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https://www.courtlistener.com/api/rest/v3/opinions/4147481/ | [Cite as State v. West, 2017-Ohio-643.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, :
Case No. 16CA3549
v. :
DECISION AND
DARRELL W. WEST, : JUDGMENT ENTRY
Defendant-Appellant. : RELEASED 02/17/2017
APPEARANCES:
Darrell W. West, Orient, Ohio, pro se Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
Hoover, J.
{¶ 1} Defendant-appellant, Darrell W. West, appeals the judgment of the Ross County
Common Pleas Court denying his “Motion for Discovery of and/or to Compel Production of
Audio/Video Recordings (DVDs or a transcription thereof).” On appeal, West contends that the
trial court erred in denying his motion because he needs the evidence to prepare his petition for
post-conviction relief; the trial court denied the motion without giving him time to reply to the
State’s memorandum contra; the trial court failed to rule on his subsequent “Motion for
Discovery of and/or to Compel Production of Internal Police Documents”; and the Clerk of
Court failed to timely journalize his “Motion for Discovery of and/or to Compel Production of
Internal Police Documents.” However, because the challenged judgment is not a final appealable
order, we lack jurisdiction to address the merits of his appeal; and we must DISMISS it.
Ross App. No. 16CA3549 2
I. Facts and Procedural Posture
{¶ 2} West was indicted by the Ross County Grand Jury on May 9, 2014, on one count of
trafficking in heroin in violation of R.C. 2925.03, a felony of the second degree. A few months
later, West pleaded guilty to the charge, was found guilty, and was sentenced to a four-year
mandatory prison sentence. West did not file a direct appeal.
{¶ 3} On March 23, 2016, West filed two documents: (1) a “Motion for Discovery of
and/or to Compel Production of Audio/Video Recordings (DVDs or a Transcription Thereof)”,
and (2) a “Motion for Discovery of and/or to Compel Production of Internal Police Documents”.
In both motions, West indicated that the requested evidence was necessary to prepare his petition
for post-conviction relief.
{¶ 4} The State filed a combined memorandum contra to West’s motions on March 31,
2016, arguing that West did not have a right to discovery.
{¶ 5} The trial court denied West’s “Motion for Discovery of and/or to Compel
Production of Audio/Video Recordings (DVDs or a Transcription Thereof)”, on April 5, 2016. In
its judgment entry, the trial court makes no mention of West’s “Motion for Discovery of and/or
to Compel Production of Internal Police Documents”.
{¶ 6} It is from this judgment that West timely appeals.
II. Assignments of Error
{¶ 7} West sets forth the following assignments of error for our review:
Assignment of Error I:
The Court erred by denying Appellant’s MOTION FOR DISCOVERY OF
AND/OR TO COMPEL PRODUCTION OF AUDIO/VIDEO
RECORDINGS (DVDS OR A TRANSCRIPTION THEREOF).
Assignment of Error II:
Ross App. No. 16CA3549 3
The Court erred by prematurely filing its journal ENTRY denying Appellant’s
MOTION FOR DISCOVERY OF AND/OR TO COMPEL PRODUCTION
OF AUDIO/VIDEO RECORDINGS (DVDS OR A TRANSCRIPTION
THEREOF).
Assignment of Error III:
The Clerk of Courts erred by delaying the journalization of Appellant’s
MOTION FOR DISCOVERY OF AND/OR TO COMPEL PRODUCTION
OF INTERNAL POLICE DOCUMENTS for a period of two days after its
filing date, because it is incorrectly listed on the Court’s docket as being on
March 25, 2016, but the actual filing date was on March 23, 2016.
Assignment of Error IV:
The Court erred by its failure to rule on Appellant’s MOTION FOR
DISCOVERY OF AND/OR TO COMPEL PRODUCTION OF INTERNAL
POLICE DOCUMENTS.
(Emphasis sic.)
III. Law and Analysis
Final, Appealable Order
{¶ 8} As an initial matter, we sua sponte raise the issue of whether the judgment appealed
from is a final appealable order, thus granting us jurisdiction to decide this appeal. “[T]he
existence of a final appealable order is a jurisdictional question that this Court can, and must
when necessary, raise sua sponte.” Savage v. Cody–Ziegler, Inc., 4th Dist. Athens No. 06CA5,
2006-Ohio-2760, ¶ 31.
{¶ 9} Appellate courts in Ohio have jurisdiction to review the final orders or judgments
of inferior courts within their district. Section 3(B)(2), Article IV of the Ohio Constitution; R.C.
2501.02. A final appealable order is one that affects a substantial right and, in effect determines
the action. R.C. 2505.02(B)(1). An order that grants or denies a provisional remedy is also a final
appealable order if: (1) the order in effect determines the action with respect to the provisional
Ross App. No. 16CA3549 4
remedy and prevents a judgment in the action in favor of the appealing party with respect to the
provisional remedy, and (2) the appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in
the action. R.C. 2505.02(B)(4). If a judgment is not final and appealable, then an appellate court
has no jurisdiction to review the matter and must dismiss the appeal. Prod. Credit Assn. v.
Hedges, 87 Ohio App. 3d 207, 210, 621 N.E.2d 1360 (4th Dist.1993), fn. 2; Kouns v. Pemberton,
84 Ohio App. 3d 499, 501, 617 N.E.2d 701 (4th Dist.1992).
{¶ 10} “ ‘Discovery orders have long been recognized as interlocutory,’ and are neither
final nor appealable.” State v. Colon, 8th Dist. Cuyahoga No. 103150, 2016-Ohio-707, ¶ 10,
quoting Klein v. Bendix–Westinghouse Automotive Air Brake Co., 13 Ohio St. 2d 85, 87, 234
N.E.2d 587 (1968). In other words, because the trial court’s judgment is subject to revision, it did
not fully determine the proceedings. Id. We still must consider, however, whether West’s post-
conviction motion for discovery is a “provisional remedy,” and is, therefore, a final appealable
order under R.C. 2505.02(B)(4).
{¶ 11} A provisional remedy “means a proceeding ancillary to an action, including, but
not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged
matter, [or] suppression of evidence * * *.” (Emphasis added.) R.C. 2505.02(A)(3).
{¶ 12} In the case sub judice, West does not claim that any of the evidence sought in his
discovery motion is privileged. More importantly, however, West’s motion is not ancillary to any
action or court proceeding currently in existence. Although West claims that he plans to use the
evidence to prepare and file a petition for post-conviction relief, no petition has been filed.
Accordingly, West’s post-conviction motion for discovery is not a “provisional remedy” as
defined by R.C. 2505.02(A)(3). See Gehm v. Timberline Post & Frame, 112 Ohio St. 3d 514,
Ross App. No. 16CA3549 5
2007-Ohio-607, 861 N.E.2d 519, ¶¶ 26-27 (holding that a motion to intervene for the purpose of
establishing a record in a separate action is not an ancillary proceeding to an action and does not
qualify as a provisional remedy for the purposes of R.C. 2505.02).
IV. Conclusion
{¶ 13} Upon review, we find that the trial court's denial of West's post-conviction motion
for discovery is interlocutory, as opposed to final, and does not affect a substantial right.
Furthermore, as previously discussed, West’s motion is not a “provisional remedy” as defined by
R.C. 2505.02(A)(3). Because the trial court's judgment denying the motion is not a final
appealable order, we do not have jurisdiction to consider this appeal. Therefore, we DISMISS
this appeal.
APPEAL DISMISSED.
Ross App. No. 16CA3549 6
JUDGMENT ENTRY
It is ordered that the APPEAL IS DISMISSED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk. | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147443/ | J-S95017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.C. A/K/A E.J.S., IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
APPEAL OF: J.S., FATHER
No. 2155 EDA 2016
Appeal from the Decree June 13, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000427-2016
CP-51-DP-0002711-2014
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED FEBRUARY 22, 2017
J.S. (“Father”) appeals from the June 13, 2016 decree entered in the
Philadelphia County Court of Common Pleas terminating his parental rights
to E.C. (“Child”), born in November 2014. We affirm.
The trial court made the following factual findings:
[I]n November . . . 2014, [the Department of Human
Services (“DHS”)] received a substantiated General
Protective Services (GPS) report alleging that the mother
had given birth to the child, E.C. and the mother tested
positive for drugs. The mother had a long history of drug
abuse. The mother was not participating in a drug/alcohol
treatment program. Furthermore, the report alleged that
the mother did not have appropriate baby supplies for the
child. The mother and the father, J.S. resided together.
On November 18, 2014, DHS obtained an Order for
Protective Custody [(“OPC”)] for E.C.
J-S95017-16
On November 19, 2014, the child was released from the
hospital and placed in foster care.
A shelter care hearing was held on November 20, 2014
before Master Alexis [Ciccone]. Master Ciccone lifted the
OPC and ordered the temporary commitment of E.C. to the
care and custody of DHS.
On November 26, 2014, an adjudicatory hearing was held
before Master Lynne M. Summers. Master Summers
adjudicated E.C. dependent and committed him to the care
and custody of DHS.
The matter was listed on a regular basis before Judges of
the Philadelphia Court of Common Pleas – Family Court
Division – Juvenile Branch pursuant to section 6351 of the
Juvenile Act, 42 Pa.C.S.A. §6351, and evaluated for the
purpose of determining or reviewing the permanency plan
of the child.
In subsequent hearings, the [Permanency Review Orders]
reflect the Court’s review and disposition as a result of
evidence presented, addressing, and primarily with, the
goal of finalizing the permanency plan.
On January 28, 2016, a Permanency Review hearing was
held before the Honorable Jonathan Q. Irvine. The father
did not attend the hearing. The father’s attorney was
present. A Termination of Parental Rights hearing was
scheduled for June 13, 2016.
On May 16, 2016, DHS attempted to serve a subpoena to
the father for the termination hearing scheduled on June
13, 2016. DHS obtained the service address from a Parent
Locator Service Report (PLS) dated February 3, 2016. The
return of service indicated that the father no longer lived
at the address where the subpoena was served.
On May 16, 2016, DHS attempted to serve a second
subpoena to the father for the hearing on June 13, 2016.
DHS obtained the service address from a PLS dated May 9,
2016. The return service indicated that the service
address did not exist. It was a vacant lot.
On May 26, 2016, DHS made service to the father for the
hearing on June 13, 2016. The subpoena indicated that
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the hearing was scheduled to be heard at ONE o’clock P.M.
Service of the subpoena was made by way of UPS
overnight shipping. The package containing the subpoena
was left at the front door on May 27, 2016. DHS obtained
the father’s current address from a PLS dated May 23,
2016.
On June 13, 2016, a Termination of Parental Rights
hearing for the father, J.S., was held in this matter. The
Court found by clear and convincing evidence that the
father’s parental rights of E.C. should be terminated
pursuant to the Pennsylvania Juvenile Act. Furthermore,
the Court held that it was in the best interest of the child
that the goal be changed to adoption.
1925(a) Opinion, 8/30/16, at 1-2 (“1925(a) Op.”) (unpaginated) (emphasis
in original).
On July 12, 2016, Father timely filed a notice of appeal. Father argues
on appeal that DHS failed to meet its burden because Father had completed
almost all of his permanency goals.
We review a trial court’s order terminating parental rights for an abuse
of discretion. In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). An
abuse of discretion “does not result merely because the reviewing court
might have reached a different conclusion. Instead, a decision may be
reversed for an abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” Id. (internal
citations omitted).
The Pennsylvania Supreme Court has explained the reason for
applying a particularly deferential standard to termination decisions:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
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J-S95017-16
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is
often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the
trial court and impose its own credibility determinations
and judgment; instead we must defer to the trial judges so
long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
Id. at 826-27 (internal citations omitted). “The burden of proof is on the
party seeking termination to establish by clear and convincing evidence the
existence of grounds for doing so.” In re Z.P., 994 A.2d 1108, 1116
(Pa.Super. 2010).
Termination of parental rights is governed by section 2511 of the
Adoption Act, 23 Pa.C.S. § 2511, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
The trial court found two grounds for termination of Father’s parental
rights, 23 Pa.C.S. §§ 2511(a)(1) and (2). However, we need only agree
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with the trial court’s determination as to one subsection of section 2511(a)
in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc). Thus, we will analyze the trial court’s decision to terminate under
section 2511(a)(2), which provides:
(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
***
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions
and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent.
23 Pa.C.S. § 2511(a)(2). To terminate parental rights pursuant to section
2511(a)(2),
the following three elements must be met: (1) repeated
and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the
child to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being; and (3) the causes of the incapacity, abuse, neglect
or refusal cannot or will not be remedied.
In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015) (quoting
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003)).
Father claims that DHS failed to prove by clear and convincing
evidence the requirements of section 2511(a)(2) because he was close to
achieving his single case plan (“SCP”) objectives.
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J-S95017-16
Here, the trial court found that DHS met its burden under section
2511(a)(2). In particular, it found:
[The Community Umbrella Agency (“CUA”)] social worker
testified that she informed the father of his SCP objectives
in person, through phone calls and through text messages.
The father was also invited to all of the SCP meetings. The
father failed to attend any of the SCP meetings. The
father did not complete anger management. Anger
management was an objective because the father was
threatening the kinship parents at his visits with the child.
Additionally, when visits were moved to the agency, the
father had an altercation with the social worker.
Furthermore, as a result of the father’s behavior, the visits
were changed from supervised at the CUA to supervised at
DHS. The visits were changed to DHS so that proper
security could be provided. Moreover, the father did not
visit the child after March, 2016. The social [sic] CUA
social worker testified that the father indicated that he did
not attend visits was [sic] because he had a new job.
Additionally, the CUA worker testified that the father would
“let him know” about visits. Moreover, the father failed to
respond to telephonic text messages sent to the father
regarding visits. The social worker testified that during
visits when the child cried for the kinship parent – the
father would end the visit. The social worker testified that
the father would say “I want to cut the visit short because
the baby is crying.” Lastly, the father did not have
appropriate housing. The social worker testified that the
father was evicted from his home. The father would not
provide a new address to the social worker.
1925(a) Op. at 4 (internal citations omitted).
The trial court’s findings are supported by the record. The evidence at
the hearing showed that Father failed to complete his SCP objectives. N.T.,
6/13/16, at 20-21, 23. The August 3, 2015 permanency review order
indicates that Father was ordered to complete anger management and
parenting classes. Although Father completed parenting classes, he did not
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J-S95017-16
complete anger management classes.1 N.T., 6/13/16, at 16-17.
Furthermore, he ceased visits with Child for two months because he had a
new job, but never followed up to reschedule lost visits or schedule future
visits at a time that would not conflict with his work schedule. Additionally,
after being evicted from his housing, he refused to provide a new address.
During Child’s 18 months of life, he has never been in Father’s care or
control. N.T., 6/13/16, at 23. Child has been in placement for his entire
life, and Father has only had limited contact with him. Father has
continuously failed to demonstrate a willingness or ability to parent Child.
“The courts of this Commonwealth have long held that a child’s life simply
cannot be put on hold in the hope that [a parent] will summon the ability to
handle the responsibilities of parenting.” In re Z.S.W., 946 A.2d 726, 732
(Pa.Super. 2008) (internal quotations omitted). Based upon Father’s poor
visitation history and seeming lack of interest in Child, the trial court
reasonably concluded that Father will not remedy the causes of his failure to
provide parental care to Child, and that DHS met its burden under section
2511(a)(2).
We next turn to section 2511(b), which we have described as follows:
Section 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
____________________________________________
1
Father began attending anger management classes, but never
completed them. N.T., 6/13/16, at 17.
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J-S95017-16
physical, and emotional needs and welfare of the child. As
this Court has explained, Section 2511(b) does not
explicitly require a bonding analysis and the term ‘bond’ is
not defined in the Adoption Act. Case law, however,
provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with
his or her child is a major aspect of the subsection 2511(b)
best-interest analysis, it is nonetheless only one of many
factors to be considered by the court when determining
what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33 A.3d 95, 103
(Pa.Super. 2011)) (citations and internal quotations omitted).
In his brief, Father does not argue that the trial court abused its
discretion in finding that the requirements of section 2511(b) have been
met. He, therefore, has waived any claim related to section 2511(b). See
Commonwealth v. Santiago, 980 A.2d 659, 662 n.3 (Pa.Super. 2009)
(claim waived where appellant fails to include argument to support issue).
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Even if Father had not waived this claim, we agree with the trial court
that it was in Child’s best interests to terminate Father’s parental rights.2
The trial court found that:
the child, E.C., has been in placement for his entire life,
eighteen months. The testimony established that
termination of the father’s parental rights would not cause
permanent emotional harm to the child. Furthermore, it is
in the best interest of the child to terminate the father’s
parental rights.
1925(a) Op. at 4. The trial court further found that:
the child, [E.C.], is in a pre-adoptive kinship home with his
maternal grandparents. The child does not have a
significant or necessary parental bond with the father. The
child has a parent-child relationship with the kinship
parents. The interactions between the child and the
kinship parents are loving, caring and bonding. The child
is safe in the home with his needs being met.
Furthermore, the child would not suffer permanent
emotional harm if the father’s rights were terminated.
Moreover, it is in the best interest of the child to terminate
the father’s parental rights and free the child for adoption.
Id. at 5.
We conclude that the trial court neither erred nor abused its discretion
in terminating Father’s parental rights.
Decree affirmed.
____________________________________________
2
See In re C.L.G., 956 A.2d 999, 1010 (Pa.Super. 2008) (en banc)
(considering section 2511(b) despite appellant’s failure to challenge trial
court’s analysis).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
- 10 - | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131501/ | The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Patrick J. Ridley Opinion No. ?lW-560
Supreme Court Building
Bell County Attorney
P. 0. Box 12546
Austin. TX. 76711. 2546
P. 0. Box 474 Re: Power of district judge in
5121475-2501 Belton, Texas 76513 one county to hold proceedings
Telex 9101674-1367 under section 17.03 of the
Telecopier 512/4750266 Family Code in another county
1607 Main St., Suite 1400
Dear Mr. Ridley:
Dallas, TX. 75201-4709
2141742.6944 You ask whether a district court in a county adjoining the county
in which a suit under section 17.03 of the Texas Family Code is filed
may hold the section 17.03 hearing when the judge of the court in
4624 Alberta Ave., Suite 160
El Paso, TX. 79905-2793
which the suit is filed is unavailable. Section 17.03 provides in
9151533.3464 relevant part as follows:
(a) An authorized representative of the Texas
1220 Dallas Ave., Suite 202
Department of Human Resources, a law enforcement
Houston, TX. 77002.6966
7131650-0666
officer, or a juvenile probation officer may take
possession of a child without a court order under
the following conditions and no others:
606 Broadway, Suite 312
L”tbxk. TX. 79401.3479
. .. .
606/747-5236
(3) upon personal knowledge of facts which
4309 N. Tenth. Suite B would lead a person of ordinary prudence and
McAllen, TX. 76501.1665 caution to believe that there is an immediate
5121662.4547
danger to the physical health or safety of the
child and that there is no time to obtain a
200 Main Plaza, Suite 400 temporary restraining order or attachment under
San Antonio, TX. 762052797 Section 17.02 of this code; or
5121225-4191
(4) upon information furnished by another
An Equal Opportunity/ which has been corroborated by personal knowledge
Affirmative Action Employer of facts and all of which taken together would
lead a person of ordinary prudence and caution to
believe that there is an immediate danger to the
physical health or safety of the child and that
there is no time to obtain a temporary restraining
order or attachment under Section 17.02 of this
code.
p. 2052
Honorable Patrick J. Ridley - Page 2 (Mw-560)
(b) When a child is taken into possession
under Subdivision (3) or (4) of Subsection (a) of
this section, the person taking the child into
possession shall, without unnecessary delay, cause
to be filed a suit affecting the parent-child
relationship and request the court to cause
hearing to be held by no later than the first
working day after the child is taken into
possession.
(c) The court in which the suit affecting the
parent-child relationship has been filed under
Subsection (b) of this section shall hold a
hearing on or before the first working day after
the child is taken into possession.... If the
court is unavailable for a hearing on the first
working day, then, and only in that event, the
hearing shall be held no later than the first
working day after the court becomes available,
provided that the hearing is held no later than
the third working day after the child is taken
into possession.... If the hearing established by
this subsection is not held within the time limits
required, the child shall be returned to the
parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian who
is presently entitled to possession of the child.
You advise that it is not uncommon -- especially in rural
counties -- for there to be only one district judge in a county. This
creates a problem when a child is taken from his home on an emergency
basis pursuant to section 17.03 (a)(3) or (a)(4), but the judge in the
county in which the required suit is filed is absent and no alternate
judge is available to hold a hearing within the time limit prescribed
in section 17.03(c). If a hearing is not timely held, the child must
be returned to the person entrusted with his care; for obvious
reasons, this may be detrimental to the child. You state that this
problem could be rectified if the district judge of an adjoining
county could hold a hearing in that county and enter an appropriate
order.
Article V, section 11 of the Texas Constitution provides, inter
alla:
And the District Judges may exchange districts,
or hold courts for each other when they may deem
it expedient, and shall do so when required by
law.
p. 2053
,. .
Honorable Patrick J. Ridley - Page 3 (MW-560)
Article 1916, V.T.C.S., provides that:
A judge of the district court may hold court
for or with any other district judge; and the
judges of such courts may exchange districts
whenever they deem it expedient.
Texas courts have construed these provisions very broadly. In
Floyd v. State, 488 S.W.2d 830 (Tex. Grim. App. 1972), for example,
the court stated as follows:
The expression 'whenever they deem it
expedient,' as utilized in both constitutional and
statutory provisions, confers on district judges
broad discretionary powers to exchange benches, or
hold court for each other, which is reviewable
only if an abuse of discretion has occurred.
Although better practice would require one, the
exchange may be accomplished without the necessity
of a formal order or entry on the record of the
reasons for such exchange.
488 S.W.2d at 832. Ex parte Lowery, 518 S.W.2d 897 (Tex. Civ. App. -
Beaumont 1975, no writ) states the rule in this manner:
district judges may exchange benches and hold
court for each other.... Further, we concede that
such an exchange may be effected upon the judges'
own initiative and that the making and entry of a
formal order is not required nor does the reason
for the exchange need be shown in the minutes.
518 S.W.2d at 901. Accord, w, Pendleton v. State, 434 S.W.2d 694
(Tex. Grim. App. 1968); Randel v. State, 219 S.W.2d 689 (TM. Crim.
APP. 1949); Baldwin v. Leonard, 110 S.W.2d 1160 (Tex. Cl". App. -
Eastland 1937, writ dism'd).
A section 17.03 suit must be filed in a court with jurisdiction
to hear suits affecting the parent-child relationship in the county in
which the child is found. Family Code §17.05(a). Under article 1919,
V.T.C.S., the judge of a district which embraces two or more counties,
including the one in which the child is found, could conduct the
required proceeding in any county in that judicial district. See
Hendricks v. Curry, 401 S.W.Zd 796 (Ten. 1966). Otherwise, a district
judge could not conduct the proceeding in a county other than the one
in which the suit is filed. If the judge of the county in which the
suit is filed is unavailable, however, we believe the foregoing
authorities establish that a district judge from another county could
hear the suit in the county in which the suit is filed, provided the
p. 2054
Honorable Patrick .I.Ridley - Page 4 (MW-560)
judges have agreed to exchange benches or hold court for each other.
It appears the proper course would be for the judges in a particular
locale to enter into an agreement covering this situation.
SUMMARY
The district judge of a county other than the
county in which a suit under section 17.03 of the
Texas Family Code is filed may hold a hearing in
the county where filed and enter an appropriate
order, provided the judges of the respective
counties have agreed to exchange benches.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
James Allison
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 2055 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131506/ | The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Gary E. Miller, M.D. Opinion No. MN-555
Supreme Court Building
P. 0. BOX 12546
C0HdSSi0l-l~~
Austin. TX. 78711. 2546 Texas Department of Mental Health Ice: Licensing of audiologists
5121475-2501 and Mental Retardation under article 4566, V.T.C.S.
Telex 9101674-1367 P. 0. Box 12668
Telecwhr 5121475-0266 78711
Austin, Texas
1607 Main St.. Suite 1400 Dear Dr. Miller:
Dallas. TX. 75201-4709
2141742.6944 You have requested our opinion on the following two questions
concerning article 4566, V.T.C.S.:
4624 Alberta Ave.. Suite 160
El Paso, TX. 799052793 1. Does article 4566 require that an
9151533.3464 audiologist with a master's or doctorate degree be
licensed by the Texas Board of Examiners in the
1220 Dallas Ave.. Suite 202
Fitting and Dispensing of Hearing Aids?
Houston, TX. 77002.6966
713,650.0666 2. If an individual with a master's or
doctorate degree in audiology is not licensed by
the Board of Examiners in the Fitting and
606 Broadway. Suite 312
Dispensing of Hearing Aids, may he/she make
Lubbock, TX. 79401-3479
6061747.5236 impressions for earmolds to be used as a part of
the hearing aid?
