is a member “of a group of persons that share a common immutable
characteristic that they either cannot change or should not be required to
change because it is fundamental to their individual identities or consciences.”
Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal
quotation marks and citation omitted). A particular social group is one that
has “social visibility,” meaning that “members of a society perceive those with
the characteristic in question as members of a social group,” and
2
Case: 15-60550 Document: 00513885441 Page: 3 Date Filed: 02/22/2017
No. 15-60550
“particularity,” meaning that the group “can accurately be described in a
manner sufficiently distinct that the group would be recognized, in the society
in question, as a discrete class of persons.” Id. (internal quotation marks and
citation omitted).
We have declined to recognize business owners or people connected by
economic status as a protected group. Castillo-Enriquez v. Holder, 690 F.3d
667, 668 (5th Cir. 2012). A person’s employment is also not generally
considered to be an immutable characteristic. See Mwembie v. Gonzales,
443 F.3d 405, 414-15 (5th Cir. 2006). Thus, to the extent Poscual-Jimenez
claims he is a member of a particular social group based on the perception that
he and his family are members of a taxi association and own land and taxi
companies in Mexico, his challenge is unavailing. Furthermore, the record
reflects that the Zetas targeted Poscual-Jimenez’s family to extort money from
them and not to punish them for having a particular status. We have held that
economic extortion is not a form of persecution based upon a protected group.
See Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014).
To obtain relief under CAT, “an applicant must show that it is more
likely than not that he would be tortured if returned to his home country.”
Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005) (internal quotation
marks and citation omitted). Although past torture can support a CAT claim,
see 8 C.F.R. § 208.16(c)(3), Poscual-Jimenez did not present any evidence of
past harm, let alone torture. In addition, Poscual-Jimenez presented no
evidence that he would be targeted for torture by instigation or acquiescence
of the Mexican government.
Accordingly, the record does not compel a finding contrary to that of the
BIA regarding whether Poscual-Jimenez is eligible for withholding of removal
3
Case: 15-60550 Document: 00513885441 Page: 4 Date Filed: 02/22/2017
No. 15-60550
and CAT protection. See Wang, 569 F.3d at 536-37. Poscual-Jimenez’s petition
for review is DENIED.
4 | 01-03-2023 | 02-22-2017 |
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