4309 N. Tenth. Suite B To answer your questions, we must analyze several provisions of
McAllen, TX. 76501-1665
article 4566. Paragraph (a) of article 4566-1.06, V.T.C.S., states:
5121662-4547
Every person desiring to engage in fitting and
200 Main Plaza, Suite 400 dispensing hearing aids in the State of Texas
San Antonio. TX. 76205.2797 shall be required to pass an examination given by
5121225-4191
the Texas Board of Examiners in the Fitting and
Dispensing of Hearing Aids. (Emphasis added).
An Equal Opportunity/
Affirmative Action Employer Paragraph (e) of the same statute provides in part:
Every applicant successfully passing the examina-
tion and meeting all the requirements of this Act
shall be registered by the Board as possessing the
qualifications required by this Act and shall
receive from the Board a license to fit and
dispense hearing aids in this state. (Emphasis
added).
p. 2031
Dr. Gary E. Miller - Page 2 (1.~+555)
Article 4566-1.01(f) defines "[flitting and [dlispensing hearing aids"
a*:
the measurement of human hearing by the use of an
audiometer or by any means for the purpose of
making selections, adaptations and/or sales of
hearing aids. The term also includes the sale of
hearing aids, and the making of impressions for
earmolds to be used as a part of the hearing aid.
Article 4566-1.19 provides:
Nothing in this Act shall be construed to apply to
the following:
. . .,
(3) An individual with a master's or doctorate
degree in audiology from an accredited college or
university may engage in the measurement of human
hearing by the use of an audiometer or by any
means for the purpose of making selections and
adaptations of or recommendations for a hearing
aid, provided such persons do not sell hearing
aids.
When the foregoing provisions are read together, the following
becomes apparent: (1) as a general rule, anyone who desires to engage
in "fitting and dispensing hearing aids" in this state must pass an
examination given by the Board of Examiners as a prerequisite to
becoming licensed by the board to do so; (2) the term "fitting and
dispensing hearing aids" includes those specific functions enumerated
in article 4566-1.01(f); (3) the examination and licensing
requirements of article 4566 do not apply to individuals with a
master's or doctorate degree in audiology who perform those functions
enumerated in article 4566-1.19(3); and (4) the functions enumerated
in article 4566-1.19(3) do not include all those functions enumerated
in article 4566-1.01(f).
In Cameron v. Terre11 & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.
1981), the Texas Supreme Court stated:
It is a rule of statutory construction that every
word of a statute must be presumed to have been
used for a purpose... Likewise, we believe that
every word excluded from a statute must also be
presumed to have been excluded for a purpose.
Only when it is necessary to give effect to the
clear legislative intent can we insert additional
p. 2032
Dr. Gary E. Miller - Page 3 (MW-555)
words or requirements to a statutory provision....
(Emphasis added).
This rule makes it clear that we cannot ignore the significant
difference in the wording of articles 4566-1.01(f) and 4566-1.19(3).
The former article includes functions which are simply not included in
the latter. Specifically, the former defines "fitting and dispensing
hearing aids" to include, inter alia, "the making of impressions for
earmolds to be used as a part of the hearing aid," whereas the latter
does not include this phrase. We can only conclude that the
legislature omitted this phrase from article 4566-1.19(3) because it
did not want to authorize individuals with a master's or doctorate
degree in audiology to make such impressions without a license.
It has been suggested that the proviso in article 4566-1.19(3)
indicates that the legislature really intended to permit individuals
with a master's or doctorate degree in audiology to perform = of the
functions included in the definition of "fitting and dispensing
hearing aids" without a license, as long as they do not sell hearing
aids. In other words, it has been suggested that the list of
functions which precedes the proviso in article 4566-1.19(3) is not
exhaustive, that the proviso is actually the key phrase in the
statute, and, therefore, that individuals with a master's or doctorate
degree must obtain a license only if they sell hearing aids.
We cannot accept this argument. In our opinion, the argument
places too much emphasis upon a proviso and not enough upon the fact
that article 4566-1.19(3) specifically omits one of the functions
included in the definition of "fitting and dispensing hearing aids"
set forth in article 4566-1.01(f). While it is of course possible
that the proviso was put in article 4566-1.19(3) to indicate that
selling hearing aids is the & function which individuals with a
master's or doctorate degree may not perform without a license, it is
also possible that it was added to the statute to clarify the fact
that persons with those degrees may "engage in the measurement of
human hearing by the use of an audiometer or by any means for the
purpose of making selections and adaptations of or recommendations for
a hearing aid" & if they do not sell hearing aids. In short, we
believe that the fact that article 4566-1.19(3) omits any reference to
making impressions for earmolds to be used as a part of the hearing
aid is far more significant than the fact that the proviso therein
refers only to selling hearing aids.
We therefore conclude, in answer to both of your questions, that
individuals with a master's or doctorate degree in audiology from an
accredited college or university are not exempt from the provisions of
article 4566 if they sell hearing aids or make impressions for
ear-moldsto be used as a part of the hearing aid.
p. 2033
Dr. Gary E. Miller - Page 4 (MW-555)
SUMMARY
Individuals with a master's or doctorate degree
in audiology from an accredited college or
university are not exempt from the provisions of
article 4566, V.T.C.S., if they sell hearing aids
or make impressions for earmolds to be used as a
part of the hearing aid.
Very truly yours,
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible and
Stan Reid
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Jim Moellinger
Stan Reid
p. 2034 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131539/ | The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Honorable Charles Evans, Chairman opinion Ro. m-522
Supreme Court Building Government Organization Committee
P. 0. BOX 12546
Texas House of Representatives Iie: Whether school district
Austin. TX. 76711.2546
512/475-2501
P. 0. Box 2910 may purchase property subject
Telex 910/674-1367 Austin, Texas 78769 to lien without election
Telecopier 512/475-0266 pursuant to section 20.04 of
the Education Code
1607 Main St., Suite 1400
Dallas. TX. 75201.4709
Dear Representative Evans:
2141742.6944
After providing us with the following facts:
4624 Alberta Ave.. Suite 160
El Paso, TX. 79905-2793
The Fort Worth Independent School District is
915/533-3464 interested in obtaining a piece of property in
east Fort Worth commonly referred to as the
'Oakbrook Mall.' Such property is currently owned
1220 Dallas Ave., Suite 202
by a Florida corporation called Senior
Houston. TX. 77002.6966
7131650.0666
Corporation. Senior Corporation has assumed an
existing note, subject to a deed of trust lien, on
the property in the amount of $1,100,000.00. This
606 Broadway, Suite 312 note is currently being paid by proceeds from a
Lubbock, TX. 79401-3479
lease on a portion of the property to Montgomery
6061747-5236
Wards, such proceeds being assigned to the
noteholder to further secure payment of the note.
4309 N. Tenth, Suite S
McAllen, TX. 76501-1665 The district is attempting to negotiate with
5121662.4547 the owner a purchase of the owner's interest in
the property subject to the existing $1,100,000.00
200 Main Plaza. Suite 400 note. Under this proposal, Senior Corporation
San Antonio, TX. 76205.2797 would remain personally liable on the note, the
5121225~4191 deed of trust lien would remain to secure the note
as well as the assignment of the Montgomery Ward
An Equal Opportunity1
lease proceeds, and the district would receive the
Affirmative Action Employer property in fee simple subject to the lien for the
payment of that note.[,]
you pose the following question:
Does the Fort Worth Independent School District
have legal authority to purchase a piece of real
property subject to an existing lien, where the
p. 1891
Honorable Charles Evans - Page 2 (MW-522)
school district does not expressly assume the note
secured by the lien, and where the school district
is therefore not liable on such note, without
obtaining the approval of a majority vote of the
electors of the district in the manner provided by
in section 20.04 of the Texas Education Code, or
would such action violate either section 20.48 of
the Texas Education Code or article 3, section 52,
of the constitution of the state of Texas?
Section 23.26 of the Education Code specifies that the trustees
of independent school districts "may acquire and hold real and
personal property" in the name of the district. Such language
contains no restrictions and is very broad, but for reasons explained
below we are of the opinion that it will not extend so far as to
authorize the proposed transaction, absent voter approval.
Subsection (a) of section 20.48 of the Education Code provides
that "[t]he public free school funds shall not be expended except as
provided in this section." Subsection (d) addresses school districts
of a description that includes the Fort Worth Independent School
District, we understand. It specifies that they:
shall, in addition to the powers now possessed by
them for the use and expenditure of local school
funds and for the issuance of school bonds, be
expressly authorized and empowered, at the option
of the governing body of any such school district,
in the buying of school sites and/or additions to
school sites and in the building of school houses,
to issue and deliver notes of the school district,
negotiable or non-negotiable in form, representing
all or a part of the purchase price or cost to the
school district of the land and/or building so
purchased or built, and to secure such notes by a
vendor's lien and/or deed of trust lien against
such land and/or building, and, by resolution or
order of the governing body of the school district
made at or before the delivery of such notes, to
set aside and appropriate as a trust fund, and the
sole and only fund, for the payment of the
principal of and interest on such notes such part
and portion of the local school funds, levied and
collected by the school district in that year
and/or subsequent years, as the governing body of
the school district may determine, provided that
in no event shall the aggregate amount of local
school funds set aside in or for any subsequent
year for the retirement of such notes exceed, in
p. 1892
Honorable Charles Evans - Page 3 (MW-522)
any one such subsequent year, 10 percent of the
local school funds collected during such year.
The district may issue the notes only if approved
by majority vote of the resident, qualified
electors voting in an election conducted in the
manner provided by Section 20.04 of this code for
approval of bonds. (Emphasis added).
The foregoing is the only provision of the statute expressly
authorizing a school district to place a lien against its property in
order to secure payment of an obligation. Cf. Educ. Code §§20.43
(time warrants), 20.49 (maintenance tax notes).
A purchaser who takes mortgaged property without assuming the
mortgage debt is not personally liable for the debt (in the sense of
being responsible for any deficiency beyond the value of the mortgaged
p=op==ty), but the property continues as the primary source for
payment of the obligation. See Kansas City Life Insurance Company v.
Hudson, 71 S.W.2d 574 (Tex>iv. App. - Waco 1934, writ ref'd);
Fidelity Union Fire Insurance Company v. Cain, 28 S.W.2d 833 (Tex.
Civ. App. - Dallas 1930, no writ); 39 Tex. Jur. 2d Mortgages and Trust
Deeds, 5597, 98, at 122.
In other words, if the district purchased title to the property
while the property remained subject to an outstanding mortgage or deed
of trust lien, the interest of the district therein would be subject
to defeasance should the district's grantee default in payment of the
underlying obligation secured. The fact that the district had not
assumed the obligation so as to make itself directly liable on the
outstanding note would not in itself prevent the loss of the
district's investment.
In effect, the property interest of the district would be
mortgaged to secure the repayment of the outstanding indebtedness
against the property -- that is, the debt of a third party. We need
not consider the possible application of article III, section 52(a) of
the Texas Constitution (precluding the lending of credit by a
political subdivision to any individual, association or corporation),
or examine the doctrine that prevents a political subdivision of the
state from entering agreements that would potentially control or
embarrass it in the exercise of governmental powers. See Clear Lake
City Water Authority v. Clear Lake Utilities Company, 549 S.W.2d 385
(Tex. 1977). In our opinion, section 20.48 provides a statutory bar
to the proposed transaction unless the procedural requirements of
subsection (d) thereof are met.
Section 20.48 of the Education Code was derived from former
article 2827, V.T.C.S., the provisions of which were interpreted as
showing the general policy of the legislature with respect to the
p. 1893
Honorable Charles Evans - Page 4 (MW-522)
expenditure of funds belonging to a school district. See Flatonia
Independent School District v. Broesche, 176 S.W.2d 223(Tex. Civ.
APP. - Austin 1943, writ ref'd). Cf. McKinney v. Chambers, 347 S.W.2d
30 (Tex. Civ. App. - Texarkana 196cwrit ref'd). In our opinion, the
provisions of subsection (d) expressly detailing the conditions under
which school sites and school buildings may be subjected to liens
indicates the policy of the legislature with respect to the purchase
with school funds of property which will thereafter become or remain
encumbered. That policy requires approval of the voters of the
district.
We conclude that a purchase by the Fort Worth Independent School
District of real property subject to a continuing lien without
obtaining voter approval in the manner required by section 20.48 of
the Texas Education Code would constitute a violation of that statute.
SUMMARY
A purchase by the Fort Worth Independent School
District of realsproperty subject to a continuing
lien without obtaining voter approval in the
manner required by section 20.48 of the Texas
Education Code would constitute a violation of
that statute.
z*
MARK WHITE
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
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood
p. 1894 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144562/ | Hon. H. A. Glass, Director
Textbook Division
State Department of EduCation
Austin, Texas
Dear Sir: Opinion No. O-1837
Re: General Appropriation Act, 46th
Legislature -- Department of
Education--Textbook Division--
Custodian of Textbooks;-Expen-
ditures--Reimbursement.
We acknowledge receipt of your letter of January 5, 1940, sub-
mitting the following questions for a legal opinion, to-wit:
"1. May this Division legally reimburse bonded custodians
of free textbooks for expenditures made by them in con-
neation with the distribution of free textbooks to pupils
of the free schools of this State:
"2. If you answer the foregoing in the affirmative, then
may this reimbursement be made from that portion of the free
textbook fund allocated by the State Board of Education
from the available school fund but not appropriated by the
Legislature .for-aspec$fic purpose?"
The pertinent Articles of the Civil Statutes governing the matters
inquired about by you are as follows:
"Article 2866. The State Board of Education is hereby
authorized and empowered and it is made its duty to pur-
chase books from the contractors of textbooks used in public
free schools of this State and to distribute the same with-
out other cost to the pupils attending such schools within
this State in the manner and upon the conditions herein-
after set out."
"Article-2867; In order to carry ou&,the provisions .of~this
-Act the State Board of Education shall annually at a meet-
ing designated by them each year, set apart out of the
available free school fund of the State an amount sufficient
to purchase and distribute the necessary school books for
the use of the pupils of this state for the scholastic year
ensuing."
Hon. H.A. Glass, Page 2 0-1837
"Article 2868. The State textbook fund of this State shall
consist of the fund set aside by the State Board of Educa-
tion from the available school fund as is provided for in
this Act, together with all funds accruing from the sale
of disused books and all moneys derived from the purchase
of books fromboards of school trustees by private indi-
viduals, by schools, or from any other source."
"Article 2869. The State Board of Education shall require
from the Stats Superintendent on July first of each year
a report as to the funds necessary for the purchase and
distribution of (or) other necessary expenses ofschool
books for the regular school session of the following year,
and said Board of Education shall have the power to set
apart from the available school fund the estimated amount
with 25 per cent additional, this additional sum to be
used to meet emergencies or necessities caused by unusual
increase in scholastic attendance or by unusual and unfor-
seen (unforeseen) expenses and school conditions. Funds
transferred in the text book fund shall remain permanently
in this fund until expended, and shall not lapse to the
State at the close of the fiscal year. The State Superin-
tendent of Public Instruction shall be required to include
in the aforementioned report to the State Board of Education
a statement as to the amount of this fund which is unexpen-
ded, and said amount shall be considered by the board in
determining the necessary expenditures for textbooks for
the following year."
"Article 2876h. All necessary expenses incurred by the
operation of this Act incident to the enforcement of this
law shall be paid from the State Textbook. Fund herein
provided for upon bills approved by the State Superinten-
dent of Public Instruction, and shall be paid upon warrants
drawn by the Comptroller upon the Treasury of the State."
"Article 28763. The provisions of this Act are intended
to furnish a complete plan for the adoption, purchase,
distribution and use of free textbooks to be supplied to
the public free schools of the State. All laws and part
of laws in conflict herewith are hereby repealed."
It is thus made the duty of the State Board of Education to pur-
chase and distribute textbooks free to the pupils attending the
public free schools of the State. This means the Board must pay
the reasonable and necessary expenses incident to such distribu-
tion. The specific rules as to the requisition, distribution,
etc. of books may be made by the State Superintendent of Public
Instruction, subject to the approval of the State Board of Educa-
tion, but such rules may not conflict with the provisions of the
statutes. (Article 2876b)
Hon. H. A. Glass, Page 3 O-1837
Your first question, therefore, is answered in the affirmative.
Article 2876h, above quoted, declares that all necessary expenses
incurred in the operation of the Act incident to the enforcement
of the law shall be paid from the State Textbook Fund therein
provided for.
In a general rider attached to the appropriation, it is provided:
0 ...that any amount expended for textbooks administration
including new textbooks rebinding and any oth.erexpenses
connected there,fCthshall be paid out of the State Text-
book Fund."
There is no specific appropriation contained in the bill to the
contrary of the rider just quoted. The rider, it will be seen,
is in keeping with the statute above quoted, and it is well
settled that if it were not it could not operate to change the
general law, for it is the undoubted rule that an appropriation
bill in contravention of a general statute is of no force or
effect. (Stats v. Steele, 57 Tex. 203; Linden v. Finley, 92
Tex. 451; Attorney General's opinion 1916-1918 p. 110/ Attorney's
General's opinion no. 2965, 1034-1936 p. 46; Attorney General's
ofiinionno. 2970, 1934-1936, p. 72.
So that, your second question is also answered in the affirmative.
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY
APPROVED JAN 16, 1940 Ocie Speer
Assistant
W.F. Moore | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144563/ | Ron. William C. McDonald ,OpinionNo. O-1836
County Attorney Re: Is It legal to create a
Coke County road district and vote bonds
Robert Lee, Texas thereon within a road di~strict
that has already been formed
Dear Sir: ,andhas bonds already voted?
We .arein receipt of your letter of January 8, in
which you request our..opinionupon the,above captioned ques-
tion. The facts underlying-yourquestion are as follows:
"There is an original road district within
Coke County which includes all of Precinct #3;
said district being bounded by said Precinct & 3
lines o The district now has a bond issue of
$25,000 outstandingagainst the same.
"A group of resident citizens of this precinct
and road district desire to form a new district
within the said district above referred to, and to
vote a $20,000 bond issue thereon,,said proposed
new district to have the boundary lines of-the
Water Valley Common School District which'is lo-
cated within said Precinct #3; and the purpose of
said bond issue to be for the completion of a school
bus route within said district.'
The foregoing quotation is taken from your brief.
Articles 752a, et seq., of Vernon's ~RevisedCivil
Statutes9 prescribe the only manner in which a road district
may be created, Article~752aauthorizes counties and politi-
cal subdivisionsthereof to issue road bonds, and, likewise,
such road districts as may be created by general or special
law are authorizedto issue road bonds. Article,752b~pre-
scribes the manner in which elections shall be held for the
purpose of voting the bonds authorized by.the preceding arti-
clee
Article 752c'confersupon the commissioners1courts
of the several counties of this State the authority to estab-
lish one or more road districts in their respective counties,
and limits such authority by its terms. Article 752cc
Hon. William C. McDonald, page 2
expressly forbids the overlappingof previouslyestablished
road districts by districts created under authority of Arti-
cle 752c, exceot as saecificallyaermitted under this Act,
which reads as follows:
"If any road district, a portion of which is
proposed to be incorporatedinto a new road dis-
trict, should embrace the whole or any part of any
levee improvementdistrict, drainage district or
other improvementdistrict created under any iaw
passed pursuant to Section 52, Article 3, of the
Constitutionof this State, the territory covered
by such other district and other territory adjacent
thereto may be excluded from the district sought to
be created, but exceot as herein saecificallvoer-
mitted. no fractionalDart of a arevlouslv created
road district shall be included within th limitq
of the road district created under the nr&ision of
this Act ***a
This applies to road districts establishedby the Commission-
ers' Court, as distinguishedfrom those created by the Legis-
lature by general or special law.
Articles 767d and 767e, Vernon's Revised Civil Stat-
utes, prescribe the only manner in which a road district may
be created, the territory of which includeswithin its limits
any portion of a previously created road districtwhich has
road bonds outstanding. It will be noted that both of these
articles contemplatethat such previously created road dis-
trict shall be fully and fairly compensatedby the new dis-
trict in an amount equal to the amount of the bonds outstand-
ing against such included district. The pertinent parts of
Article 767e read as follows:
"Where any road district includes within its
limits a portion of any previously created road
district * * * and which previously created road
district * * * had road bond debts outstanding,
power and authority is hereby conferredupon the
newly created road district to issue bonds for
the ourchase of the roads within the ureviousle
created road district * * * and further construc-
tion of macadamized.graveled or aaved roads and
turnpikes in such s;bsequentlycreated road dis-
trict * * *II.
We call your attention especially to the underscoredlanguage
appearing in this article. This, we think, expressly provides
Hon. William C. McDonald, page 3
that any bonds voted and issued by a road district overlapping
a previously created road district shall be issued for the
purpose of purchasing such roads as may have been constructed
by the previously created district, as well as for the purpose
of further constructionof roads within the area circumscribed
by the new road district.
A rticle 752cc, above quoted, contains this phrase --
"but except as herein specificallypermittedw--and it is our
opinion that such phrase has reference to Articles 767d and
767e, which,'as stated above provide the only manner in which
a newly created road district may overlap the territory of a
previously created road district which has bonds outstanding.
Accordinglyyou are advised that in our opinion a road
district may be created and vote bonds therein within a road
district which has already been establishedand which has bonds
outstanding but it must be in the manner prescribed by law and
in conformiCywith Articles i67d and 767e.
Trusting that this satisfactorilyanswers your ques-
tion, we are
Very truly yours
APPROVED FEB 15, 1YhO ATTORNEY GENERAT,OF TEXAS
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS By /s/ Clarence E. Crowe
Clarence E. Crowe, Assistant
APPROVED: OPINION COMMITTEE
BY: BWB, CHAIRMAN
CEC-s:wb | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144643/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Hon.5. F. Blgbn
Eountyitttvrnsy
Braeorla CounQ
An&itm, leas
Pear 81x1 A
Opinion No.O-JILW \
Ret 5larlan cif 0 mI aslonnbrn
or Bxaaerla ounty.
& ,f
0 Caamiaarionar6 am, natur-
rai6lng their ealarlee if
blb, aad, nseblests, to say
,OOO.OcL*aluablon lkasorla
rundrto.pay euoh eel&tier.
n on maWag the Bill an a
&h* be Oonstrtwted to alban that
the bikhrd~ill of Qhe CQmmLasionerrshauld be ia-
Ron. J. P. Wan, Pam S
aludeU also.
“1 would appreoiate your opinion on this
mattbr.”
Artiale 39lSa, Seotion 15, Ravimd Civil Statute8
of Texas, a oopp of whlah 700~ enoloeed in your letter reads
as follfmba
“Sea. 15. Ths hnmisolonerel Court In
oountiarr having a poptilatlon of leas than
twenty thousand (80,000 ) inhabitante, aoaord-
ins to the last preaedln(2 Federal Canma at
the first reuular #ee$lng in January of eaoh
oalsndar year may pass an order r0viaing
?or oompansation ti all oounty a ni PreOifiOdt
officers on a salary basis. Thi+C~ssloner8*
Court In eaoh of such oountlas ie hereby author-
iaea, and It ehall btl lte duty, to fix tha
@alarias of’ Criminal Dlstrlot Attorneys. In
the event eudh ,oouxt parses suoh order they shall
ap to each of said Distrlot and Count,y offioers
n money an annual 8alary in twalve (13) equal
li)~
in8tallments of not lam than the total sum earn-
ad aa oarmpansation by mid offleer in hi8 said
otliolal oapaoity far the gisoal year o? 1935
and not ,~ore than the marimumall&m auoh oft%-
oer under laws exleting August 24th 1935, and
not mwe the the m&mum amount ali owad suoh
srtfloes unddi lane erietlw August 84, 193s.
prapidad, that in eountiea having a opulatlon
or 161~8than twenty %houana (83 0007 lahabltants,
aooonllng to the labt preoading gederal Cenaus
and havin an aseessed valuation In exosss of 8&n
Million ( sf10,004,000.00) Dallar~ aaoordlng to
the last preaeaing approved tax roll of auah
oounty the maximldaamount allcued auoh offloera
aa salarfe6 may be lnoraasea ona (1%) per oent
for eaoh One #illion (81,000,000~00) D0lJ.a-s
valuation, or fraotional part theraof, in axoasf~
or stid Ten ?ZilllOn (#lC,OOO;OOQ.OQ~Dollar8
valaation over and above the maxImumamount allczw-
ed such oftloera ,under laws exi&in& on August
34, 1935; provided, however, no salaries eoverea
by thie ,Seoti,on ehall~ex!~sd the firm of Four Thou-
sand rive Runiwea ($4,500~~00) D~llare regardless
o? the perasntage al inotiaee ixi population and
valuation and pravided further that in all ooun-
ties having a .poptilatlon of not lees than twenty
Ron. f. 9. Bxyan, Faga 3
thousand and one (EO,OOlj end nor more than
twanty-rive thowma (eS,~OOO), aaoordIn& to
the laet pmasdlna XTederal Censuib, and nhloh
has an aeeeeeed yaluatlon in eXOB88of ‘Ikenty-
itve Xillion (&!S,OOO,OOO.OO)Dollar8 aOOOxaiug
to the last prsoedlng approved tar roll of suoh
oountlea, the aounty ;judge, sheriff, aounty
attorney, afmessor an6 oolleator of taxea, oounty
olerk and dietriot olerlc, the maximumsalary is
hereby fixed at Three Thousand Seven I!unarod and
Fifty (#3,780.00) Dollara.
“(a) The oampensatlon of ai Criminal DIstrIot
Attorney, or County Attorney who performs the
duties of nfetriot Attorneys, togcther with the
compensation OS hti assistante, shall be paid out
or the %nanty Mfloere* Salary Fund, but the 8tat.a
shall pay Into suoh Fund eaah year en mount
equal to a sum whioh bearer the same proportion
to tha total salary of tauohCriminal Dlstrlot
Attorney, or County Attorney pertorminR the duties
at a Dlatriot Attorney, tagethex with the salary
of Me aasirrtants, ae ~a11 felony fesa oolleotea
by moh ofYials1 aurlng the year of 1935 bear to
the total faeci oolleoted by euoh offlolal during
mob pear.’
The pbpulatlon of Brazorla County, Texae, aooord-
%ng to the last preasding Fecteral Census le 23,054. The
Comptroller aleo’ Inform8 u6 that ths 1939 aesssned value-
tion o? EiranrorlaCounty ie $49,670,531.
We reiapeotfull aall your attention to Article5
2350, 8330(l) and a3!50(33 or the Bevlead Clvll Statttes
of 'Pexaaa,whlQh read as follows8
Article 3330 t
*)m counties having the rollowing aaoosoed
valuations, rsepeotively aa ehm by the total
a6~ssersedvaluations of ah propertlea certified
by the oauaby LMWMBSO~ and approved by the Cm-
mIssXoner8 Court, for eaunty purposes, for the
previous Feax, iron, time to time, the Co:.hnty
Ccm&selonsre a2 suah counties nhall each recc?ive
0lttkXla1~a1~rS.e~ not to mooed ths awxlnts
herein speoitlad, eaid salaries to be paid
in equal monthly installments, at leeat
one-half andnot exoeadinp; three-fourth6
out of die Road sad Triage Fund and the ri-
mainder aut af the Oensrsl Fund of the
eQunty$ sat4 nrrecsaead,valurtians and salaries
applloeble tharreto being es follows:
Sa5erfee to be paid
"&emsmd
Valuationssash Comdeeioner
6,OOO,OOl ana lees than
8 1O;OOO;OOQ
m,oooiooi
not to ex0etba. . . .
ana me than
.imoo.oo
13~000,000not t0 6imQsa . . . . .$1a00.00
13,OOO,OOl and less than
zo,ooo~ooonot to axoeba . . . * .#1a00.00
~O;OOO;OOland lef4s than
80,OOO;OOOnot~ta uxaeed . . . . .4eeao.o0
SO~OOO~OQl w@ pleas than
78;00&000 noli 60 sxoeea . . a .
78~000oob~ ma leas than
.&400.00
wb;Oati;OOO not “to uxmed. . . .
lSO,OOO,OO1fand lese than
.&400.00
lSO,OOO*OOO aa to oxaced. . * .
lS0,000,OOl and over . . . . . ..’1:c%i:
.
%I oountiea havln asmesed valuation cf
less than Ft~urKillion 8 lo6 Euridred Thouezind
Dallara (‘t@,SoO 0001 eaoh aaaanirssloner &hell
reosfve Five f>o&rs (8s) per day far eaoh day
served eo oambmlon~r, and a lllce amount when
aot%n,g an sx-offioio~ road arnpsrintendsnt in hla
CommW~loner~s Preoinot, providing in no event shall
his total,oompupensatlon exceed Eins Huntlred Dal-
larr (#POOPin any one year.,
WI aaunties bavina asesssetl valuation of
mom than Four BillSon )Ita Bandred Thousand and
One EdJars ( and lssa than Six Ml-
licin Pillars eat& ootmlselaner shall
ruosive Five per ilay for eaoh day
semta RB wmmisslcner, and a llku zmmuntwhen
aot,lng~as a-af?l.aio ‘meid aupe*lrlntandent In h%s
C!omaiaeloner*e ~ealnet, pr0viaiba in no event
Eon. J. P. Brran,Pew 5
shall his total compensation exosed Twkelve
Kundred Dollars ($leOO) In say one year.”
Artiols 2550(l):
“86 salary al each County Comie~ioner
and each County Judgs’mag be paid wholly out
of the County General Fund or, et the option
OS the Coaxaleeioners Court, mayibe paid out of
the County Genaml Fund and out of the Road
end Bridge Fund in the fallewing proportions:
Oount Judge not to exaeed seventy-five per
oent TIS%) e? euoh salaries may be paid out of
the Road and Rridgs Fund, and the remainder
out et the General Fund of the County, an8
eaoh Cauaty Ctmmisaienerta ealar IBAY,et the
disoretlen of the kaxis~ioners Eouxt, all be
paid out of the Read land Rridge Fund; provia-
ed this ‘Seation ahell not qply exaept in
oeuntins where the eonatitutional limit of
twenty-five cents (2Qtl on the One Hundred
IMlare lQI100) le l.evieQ for general pu2-pof~ss.v
Axtiole lS%O(a) I
@Qie Qnmlssicneria Court et Its ~firat
raguler meeting eeoh year ahall, by order duly
made and entarea upon the Kinutes of same Court,
fix the aalariaa of the County CcmrSesionerla
ror suoh peer, within the linits ee provided
ior in thPs Ad.”
YetI are reapeatfully advised that ft 1s the opin-
ion of this dspertmetit that Artiol,ee 8360, 2350(l) and 2%0(2)
govern the saleriea and method of payment af mum of the
eeunty m!annd@eiolrero‘of Rraaoria County end that their
xalarlee aenuot exoead &,400.00 R8r annum.
Very Wuly yours | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150697/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGUA CALIENTE BAND OF CAHUILLA No. 15-55896
INDIANS,
Plaintiff-Appellee, D.C. No.
5:13-cv-00883-
UNITED STATES OF AMERICA, JGB-SP
Intervenor-Plaintiff-Appellee,
v. OPINION
COACHELLA VALLEY WATER
DISTRICT; ED PACK, in Official
Capacity as Member of the Board of
Directors of the Coachella Valley
Water District; JOHN POWELL, JR., in
Official Capacity as Member of the
Board of Directors of the Coachella
Valley Water District; PETER
NELSON, in Official Capacity as
Member of the Board of Directors of
the Coachella Valley Water District;
G. PATRICK O’DOWD, in Official
Capacity as a Member of the Board
of Directors of the Coachella Valley
Water District; CASTULO R.
ESTRADA, in Official Capacity as a
Member of the Board of Directors of
the Coachella Valley Water District;
DESERT WATER AGENCY; PATRICIA
G. OYGAR, in Official Capacity as
Member of the Board of Directors of
2 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
the Desert Water Agency; THOMAS
KIELEY, III, in Official Capacity as
Member of the Board of Directors of
the Desert Water Agency; JAMES
CIOFFI, in Official Capacity as
Member of the Board of Directors of
the Desert Water Agency; CRAIG A.
EWING, in Official Capacity as
Member of the Board of Directors of
the Desert Water Agency; JOSEPH K.
STUART, in Official Capacity as
Member of the Board of Directors of
the Desert Water Agency,
Defendants-Appellants.
Appeal from the United States District Court
For the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted October 18, 2016
Pasadena, California
Filed March 7, 2017
Before: Richard C. Tallman and Morgan B. Christen,
Circuit Judges, and Matthew F. Kennelly, * District Judge.
Opinion by Judge Tallman
*
The Honorable Matthew F. Kennelly, United States District Judge
for the Northern District of Illinois, sitting by designation.
AGUA CALIENTE BAND V. 3
COACHELLA VALLEY WATER DIST.
SUMMARY **
Water Rights / Tribal Rights
The panel affirmed the district court’s partial summary
judgment in favor of the Agua Caliente Band of Cahuilla
Indians and the United States, which declared that the United
States impliedly reserved appurtenant water sources,
including groundwater, when it created the Tribe’s
reservation in California’s arid Coachella Valley.
The Tribe filed this action for declaratory and injunctive
relief against water agencies, and the parties stipulated to
divide the litigation into three phases. Phase I, at issue in this
interlocutory appeal, addressed whether the Tribe has a
reserved right to groundwater.
Under the doctrine in Winters v. United States, 207 U.S.
564 (1908), federal reserved water rights are directly
applicable to Indian reservations.
The panel held that the Winters doctrine does not
distinguish between surface water and groundwater. The
panel held that the United States, in establishing the Agua
Caliente reservation, impliedly reserved water. The panel
further held that because the United States intended to
reserve water when it established a home for the Agua
Caliente Band of Cahuilla Indians, the district court did not
err in determining that the government reserved appurtenant
water sources – including groundwater – when it created the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
Tribe’s reservation in the Coachella Valley. The panel also
held that the creation of the Agua Caliente Reservation
carried with it an implied right to use water from the
Coachella Valley aquifer.
The panel rejected the water agencies’ arguments
concerning the contours of the Tribe’s reserved water rights.
The panel held that state water rights are preempted by
federal reserved rights. The panel also held that the fact that
the Tribe did not historically access groundwater did not
destroy its right to groundwater now. Finally, the panel held
that the Tribe’s entitlement to state water did not affect the
analysis with respect to the creation of the Tribe’s federally
reserved water right.
COUNSEL
Steven Bane Abbott (argued), Gerald D. Shoaf, and Julianna
K. Tillquist, Redwine and Sherrill, Riverside, California, for
Defendants-Appellants Coachella Valley Water District, G.
Patrick O’Dowd, Ed Pack, John Powell Jr., Peter Nelson,
and Castulo R. Estrada.
Roderick E. Walston (argued), Arthur L. Littleworth,
Michael T. Riddell, and Steven G. Martin, Best Best &
Krieger LLP, Walnut Creek, California, for Defendants-
Appellants Desert Water Agency, Patricia G. Oygar,
Thomas Kieley III, James Cioffi, Craig A. Ewing, and
Joseph K. Stuart.
Catherine F. Munson (argued), Kilpatrick Townsend &
Stockton LLP, Washington, D.C.; Steven C. Moore and
Heather Whiteman Runs Him, Native American Rights
AGUA CALIENTE BAND V. 5
COACHELLA VALLEY WATER DIST.
Fund, Boulder, Colorado; Mark H. Reeves, Kilpatrick
Townsend & Stockton LLP, Augusta, Georgia; Adam H.
Charnes, Kilpatrick Townsend & Stockton LLP, Dallas,
Texas; for Plaintiff-Appellee.
Elizabeth A. Peterson (argued), Yosef M. Negose, Daron T.
Carreiro, Patrick Barry, John L. Smeltzer, and William B.
Lazarus, Attorneys; John C. Cruden, Assistant Attorney
General; United States Department of Justice, Washington,
D.C.; Christopher Watson and Scott Bergstrom, Office of
the Solicitor, United States Department of the Interior,
Washington, D.C.; for Intervenor-Plaintiff-Appellee.
OPINION
TALLMAN, Circuit Judge:
“When the well’s dry, we know the worth of
water.” Benjamin Franklin (1706–1790),
Poor Richard’s Almanac.
The Coachella Valley Water District (“CVWD”) and the
Desert Water Agency (“DWA”) (collectively, the “water
agencies”) bring an interlocutory appeal of the district
court’s grant of partial summary judgment in favor of the
Agua Caliente Band of Cahuilla Indians (the “Tribe”) and
the United States. The judgment declares that the United
States impliedly reserved appurtenant water sources,
including groundwater, when it created the Tribe’s
reservation in California’s arid Coachella Valley. We agree.
In affirming, we recognize that there is no controlling federal
appellate authority addressing whether the reserved rights
doctrine applies to groundwater. However, because we
6 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
conclude that it does, we hold that the Tribe has a reserved
right to groundwater underlying its reservation as a result of
the purpose for which the reservation was established.
I
A
The Agua Caliente Band of Cahuilla Indians has lived in
the Coachella Valley since before California entered
statehood in 1850. The bulk of the Agua Caliente
Reservation was formally established by two Presidential
Executive Orders issued in 1876 and 1877, and the United
States, pursuant to statute, now holds the remaining lands of
the reservation in trust for the Tribe. The reservation
consists of approximately 31,396 acres interspersed in a
checkerboard pattern amidst several cities within Riverside
County, including Palm Springs, Cathedral City, and
Rancho Mirage. See Agua Caliente Band of Mission Indians
v. Riverside County, 442 F.2d 1184, 1185 (9th Cir. 1971).
The Executive Orders establishing the reservation are
short in length, but broad in purpose. In 1876, President
Ulysses S. Grant ordered certain lands “withdrawn from sale
and set apart as reservations for the permanent use and
occupancy of the Mission Indians in southern California.”
Exec. Order of May 15, 1876. Similarly, President
Rutherford B. Hayes’s 1877 Order set aside additional lands
for “Indian purposes.” Exec. Order of Sept. 29, 1877. These
orders followed on the heels of detailed government reports
from Indian agents, which identified the urgent need to
reserve land for Indian use in an attempt to encourage tribal
members to “build comfortable houses, improve their acres,
and surround themselves with home comforts.” Comm’r of
Indian Aff., Ann. Rep. 224 (1875). In short, the United
AGUA CALIENTE BAND V. 7
COACHELLA VALLEY WATER DIST.
States sought to protect the Tribe and “secure the Mission
Indians permanent homes, with land and water enough.”
Comm’r of Indian Aff., Ann. Rep. 37 (1877).
Establishing a sustainable home in the Coachella Valley
is no easy feat, however, as water in this arid southwestern
desert is scarce. Rainfall totals average three to six inches
per year, and the Whitewater River System—the valley’s
only real source of surface water—produces an average
annual supply of water that fluctuates between 4,000 and
9,000 acre-feet, most of which occurs in the winter months. 1
See CVWD, Engineer’s Report on Water Supply and
Replenishment Assessment at III-12 (2016–2017); CVWD,
Urban Water Management Plan at 3-2, 3-20 (2005). In other
words, surface water is virtually nonexistent in the valley for
the majority of the year. Therefore, almost all of the water
1
An acre-foot is the volume of water sufficient to cover one acre in
area at a depth of one foot. CVWD, 2010–2011 Annual Review at 2. It
is equivalent to 325,851 gallons. Id. It takes about four acre-feet of
water to irrigate one acre of land for a year in the Coachella Valley. See
U.S. Dep’t of Agric., A Review of Agricultural Water Use in the
Coachella Valley at 6 (2006). Therefore, at 9,000 acre-feet per year, the
river system provides enough water to irrigate around 2,250 acres. At
4,000 acre-feet per year, the system can only irrigate about 1,000 acres.
Considering that the Tribe is not the only user of the Whitewater River
System, and that its reservation alone accounts for 31,396 acres, even in
a peak year the river system provides very little water for irrigation or
for human consumption.
8 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
consumed in the region comes from the aquifer underlying
the valley—the Coachella Valley Groundwater Basin. 2
The Coachella Valley Groundwater Basin supports 9
cities, 400,000 people, and 66,000 acres of farmland. See
CVWD-DWA, The State of the Coachella Valley Aquifer at
2. Given the demands on the basin’s supply, it is not
surprising that water levels in the aquifer have been
declining at a steady rate. Since the 1980s, the aquifer has
been in a state of overdraft, 3 which exists despite major
efforts to recharge the basin with water delivered from the
California Water Project and the Colorado River. In total,
groundwater pumping has resulted in an average annual
recharge deficit of 239,000 acre-feet, with cumulative
overdraft estimated at 5.5 million acre-feet as of 2010.
The Tribe does not currently pump groundwater on its
reservation. Rather, it purchases groundwater from
Appellant water agencies. The Tribe also receives surface
water from the Whitewater River System, particularly the
Andreas and Tahquitz Creeks that sometimes flow nearby.
The surface water received from this system is consistent
with a 1938 California Superior Court adjudication—the
Whitewater River Decree—which attempted to address
state-law water rights for users of the river system. Because
the United States held the lands in trust, it participated in the
2
The CVWD estimates that surface water accounts for less than five
percent of its water supply each year. See CVWD, Urban Water
Management Plan at 3-20 (2005).
3
Overdraft occurs when the amount of water extracted from the
underground basin exceeds its recharge rate. CVWD, 2010–2011
Annual Review at 2.
AGUA CALIENTE BAND V. 9
COACHELLA VALLEY WATER DIST.
adjudication via a “Suggestion” on behalf of the Tribe and
the resulting state court order included a water allotment for
the Tribe’s benefit. 4 The amount of water reserved for the
Tribe from this adjudication, however, is minimal, providing
enough water to irrigate approximately 360 acres. Further,
most of this allotment is filled outside of the growing season
because the river system’s flow peaks between December
and March. Thus, groundwater supplied by the water
agencies remains the main source of water for all types of
consumption on the reservation throughout the year.
B
Given an ever-growing concern over diminishing
groundwater resources, the Agua Caliente Tribe filed this
action for declaratory and injunctive relief against the water
agencies in May 2013. The Tribe’s complaint requested a
declaration that it has a federally reserved right and an
aboriginal right to the groundwater underlying the
reservation. In June 2014, the district court granted the
United States’ motion to intervene as a plaintiff. The United
States also alleges that the Tribe has a reserved right to
groundwater.
The parties stipulated to divide the litigation into three
phases. Phase I, at issue here, seeks to address whether the
Tribe has a reserved right and an aboriginal right to
groundwater. According to the parties’ stipulation, Phase II
4
In providing this “Suggestion,” the government maintained that it
was not “submitting the rights of the United States . . . to the jurisdiction
of the Department of Public Works of the State of California” and that
the court lacked “jurisdiction [to adjudicate] the water rights of the
United States.” The federal government continues to maintain this
position before us.
10 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
will address whether the Tribe beneficially owns the “pore
space” of the groundwater basin underlying the Agua
Caliente Reservation and whether a tribal right to
groundwater includes the right to receive water of a certain
quality. Finally, Phase III will attempt to quantify any
identified groundwater rights.
In March 2015, the district court granted in part and
denied in part Plaintiffs’ and Defendants’ cross motions for
partial summary judgment with respect to Phase I of the
litigation. In its order, the district court held that the reserved
rights doctrine applies to groundwater and that the United
States reserved appurtenant groundwater when it established
the Tribe’s reservation. 5 The district court then certified its
order for interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b), and we granted the water agencies’ petition for
permission to prosecute this appeal.
II
The district court’s grant of summary judgment is
reviewed de novo. Tohono O’odham Nation v. City of
Glendale, 804 F.3d 1292, 1297 (9th Cir. 2015); Lopez v.
Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
5
The district court also held that the Tribe does not have an
aboriginal right to the groundwater. An aboriginal right is a type of
property right that derives from territorial occupancy of land. See United
States ex rel. Chunie v. Ringrose, 788 F.2d 638, 641–42 (9th Cir. 1986).
However, the Tribe did not appeal this issue, and we do not review it
here.
AGUA CALIENTE BAND V. 11
COACHELLA VALLEY WATER DIST.
(1986). A court shall grant summary judgment when, “under
the governing law, there can be but one reasonable
conclusion as to the verdict.” Anderson, 477 U.S. at 250.
III
Due to the unusual trifurcation of this litigation, we are
concerned on appeal only with Phase I—whether the Tribe
has a federal reserved right to the groundwater underlying its
reservation. This question, however, is best analyzed in
three steps: whether the United States intended to reserve
water when it created the Tribe’s reservation; whether the
reserved rights doctrine encompasses groundwater; and,
finally, whether the Tribe’s correlative rights under state law
or the historic lack of drilling for groundwater on the
reservation, or the water the Tribe receives pursuant to the
Whitewater River Decree, impacts our answers to these
questions. We address each in turn.
A
For over one hundred years, the Supreme Court has made
clear that when the United States “withdraws its land from
the public domain and reserves it for a federal purpose, the
Government, by implication, reserves appurtenant water
then unappropriated to the extent needed to accomplish the
purpose of the reservation.” Cappaert v. United States,
426 U.S. 128, 138 (1976) (citing U.S. Const. art. I, § 8; U.S.
Const. art. IV, § 3); see also Winters v. United States,
207 U.S. 564, 575–78 (1908); Colville Confederated Tribes
v. Walton, 647 F.2d 42, 46 (9th Cir. 1981).
In what has become known as the Winters doctrine,
federal reserved water rights are directly applicable “to
Indian reservations and other federal enclaves,
12 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
encompassing water rights in navigable and nonnavigable
streams.” See Cappaert, 426 U.S. at 138. The creation of
these rights stems from the belief that the United States,
when establishing reservations, “intended to deal fairly with
the Indians by reserving for them the waters without which
their lands would have been useless.” Arizona v. California,
373 U.S. 546, 600 (1963); see also id. at 598–99 (“It is
impossible to believe that when Congress created the great
Colorado River Indian Reservation and when the Executive
Department of this Nation created the other reservations they
were unaware that most of the lands were of the desert
kind—hot, scorching sands—and that water from the river
would be essential to the life of the Indian people and to the
animals they hunted and the crops they raised.”).
Despite the longstanding recognition that Indian
reservations, as well as other reserved lands, require access
to water, the Winters doctrine only applies in certain
situations: it only reserves water to the extent it is necessary
to accomplish the purpose of the reservation, and it only
reserves water if it is appurtenant to the withdrawn land.
Winters, 207 U.S. at 575–78; Cappaert, 426 U.S. at 138.
Once established, however, Winters rights “vest[] on the date
of the reservation and [are] superior to the rights of future
appropriators.” Cappaert, 426 U.S. at 138.
B
1
Given the limitations in the Winters doctrine, we must
first decide whether the United States, in establishing the
Agua Caliente Reservation, impliedly reserved water. See
United States v. New Mexico, 438 U.S. 696, 701 (1978). We
conclude that it did. And although the parties and the district
AGUA CALIENTE BAND V. 13
COACHELLA VALLEY WATER DIST.
court focused on the application of the Winters doctrine to
groundwater specifically, their argument over the creation of
a federal reserved right—and, in particular, the relevance of
New Mexico to that question—depends on whether the Agua
Caliente Reservation carried with it a reserved right to water
generally. Whether the Tribe’s reserved right extends to the
groundwater underlying its reservation is a separate question
from whether the establishment of the reservation contained
an implicit right to use water.
In New Mexico, the Supreme Court emphasized that,
under the reserved rights doctrine, the government reserves
only “that amount of water necessary to fulfill the purpose
of the reservation, no more.” Id. (quoting Cappaert,
426 U.S. at 141). “Where water is only valuable for a
secondary use of the reservation, . . . the United States
[must] acquire water in the same manner as any other public
or private appropriator.” Id. at 702. In other words, New
Mexico established a “primary-secondary use” distinction.
Water is impliedly reserved for primary purposes. It is not,
however, reserved for secondary purposes. 6
The water agencies argue that New Mexico requires us—
when deciding if a reserved right exists at all—to determine
whether water is necessary to fulfill the primary purpose of
the Agua Caliente Reservation. If it is not, they argue, then
we are to conclude that Congress did not intend any water to
be impliedly reserved under a federal water right. Put
6
We have previously noted that New Mexico is “not directly
applicable to Winters doctrine rights on Indian reservations.” United
States v. Adair, 723 F.3d 1394, 1408 (9th Cir. 1983). However, it clearly
“establish[es] several useful guidelines.” Id. Thus, we consider its
application here.
14 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
differently, the water agencies argue that New Mexico stands
for the proposition that water is impliedly reserved only if
other sources of water then available cannot meet the
reservation’s water demands. According to the water
agencies, if other sources of water exist—and the lack of a
federal right would not entirely defeat the purpose of the
reservation—then Congress intended to defer to state water
law and require the United States to obtain water rights like
any other private user.
New Mexico, however, is not so narrow. Congress does
not defer to state water law with respect to reserved rights.
Id. at 702, 715. Instead, Congress retains “its authority to
reserve unappropriated water . . . for use on appurtenant
lands withdrawn from the public domain for specific federal
purposes.” Id. at 698.
The federal purpose for which land was reserved is the
driving force behind the reserved rights doctrine. “Each time
[the] Court has applied the ‘implied-reservation-of-water-
doctrine,’ it has carefully examined both the asserted water
right and the specific purposes for which the land was
reserved, and concluded that without the water the purposes
of the reservation would be entirely defeated.” Id. at 700.
But the question is not whether water stemming from a
federal right is necessary at some selected point in time to
maintain the reservation; the question is whether the purpose
underlying the reservation envisions water use.
Winters itself established that the purpose of the
reservation is controlling. In Winters, the Supreme Court
addressed whether the federal government reserved water
for tribal usage at the Fort Belknap Indian Reservation,
which had been reserved by the United States “as and for a
permanent home” for several tribes. 207 U.S. at 565. The
AGUA CALIENTE BAND V. 15
COACHELLA VALLEY WATER DIST.
Winters Court observed that the arid tribal reservation would
be “practically valueless,” and that a civilized community
“could not be established thereon,” without irrigation. Id. at
576. Thus, the Court held that, in creating the reservation,
the United States simultaneously reserved water “for a use
which would be necessarily continued through years.” Id. at
577. The reserved right turned on the purpose underlying
the formation of the Fort Belknap Reservation.
Though it was decided seventy years after Winters, New
Mexico remains faithful to this construction. In analyzing
the reserved rights doctrine, the Court first sought to
determine Congress’ intent in creating the Gila National
Forest. New Mexico, 438 U.S. at 698. After reviewing the
congressional act that established the forest, the Court
determined that Congress intended only two purposes—“to
conserve the water flows, and to furnish a continuous supply
of timber for the people.” Id. at 707 (citation omitted). It
did not, however, reserve the forest lands for aesthetic,
environmental, recreational, or wildlife-preservation
purposes. Id. at 708. Thus, the Court deemed the latter uses
“secondary,” for which the reserved right did not attach, and
held that only “to fulfill the very purposes for which a federal
reservation was created . . . [did] the United States intend[]
to reserve the necessary water.” Id. at 702.
As such, New Mexico’s primary-secondary use
distinction did not alter the test envisioned by Winters.
Rather, it added an important inquiry related to the question
of how much water is reserved. It also answered that
question by holding that water is reserved only for primary
purposes, those directly associated with the reservation of
land. It did not, however, eliminate the threshold issue—that
16 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
a reserved right exists if the purposes underlying a
reservation envision access to water.
2
Because New Mexico holds that water is reserved if the
primary purpose of the reservation envisions water use, we
now determine the primary purpose of the Tribe’s
reservation and whether that purpose contemplates water
use. To do so, we consider “the document and circumstances
surrounding [the reservation’s] creation, and the history of
the Indians for whom it was created.” Walton, 647 F.2d at
47.
The Executive Orders establishing the Tribe’s
reservation declared that the land was to be set aside for “the
permanent use and occupancy of the Mission Indians” or,
more generally, for “Indian purposes.” 7 See supra Part I.
While imprecise, such a purpose is not indecipherable. Our
precedent recognizes that “[t]he specific purposes of an
Indian reservation . . . [are] often unarticulated. The
general purpose, to provide a home for the Indians, is a broad
one and must be liberally construed.” Walton, 647 F.2d at
47 (emphasis added). Moreover, “[m]ost of the land in these
reservations is and always has been arid,” and it is
impossible to believe that the United States was unaware
“that water . . . would be essential to the life of the Indian
people.” Arizona, 373 U.S. at 598–99.
7
Additionally, government reports preceding the Executive Orders
recognized the need to secure the Tribe “permanent homes, with land
and water enough.” See Comm’r of Indian Aff., Ann. Rep. 37 (1877).
AGUA CALIENTE BAND V. 17
COACHELLA VALLEY WATER DIST.
The situation facing the Agua Caliente Tribe is no
different. Water is inherently tied to the Tribe’s ability to
live permanently on the reservation. Without water, the
underlying purpose—to establish a home and support an
agrarian society—would be entirely defeated. Put
differently, the primary purpose underlying the
establishment of the reservation was to create a home for the
Tribe, and water was necessarily implicated in that purpose.
Thus, we hold that the United States implicitly reserved a
right to water when it created the Agua Caliente Reservation.
C
While we conclude that the federal government
envisioned water use when it established the Tribe’s
reservation, that does not end our inquiry. We must now
determine whether the Winters doctrine, and the Tribe’s
reserved water right, extends to the groundwater underlying
the reservation. And while we are unable to find controlling
federal appellate authority explicitly holding that the Winters
doctrine applies to groundwater, 8 we now expressly hold
that it does.
Apart from the requirement that the primary purpose of
the reservation must intend water use, the other main
limitation of the reserved rights doctrine is that the
8
We previously held that the Winters doctrine applies “not only [to]
surface water, but also to underground water.” United States v.
Cappaert, 508 F.2d 313, 317 (9th Cir. 1974), aff’d on other grounds,
Cappaert, 426 U.S. at 142. But on appeal, the Supreme Court did not
reach this question. See Cappaert, 426 U.S. at 142. In that case, the
peculiarities of the hydrological forms led the Court to conclude as a
question of fact that the reserved water in a cavern pool was surface
water, not groundwater. Id.
18 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
unappropriated water must be “appurtenant” to the
reservation. See Cappaert, 426 U.S. at 138. Appurtenance,
however, simply limits the reserved right to those waters
which are attached to the reservation. It does not limit the
right to surface water only. Cappaert itself hinted that
impliedly reserved waters may include appurtenant
groundwater when it held that “the United States can protect
its water from subsequent diversion, whether the diversion
is of surface or groundwater.” Id. at 143. If the United States
can protect against groundwater diversions, it follows that
the government can protect the groundwater itself. 9
Further, many locations throughout the western United
States rely on groundwater as their only viable water source.
See, e.g., In re Gen. Adjudication of All Rights to Use Water
in Gila River Sys. & Source, 989 P.2d 739, 746 (Ariz. 1999)
(en banc) (“The reservations considered in [Winters and
Arizona] depended for their water on perennial streams. But
some reservations lack perennial streams and depend for
present and future survival substantially or entirely upon
pumping of underground water. We find it no more
thinkable in the latter circumstance than in the former that
9
Although the district court found that the groundwater contained
in the Coachella Valley aquifer “does not ‘add to, contribute to or
support’ any surface stream from which the Tribe diverts water,” that
does not mean that the hydrological cycle in the Coachella Valley has
been severed. See U.S. Geological Surv., Ground Water and Surface
Water: A Single Resource, U.S.G.S. Circular 1139 at 9–10 (1998)
(recognizing a connection between surface and groundwater even where
the water table falls below the stream bed). Further, we note that surface
water is used here to replenish groundwater sources. As such, the district
court may wish to hear expert opinion on the interconnectedness of the
waters in the valley in the later phases of this litigation. Proper factual
findings on this issue will allow the district court to fashion appropriate
relief during the quantification phase.
AGUA CALIENTE BAND V. 19
COACHELLA VALLEY WATER DIST.
the United States reserved land for habitation without
reserving the water necessary to sustain life.”). More
importantly, such reliance exists here, as surface water in the
Coachella Valley is minimal or entirely lacking for most of
the year. Thus, survival is conditioned on access to water—
and a reservation without an adequate source of surface
water must be able to access groundwater.
The Winters doctrine was developed in part to provide
sustainable land for Indian tribes whose reservations were
established in the arid parts of the country. And in many
cases, those reservations lacked access to, or were unable to
effectively capture, a regular supply of surface water. Given
these realities, we can discern no reason to cabin the Winters
doctrine to appurtenant surface water. As such, we hold that
the Winters doctrine encompasses both surface water and
groundwater appurtenant to reserved land. 10 The creation of
the Agua Caliente Reservation therefore carried with it an
implied right to use water from the Coachella Valley aquifer.
D
The final issue we must address is the contours of the
Tribe’s reserved right, including its relation to state water
law and the Tribe’s existing water rights.
A “reserved right in unappropriated water . . . vests on
the date of the reservation and is superior to the rights of
future appropriators.” Cappaert, 426 U.S. at 138. Further,
reserved rights are not analyzed “in terms of a balancing
10
The parties do not dispute appurtenance, nor could they. The
Coachella Valley Groundwater Basin clearly underlies the Tribe’s
reservation. See generally CVWD, Engineer’s Report on Water Supply
and Replenishment Assessment (2016–2017).
20 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
test.” Id. Rather, they are federal water rights that preempt
conflicting state law. See Walton, 647 F.2d at 51–53; see
also New Mexico, 438 U.S. at 715 (“[T]he ‘reserved rights
doctrine’ . . . is an exception to Congress’ explicit deference
to state water law in other areas.”). Finally, the rights are not
lost through non-use. See Walton, 647 F.2d at 51. Instead,
they are flexible and can change over time. See id. at 47–48;
United States v. Ahtanum Irrigation Dist., 236 F.2d 321, 326
(9th Cir. 1956).
Despite the federal primacy of reserved water rights, the
water agencies argue that because (1) the Tribe has a
correlative right to groundwater under California law and
(2) the Tribe has not drilled for groundwater on its
reservation, and (3) because the Tribe is entitled to surface
water from the Whitewater River Decree, the Tribe does not
need a federal reserved right to prevent the purpose of the
reservation from being entirely defeated. Put differently, the
water agencies argue that, because the Tribe is already
receiving water pursuant to California’s correlative rights
doctrine and the Whitewater River Decree, a federal
reserved right is unnecessary.
However, the water agencies’ arguments fail for three
reasons. First, state water rights are preempted by federal
reserved rights. See Walton, 647 F.2d at 51; see also
Ahtanum Irrigation Dist., 236 F.2d at 329 (“Rights reserved
by treaties such as this are not subject to appropriation under
state law, nor has the state power to dispose of them.”).
Second, the fact that the Tribe did not historically access
groundwater does not destroy its right to groundwater now.
See Walton, 647 F.2d at 51. And third, the New Mexico
inquiry does not ask if water is currently needed to sustain
the reservation; it asks whether water was envisioned as
AGUA CALIENTE BAND V. 21
COACHELLA VALLEY WATER DIST.
necessary for the reservation’s purpose at the time the
reservation was created. See supra Part III.B. Thus, state
water entitlements do not affect our analysis with respect to
the creation of the Tribe’s federally reserved water right.
IV
In sum, the Winters doctrine does not distinguish
between surface water and groundwater. Rather, its limits
derive only from the government’s intent in withdrawing
land for a public purpose and the location of the water in
relation to the reservation created. As such, because the
United States intended to reserve water when it established
a home for the Agua Caliente Band of Cahuilla Indians, we
hold that the district court did not err in determining that the
government reserved appurtenant water sources—including
groundwater—when it created the Tribe’s reservation in the
Coachella Valley.
Finally, we recognize that the district court’s failure to
conduct a thorough New Mexico analysis with respect to
whether the Tribe needs access to groundwater was largely
a function of the parties’ decision to trifurcate this case. We
also understand that a full analysis specifying the scope of
the water reserved under New Mexico will be considered in
the subsequent phases of this litigation.
Presumably, however, the water agencies will continue
to argue in these later phases that the Winters doctrine is
dependent upon the Tribe’s demonstrated need—that is,
need above and beyond what the Tribe is already receiving
under state-law entitlements or could receive through a
paramount surface water right. And while we express no
opinion on how much water falls within the scope of the
Tribe’s federal groundwater right, there can be no question
22 AGUA CALIENTE BAND V.
COACHELLA VALLEY WATER DIST.
that water in some amount was necessarily reserved to
support the reservation created. Thus, to guide the district
court in its later analysis, we hold that the creation of the
Agua Caliente Reservation carried with it an implied right to
use water from the Coachella Valley aquifer.
Each party shall bear its own costs.
AFFIRMED. | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4197463/ | IN TI-[E SUPREME COURT OF TI-[E STATE OF DELAWARE
UNIQUE T. LOPER, §
§ No. 7, 2017
Defendant Below- §
Appellant, §
§
v. § Court Below: Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 1602006156 (N)
Plaintiff Below- §
Appellee. §
Submitted: July 12, 2017
Decided: August 18, 2017
Before VALlHURA, VAUGHN, and SEITZ, Justices.
O R D E R
This 18‘h day of August 2017, upon consideration of the appellant’s brief filed
under Suprerne Court Rule 26(c), his attomey’s motion to Withdraw, and the State’s
response thereto, it appears to the Coult that:
(l) In Septernber 2016, a Superior Court jury convicted the defendant-
appellant, Unique T. Loper, of one count each of Carrying a Concealed Deadly
Weapon, Possession of a Firearm by a Person Prohibited, and Possession of
Ammunition by a Person Prohibited. The Superior Court declared Loper to be a
habitual offender and sentenced him to a total period of thirty-one years at Level V
incarceration, to be suspended after serving eighteen years in prison for decreasing
levels of supervision. This is Loper’s direct appeal.
(2) Loper’s counsel has filed a brief and a motion to withdraw under
Supreme Court Rule 26(c). Counsel asserts that, based upon a complete and careful
examination of the record, there are no arguably appealable issues. By letter, counsel
informed Loper of the provisions of Rule 26(c) and gave him a copy of the motion
to withdraw and the accompanying brief and appendix. Loper also Was informed of
his right to supplement his attomey’s presentation Loper raises two arguable issues
for the Court’s consideration. The State has responded to the Rule 26(c) brief and
Loper’s points and has moved to affirm the Superior Court’sjudgment.
(3) The trial record fairly reflects that, on January 31, 2016, a fight broke
out at Famous Tim’s Tavern in Wilmington, Delaware. Ryan Dill, a bartender who
was working that evening, testified at trial that he noticed several groups of
individuals arguing near the bar. The argument escalated into a fist fight. Dill saw
a short, black man attempt to pull something from his Waistband. Several bar patrons
yelled that the man had a gun. As the fight moved to bar entrance, Dill saw the man
extend his arm With a gun in his hand. Other patrons wrestled the man with the gun
to the ground, punching and kicking him. Someone pull a fire extinguisher from the
wall and struck the man With it. Someone else dragged the man, who appeared to
be unconscious, outside the door of the bar. Dill then heard a single gunshot.
(4) Wilmington police officers arrived on the scene. A single, spent .40
caliber shell casing was found outside the front door of the bar. Several days after
the incident, police collected four blood samples from inside the bar’s entrance.
DNA testing positively matched one of the samples to Loper. Loper later gave a
statement to police, which was played for thejury at trial, admitting that he brought
a .40 caliber gun to the bar. Loper did not testify or present any other evidence at
trial. The jury convicted him of all counts.
(5) Loper raised two issues in response to his counsel’s Rule 26(c) brief on
appeal. First, he contends that his trial counsel was ineffective for failing to move
to suppress Loper’s statement to the police because Loper was on drugs at the time
he made the statement Second, Loper argues that the evidence was insufficient to
convict him because the State did not present any witness who could positively
identify him as the man with the gun.
(6) The standard and scope of review applicable to the consideration of
defense counsel’s motion to Withdraw and an accompanying brief under Rule 26(c)
is twofold: (a) the Court must be satisfied that defense counsel has made a
conscientious examination of the record and the law for claims that could arguably
support the appeal; and (b) the Court must conduct its own review of the record in
order to determine whether the appeal is so totally devoid of at least arguably
appealable issues that it can be decided without an adversary presentation.l
l Penson v Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. Cah'fornia, 386 U.S. 738, 744 (1967).
(7) With respect to Loper’s first argument challenging his counsel’s failure
to file a motion to suppress, this Court will not consider a claim of ineffective
assistance of counsel for the first time on direct appeal.2 Thus, we will not consider
this claim further and only address Loper’s challenge to the sufficiency of the State’s
evidence to convict him.
(8) In reviewing a sufficiency of the evidence claim, the Court must
determine, after viewing the evidence in the light most favorable to the prosecution,
whether any rational trier of fact could have found the defendant guilty beyond a
reasonable doubt.3 The State can meet its burden of proof through direct
or circumstantial evidence.“ In-court identification or eyewitness testimony is not
required to prove identity.5 Rather, the test to establish identity is whether a rational
jury, viewing the evidence and all reasonable inferences drawn from the evidence,
could conclude beyond a reasonable doubt that the defendant committed the crimes
c:harged.6
(9) In this case, although the bartender was unable to identify Loper as the
man with the gun, Loper’s blood was found at the scene, as was a shell casing
establishing that a .40 caliber gun had been fired. More importantly, Loper admitted
2 Johnson v. State, 962 A.2d 233, 234 (DeI. 2008).
3 Jac'kson v. Virginia, 443 U.S. 307, 319 (1979).
4 Vincent v. State, 996 A.2d 777, 779 (Del. 2010).
5 McDonaId v. State, 2016 WL 4699155, *2 (Del. Sept. 7, 2016).
6 Vincent v. State, 996 A.2d at 779.
to the police that he had a .40 caliber gun at the bar on the night in question. We
conclude that the State’s evidence was sufficient to prove beyond a reasonable doubt
that Loper was guilty of a Carrying a Concealed Deadly Weapon and of Possession
of a Firearm and Ammunition by a Person Prohibited.
(10) The Court has reviewed the record carefully and has concluded that
Loper’s appeal is wholly without merit and devoid of any arguably appealable issue.
We also are satisfied that Loper’s counsel has made a conscientious effort to examine
the record and has properly determined that Loper could not raise a meritorious claim
in this appeal.
NOW, TI-[EREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to
withdraw is moot.
BY TI-[E COURT:
, TUQ%;
0 Justice | 01-03-2023 | 08-21-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289313/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TAYLOR PETERS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-3724
[June 28, 2018]
Appeal of order denying 3.800 motion from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr.,
Judge; L.T. Case No. 06-003240CF10A.
Taylor Peters, Fort Lauderdale, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed.
TAYLOR, DAMOORGIAN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4125058/ | March 4, 2015
The Honorable Jack Roady Opinion No. KP-0006
Galveston County Criminal District Attorney
600 Fifty Ninth Street, Suite 1001 Re: Appointment of an ex officio member to
Galveston, Texas 77551-4137 the Galveston Housing Authority
(RQ-1218-GA)
Dear Mr. Roady:
You ask several questions about a municipality's authority to appoint an ex officio member
to the Board of Commissioners of the Galveston Housing Authority ("GHA"). 1 A municipal
housing authority ("MHA") is created under chapter 392 of the Local Government Code and
initiated by a resolution of the municipal governing body declaring the need for a housing
authority. TEX. Loe. Gov'T CODE ANN. § 392.01 l(a), (c) (West 2005). The City of Galveston
(the "City") initiated GHA by resolution in 1940. GHA Brief at 1. The City informs us that it has
been appointing an "ex officio" member to the GHA since 1961. 2 You ask first whether the City
can legally appoint a city council member as an ex officio member of the GHA board. Request
Letter at 1.
Unlike a department created by municipal law, an MHA created under chapter 392 is a
distinct "unit of government" for all purposes and "a public body corporate and politic." TEX.
Loe. Gov'T CODE ANN.§§ 392.006, .Oll(b)(West 2005 & Supp. 2014). The powers of an MHA
are vested in its commissioners. Id. § 392.051(b) (West 2005). An MHA is "governed by five,
seven, nine, or 11 commissioners," who are appointed by the presiding officer of the governing
body of the municipality. Id. § 392.03 l(a).
1
See Letter from Honorable Jack Roady, Galveston Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. at l (Sept. 5, 2014) and attached Brief of the Galveston Hous. Auth., https://
www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "GHA Brief," respectively).
2See Brief from Dorothy Palumbo, Galveston City Att'y at I (Sept. 19, 2014) ("City Brief') (on file with Op.
Comm.). "Ex officio" means "by virtue or because of an office." Merriam-Webster's Collegiate Dictionary 438 (I Ith
ed. 2005); Grant v. United Gas Pipe line Co., 457 S.W.2d 315, 320 (Tex. Civ. App.-Corpus Christi 1970, writ refd
n.r.e.); accord Nichols v. Galveston Cnty., 235 S.W. 1116, 1117 (Tex. Civ. App.-Galveston 1915, writ dism'd w.o.j.).
The Honorable Jack Roady - Page 2 (KP-0006)
Section 392.031 states that a commissioner of an MHA "may not be an officer or employee
of the municipality." Id.§ 392.03 l(a)-(b). A city council member is an officer of the municipality.
See Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ refd n.r.e.)
(stating that "the office of City Councilman is a civil office of emolument"). Therefore, section
392.031 prohibits a mayor or city council from appointing one of the council members as a
commissioner of an MHA board.
The City states that it did not designate a city council member as an MHA commissioner,
but, rather, as "a nonvoting, ex-officio to the GHA to represent [its] interests." City Brief at 4. A
home-rule municipality is authorized to create municipal offices. TEX. Loe. Gov'T CODE ANN.
§ 26.041(1) (West 2008). Thus, a municipality has the authority to create the position of municipal
representative or liaison to an MHA and may assign the duties of the position to a member of the
municipal city council. But the position must be municipal only. The Legislature has established
the composition of an MHA board of commissioners and prohibited municipalities from
appointing city council members to the MHA board, even in a nonvoting capacity. See id.
§ 392.03 l(a)-(b) (West 2005); see TEX. CONST. art. XI,§ 5 (prohibiting a home-rule municipality
from adopting a charter or ordinance "inconsistent with the Constitution of the State, or of the
general laws enacted by the Legislature of this State"). Therefore, section 392.031 of the Local
Government Code prohibits a mayor or city council from appointing one of its council members
as an ex officio commissioner of an MHA.
Your second question is "[w]hether the ex officio member may legally attend executive
sessions of GHA." Request Letter at 1. The Texas Open Meetings Act (the "Act") permits a
governmental body to meet in executive session pursuant to narrowly drawn exceptions to the
requirement that its meetings "be open to the public." TEX. Gov'T CODE ANN. §§ 551.002, .071-
.090 (West 2012 & Supp. 2014). From an examination of the Act, this office has determined that
only members of the governmental body are entitled to attend its executive sessions as a matter of
right. Tex. Att'y Gen. Op. No. GA-0277 (2004) at 2-3. The Act gives a governmental body
limited "discretion with regard to who may attend its executive sessions." Tex. Att'y Gen. Op.
No. JC-0375 (2001) at 2. "In general, ... a governmental body may include a person ... 'whose
participation is necessary to the matter under consideration'" provided the person's presence is not
"contrary to the legal basis for the executive session." Tex. Att'y Gen. Op. No. JC-0506 (2002) at
2, 4; see generally Tex. Att'y Gen. Op. No. GA-0511 (2007) at 4-6 (discussing requirement that
a nonmember's presence in an executive session must be authorized under the Open Meetings Act
or other law). Consequently, a representative of a municipality may attend an executive session
of the board of commissioners of an MHA only if the board consents, the board determines that
the representative's participation is necessary to the matter to be discussed, and the representative's
attendance is not contrary to the legal basis of the executive session.
Finally, you ask whether federal regulations preclude a city council member from serving
on an MHA board under particular circumstances. See Request Letter at 1. Because section
392.031 of the Local Government Code prohibits a mayor or city council from appointing one of
its members as a commissioner of an MHA board, we do not address your final question.
The Honorable Jack Roady - Page 3 (KP-0006)
SUMMARY
Section 392.031 of the Local Government Code prohibits a
mayor or city council from appointing one of its members as an ex
officio commissioner of a municipal housing authority.
A representative of a municipality may attend an executive
session of the board of commissioners of a municipal housing
authority only if the board consents and the board has determined
that the representative's participation is necessary to the matter to
be discussed and the representative's attendance is not contrary to
the legal basis of the executive session.
Very truly yours,
;c;_?~,.J
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131519/ | The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Honorable G. Dwayne Pruitt Opinion NO. ~~-542
Supreme Court Building Terry County Attorney
P. 0. Box 12546
Austin, TX. 76711. 2546
Terry County Courthouse lb?: Whether one probation
5121475-2501 Brownfield, Texas 79316 office may serve two judicial
Telex 910/674~1367 districts located in different
Telecopier 5121475.0266 counties
Dear Mr. Prultt:
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
2141742-6944 You have requested our opinion as to whether one joint probation
office may serve,two judicial districts in different counties. Your
question concerns the legality of the situation which has existed in
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
Terry, Yoakum, Hockley, and Cochran counties since apportionment
9151533.3464 legislation became effective on April 8, 1981. Article 199, V.T.C.S.,
9121 (121st Judicial District), §3.112 (286th Judicial District). All
four counties had previously comprised only one judicial district and
1220 Dallas Ave., Suite 202
one probation office served all four counties. Under the new
Houston. TX. 77002.6966
7131650-0666
apportionment, Terry and Yoakum counties comprise the new 121st
Judicial District, while Cochran and Hockley counties comprise the new
286th Judicial District.
806 Broadway. Suite 312
Lubbock, TX. 79401-3479 Subsequent to the effective date of the apportionment
8061747-5238
legislation, the judges of the new 121st Judicial District and the new
286th Judicial District acted to continue the probation department
4309 N. Tenth, Suite B under the same administrative structure. However, the same probation
McAllen, TX. 76501.1665 personnel are now employed by both judicial districts. The new
5121662-4547 probation office is known as the 121st and 286th Judicial Districts
Probation Department. According to the Executive Director of the
200 Main Plaza. Suite 400 Texas Adult Probation Commission, this probation department has fully
San Antonio, TX. 76205.2797 met the standards set by the commission for a probation officer for
5121225-4191 each district, and this method, in fact, appears to be the most
efficient, cost-effective method of providing adequate probation
An Equal Opportunity/
services to these four counties.
Affirmative Action Employer
Section 10 of article 42.12 of the Code of Criminal Procedure
provides:
For the purpose of providing adequate probation
SfZViCeS. the district judge or district judges
trying criminal cases in each judicial district in
this state shall establish a probation office and
p. 1966
Honorable G. Dwayne Pruitt - Page 2 (MW-542)
employ, in accordance with standards set by the
commission, district personnel as may be necessary
to conduct presentence investigations, supervise
and rehabilitate probationers, and enforce the
terms and conditions of misdemeanor and felony
probation. If two or more judicial districts
serve a county, or a district has more than one
county, one district probation department shall
serve all courts and counties in the districts.
This provision clearly indicates that the legislature contemplated the
establishment of one probation office "in each judicial district."
Where the language of a statute is plain and unambiguous, it
ordinarily will be literally construed. Trimmier v. Carlton, 264 S.W.
253, 258 (Tex. Civ. App. - Austin 1924), aff'd on other grounds, 296
S.W. 1070 (Tex. 1927); Brasos River Authority v. Graham, 354 S.W.Zd
99, 109 (Tex. 1961).
Furthermore, section 10 itself creates two exceptions: a single
district probation office is permitted (1) in a multi-district county
(two or more judicial districts in a county; and (2) a multi-county
district (a district includes more than one county). The statute does
not authorize a single probation office for the situation you
describe: a multi-county, multi-district area. Where a statute
contains one or more specific exceptions, the usual implication is
that no other exceptions are applicable, and that the statute should
apply in all cases not excepted. State v. Richards, 301 S.W.Zd 597,
600 (Tex. 1957); Federal Crude Oil Company v. Yount-Lee Oil Company,
52 S.W.Zd 56, 60 (Tex. 1932).
SUMMARY
A joint probation office for the 121st and
286th Judicial Districts is not authorized by
statute, and is. hence, impermissible. Each
district is required to establish and maintain its
own distinct probation office.
Very truly yours, L-l
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 1967
Honorable G. Dwayne Pruitt - Page 3 (MW-542)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood
p. 1968 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131520/ | The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Mr. W. T. Satterwhite, Chairman Opinion No. MW-541
Supreme Court Building
Texas Board of Land Surveying
P. 0. Box 12546
Austin, TX. 76711. 2546 1106 Clayton Lane, Suite 210~ Re: whether county surveyor
5121475.2501 Austin, Texas 78723 must be licensed under the
Telex 9101674-1367 Land Surveyor’s Practices Act
Telecopier 5121475.0266 of 1979
1607 Main St., Suite 1400
Dear Mr.. Satterwhite:
Dallas, TX. 75201-4709
2141742.6944 You have asked two questions ‘concerning the application of the
Land Surveying Practices Act of 1979. article 5282~. V.T.C.S.:
4624 Alberta Ave.. Suite 160
El Paso, TX. 79905-2793 1. Can a county surveyor engage in the
9151533.3464 practice of surveying as defined in the Land
Surveying Practices Act of 1979 without being a
registered surveyor pursuant to the requirements
1220 Dallas Ave.. Suite 202
Houston. TX. 77002-6986
of the act?
7131650-0666
2. Is a person required to be a registered
surveyor under the Land Surveying Practices Act of
606 Broadway. Suite 312 1979 in order to become a candidate for the office
Lubbock. TX. 79401.3479
of county surveyor?
6061747-5238
As yet there are no appellate court cases interpreting the new
4309 N. Tenth. Suite B enactment which consolidated the State Board of Registration for
McAllen, TX. 76501-1665 Public Surveyors and the Board of Examiners of Licensed State Land
5121662.4547
Surveyors into the Texas Board oft Land Surveying. However, the answer
to your first question is provided in a straightforward manner by
200 Main Plaza. Suite 400 section 4, subsections (1) and (2) of the new statute.
San Antonio, TX. 78205-2797
5121225.4191 Section 3 of the act makes it unlawful “for any person to
practice or offer to practice land surveying” in the state unless the
An Equal Opportunity/ individual is duly registered, licensed, or exempted under the act.
Affirmative Action Employer But subsections (1) and (2) of section 4 read:
Sec. 4 The provisions of this Act do not apply
to any of the following:
(1) a county surveyor acting in an official
capacity as authorized by law in counties under
25,000 population, but only until the expiration
of the term of persons currently holding such
office;
p.1962
Mr. W. T. Satterwhite - Page 2 (MW-541)
(2) an officer of a state, county (except as
provided by Subsection (1) of this section when
applicable), city, or other political subdivision
whose official duties include land surveying when
acting in his official capacity, but only ux
the expiration of the tetm of persons currently
holding such office.... (Emphasis added).
It is apparent from this language that a county surveyor cannot engage
in the private practice of land surveying without being either a
registered surveyor or a licensed state land surveyor under the act,
even though the unexpired term of the county surveyor’s office may
have commenced prior to the effective date of the act. It is equally
clear that a county surveyor who is neither licensed nor registered
and whose unexpired term commenced prior to the effective date of the
act may continue to discharge his official duties until his term
expires.
The Land Surveying Practices Act of 1979 purports to both
regulate the private practice of land surveying and establish
qualifications for the public office of county land surveyor. The
obvious intent of the legislation is to require that county surveyors
be licensed or registered under the act in order to hold office,
exempting during the unexpired portion of their terms only those
holding office at the time the act took effect. -Cf. Attorney General
Opinion O-3940 (1941).
Statutes respecting the office of county surveyor. generally, are
now found in the Natural Resources Code, chapter 23. The place of a
county surveyor’s residence and office location are specified, but
licensure requirements are not. Article XVI, section 44 of the Texas
Constitution, which establishes the office, does not itself specify
any qualifications for it.
Statutory restrictions on the right to hold public office are
strictly construed, Willis V. Potts, 377 S.W.Zd 622 (Tex. 1964), and
it was held in Burroughs V. Lyles, 181 S.W.Zd 570 (Tex. 1944). that
where the constitution prescribes qualifications for an office, it is
beyond the legislative power to change or add to those qualifications,
unless the constitution gives that power. Where the constitution does
not itself prescribe any qualifications for an office it creates,
however, more recent cases suggest the legislature may prescribe
qualifications for it. See Phagan ‘I. State, 510 S.W.Zd 655 (Tex. Civ.
APP. - Fort Worth 1974,Tit ref’d n.r.e.); Green V. County Attorney
of Anderson County, 592 S.W.Zd 69 (Tex. Civ. App. - Tyler 1979, no
writ).
Both the Green and Phagan cases involved licenses to practice
law. Green and Phagan were district attorneys. Both were disbarred
while still in office. Article V, section 21 of the constitution
creates the office of district attorney but specifies no
p. 1963
Mr. W. T. Sattewhite - Page 3 (MW-541)
qualifications for holding it. However, article 332, V.T.C.S.,
provides that only duly licensed attorneys are eligible to the office.
Both the Phagan and Green courts held that loss of their licenses made
the men ineligible for the office, ipso facto.
The constitutional issue was not expressly addressed in either
case, but the action of the supreme court in refusing a writ of error
in the Phagan case with a "no reversible error" notation leads us to
conclude that the legislature may validly require, as a qualification
for office, that county surveyors he either licensed or registered
pursuant to article 5282c, V.T.C.S.
In Kothmann V. Daniels, 397 S.W.Zd 940 (Tex. Civ. App. - San
Antonio 1965, no writ), the court concluded that in the absence of
specification, "eligibility" requirements for public office refer to
the time a person assumes office rather than to the time of his
election, where the disqualification is of such a nature that its
continuation or termination is not within the control of the person
seeking office. See also Rose V. White, 536 S.W.Zd 395 (Tex; Civ.
APP. - Dallas 1976, no writ). Cf. Mills V. Bartlett, 377 S.W.Zd 636
(Tex. 1964) (residence reauirement). Whether a disaualification is of
"such a na&&e" is often a quest& of fact, which *this office cannot
resolve in its opinion process.
We therefore advise you that a county surveyor may not engage in
the private practice of land surveying without being registered or
licensed pursuant to the Land Surveying Practices Act of 1979, nor is
a person eligible to election as county surveyor unless at the time he
takes office he is registered or licensed pursuant to the act. -Cf.
V.T.C.S. art. 5282c, 625(b).
SUMMARY
A county surveyor may not engage in the private
practice of land surveying without being
registered or licensed pursuant to the Land
Surveying Practices Act of 1979, nor is a person
eligible to election as county surveyor unless at
the time he takes office he is registered or
licensed pursuant to the act.
A
-MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 1964
Mr. W. T. Satterwhite - Page 4 (Mw-541)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Patricia Hino-josa
Margaret McGloin
Jim Moellinger
Bruce Youngblood
p. 1965 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131535/ | The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Gary E. Miller, M.D. Opinion No. MW-526
Supreme Court Building Commissioner
P. 0. BOY 12546
Texas Department of Mental Health Re: Whether barber and beauty
Austin, TX. 76711.2546
5121475-2501
and Mental Retardation shops in Texas Department of
T&x Q101674~1367 P. 0. Box 12668 Mental Health and Mental
Telecopier 512/475-0266 Austin, Texas 78711 Retardation must be licensed
under the Barber and Cosme-
tology Acts
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
214/742+3944 Dear Dr. Miller:
You have requested our opinion as to whether barber and beauty
4624 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
shops located in facilities of the Department of Mental Health and
915/533c3464 Mental Retardation [hereinafter MHMR] must be licensed under the
barber and cosmetology statutes. We presume that only licensed
barbers and cosmetologists practice in such facilities. Section 2(a)
1220 Dallas Ave.. Suite 202
of article 8407a. V.T.C.S., the Texas Barber Law, prohibits the
Houston. TX. 77002-6966
7131650.0666
practice of barbering by any person "unless duly licensed and
registered in accordance with all laws of this state regulating the
practice of barbering." Likewise, section 9(a) of article 8451a,
806 Broadway. Suite 312 V.T.C.S., the Cosmetology Regulatory Act, provides that no person may
Lubbock, TX. 79401.3479
"perform any practice of cosmetology without first obtaining a license
806/747-5236
or certificate to perform that practice."
4309 N. Tenth, Suite 6 Section 3(a) of article 8407a states that "[n]o person may own,
McAllen. TX. 78501-1685 operate, or manage a barber shop without a barber shop permit issued
5121682.4547 by the board [of barber examiners]." Section 3(b) directs every
"firm, corporation, or person who opens a new barber shop" to apply
200 Main Plaza. Suite 400 for a temporary barber shop permit and pay an inspection fee of
San Antonio, TX. 78205.2797 $25.00. An annual renewal fee of $25.00 is also required. section 19
5121225-4191 of article 8451a specifies the requirements for obtaining a beauty
shop license and also requires a license fee of $25.00.
An Equal Opportunity/
Affirmative Action Employer It might be argued that neither statute contemplates that an MHMR
facility must obtain a license to operate a barber or beauty shop.
Section 19(d) of article 8451a provides, however:
(d) In order that the public may fix
responsibility for services, acts, or treatments
performed by persons licensed by the State Board
of Barber Examiners vis-a-vis those performed by
p. 1906
Dr. Gary E. Miller - Page 2 (MW-526)
persons licensed by the Texas Cosmetology
Commission, to promote the efficient and orderly
administration of laws regulating barbers and the
practice of barbering and the laws regulating
cosmetologists and the practice of cosmetology,
and to avoid confusion of the public as well as
avoiding conflicts of jurisdiction between such
board and commission which might impede effective
administration or enforcement of the laws under
their respective jurisdictions, from and after
January 31, 1980:
(1) a person licensed by the barber board may
practice barbering only at a location for which
the board has issued a barber shop permit, barber
school or college permit, or any other permit. If
the State Board of Barber Examiners and the Texas
Cosmetology Commission license the same facility,
the board may not adopt rules restricting or
prohibiting the practice by a Class A barber in
the facility; and
(2) a person licensed by the cosmetology
commission may practice cosmetology only at a
location for which the commission has issued a
beauty shop license, private beauty culture school
license, or any other license, If the State Board
of Barber Examiners and the Texas Cosmetology
Commission license the SallIe facility, the
commission may not adopt rules restricting or
prohibiting the practice by a cosmetologist in the
facility.
Thus, the statute clearly indicates that licensed barbers and
cosmetologists may practice their professions only in licensed
facilities. Although both article 8407a, section 6, and article
8451a, section 39, exempt certain "persons" from the provisions of the
two statutes, neither excepts persons who practice in state
facilities, and neither provides any exception to the licensing of
barber or beauty shops.
Furthermore, in Attorney General Opinion H-769 (1976). this
office held that a person employed as a psychologist by a hospital
licensed by MIIMRis not thereby exempt from the licensing requirements
of article 4512c, V.T.C.S., the Psychologists' Certification and
Licensing Act. The opinion indicated that the lack of a specific
statutory exception for MHMR facilities implies that psychologists
employed therein are not exempt from the licensing requirements for
psychologists. In our opinion, the absence of similar exceptions for
p. 1907
Dr. Gary E. Miller - Page 3 (MW-526)
barber and beauty shops in MHMR facilities, together with the specific
prohibition against the practice of barbering and cosmetology in
unlicensed facilities, obliges us to conclude that barber/beauty shops
located in MHMR facilities must be licensed under the barber and
cosmetology statutes. Section 19 of article 8451a clearly
contemplates dual licensing in any facility where both barbering and
cosmetology are practiced.
SUMMARY
Barber/beauty shops located in facilities of
the Department of Mental Health and Mental
Retardation are required to be licensed under the
barber and cosmetology statutes, articles 8407a
and 8451a. V.T.C.S.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood
p. 1908 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144575/ | 3.16
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
79th fudfaial
A11o0,
Attornsr
Eoaorablr r’raak B. Lloyd
DIstrl6t
Dlrtrlat
Toracr
“&fials 4605. The St&to f3oard of Sodl-
sal Pxazfzinere sey rcfkre to abdt person8 to
Ita euwlnations aoa to forue license to -ma-
tloe ~~~dlolno to any psraon, for any of the
,folluwln~ reason8 I
Eonorable Prank B. Llofi, Tago 2
n
. . .
r "(2) Conrlotlonof 6 orlme of the a0 or a
:I felony, or one whiah lnvolv4r moral turp 't"
tuaa . . .*
“Artlclit 4506. Tbo Dlrtriat Cat&a of th;r
State shall have the right to rwoko, 08noe1, or
oucpend tho lloonre OS any ~praotltlon~r or” mdl-
olne upon proof of the violation of the lrr In may
respsot lc regard tbsrato, or for any oaam for
whloh the State Board OS Yedioal YWmlnm~ rhall be
authorited to refuse to admit pemocn to it8 ema-
lnetlon, 05 pzovidsd ln ArUe 4605 oi tha Revllrea
Civil 3tntutcs of Toxata of 1025, a8 anondcd by #is
tot, and It oh311 bo the duty of the eeveral Dls-
trlct and County Attorneys of t?315 state to file
3na posocuto 32proprlste Judlolol prooecdin~ for
3uch rwoc0tlon, c3nosllatlon, or susgenslon, in
the txmt of the state, on request of the Eke1-5 or
t&%!ieEl i:xndnero.'
x6 bc!licwe thct the phrafie "the violation of the
IP::JIn any ros>bct In re!:srd thereto* as used 1~ Article 45CG,
5qma, rsfers szly to such law5 83 rcllnte to the lssaanae,
suspenolo3 or rcvooatlon of the lloeme to praotice 2ealo;ne,
rather thsa ta tka violntion al the 13~3 of the State Gensr-
3lly.
Tour caostlon, therefore, raoolves ltselt to a oon-
struation ST the ward *oonvlotion,* 3s used in pdraqraph (2)
of hrtlole 4505. 30~s ft man a Jury rindin of 6uilty upon
on LnClatmnt for e felony or does It m3n a Sinal aonvlatlon'l
Xherr? a ausyn@ed smtonoe haa been &ranted *celther
the verdiot of cOmiOtiOn nor the jud@mut eutercd thereon
stall becom Z?nal' . . ." Artiole 77 El,'Code of CrJsrLnol Pm-
ccdure, 1325. "Vnder the temw of our statute relative to
sua?endsd mxtozcs, ithan baen herd that in E case where one
rcoelvea such santenoe the judmcnt ia not ilcal anE oannot
be appealed IrozP -- Z'ones v. State, z??olS. k. 1012. If by
the h7xa nCowlctf~n* as usea in Article 4509, the Leglsla-
ture intandod to zmm only a fin.31 oonvtction, oleerly a phyal-
clan a~uld rst be oubjoot to location of his ~li.oerueto
praotios n;edlclnc, whom kls strztonos brad bcon suspended upon
cocviction oc" 5 felony.
.
Honorable Prank 8. Lloyd, Page 3
rho oourtr hare 80 oowtrued
the word woonriotod~
In the statute (sinae amendedd) ubloh msdo one who heid bea
comiotad or l felony lnOOmpete5t es a wltnerr. Bee ltapin-
i 084 V. state, 168 Se P. 8081 Slmoads tq State, lib 8. V.
1064; Oolcnzan V. state, 187 s. 8. 481.
On the other hand, the oourta harr given the op-
posite oonstrimtibn to the 8sm wWd Vhdi us04 %n oertaia
other rtotutss. ze c,aotc sron the opl?liox.loi Judge Latti-
gy Mgay Court oi Crimliml Agpeelm in, Xill v. Btete, %S
. $.
*It 8ems olear . . . that by the we of the
lsords ‘convicted or a folonyl in reotlons 1, E, 3,
tnd 5 OS the statute nnder dlsonssion (the euependsd
aentcnoe lsw., Article ObSb-f, Code of Crfmlnal Pmor-
dure) wes nca:lt thst ststus resultfa6 fro= a Jude-
nent based on the verdiat oi a jury ilndlng the’ eo-
CUo& @Iilty Ctf BOW $dOnY. The t6rCi ‘5OUViOtiO5’
1s used ln aany of our statutes in mob the 8-0
BamDO. . . . our OCEOIU~OI~ n-02 tht ab0~a mt6-
mats that one ‘oonvlctcd of a relonp whose sentonoe
is suz+ptnetd 1s n~.thil!l
the oo~prthtllslon 0r this
otatute, whea It used tho eqimession *oonvloted of
a felony;**
Llkswlse the +wt of Criminal ApFesls of Texas has
construed the rnrd Roontlotlon” as used In Artlole 4, (3eotion
11 of tht Texas Co.wtltutlon ns meaoln~ merely a rtrdlot ‘of
gutlty, rather than a flcel oonvlotion. see: ~08s Y* State,
298 s. z. 588 and Duke v. Stats, 291 3. a. 539. In the Duke
ease, Judge Uorrow wed th6 following lenL~aee:
“Acoordlng to the wel&ht OS the preowlants, it
seem, in its relation to the aowtr to pardon, the
term *oonvlotlon’ refers to B verdict of ‘eulltp* by
a jury and 1s not restrloted to R final JudQcsnt on
suoh vudiot .*
It is apprent fnn tht fort&ng that tht Texas
oourts hnvt not follomd any fired lnttrpretetion of the word
nconvlotlon* as used in Vnrlous statutes. The question haa
not been dlreotlp nlaed uodsr the statute under oonaideretion.
iievooatlons of physlolens’ lloensss upon’ottier grounda, under
tbla ntntute (prior to lte 1039 manr?mnt) hnre been twioe SW-
tairad in the cases of Cumln@m v. State er ml Shook, 79
Xonor-ablo Prank 3. tloyd, Fags 4
3. IE.(&I) 180 [writ of em-or retuo~dd and 8 oer Y. St0te,
109 9. a:.kd) 1150 (nit of orror dlomlooo6 P.
iFa cnolose herewith 009~ ot oar Opinioa Ho. O-1894,
ad&owed to the fkn. !3ert Ford, Wherein tb0 ward "oonrleted~
ao wed ln the Texas Liquor Cont.tml hot 10 oolldtrued. The
0 lnion review deoioiona Wm other 0tator vhloh lndloatr
t & t the walght Oi authority i0 in istOr OS the via thet
~oonrlotlOn"0601111
8 a 60~18tlOr: UrilOS0S 000tr0~ io-
tent is wnltlrtsd by tho statute In whloh the word lo use&
Xe oosolude, therefore, tha,t the phmos *oonvio-
tion of a orlwe OS the grada OS ftlonp,” as uacd in leo tlo n
(a) of Artiole 4505, Rrriaed Girl1 Stntttteo ot Texas, hoald
be oonstrusd to men u oonoiotlon.O0naagnently, a ;?h si-
olsn who had received a suepsndad santenat upon b oonrlot I oa
ot II ttlony, vmld not bc aubjaot to hare No llocmse to prao-
tics zedloine revoked upon that ;,muml alone, alnoe h$s oma-
vlotlon would cot be tloal. Ee wlah to golnt out that nolthtr
the courte ot cioll sg~es1.s car ths suprsme court ot Texas
have pnessd upon the questloq x%arofora our oplnlon hsreon
oannot be given the aam weight os thoyb It WeFt baaed u?on
tbe prior dealsiam ot our a$?ollata osurts beiox ahom t!ils
cpotlon mxngbe prtssnteu.
YDur3 very traly
‘By- q%Lc&
‘iralter Ii. Gooh
xaaistant | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144616/ | OFFICE OF THE AlTORNEY QENERAL OF TEXAS
AUSTIN
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Your8 vary truly
A’l?‘lXRRRY GRR'ERAL
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ATTORNEY
GENERAL
OF TZAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288801/ | AFFIRM in Part, REVERSE in Part, and RENDER; Opinion Filed June 21, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00381-CV
BRANCH BANKING & TRUST COMPANY, Appellant & Cross-Appellee
V.
SCOTT SEIDEMAN, Appellee & Cross-Appellant, AND
L&S INVESTMENT PARTNERS, LLC, Appellee
ROBERT LEMELIN, LEO LEMELIN, AND BRIAN LEMELIN, Appellants
V.
BRANCH BANKING & TRUST COMPANY, Appellee
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-12543
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Fillmore
L&S Investment, LLC (L&S) borrowed over eight million dollars from Colonial Bank,
N.A. to finance the purchase of 6.72 acres of land in San Bernardino County, California, and the
construction of a building (the Property). Robert Lemelin (Robert), Leo Lemelin (Leo), Brian
Lemelin (Brian), and Scott Seideman personally guaranteed the loan. After Colonial Bank failed,
Branch Banking & Trust Company (the Bank) acquired the L&S loan from the Federal Deposit
Insurance Corporation (the FDIC). L&S defaulted on the loan, and the Property was sold at a
nonjudicial foreclosure sale. The Bank then filed this action seeking to recover from L&S and the
four guarantors the deficiency between the outstanding balance on the loan and the foreclosure
sale price. After a bench trial, the trial court rendered judgment that the Bank take nothing from
L&S and Seideman, but recover from the Lemelins, jointly and severally, actual damages of
$5,070,172.22, attorneys’ fees of $179,230.95, expenses of $13,170.37, and three-fifths of the
court costs. The trial court also ordered that, if Robert, Leo, or Brian unsuccessfully appealed the
trial court’s judgment, that person would be responsible for additional appellate attorneys’ fees.
The Bank appealed the trial court’s judgment in favor of L&S and Seideman, Seideman
filed a cross-appeal, and the Lemelins appealed the trial court’s judgment in favor of the Bank. In
its appeal, the Bank asserts in four issues that the trial court erred by ordering the Bank take nothing
on its claims against L&S and Seideman because (1) Seideman contractually waived all pleaded
affirmative defenses, (2) the Bank provided proper notice of the foreclosure sale to L&S and
Seideman, (3) L&S’s and Seideman’s affirmative defenses of fraud, waiver, and estoppel were
barred by the statute of frauds and, alternatively, the evidence was legally and factually insufficient
to support those defenses, and (4) the California anti-deficiency statute does not bar the Bank’s
claims against L&S. Seideman, in a cross-issue, and the Lemelins, in the first issue of their appeal,
argue the trial court erred by determining the California anti-deficiency statute does not bar the
Bank’s claims against the guarantors. In an additional issue, the Lemelins contend the trial court
erred by entering judgment against them on their affirmative defenses of fraud, waiver, and
estoppel because those defenses were based on the same facts as Seideman’s affirmative defenses
and, alternatively, the evidence was legally and factually insufficient to support the trial court’s
judgment.
We conclude the California anti-deficiency statute does not bar the Bank’s claims against
L&S or the guarantors. We further conclude the statute of frauds bars the affirmative defenses of
fraud, waiver, and estoppel and Seideman contractually waived any defense based on lack of notice
–2–
of the foreclosure sale. Accordingly, we affirm the trial court’s judgment against the Lemelins
and reverse the trial court’s judgment in favor of L&S and Seidman. We render judgment that the
Bank recover its actual damages of $5,070.172.22 from the Lemelins, L&S, and Seidman, jointly
and severally. Because we have significantly changed the trial court’s judgment, we reverse the
trial court’s judgment as to the assessment of attorneys’ fees, expenses, and court costs and remand
this case to the trial court for reassessment of the parties’ liability for those fees and expenses.
Background
L&S is a California limited liability company owned by Seideman and the Lemelins. In
2007, Seideman, an attorney, was licensed to practice and lived in Texas. Further, Seideman’s
law firm had a “rather extensive banking relationship” with Colonial Bank in Texas. Effective
June 29, 2007, L&S borrowed $8,870,524 from Colonial Bank. Robert, as L&S’s manager, and
the Lemelins and Seideman, as guarantors, signed a Loan Agreement that required L&S to execute
a promissory note (the Note) and a deed of trust (the DOT) for the Property that secured the Note
and required Seideman and the Lemelins to execute guaranty agreements. Under the Loan
Agreement, an “event of default” included L&S’s failure to pay when due any installment of
principal or interest or any other monetary obligation arising under the Note. The Loan Agreement
provided that:
THE NOTE AND THIS AGREEMENT ARE EXECUTED AND DELIVERED
IN CONNECTION WITH A LENDING TRANSACTION NEGOTIATED AND
CONSUMMATED IN DALLAS COUNTY, TEXAS, AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS.
The parties agreed the Loan Agreement “embodie[d] the entire agreement between the parties
relating to the subject matter hereof” and could be amended only by a written instrument executed
by both L&S and Colonial Bank.
–3–
The Note required L&S to make monthly payments of principal and interest at Colonial
Bank’s offices in Dallas or Collin County, Texas, unless a different place was designated by
Colonial Bank in writing. The Note provided that L&S and any guarantor of the Note waived
presentment for payment, demand, notice of nonpayment or nonperformance, protest, notice of
protest, notice of intent to accelerate, notice of acceleration, grace, diligence in collecting the Note
or enforcing any security for the Note, or “any other notices” or action. The Note stated:
THIS NOTE IS EXECUTED AND DELIVERED IN CONNECTION WITH A
LENDING TRANSACTION NEGOTIATED AND CONSUMMATED IN
DALLAS COUNTY, TEXAS, AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
Section fourteen of the DOT gave the trustee a power of sale in the event L&S defaulted
under the Note or the Loan Agreement. The foreclosure sale was required to be conducted in
California, and the trustee was required to give notice of the sale “in accordance with applicable
laws in the State of California in effect at the time such notice is given.” Section fourteen of the
DOT also specified notice was to be served, at least twenty days preceding the sale, by certified
mail on “each debtor obligated to pay the debt secured hereby according to the records” of Colonial
Bank. Section thirty-six of the DOT stated the instrument was executed in Texas and “shall be
governed by and construed in accordance with the laws of the State of Texas, except to the extent
such laws have been preempted by federal laws, in which case federal laws as applied in Texas
shall govern.”
The Lemelins and Seideman each signed a Guaranty Agreement, in which they
“unconditionally, absolutely and irrevocably” guaranteed the prompt payment when due of “any
and all indebtedness or other liability, fixed or contingent, which [L&S] may now or at any time
hereafter owe” Colonial Bank. The guarantors waived diligence on the part of Colonial Bank in
the collection of the indebtedness as well as “presentment, protest, dishonor, notice of acceptance
–4–
of [the guaranties], notice of non-performance, notice of acceleration, demands for performance
and approval of any modifications, renewals or extensions of the indebtedness” that might be
granted to L&S. Each guarantor agreed the guaranty would not be “discharged, impaired or
affected” by “any defense (other than the full payment of the indebtedness hereby guaranteed in
accordance with the terms hereof) that [he] may or might have” and that “each and every such
defense” was waived. Each guarantor also waived all rights and remedies he might have under
chapter 34 of the Texas Business and Commerce Code or under sections 51.003, 51.004, and
51.005 of the Texas Property Code, including the “right to seek an offset of any deficiency
judgment based on the fair market value” of the Property. Each guarantor agreed the contract was
“performable in the City of Dallas, Dallas County, Texas.”
Finally, Jeff Chase, as Colonial Bank’s City President-Frisco, Robert, as L&S’s manager,
the Lemelins, and Seideman signed a “Statute of Frauds Notice.” The notice specifically referred
to “several instruments, agreements and documents relating to, among other things, a certain
$8,870,524.00 commercial real estate loan from [Colonial Bank] to [L&S] which is guaranteed by
[the Lemelins and Seideman].” The parties agreed the “written documents, agreements and
instruments referred to” represented the “final agreements between the parties and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties”
and that “[t]here [were] no unwritten oral agreements between the parties.”
In 2009, Colonial Bank was determined to have insufficient capital, and the FDIC was
appointed as the receiver for Colonial Bank. On August 14, 2009, the Bank and the FDIC entered
into a Purchase and Assumption Agreement pursuant to which the Bank acquired the Note.
L&S began having difficulty making payments on the Note and, in October 2012, Robert
Holmes, a senior vice president in the Bank’s Problem Loan Administration Department, met with
the Lemelins at the Property. The Lemelins testified that, at the meeting, Holmes told them the
–5–
options for resolving the situation included judicial foreclosure, nonjudicial foreclosure, and the
short sale1 of the Property. According to the Lemelins, Holmes stated that, if the Bank pursued
either nonjudicial foreclosure or approved a short sale, it would not seek to recover the deficiency
between the balance owed on the Note and the sale or purchase price from either L&S or the
guarantors. Brian and Robert testified Holmes also told them that it would assist the Bank if the
Property was vacant. At the time, Lexxiom, Inc., a company owned by the Lemelins, and
Seideman’s California law office were tenants of L&S at the Property. In reliance on Holmes’s
statements, Lexxiom and Seideman’s law firm moved out of the Property by March 2013. The
Property was subsequently vandalized and significantly damaged. After consultation with
Holmes, L&S filed a claim on its insurance policy and the damage to the Property was repaired.
Although a number of short-sale offers were made for the Property, the Bank did not
approve any of the sales. Instead, in August 2013, the Bank appointed First American Title
Insurance Company as the substitute trustee under the DOT. David Bark, an attorney employed
by First American, testified that, on August 28, 2013, a notice of default and election to sell the
Property was mailed to L&S and the guarantors. Bark further testified that, on December 11, 2013,
a notice of sale was mailed to L&S and the guarantors. The record indicates these documents were
mailed to the addresses in the Note and the guaranties. The Property was sold at a foreclosure sale
on February 10, 2014. After crediting the net proceeds from the foreclosure sale to the principal
amount owed on the Note, the Bank filed this lawsuit, seeking to recover the outstanding balance
of principal and interest from L&S and the guarantors.
Seideman testified he did not receive either the notice of default or the notice of sale and
did not learn of the foreclosure sale until after it had occurred. According to Seideman, he no
1
“A ‘short sale’ is a sale of property for a price that is less than the amount of debt on the property, resulting in a shortfall of sales proceeds
to pay off the existing loans.” Lawyers Title Ins. Corp. v. Dedmore, No. A136422, 2014 WL 4354663, at *5 (Cal. Ct. App. Sept. 3, 2014)
(unpublished) (quoting 4 MILLER & STARR, CAL. REAL ESTATE (3d ed. 2011, 2013–2014 Supp.))
–6–
longer lived at the address specified in the guaranty, the Bank was aware he no longer lived at that
address, and the Bank had sent statements relating to the Note to his business address. Seideman
believed he informed the Bank of his new address through the financial statements he was required
to file periodically. He conceded, however, that the guaranty required any change of address to be
sent by certified mail, and he could not recall if he provided the Bank with notice of his new
address by certified mail. According to Seideman, if he had known the Bank was going to
foreclose on the Property, he would have brought the loan current to prevent the foreclosure.
After a bench trial, the trial court rendered judgment that the Bank recover the deficiency
from the Lemelins, but take nothing from L&S or Seidman. In response to the Bank’s request, the
trial court made findings of fact and conclusions of law as to the Bank’s claims against Seideman.2
As relevant to this appeal, the trial court found neither the Bank nor the substitute trustee provided
notice of the foreclosure sale to Seideman, preventing Seideman from protecting his interest as a
guarantor. Further, Seideman and other of the building’s tenants voluntarily vacated the Property
based on Holmes’s representations that, if they did so, the Bank would engage in a short sale and
would not seek to recover any deficiency from L&S or the guarantors. The trial court found that,
if the Bank had told Seideman the truth, he would not have voluntarily vacated the premises. The
trial court concluded the Bank’s claims against Seideman were barred because it failed to provide
proper notice of the foreclosure sale as required by the DOT and because Seideman established
his affirmative defenses of fraud, waiver, and estoppel.
The trial court also made findings of fact and conclusions of law in response to the
Lemelins’ request. The trial court concluded that Texas law applied to the “transactions that form
the basis of the case and [the Bank’s] claims,” but California law applied “to the foreclosure of the
2
The Bank also requested findings of fact and conclusions of law as to its claims against L&S. Although the trial court did not make the
requested findings and conclusions, the Bank has not complained on appeal about the trial court’s failure to do so.
–7–
Property in California.” The trial concluded the foreclosure of the Property was done in
compliance with California law and the DOT, and the Lemelins failed to comply with their
obligations to the Bank under the guaranties.
Standard of Review
In an appeal from a bench trial, the trial court’s findings of fact carry the same weight as a
jury verdict upon questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991);
Scott Pelley P.C. v. Wynne, No. 05–15–01560–CV, 2017 WL 3699823, at *8 (Tex. App.—Dallas
Aug. 28, 2017, pet. denied) (mem. op.). We thus review findings of fact by the same standards
that are applied in reviewing the legal and factual sufficiency of the evidence supporting a jury
finding. Anderson, 806 S.W.2d at 794; Scott Pelley P.C., 2017 WL 3699823, at *8. Unchallenged
findings of fact are binding on this Court unless the contrary is established as a matter of law or
there is no evidence to support the finding. Walker v. Anderson, 232 S.W.3d 899, 907 (Tex.
App.—Dallas 2007, no pet.); see also Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437
S.W.3d 518, 526 (Tex. 2014) (concluding unchallenged findings supported by some evidence were
binding on appellate court); McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986).
We review the trial court’s conclusions of law de novo. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794–95 (Tex. 2002); Credit Suisse AG v. Claymore Holdings, LLC,
No. 05–15–01463–CV, 2018 WL 947902, at *4 (Tex. App.—Dallas Feb. 20, 2018, no pet. h.)
(mem. op.). We may not reverse a trial court’s conclusion of law unless it is erroneous as a matter
of law. Credit Suisse AG, 2018 WL 947902, at *4. We will uphold the trial court’s judgment if it
can be sustained on any legal theory supported by the evidence. Villages of Sanger, Ltd. v.
Interstate 35/Chisam Rd., L.P., No. 05-16-00366-CV, 2018 WL 703327, at *2 (Tex. App.—Dallas
Feb. 5, 2018, no pet.) (mem. op.) (citing Marchand, 83 S.W.3d at 794).
–8–
Impact of California Anti-Deficiency Statute on the Bank’s Claims
The first possible basis for the trial court’s judgment is that the California anti-deficiency
statute barred the Bank’s claims against the borrower, L&S, but did not bar the Bank’s claims
against the guarantors. In its fourth issue, the Bank asserts the trial court erred by determining the
California anti-deficiency statute barred its claims against L&S, while Seideman, in his cross-
issue, and the Lemelins, in their first issue, argue the trial court erred by determining the California
anti-deficiency statute did not bar the Bank’s claims against the guarantors.
California has enacted an “elaborate and interrelated set of foreclosure and antideficiency
statutes relating to the enforcement of obligations secured by interests in real property.” All.
Mortg. Co. v. Rothwell, 900 P.2d 601, 606 (Cal. 1995). Pursuant to the statutory scheme,
foreclosure, either judicial or nonjudicial, is the “one form of action” for the “recovery of any debt
or the enforcement of any right secured by a mortgage or deed of trust.” Id. In a nonjudicial
foreclosure, or “trustee’s sale,” such as occurred in this case, a trustee exercises the power of sale
given by a deed of trust. Id. at 606–07. Following a nonjudicial foreclosure, the creditor may not
seek to recover a deficiency judgment. Id. at 607.
In 2007, when L&S and the guarantors signed the loan documents, and in 2013, when the
Bank instituted the nonjudicial foreclosure process, section 580d of the California Civil Code
provided, as relevant to this appeal:
No judgment shall be rendered for any deficiency upon a note secured by a deed of
trust or mortgage upon real property or an estate for years therein hereafter executed
in any case in which the real property or estate for years therein has been sold by
the mortgagee or trustee under power of sale contained in the mortgage or deed of
trust.
–9–
1989 Cal. Legis. Serv. ch. 698, § 13.3 Section 580d prohibits a creditor who elects to conduct a
nonjudicial foreclosure from seeking to recover from a borrower any deficiency between the
amount of the debt owed by the borrower and the sale price. Id.; Yvanova v. New Century Mortg.
Corp., 365 P.3d 845, 850 (Cal. 2016) (“Generally speaking, the foreclosure sale extinguishes the
borrower’s debt; the lender may recover no deficiency.”). Texas does not have a similar anti-
deficiency law. See TEX. PROP. CODE ANN. § 51.003(a) (West 2014) (“If the price at which real
property is sold at a foreclosure sale under Section 51.002 is less than the unpaid balance of the
indebtedness secured by the real property, resulting in a deficiency, any action brought to recover
the deficiency must be brought within two years of the foreclosure sale and is governed by this
section.”); PlainsCapital Bank v. Martin, 459 S.W.3d 550, 555 (Tex. 2015) (concluding that
section 51.003 governs suit against borrower “after real property is sold at a foreclosure sale. . .
and judgment is sought against the borrower because the foreclosure sales price is less than the
amount owed”).
The parties agreed that Texas law would apply to the Note and the guaranties would be
performed in Texas. The DOT also stated that it was executed in Texas and would be “governed
by and construed in accordance with the laws of the State of Texas, except to the extent such laws
have been preempted by federal laws[.]” The DOT also stated, however, that California law
applied to any sale of the Property by a trustee under the power of sale, specifically providing that
3
As relevant to this appeal, effective January 1, 2014, the California Legislature amended section 580d to state:
(a) Except as provided in subdivision (b), no deficiency shall be owed or collected, and no deficiency judgment shall
be rendered for a deficiency on a note secured by a deed of trust or mortgage on real property or an estate for
years therein executed in any case in which the real property or estate for years therein has been sold by the
mortgagee or trustee under power of sale contained in the mortgage or deed of trust.
(b) The fact that no deficiency shall be owed or collected under the circumstances set forth in subdivision (a) does
not affect the liability that a guarantor, pledgor or other surety might otherwise have with respect to the deficiency,
or that might otherwise be satisfied in whole or in part from other collateral pledged to secure the obligation that
is the subject of the deficiency.
2013 Cal. Legis. Serv. ch. 65, § 3 (codified at CAL. CIV. PROC. CODE § 580d (West, Westlaw current through ch. 2 of 2018 Reg. Sess.)). The
California Legislature specifically found and declared that this “measure is not intended to and does no impact existing law regarding the liability
of a guarantor, pledgor or other surety may have with respect to a deficiency, nor does it impact existing law regarding other collateral pledged to
secure an obligation that is the subject of a deficiency.” Id. § 1; see also CRE-Venture 2011-2, LLC v. Dowdy, No. D070549, 2017 WL 2953178,
at *6 n.12 (Cal. Ct. App. July 11, 2017) (unpublished).
–10–
“notice of the time, place and terms of said sale, and of the property to be sold [will be provided]
in accordance with applicable laws in the State of California in effect at the time such notice is
given.” The parties do not dispute that the foreclosure sale was conducted pursuant to California
law and have not challenged the validity of that sale. The issue, therefore, is whether California
law applies beyond the foreclosure sale to prevent the enforcement of the Note and the guaranties
pursuant to Texas law.
Generally, parties may resolve uncertainty as to which jurisdiction’s laws will govern their
performance under a multi-jurisdictional contract by including a choice-of-law provision in the
agreement. DeSantis v. Wackenhut, Corp., 793 S.W.2d 670, 677 (Tex. 1990); Gator Apple, LLC
v. Apple Tex. Rests., Inc., 442 S.W.3d 521, 532 (Tex. App.—Dallas 2014, pet. denied). However,
parties “cannot require that their contract be governed by the law of a jurisdiction which has no
relation whatever to them or their agreement” and “cannot by agreement thwart or offend the
public policy of the state the law of which ought otherwise to apply.” DeSantis, 793 S.W.2d at
677; see also Exxon Mobil Corp. v. Drennen, 452 S.W.3d 319, 324 (Tex. 2014).
Both Texas and California follow the principles in the Restatement (Second) of Conflict of
Laws in determining the enforceability of contractual choice-of-law provisions. See Drennen, 452
S.W.3d at 324; Nedlloyd Lines B.V. v Superior Court, 834 P.2d 1148, 1151 (Cal. 1992). Pursuant
to section 186 of the Restatement, “[i]ssues in contract are determined by the law chosen by the
parties in accordance with the rule of § 187 and otherwise by the law selected in accordance with
the rule of § 188.” RESTATEMENT (SECOND) CONFLICT OF LAWS § 186 (1971); see also Sonat
Exploration Co. v. Cudd Pressure Control Inc., 271 S.W.3d 228, 231 (Tex. 2008).
Section 187(1) of the Restatement provides that the law of the state chosen by the parties
will be applied to govern their contractual rights and duties if the specific issue was “one which
the parties could have resolved by an explicit provision in their agreement directed to that issue.”
–11–
RESTATEMENT § 187(1). Examples of issues that cannot be resolved by contractual choice-of-law
provisions include capacity, enforceability, formalities, and validity. See id. § 187 cmt. d;
DeSantis, 793 S.W.2d at 678. Issues that can be resolved by agreement include construction,
conditions precedent and subsequent, and performance. See RESTATEMENT § 187 cmt. c; Gator
Apple, LLC, 442 S.W.3d at 532.
In this case, L&S and the guarantors argue the Note and the guaranties are not enforceable
under California law. Whether a contract is enforceable is not an issue the parties could resolve
by explicit agreement. See DeSantis, 793 S.W.2d at 678; Chesapeake Operating, Inc. v. Nabors
Drilling USA, Inc., 94 S.W.3d 163, 170 n.11 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (en
banc) (noting parties could not have resolved issue of validity of indemnity by express agreement
because Louisiana law (if applicable) would make agreements void).4 Accordingly, section 187(1)
does not control the analysis in this case.
Section 187(2) of the Restatement provides that the law of the state chosen by the parties
will be applied, even if the particular issue is one which the parties could not have resolved by an
explicit provision in their agreement directed to the issue, unless either:
(a) the chosen state has no substantial relationship to the parties or the transaction and
there is no other reasonable basis for the parties’ choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy
of a state which has a materially greater interest than the chosen state in the
determination of the particular issue and which, under the rule of § 188, would be
the state of the applicable law in the absence of an effective choice of law by the
parties.
4
In Chase Manhattan Bank, N.A. v. Greenbriar North Section II, 835 S.W.2d 720, 722–23 (Tex. App.—Houston [1st Dist.] 1992, no writ),
a case involving a lender’s attempt to recover a deficiency judgment following the foreclosure sale of real property located in Texas, the parties
agreed in the promissory note that New York law applied. The court determined the requirement under the New York anti-deficiency statute that
a party seek an order confirming the sale of real property within ninety days of the sale’s consummation and obtain a judicial determination of the
property’s fair market value was a condition precedent, an issue on which the parties could reach an express agreement, and that section 187(1)
therefore applied to require the application of New York law. Id. at 724–25. In contrast, the California anti-deficiency statute, if applicable, would
prohibit the Bank from enforcing the provisions of the Note following a nonjudicial foreclosure sale, an issue the parties could not resolve by
explicit agreement. See id. at 724 (“The parties to an agreement are not the ones who determine its enforceability.” ).
–12–
RESTATEMENT § 187(2).5 “[P]arties will be held to their choice when ‘the state of the chosen law
[has] a sufficiently close relationship to the parties and the contract to make the parties’ choice
reasonable.’” Drennen, 452 S.W.3d at 325 (quoting RESTATEMENT § 187 cmt. f).
Turning first to the exception in section 187(2)(a), in 2007, Seideman was a resident of
Texas, licensed to practice law in Texas, and had a “rather extensive banking relationship” with
Colonial Bank in Texas. The Loan Agreement was negotiated and consummated in Texas, and
L&S was obligated to perform on the contract by making payments to Colonial Bank in Texas.
The guarantors agreed their obligations under the guaranties were performable in Dallas County
and waived the right to be sued anywhere but Dallas County. Although the Property securing the
debt was in California, the underlying obligations (the Note and the guaranties) were clearly related
to Texas. We conclude that, under these circumstances, Texas had a substantial relationship to the
parties and the transaction, and section 187(2)(a) of the Restatement does not preclude the
application of Texas law to the Bank’s claims based on the Note and the guaranties. See In re J.D.
Edwards World Sols. Co., 87 S.W.3d 546, 549 (Tex. 2002) (orig. proceeding) (per curiam)
(concluding Colorado had substantial relationship to parties and their transaction because one party
had office in Colorado and other party contracted with Colorado office and received assistance
from personnel in that office); Res. Sav. Ass’n v. Neary, 782 S.W.2d 897, 903 (Tex. App.—Dallas
1989, writ denied) (Texas had reasonable relationship to parties and their transaction, even though
real property was located in Georgia, because promisor on note was Texas partnership, promisee
on note was located in Texas, indebtedness was payable at promisor’s office in Texas, guarantors
lived in Texas, guarantors agreed their obligations under guaranty were performable in Texas, and
parties agreed Texas law would apply to contract).
5
Section 188 of the Restatement addresses the law governing the rights and duties of the parties in the absence of an effective choice of law.
RESTATEMENT § 188.
–13–
We next consider whether section 187(2)(b) of the Restatement precludes application of
Texas law to the Note and the guaranties. Section 187(2)(b) provides that the law chosen by the
parties will not be enforced if (1) there is a state with a more significant relationship with the
parties and their transaction, (2) applying the chosen law would contravene a fundamental policy
of that state, and (3) that state has a materially greater interest in the determination of the particular
issue. See DeSantis, 793 S.W.2d at 678; Gator Apple, LLC, 442 S.W.3d at 533. We must enforce
the parties’ choice-of-law unless all three elements of this test are satisfied. Gator Apple, LLC,
442 S.W.3d at 533.
The first determination under section 187(2)(b) is “whether there is a state the law of which
would apply under section 188 of the Restatement absent an effective choice of law by the parties.”
Drennen, 452 S.W.3d at 325 (quoting DeSantis, 793 S.W.2d at 678). “This inquiry evaluates
‘whether a state has a more significant relationship with the parties and their transaction than the
state they chose.’” Id. at 325–26 (quoting DeSantis, 793 S.W.2d at 678). The factors we consider
in conducting this analysis include “the locations of the parties, the location of negotiations of the
agreement, the location of the execution of the agreement, and the place of performance.” Id. at
326; see also RESTATEMENT § 188(2); DeSantis, 793 S.W.2d at 678–79. These factors, in turn,
are to be taken into account “in light of the basic conflict of law principles of section 6 of the
Restatement.” DeSantis, 793 S.W.2d at 678 & n.2.6 In conducting our analysis, we focus on which
6
The factors listed in section 6 of the Restatement are:
(a) the needs of the interstate and international systems;
(b) the relevant policies of the forum;
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular
issue;
(d) the protection of justified expectations;
(e) the basic policies underlying the particular field of law;
(f) certainty, predictability, and uniformity or result; and
(g) ease in the determination and application of the law to be applied.
RESTATEMENT § 6.
–14–
state’s law “has the most significant relationship to the particular substantive issue to be resolved.”
Chesapeake Operating, Inc., 94 S.W.3d at 171.
Here, “the particular substantive issue to be resolved” is whether, after the foreclosure sale,
the Bank can recover the amount outstanding on the Note from either L&S or the guarantors. The
lending transaction that forms the basis of the Bank’s claim was negotiated and consummated in
Texas. Further, L&S and the guarantors were required to perform on the Note and the guaranties
in Texas. Accordingly, Texas has the most significant relationship to the particular substantive
issue to be resolved, and we must respect the parties’ choice to apply Texas law to their dispute.
However, we believe the result would the same even if California was the state with the
most significant relationship to this dispute. “Prime objectives of contract law are to protect the
justified expectations of the parties and to make it possible for them to foretell with accuracy what
will be their rights and liabilities under the contract.” RESTATEMENT § 187 cmt. e; see also
Drennen, 452 S.W.3d at 330. “In multistate transactions, these prime objectives ‘may best be
attained . . . by letting the parties choose the law to govern the validity of the contract.’” Drennen,
452 S.W.3d at 330 (quoting RESTATEMENT § 187 cmt. e). Because the parties chose Texas law in
their contract, that choice can be disregarded under section 187(b)(2) of the Restatement only if it
contravenes a fundamental policy of California and California has a materially greater interest in
the determination of the Bank’s deficiency claim than does Texas.
Neither the Restatement nor the Texas Supreme Court has adopted a general definition of
“fundamental policy.” Drennen, 452 S.W.3d at 327. However, in Guardian Savings & Loan Ass’n
v. MD Assocs., 64 Cal. App. 4th 309, 317–322 (1998), a case involving real property located in
California but security instruments containing a Texas choice-of-law provision, the California First
District Court of Appeals concluded that section 580b of the California anti-deficiency statutes
–15–
reflected a fundamental policy of California.7 The court recognized California’s interest in
enforcing the policies underlying section 580 was based on homeowner protection, equitable risk
allocation, and “avoiding the aggravation of an economic downturn in a depression.” Id. at 318.
Those interests, however, had limited impact when the transaction did not involve the sale of a
home and the parties were sophisticated Texas domiciliaries. Id. at 322–23. Under those
circumstances, California’s interest in enforcing its anti-deficiency statute was not materially
greater than Texas’s interest in protecting the contractual expectations of Texas domiciliaries. Id.
at 323.
Although it did not analyze the issue under section 187 of the Restatement, the California
Second District Court of Appeals reached a similar conclusion in Kerivan v. Title Ins. & Trust Co.,
Inc., 147 Cal. App. 3d 225 (1983). In Kerivan, the purchase of property in California was secured
by a note subject to the laws of Colorado. Id. at 228, 230. After the property was sold at a
nonjudicial foreclosure sale, the lender sued the borrower on the note in Colorado and obtained a
deficiency judgment. Id. The borrower filed suit in California against the trustee who conducted
the foreclosure sale, asserting the trustee was negligent by failing to cancel the note after the sale.
Id. The trial court granted the trustee’s general demurrer and dismissed the case. Id.
The appellate court considered whether, following a nonjudicial foreclosure sale of
property in California, “ancillary or supplementary actions may be brought in a sister state.” Id.
at 229–30. Consistent with section 229 of the Restatement,8 the court noted a number of
7
Section 580b “proscribes a deficiency judgment after any sale of real property under a deed of trust or mortgage, given to the vendor to
secure payment of the balance of the purchase price[.]” Spangler v. Memel, 498 P.2d 1055, 1058 (Cal. 1972).
8
Section 229 of the Restatement provides that the “method for the foreclosure of a mortgage on land and the interests in the land resulting
from the foreclosure are determined by the local law of the situs.” Restatement § 229. Comment e addresses issues that are collateral to foreclosure:
Issues which do not affect any interest in the land, although they do relate to the foreclosure, are determined . . . by the law
which governs the debt for which the mortgage was given. Examples of such latter issues are the mortgagee’s rights to hold
the mortgagor liable for any deficiency remaining after foreclosure or to bring suit upon the underlying debt without having
first proceeded against the mortgaged land.
Id.; see also Kerivan, 147 Cal. App. 3d at 231.
–16–
jurisdictions outside of California had concluded a “foreign antideficiency statute at the situs of
the mortgaged property, would not protect the mortgagee against an in personam deficiency action
in the forum.” Id. at 231. The court noted the reasoning behind these opinions was that a “foreign
statute does not extinguish the permissible deficiency, but merely limits the remedy. The remedial
measure in one state would not prevent a recovery of the deficiency in another state.” Id.
The court concluded section 580d “refers only to a judgment rendered in this state and not
to a judgment pursued in a state allowing deficiencies following foreclosure sales.” Id. at 231.
Accordingly, the borrower was entitled to the protection of section 580d when the laws of
California were “applicable to the transaction,” but not when the lender could “seek a deficiency
judgment in a jurisdiction other than” California. Id.; see also Consol. Capital Income Trust v.
Khaloghli, 183 Cal. App. 3d 107, 111, 112 (1986) (concluding “suit on the deficiency is a suit on
the note without regard to the deed or the location of the property” and “law of the situs of the debt
controls when the suit is brought against the debt (or a guaranty) and not the land”).9 Texas courts,
including this one, have reached a similar conclusion. See Neary, 782 S.W.2d at 902–03
(concluding that, although property securing note was located in Georgia, Texas law applied to
proceeding to recover deficiency based on guaranty and guarantors were not entitled to protections
of Georgia law); First Commerce Realty Inv’rs v. K-F Land Co., 617 S.W.2d 806, 808 (Tex. Civ.
App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.) (concluding that, although questions
concerning title to real estate, including foreclosures, are determined by the law of the situs, “the
general rule is that the law of the state where the contract is made controls with respect to validity,
interpretation and obligations under the contract.”).
9
See also United Bank of Denver v. K&W Trucking Co., Inc., 147 Cal. App. 3d 217, 223 (1983) (concluding that because California’s public
policy, as expressed in section 580d, is not “pervasive” in California law and deficiency judgments are not “inherently objectionable,” deficiency
judgment in sister state following foreclosure sale of California property was “not so offensive as to compel this court to recognize an exception to
the full faith and credit clause of the United States Constitution”); Younker v. Manor, 255 Cal. App. 2d 431, 436–37 (1967) (concluding section
580b, another portion of California’s anti-deficiency statutes, applied to preclude lender from obtaining deficiency judgment against California
guarantor, but law of Nevada, the situs of property, applied to “real property” aspects, including means of foreclosure).
–17–
In this case, at the time the parties consummated the transaction, Seideman was a
domiciliary of Texas, Colonial Bank conducted business in Texas, and the Lemelins and L&S
were domiciliaries of California. The parties entered into a large commercial transaction that was
performable in Texas, but involved property located in California. The parties chose Texas law to
apply to their agreement. Under these circumstances, California’s interest in enforcing its anti-
deficiency statute is not materially greater than Texas’s interest in protecting the contractual
expectations of the parties. See Guardian Sav. & Loan Ass’n, 64 Cal. App. 4th at 323; see also
Kerivan, 147 Cal. App. 3d 231.
The parties agreed that Texas law would apply to the Note and to the DOT in all instances
other than the procedures governing the trustee’s sale of the Property under the power of sale and
that the guarantors’ obligations under the guaranties were performable in Texas. Under the
principles in section 187 of the Restatement, we must give effect to that choice. Pursuant to Texas
law, a claim for a deficiency following foreclosure on real property “is an action involving
enforcement of the underlying debt. It is not an action arising out of the real estate foreclosure.”
Neary, 782 S.W.2d at 902–03; see also First Commerce Realty Inv’rs, 617 S.W.2d at 809
(concluding that, although real property securing obligation was sold at foreclosure sale in Texas,
suit for deficiency against borrower and guarantors related to “enforcement of the underlying debt
(the note and the guaranty) and hence is governed by the law of the state [Louisiana] selected by
the parties”). Texas law does not prohibit the Bank from seeking to recover that deficiency from
L&S and the guarantors. See TEX. PROP. CODE ANN. § 51.003; PlainsCapital Bank, 459 S.W.3d
at 555.
We conclude the trial court erred by determining section 580d of the California anti-
deficiency statute precluded the Bank from recovering the deficiency from L&S, but correctly
determined section 580d did not bar the Bank from recovering the deficiency from the guarantors.
–18–
We resolve the Bank’s fourth issue, the Lemelins’ first issue, and Seideman’s cross-issue in favor
of the Bank.
Affirmative Defenses
The other possible bases for the trial court’s judgment in favor of L&S and Seideman was
that one or more of the pleaded affirmative defenses barred the Bank’s claims. L&S pleaded the
affirmative defenses of fraud and estoppel;10 all the guarantors asserted affirmative defenses of
fraud, waiver, and estoppel; and Seideman asserted an additional affirmative defense of lack of
notice of the foreclosure sale. In its first three issues, the Bank contends the trial court erred by
ordering it take nothing from L&S and Seideman based on any of the pleaded affirmative defenses
because (1) Seideman contractually waived all the pleaded defenses, (2) Seideman was properly
served with notice of the foreclosure sale,11 and (3) L&S’s and Seideman’s pleaded defenses were
barred by the statute of frauds or, alternatively, there was insufficient evidence to support the trial
court’s conclusion Seideman established the affirmative defenses of fraud, waiver, and estoppel.
In their second issue, the Lemelins argue that, because the trial court concluded Seideman
established the affirmative defenses of fraud, waiver, and estoppel, it erred by failing to conclude
the Lemelins established those same affirmative defenses or, alternatively, there is insufficient
evidence to support the trial court’s judgment.
Relevant Facts
In its petition, the Bank’s claims were based on the Note and the guaranties, and it attached
those documents, as well as the DOT, to its pleading. The Bank specifically pleaded the guarantors
contractually waived any right to seek an offset based on the fair market value of the Property at
the time of the foreclosure sale. In its original answer, L&S asserted the affirmative defenses of
10
On appeal, L&S states it did not assert the affirmative defense of waiver.
11
The Bank also argues that L&S was properly served with notice of the foreclosure sale. In its appellate brief, L&S states it is not contending
it did not receive proper notice of the foreclosure sale.
–19–
fraud and estoppel based on the Bank’s representation that it would not pursue a deficiency if L&S
vacated the Property voluntarily. In their amended answers, the guarantors pleaded the affirmative
defenses of fraud, waiver, and estoppel based on the same facts. Seideman pleaded an additional
defense of lack of notice of the foreclosure sale.
The Bank did not amend its petition after these answers were filed and did not plead that
L&S’s and the guarantors’ asserted defenses were barred by either the statute of frauds or the
contractual waivers. Prior to trial, the parties filed a Joint Pre-Trial Submission. The Bank did
not include in its statement of contentions that the affirmative defenses were precluded by either
the statute of frauds or the contractual waivers. Included in the parties’ exhibit list as “agreed”
exhibits were the four guaranties and the statute of frauds notice. All four guaranties and the statute
of frauds notice were admitted into evidence.
Holmes did not remember any conversations he had with the Lemelins about the Bank not
seeking a deficiency if the Property was sold through a short sale, but denied that he told the
Lemelins the Bank would not seek a deficiency if they moved out of the building. After the Bank
asked Holmes about the purpose of the statute of frauds notice, the trial court stated it knew “what
the purpose [was].” Holmes then testified he never executed any written modifications or changes
to any of the loan documents, there were no written changes to any of the documents while he was
working on the loan, and there was no written agreement that the Bank would not seek a deficiency
if L&S and the Lemelins vacated the building.
Brian testified he, Robert, and Leo attended the October 2012 meeting with Holmes.
Holmes explained in some detail the options of judicial foreclosure, nonjudicial foreclosure, and a
short sale, but did not tell them that short sales were very difficult and rarely approved by the Bank.
According to Brian, Holmes told them that, in the event of a nonjudicial foreclosure or a short sale,
L&S and the guarantors would be released from any remaining obligation on the Note. Holmes
–20–
also told them one of the “larger challenges” for the Bank was a tenant remaining in the building
and that it would “help” the Bank if L&S and its tenants vacated the building. Brian acknowledged
he signed the statute of frauds notice and testified that, to his knowledge, there were no written
modifications or changes to his guaranty. He also admitted there was no email that “recapped the
high points” of the meeting with Holmes.
Although it was difficult and expensive, L&S vacated the premises voluntarily. The
Lemelins told Seideman about the meeting and, according to Brian, Seideman’s law firm vacated
the Property “for the same reasons that our company moved out.” The Lemelins also “pushed”
L&S’s broker to obtain offers to purchase the Property. Brian testified that, if they had not believed
L&S would be relieved of liability for the deficiency, Lexxiom would not have voluntarily moved
from the Property when it did notwithstanding a need to “manage expenses.”
According to Brian, the Property was vandalized after they moved out of the building.
After discussing the damage to the Property with Holmes, Brian had an understanding L&S
“should move forward to get the building back to the position it was in when the building was
shown” to some of the buyers who had made offers to purchase the Property. Brian testified they
“were offering up a claim” on L&S’s insurance and doing everything they could “to present this
building in the best light,” so that the Property could be sold “in order to relieve us from any kind
of liability.” If they had not “been under the impression” the guarantors would not be subject to a
deficiency action, they would not have agreed to make an insurance claim to repair damage to
property they were about to lose to foreclosure.
After the Property was sold at the foreclosure sale, Holmes requested a “write-up” from
the Lemelins regarding their financial circumstances. On March 5, 2014, Brian sent an email to
Holmes describing Lexxiom’s business model and how, at its peak, it provided support services to
six law firms who represented over 80,000 clients with consumer debt issues. The email indicated
–21–
that, in 2010, the Federal Trade Commission amended its Telemarketing Sales Rule so that it
applied to the sale of debt settlement services and specifically included attorneys within the scope
of the regulations. The amended rule reportedly required significant disclosures to consumers,
prohibited the charging of advance fees for debt settlement services, and limited the fees that could
be charged for those services. The impact of the amended rule was significant. According to the
email, most debt settlement companies either “ceased doing business” or dramatically reduced
their operations. The attorneys L&S provided services to “mostly decided to not take on new
consumer clients while an evaluation was made as to whether an effective business model could
exist under the new rules.”
Brian also stated in the email that, before the regulatory changes occurred, Lexxiom had
obtained a line of credit with Bank of America (BOA) for $2,000,000, which the Lemelins had
personally guaranteed. Because of the negative financial impact of the new regulations, Lexxiom
was unable to repay BOA. Further, there was a dispute between BOA and Lexxiom about BOA’s
charges for processing fees. These “very difficult financial problems” were further exacerbated
by the ongoing recession. According to Brian’s email, Lexxiom had reduced its workforce from
over 400 employees to less than fifty by March 2014. “[T]o try to manage our expenses,” Lexxiom
moved out of the Property to attempt to short-sell it and moved to a much smaller building in a
nearby community. At trial, Brian explained that “managing their expenses” meant they were
attempting to “live within [their] means at that point” and “manage the overall expenses of running
a business in a building at that time.” He agreed that “[p]art of the reason [they] exited the
[Property] was to cut down the expenses.”
Brian finally stated in the March 4, 2014 email that, in September 2013, BOA sued
Lexxiom and the Lemelins for over $3,000,000, and Lexxiom and the Lemelins explored the
option of filing for bankruptcy. In March 2014, they reached a settlement with BOA that would
–22–
allow them to avoid filing for bankruptcy protection “at least for now.” The Lemelins had agreed
to “make very substantial payments” to BOA and had been forced to “collateralize the agreement
with all [their] personal and business assets.”
Robert testified Holmes said at the October 2012 meeting that judicial foreclosure was a
long, expensive process and would not be “beneficial for anybody involved.” The remaining
solutions, a nonjudicial and a short sale, were “more helpful, more beneficial to both sides.” Robert
testified Holmes wanted them to move out of the building. Robert did not leave the meeting “with
the impression that, in the event of a short sale, [he] might be on the hook for a deficiency.” Robert
never saw a written agreement that outlined the three options discussed at the meeting.
Leo testified he had a “faint recollection” from the testimony at trial that was “pretty
consistent with what he left the meeting [with Holmes] understanding.” He had the “same
impression” as Brian and Robert following that meeting. Leo did not believe L&S would have
vacated the building when it did if they had not had the impression the Bank was not “going to
come after” them for the deficiency. Leo was not aware of any written agreement “coming out”
of the meeting with Holmes or of any written communications confirming anything that was
discussed at the meeting.
Seideman was not at the October 2012 meeting with Holmes, but it was his understanding
after the meeting that they needed to cooperate with the Bank in vacating the Property and making
it saleable. The impetus for leaving the building was what Holmes said at the meeting, and he
would not have vacated the building if Holmes had said the Bank rarely, if ever, approved a short
sale of property or that the Bank would pursue the guarantors for any deficiency following a short
sale. If the Bank had been “truthful about its intentions,” Seideman would have attempted to
negotiate with the Bank to “make up the arrears and get current on the loan.”
–23–
Beginning in at least June 2013, Seideman received statements at his business address from
the Bank showing the past due amount on the Note. Some of these statements noted they were a
“Guarantor’s indirect liability statement.” Although Seideman had invested money in the Property
and did not want to lose the Property, he did not communicate with the Bank in 2013 about the
Note or the guaranties. Seideman testified he signed the statute of frauds notice and was not aware
of any written agreement that modified the guaranty that he signed.
During closing arguments, the Bank argued both the statute of frauds and the contractual
waivers in the guaranties precluded the pleaded affirmative defenses. The guarantors’ attorneys
responded substantively to the Bank’s arguments. The trial court asked questions of both sides
regarding the effect of the statute of frauds and the contractual waivers on L&S’s and the
guarantors’ defenses.
Preservation
Seideman and L&S initially argue the Bank waived its reliance on the statute of frauds and
the contractual waivers by failing to plead those arguments in the trial court. Texas Rule of Civil
Procedure 94 requires that “in a pleading to a preceding pleading,” a party must affirmatively plead
any “matter constituting an avoidance or affirmative defense,” including the statute of frauds and
waiver. TEX. R. CIV. P. 94. The purpose of rule 94 is to:
“[G]ive the opposing party notice of the defensive issue to be tried.” It is a rule of
fairness that requires the defendant to identify affirmative defenses, involving facts
distinct from the elements of the plaintiff’s claim, so that the plaintiff may
reasonably prepare to rebut or explain them.
MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 136 (Tex. 2014) (quoting Land Title
Co. of Dallas, Inc. v. F.M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex. 1980)); see also Zorrilla v.
Aypco Constr. II, LLC, 469 S.W.3d 143, 155 (Tex. 2015). Generally, in a bench trial, an
affirmative defense that is not pleaded or tried by consent is waived. Compass Bank v. MFP Fin.
Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied); see also TEX. R. CIV. P.
–24–
67 (stating that issues not raised by pleadings, but tried by consent, shall be treated as if raised by
pleadings).
The trial court has broad discretion in determining whether an unpleaded issue was tried
by consent. Hampden Corp. v. Remark, Inc., 331 S.W.3d 489, 495 (Tex. App.—Dallas 2010, pet.
denied). Although that discretion is to be exercised liberally in favor of justice, trial by consent is
the exception, not the rule, and should not be inferred in doubtful cases. Id. Trial by consent
“applies only where it appears from the record that the issue was actually tried, although not
pleaded.” Id. (quoting Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex.
App.—Dallas 2005, pet. denied)); see also Med. Imaging Solutions Grp., Inc. of Tex. v. Westlake
Surgical, LP, No. 04-17-00285-CV, 2018 WL 2121359, at *5 (Tex. App.—San Antonio May 9,
2018, no pet. h.).
To determine if an issue was tried by consent, the trial court examines the record not for
evidence of the issue, but rather for evidence the issue was tried. Hampden Corp., 331 S.W.3d at
496; Westlake Surgical, LP, 2018 WL 2121359, at *5. An unpleaded issue may be deemed tried
by consent when the evidence on the issue is developed without objection under circumstances
indicating both parties understood the issue was being contested. Hampden Corp., 331 S.W.3d
496; Westlake Surgical, LP, 2018 WL 2121359, at *5. An issue is not tried merely because there
is evidence on the issue, but can be deemed tried by consent when both parties present conflicting
evidence on the subject. Hampden Corp., 331 S.W.3d at 496. On the other hand, an issue is not
tried by consent when the evidence relevant to the unpleaded issue is also relevant to a pleaded
issue because admitting that evidence would not be calculated to elicit an objection and its
admission ordinarily would not prove the parties’ “clear intent” to try the unpleaded issue. Id.
In this case, the Bank’s claims against L&S and the guarantors were based on the loan
documents. The Note, the statute of frauds notice, and the guaranties were admitted into evidence
–25–
without objection. Holmes, Brian, Robert, and Seideman testified about the statute of frauds notice
and the lack of a written agreement modifying the terms of the Note or the guaranties. Both parties
argued to the trial court about the effect of the statute of frauds and the contractual waivers on
L&S’s and the guarantors’ affirmative defenses and responded to the trial court’s questions on
both issues. L&S and the guarantors did not object to the evidence, the arguments, or the trial
court’s questions on the ground they related to an issue not pleaded by the Bank. We therefore
conclude the issue of whether the statute of frauds or the contractual waivers precluded L&S and
the guarantors from relying on any of the pleaded affirmative defenses was tried by consent.
Statute of Frauds
In its third issue, the Bank argues the trial court erred by rendering judgment in favor of
L&S based on its affirmative defenses of fraud and estoppel and in favor of Seideman based on
his affirmative defenses of fraud, estoppel, and waiver because those defenses are barred by the
statute of frauds. In their second issue, the Lemelins assert that, because the trial court concluded
that Seideman established the affirmative defenses of fraud, waiver, and estoppel, it erred by
failing to conclude the Lemelins established those same affirmative defenses.
Section 26.02 of the business and commerce code is the statute of frauds applicable to loan
agreements involving financial institutions. See TEX. BUS. & COM. CODE ANN. § 26.02 (West
2015). Under section 26.02, a loan agreement involving an amount in excess of $50,000, “is not
enforceable unless the agreement is in writing and signed by the party to be bound or that party’s
authorized representative.” Id. § 26.02(b). “Loan agreement” is broadly defined to include:
[O]ne or more promises, promissory notes, agreements, undertakings, security
agreements, deeds of trust or other documents, or commitments, or any
combination of those actions or documents, pursuant to which a financial institution
loans or delays repayment of or agrees to loan or delay repayment of money, goods,
or another thing of value or to otherwise extend credit or make a financial
accommodation. . . .
–26–
Id. § 26.02(a)(2). Financial institutions include state and federally chartered banks. Id.
§ 26.02(a)(1). Section 26.02(e) requires a financial institution to:
[G]ive notice to the debtor or obligor of the provisions of Subsections (b) and (c)
of this section. The notice must be in a separate document signed by the debtor or
obligor or incorporated into one or more of the documents constituting the loan
agreement. . . . The notice must state substantially the following:
“This written loan agreement represents the final agreement
between the parties and may not be contradicted by evidence of
prior, contemporaneous, or subsequent oral agreements of the
parties.
“There are no unwritten oral agreements between the parties.
Id. § 26.02(e). The statute of frauds notice in this case complied with section 26.02.
Both L&S and Seideman allege that Holmes’s misrepresentation that the Bank would not
pursue a deficiency judgment induced them to vacate the building. Allegations of fraud generally
do not preclude application of the statute of frauds, and the supreme court has “rejected attempts
to ‘use a fraud claim essentially to enforce a contract the Statute makes unenforceable’ as an
improper circumvention of the statute’s purpose.” Knapp Med. Ctr. v. De La Garza, 238 S.W.3d
767, 769 (Tex. 2007) (per curiam) (op. on reh’g) (quoting Haase v. Glazner, 62 S.W.3d 795, 799
(Tex. 2001); Nagle v. Nagle, 633 S.W.2d 796, 801 (Tex. 1982)). Therefore, “the Statute of Frauds
bars a fraud claim to the extent the plaintiff seeks to recover as damages the benefit of a bargain
that cannot otherwise be enforced because it fails to comply with the Statute of Frauds.” Haase,
62 S.W.3d at 799; see also Knapp Med. Ctr., 238 S.W.3d at 769. Although L&S and Seideman
do not seek to recover damages, they are seeking the benefit of the bargain of an alleged oral
contract that modified the Bank’s rights under the Note and the guaranties. Accordingly, absent
an exception, the statute of frauds bars L&S’s and Seideman’s reliance on the alleged oral
agreement to be relieved of their contractual obligations. See Bagwell v. BBVA Compass, No. 05-
14-01579-CV, 2016 WL 3660403, at *5 (Tex. App.—Dallas July 7, 2016, no pet.) (mem. op.).
–27–
L&S contends its affirmative defenses are not barred by the statute of frauds because, due
to its reliance on Holmes’s misrepresentations, the Bank is estopped from seeking a deficiency
against L&S. The supreme court has recognized that “promissory estoppel [is] an exception to the
statute of frauds.” Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 636 (Tex. 1997)
(citing “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937–38 (Tex. 1972)).
The elements of promissory estoppel are: (1) a promise; (2) foreseeability of reliance on the
promise by the promisor; and (3) substantial detrimental reliance by the promisee. English v.
Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Bagwell, 2016 WL 3660403, *3. When promissory
estoppel is raised as a defense to the statute of frauds, the promisee must establish (1) there is an
oral agreement that is barred by the statute, (2) an additional promise to sign an existing writing
containing the terms of the oral agreement, and (3) that writing would satisfy the statute of frauds.
Bagwell, 2016 WL 3660403, at *3 (citing “Moore” Burger, Inc., 492 S.W.2d at 937; Nagle, 633
S.W.2d at 800); see also Bank of Tex. N.A. v. Gaubert, 286 S.W.3d 546, 553 (Tex. App.—Dallas
2009, pet. dism’d w.o.j.).
The record contains no written agreement for modification of the Note or the guaranties or
that the Bank would not seek to recover a deficiency from L&S or the guarantors. Nor is there
evidence that Holmes or any other representative of the Bank promised to sign a written agreement
modifying the Note or the guaranties to reflect the Bank would not seek to recover a deficiency if
L&S and its tenants vacated the Property. Accordingly, promissory estoppel is not a defense to
the Bank’s claims the statute of frauds precludes the pleaded affirmative defenses. See Gaubert,
286 S.W.3d at 555 (concluding promissory estoppel exception did not apply because there was no
evidence of promise to sign existing writing satisfying statute of frauds); Deubler v. Bank of N.Y.
Mellon, No. 07-13-00221-CV, 2015 WL 3750312, at *7 (Tex. App.—Amarillo June 15, 2015, pet.
denied) (mem. op.) (concluding statute of frauds barred claim based on promises to modify loan
–28–
agreement); Ellen v. F.H. Partners, LLC, No. 03-09-00310-CV, 2010 WL 4909973, at *5–6 (Tex.
App.—Austin Dec. 1, 2010, no pet.) (mem. op.) (concluding alleged promise by bank
representative to delay foreclosure was barred by statute of frauds).
Seideman argues the statute of frauds does not bar the affirmative defenses of fraud, waiver,
and estoppel due to the partial performance exception. See Stovall & Assocs., P.C. v. Hibbs Fin.
Ctr., Ltd., 409 S.W.3d 790, 800 (Tex. App.—Dallas 2013, no pet.) (“Partial performance has been
recognized as an equity-based exception to the statute of frauds.”). “[C]ontracts that have been
partly performed, but do not meet the requirements of the statute of frauds, may be enforced in
equity if denial of enforcement would amount to a virtual fraud.” Exxon Corp. v. Breezevale Ltd.,
82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied); Tatum v. Wells Fargo Home Mortg.,
Inc., No. 01-13-00855-CV, 2014 WL 7474074, at *6 (Tex. App.—Houston [1st Dist.] Dec. 30,
2014, no pet.) (mem. op.). “The fraud arises when there is strong evidence establishing the
existence of an agreement and its terms, the party acting in reliance on the contract has suffered a
substantial detriment for which he has no adequate remedy, and the other party, if permitted to
plead the statute, would reap an unearned benefit.” Breezevale Ltd., 82 S.W.3d at 439. The partial
performance must be “unequivocally referable to the agreement and corroborative of the fact that
a contract actually was made.” Id. (quoting Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex. App.—
Texarkana 1989, no writ)); see also Healey v. Romero, No. 05-16-00598-CV, 2018 WL 2126903,
at *2 (Tex. App.—Dallas May 7, 2018, no pet. h.) (mem. op.). For the exception to apply, there
must be “more than just one party’s performance of some obligation under the alleged oral
contract.” Nat’l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 426 n.2 (Tex. 2015) (per
curiam). Rather,
[T]he purpose of the alleged acts of performance must be to fulfill a specific
agreement. If the evidence establishes that the party who performed the act that is
alleged to be partial performance could have done so for some reason other than to
fulfill obligations under the oral contract, the exception is unavailable.
–29–
Id. at 426–27; see also Breezevale Ltd., 82 S.W.3d at 439–40 (“The acts of performance relied
upon to take a parol contract out of the statute of frauds must be such as could have been done
with no other design than to fulfill the particular agreement sought to be enforced.”).
Seideman and the Lemelins testified they would not have vacated the Property when they
did and L&S would not have made an insurance claim to repair the vandalism to the Property
except for Holmes’s representations the Bank would not seek to recover a deficiency from them.
However, Brian indicated in a March 2014 email to Holmes that regulatory changes had greatly
impacted Lexxiom’s business; many of Lexxiom’s clients, who were attorneys, were no longer
accepting new clients; L&S and the Lemelins owed a significant sum of money to BOA; and L&S
vacated the Property in order to “manage their expenses.” Seideman was one of Lexxiom’s clients
and closed his law office in California by December 1, 2013. Accordingly, L&S and its tenants’
decision to vacate the Property could have been due to regulatory changes that impacted Lexxiom’s
and Seideman’s businesses in California, and L&S’s need to sell the Property to manage its
expenses in the new business environment. Therefore, L&S’s decision to have its tenants vacate
the Property was not “unequivocally referable” to the alleged oral agreement, and the partial
performance exception is not applicable in this case.
We conclude the statute of frauds bars L&S’s affirmative defenses of fraud and estoppel
and Seideman’s affirmative defenses of fraud, waiver and estoppel. Accordingly, the trial court
erred to the extent it granted judgment in favor of L&S or Seideman based on these affirmative
defenses. Further, because Seideman’s affirmative defenses of fraud, waiver, and estoppel are
precluded by the statute of frauds, the same affirmative defenses pleaded by the Lemelins based
on the same facts are also precluded by the statute of frauds. We resolve the Bank’s third issue
and the Lemelins’ second issue in favor of the Bank.
–30–
Failure to Give Notice
In its first issue, the Bank asserts the trial court erred by concluding the Bank’s claims
against Seideman were barred by lack of notice of the foreclosure sale, fraud, waiver, or estoppel
because Seideman contractually waived all defenses other than payment. We have already
concluded Seideman’s affirmative defenses of fraud, waiver, and estoppel are barred by the statute
of frauds. We, therefore, consider only whether Seideman contractually waived any right to assert
lack of notice of the foreclosure sale as an affirmative defense.
Relying on section 14 of the DOT, Seideman asserts he had a contractual right to notice of
the foreclosure sale. Seideman specifically argues the DOT stated it was intended to secure all
indebtedness, including any indebtedness evidenced by his guaranty, (2) the DOT “must be
interpreted to require [the Bank] to provide notice of the foreclosure sale to the guarantors,
including Seideman, because the guarantors are debtors under the [DOT],” and (3) because the
DOT, the Note, and the guaranty anticipated there would be instances where the Bank was required
to provide notice, “any defense based on failure to provide contractual notice was not waived.”
The DOT, however, states it was intended to secure and enforce payment of the Note and
any other indebtedness of L&S to the Bank. Although Seideman agreed to pay L&S’s
indebtedness if L&S defaulted, his guaranty was additional collateral for L&S’s indebtedness, not
additional indebtedness under the Note. We need not determine, however, whether Seideman had
a contractual right to notice of the foreclosure sale because he clearly waived any right to assert
lack of notice as a defense to a claim for payment under the guaranty.
Waiver is an “intentional relinquishment or abandonment of a known right or privilege,”
or the “intentional relinquishment of a known right or intentional conduct inconsistent with
claiming that right.” Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 6 (Tex. 2014)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Sun Exploration & Prod. Co. v. Benton,
–31–
728 S.W.2d 35, 37 (Tex. 1987)). Waiver is largely a matter of intent. Crosstex Energy Servs.,
L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 393 (Tex. 2014). “To be effective, the waiver must be
clear and specific.” Moayedi, 438 S.W.3d at 6. Whether there has been a waiver depends on the
circumstances of the case, but “[t]here can be no waiver unless so intended by one party and so
understood by the other.” Id. at 6–7 (quoting Lesikar v. Rappeport, 33 S.W.3d 282, 300 (Tex.
App.—Texarkana 2000, pet. denied)). Although waiver generally presents a question of fact,
when, as in this case, the “facts and circumstances are admitted or clearly established, the question
becomes one of law.” Crosstex Energy Servs., L.P., 430 S.W.3d at 394 (quoting Motor Vehicle
Bd. of the Tex. Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108, 111
(Tex. 1999) (per curiam)).
The Bank argues Seideman waived any right to assert lack of notice of the foreclosure sale
as a defense, while Seideman contends all the documents relating to the transaction must be read
together, he had a right to notice of the foreclosure sale pursuant to the DOT, and any conclusion
that he waived the right to notice “would render the notice requirements contained in [the DOT]
meaningless.” We agree with Seideman that we must examine and consider the entire contract to
determine the parties’ intentions as expressed in the instrument. Moayedi, 438 S.W.3d at 7.
However, even if Seideman had a right under the DOT to notice of the foreclosure, he could waive
the right to assert any lack of notice as a defense to a claim based on the guaranty. See Motor
Vehicle Bd. of the Tex. Dep’t of Transp., 1 S.W.3d at 111 (“A party’s express renunciation of a
known right can establish waiver.”).
In the guaranty, Seideman agreed (1) his guaranty would not be “discharged, impaired or
affected” by “any defense (other than the full payment of the indebtedness hereby guaranteed in
accordance with the terms hereof)” that he might have and (2) “each and every defense” was
waived. We conclude Seideman clearly and specifically waived all defenses other than payment,
–32–
including any defense based on the Bank’s failure to provide him notice of the foreclosure sale.
Accordingly, we resolve the Bank’s first issue as it relates to Seideman’s defense of lack of notice
in its favor.12
Conclusion
We conclude (1) the California anti-deficiency statute does not bar the Bank’s claims
against L&S or the guarantors, (2) L&S’s affirmative defenses of fraud and estoppel and the
guarantors’ affirmative defenses of fraud, waiver, and estoppel are barred by the statute of frauds,
and (3) Seideman contractually waived any defense based on lack of notice of the foreclosure sale.
Accordingly, we affirm the trial court’s judgment against the Lemelins, but reverse the trial court’s
judgment in favor of L&S and Seidman. We render judgment that the Bank recover its actual
damages of $5,070.172.22 from the Lemelins, L&S, and Seidman, jointly and severally. Because
we have significantly changed the trial court’s judgment, we reverse the trial court’s judgment as
to the assessment of attorneys’ fees, expenses, and court costs and remand this case to the trial
court for reassessment of the parties’ liability for those fees and expenses.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
170381F.P05
12
Based on our resolution of the Bank’s first and third issues, we need not address the Bank’s or the Lemelins’ arguments about the legal and
factual sufficiency of the evidence or the Bank’s second issue regarding whether Seideman received proper notice of the foreclosure sale. See TEX.
R. APP. P. 47.1.
–33–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRANCH BANKING & TRUST On Appeal from the 95th Judicial District
COMPANY, Appellant & Cross-Appellee Court, Dallas County, Texas,
Trial Court Cause No. DC-14-12543.
No. 05-17-00381-CV V. Opinion delivered by Justice Fillmore,
Justices Lang and Schenck participating.
SCOTT SEIDEMAN, Appellee & Cross-
Appellant, AND L&S INVESTMENT
PARTNERS, LLC, Appellee
ROBERT LEMELIN, LEO LEMELIN,
BRIAN LEMELIN AND SCOTT
SEIDEMAN, Appellants
V.
BRANCH BANKING & TRUST
COMPANY, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part.
We AFFIRM that portion of the trial court’s judgment ordering that Branch Banking &
Trust Company recover its actual damages from Robert Lemelin, Leo Lemelin, and Brian
Lemelin.
We REVERSE that portion of the trial court’s judgment ordering that Branch Banking &
Trust Company take nothing from Scott Seideman and L&S Investment Partners, LLC.
We RENDER judgment that Branch Banking & Trust Company recover from Robert
Lemelin, Leo Lemelin,, Brian Lemelin, Scott Seideman and L&S Investment Partners, LLC,
jointly and severally, actual damages of $5,070,172.22.
–34–
We REVERSE the trial court’s award of attorneys’ fees, expenses, and court costs, and
REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that Branch Banking & Trust Company recover its costs of this appeal
from L&S Investment Partners, LLC, Robert Lemelin, Leo Lemelin, Brian Lemelin, and Scott
Seideman.
Judgment entered this 21st day of June, 2018.
–35– | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4288803/ | Dismissed and Opinion Filed June 21, 2018
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00573-CR
No. 05-18-00574-CR
No. 05-18-00575-CR
ANDREW PETE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F12-33559-V, F12-33560-V & F12-33561-V
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Whitehill
Opinion by Justice Francis
Andrew Pete was convicted of three aggravated sexual assaults of a child younger than
fourteen years of age and, on November 15, 2017, the trial court assessed punishment at eight
years in prison for each offense. In May 2018, appellant filed a motion for out-of-time appeals in
the trial court. By order dated May 11, 2018, the trial court denied his motion, stating that it lacked
jurisdiction to grant appellant the relief he requested. Appellant’s notices of appeal were filed in
this Court on May 17, 2018.
When a criminal defendant misses the deadline to file a notice of appeal following
conviction, intermediate appellate courts lack jurisdiction over the appeal. Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996). Intermediate appellate courts may obtain jurisdiction
after those deadlines have passed only if the Texas Court of Criminal Appeals grants the defendant
the ability to pursue an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241,
243 (Tex. Crim. App. 1991) (orig. proceeding); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.
App. 1997) (explaining that granting an out-of-time appeal “restores the pendency of the direct
appeal”). To be entitled to an out-of-time appeal, the defendant must file an application for a writ
of habeas corpus with the clerk of the convicting court. In re Escareno, 297 S.W.3d 288, 289
(Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 1, 3, 5 (West 2015). The
application is then transmitted to the Texas Court of Criminal Appeals, which has sole jurisdiction
to grant the relief of an out-of-time appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 1, 3,
5; Ater, 802 S.W.2d at 243 (“We are the only court with jurisdiction in final post-conviction felony
proceedings.”).
Instead of filing an application for writ of habeas corpus under article 11.07, appellant filed
a motion with the trial court, requesting that it authorize out-of-time appeals. He now appeals the
denial of that motion. Neither the trial court nor this Court has jurisdiction to grant the relief he
requests. See Ashorn v. State, 77 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d); see also Kossie v. State, No. 01-16-00738-CR, 2017 WL 631842, at *1-2 (Tex. App.—
Houston [1st Dist.] Feb. 16, 2017, no pet.) (mem. op., not designated for publication) (stating that
intermediate appellate court does not have jurisdiction to grant out-of-time appeal, which must be
sought through post-conviction habeas application made returnable to Texas Court of Criminal
Appeals under article 11.07).
We dismiss these appeals for want of jurisdiction.
/Molly Francis/
MOLLY FRANCIS
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
180573F.U05
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANDREW PETE, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-18-00573-CR V. Trial Court Cause No. F12-33559-V.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered June 21, 2018.
–3–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANDREW PETE, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-18-00574-CR V. Trial Court Cause No. F12-33560-V.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered June 21, 2018.
–4–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANDREW PETE, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-18-00575-CR V. Trial Court Cause No. F12-33561-V.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered June 21, 2018.
–5– | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4131904/ | The Attorney General of Texas
April 3, 1980
MARK WHITE
Attorney General
Honorable Billy Red Lacy Opinion No. MW-157
Potter County Auditor
Potter County Courthouse Re: Article 332c, V.T.C.S., and
Amarillo, Texas 79101 the expenditure of county funds as
reimbursement for attorneys’ fees
incurred in defending an ouster
suit.
Dear Mr. Lacy:
You have requested our opinion regarding the authority of Potter
County under article 332c, V.T.C.S., to reimburse the Sheriff and County
Attorney for the attorneys’ fees these two officers incurred while defending
an ouster suit brought against them by the District Attorney. The District
Attorney brought the action for removal under the terms of article 5970,
V.T.C.S., and your question is whether the costs of defending this suit can be
borne by the county in accordance with the provisions of article 332c,
V.T.C.S. It is our opinion that the employment of private counsel that is
provided for in section 3 of the latter article was not intended to include the
hiring of such counsel when the action involved is an ouster suit seeking the
removal of county officials.
Article 5970, V.T.C.S., and article V, section 24 of the Texas
Constitution have been held to require a suit for removal to be brought in
the name of the state. As the Texas Supreme Court noted in Garcia v.
Laughlint 295 S.W.2d 191, 194 (Tex. 19551, “lilndividuel citizens have no
private interest distinguishable from the public as a whole and have no right
to maintain an ouster suit without being joined by a proper state official”
These suits must follow the procedures set out by the Texas
Legislature in articles 5970-5997, V.T.C.S., and must be sworn to and
conducted in the name of the State of Texas. Childress County v. Sachse,
310 S.W.Sd 414, 419 (Tex. Civ. App. - Amarillo), writ ref’d nr.e. by per
curiam, 312 S. W.d 380 fl959). -See V.T.C.S. art. 5977 (proceedings conducted
in name of state).
Article 332c, V.T.C.S., was enacted to provide legal representation to
county officials and employees who are sued while in the performance of
public duties and are the subject of an action brought by a “nonpolitical
Honorable Billy Fred Lacy - Page Two @IN-157 )
entity.” Section 1 of this act states that a “nonpolitical entity” does not include “the
state, a political subdivision of the state, a city, a special district, or other public entity.”
It is clear that the State of Texas is a political entity, and therefore article 332~ &es not
authorize the payment of attorneys’ fees. -See Letter Advisory No. 24 (1973).
For an analysis of those instances in which the case law permits a city or county to
pay the legal fees of officials who have acted within the scope of their official duties see
Attorney General Opinions H- 997 (1976) and WW-1464 (1962). See-gene Letter
Advisory No. 24 (l973).
SUMMARY
A county cannot rely on the provisions of article 332c, V.T.C.S., as
authority to pay the attorneys’ fees of officials who are subjected
to an ouster suit brought under the provisions of article 5970,
V.T.C.S.
w!m
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Walter Davis
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Bob Gam mage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
P. 307 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144730/ | OFFlCE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Section 2 of hrticlo 111X, Fenal Cod0 of Texas,
kno,.:nand cited as the "Cl-mill::CCTC Tax Lax,* pro-
cozz-:;only
vides r,encrally thbt any person, Sir3 or corljoretion desiring
to operate , mintain, open or establish a store or mrcsntils
establ~iehnent in thio St::to skl.1 rake application for a li-
cense so to do In .the fom and .riannurprovided, and fui%har
rcquii-es that "each ap;;lic~tion shall bo accomponiad by a
filiq See OS fifty cents (5C$) for ench store or :mrca:ltilo
oetablirhxent O~l~etr?d Or ii0 be O;Ml+:>ted~fOI’the j?JrpCee Cf
dcrrGyinC the CO~:tr:of ud,.zinistretionof ttlis Act." "
Section 3 of the above cited Act provides that if,
ucon exaximtion, VVan nmlir.ation is found to be eatlnfactorv.
f1i.n; and l.iccnse foes &r. krein pr9acribea,8kii
and ii the -'
hcivo been jxid, t50 CcuLlptrollorof rublic Accounts ahnll i r-sue
~aop~licont a llceuse for each store or zercsntila estab-
lishxcnt To"orxhlch an a~;~lication Sor a license shall have
bow mde." (%iphrr.sis o!ms).
Section 4 of the Act provide3 that all licenses
shall be issued Sor a period of the calendar geer so as to
erpirc on ths 3lst day of Deccrzber af each year, and on or
beforo th;?cdate a ra~e~al liceesa for the :;u~~ceding year
shawl. be issued by the Co:qtrol.ler cf Lublic Accounts, u?on
'ap,?licationtharel'or, accompanied by the filing fae of Sifty
cents for aach 8tOl.o.
Section 5 of the Chain Store ?ict provides for the
payaent,~ in addition to the above described Siline See re-
quired by .'.ections2~and 4 03 tho Act, of a license fee,
Crsduated accordin& to the nuzbcr of stors:O oi:ncd and operated
by the llccnsee.
In discussing the nature of this so-celled liceose
fco, the Suprma Ccurt OS Tcxaa, in the cssr: of ZiLTt et fll
vc. cooper ot al, regortcd at 110 S.'Y. (?a) '96, spoke 6s
follcws:
.~.
??on. Goarge R. Shopparil, Togo 3.
exceed the a:!lountrealized therefrom. Pa other
is a levy af a licenm fee for cnch store fro:2 v~hich
mch revenue v&l1 be raalized. The 8 ct apporti one
the rcvenuc boik~cen the svailabla school fuhd and
the Eencral fmd, and the only feet stetcd for the
existence of an mergency is that the state is bed-,
ly in need of u2ditionsl revenue. The tcntetivo
opinion of the Court of Civil Appeals accoqsnying
thLs ccrtificste comoctly encwers this qu3st5on
in the follo:.Gn~ lrmgungc: 'i:ethih'd t'ne priymrg
purposa of t.haAct vms to raise revmues, alth.ouch
the levy is WXiCiOilsd 8s a "licc~se fee." The e.r;ler-
fiB!lCFclause rccitin~ the need of additional rcsvonue;
the mousts lsviod being Sar in excese of regulatory
needs, end the distribution mde cfter collec+,ion,
,ind,icatecleerly tiiet the Acty?:rrsinten~ded, primarily
at li'ast, 3~ a revenue masure,~ Ye do not think
it a mtter of significacco th3t the levy is called "
a olicehse fee, " CS its plyP2llt f$VeS th ri,$it t0
carry on the business Y/ithout the, performnco of
any other condition.'**
This decision has a direct beerin upon the detor-
s&nation of the instant question bocause,'in holdln$ the
chain storo licesee foe levioo by Soctioh 5, Article llllb,
Ymcl Code of Ycxas, to'be un occumtion tax, the chain
store tax license issued by tie Co%atrollcr of Fublic AC-
count e, u;jon paymnt of such license fee or' occupation tax,
would be coversed squarely by the temc snd I::ovisions c/f
Article 7055 nnd 7056, Vernon' s Acnotsted Civil :.tet*utes,
insofar as such statut 3s nrs np,?licable to the nttmpted
transfers or assi~+~ento ef the license involved h3re.
Such ststutes 2roovidc as fOlloiIs:
!ion. George Il. She?oard, F=Ee 4.
for in the original oppl.icationr!for such licensee.
EoChi?~ in this 3s~i shall be so construed as to
t%UthOrixG tiY0 OP zore persone, firas, corporations
or associations of personi; to follow; the saw? occu-
pation under one license at the sa:is tii.33. Xhon-
ever any person, first, corporation or essociation
of >eri;ons follo~ir;; en occupation s&l1 be clo:ed
out by leEal. iwocess, the oocupation license shall
be deered an asset of soid .zrson, fir%, corporation
or nssocfatio~ of reriro:ir,znd. sold as other pro-
perty bel.on@! to said person, fir:;:,cor~orntion,
or association; and tb.o purckas:cr thereof rhsll hsve
the right to pursue the occu>%ticn nazied in said
license, or trenefer it to any other person; pmvid-
ed, such occuoation'lioenns
I-. shal.1 under no circur,-
stollcn~
-- bs tr&n:;frjyrc2(i
rcora tbc!~ one t r;e.f+
-IT:ji+-
fxxx1~ ours.)
The underlined portion of Article 7056, T~~snon*s
Annotated Civil Ztatutees, next above quoted, furnishes a speci-
fio answer to your stxon6 question. Dy tlx lsttcr of the sta-
tut.e an unexpired oocupation tax license such OS the one In-
volved hsrc ~1s transferable or an&gable only one tice dur&
the calendar '@or for which tucb liccnso is offcctiva,.and
coneoquently you \i;ou
ld,not be eutf-orized to recoc;nisa the
validity,of a\lch second trensfcr or aseig~went. Such sec0,nd
traosl'oree or assignee would be~re~~ired to pmkre a 1~0~:.
license for:t!le bslence Gf the calendar year upon fom~al
application, acc~+en&ed by the fil.icg fee of fifty cents, in
accordanue:vA.th Sectioq 2 of the Chain Store Tar Act.
Kecurr1.q nCci to YOUIT first TJestion, it 13 our
opinion thst'the filing fee, cf fifty cents would not be re-
quirod to occor~eny en og~lfl.catlo:: or request for a ccrtifi-
cota reco~nizi~ the first transfer or aasi,',n::-nt of t!le
ohain store tax license; This co-czlled application is not
the cpplicotion ccnt~;:.lpletod or revJircd by Section 2 of'
Article lllld, Fcnal Code of TeX%G, for,the in~ucncc of a
nev; license or liczansos originally issued to the prson, fir=
or corporatfcn desirin;: to omrzts, naintnin, oy-n or estab-
lish stores Gr 2ercantile ceta31isbzents in Texas, and vie.
aI’9 not authorize: to cnlarg,a t!>n F.CO~ of Secti 2 of this
Act co as to xako it co:cproh:ende ro?uent or npplicstion
$TGXin(l Out Of en n;si~n:;ent Or tr2nsi'cr 0% a chain store
tar ,liCm,p1, in conn:,ctl~on~Y3it.h xhic?~ thn fiiifi::
fee of fi.fty
cmt s hl E olrs~dy b?:en paid. Under the holdin: of the ':.u?rc:ze.
Court iii the CCIEC Gf Xui't at al'vr.. Cooper ct 31, supra, this
.
filing,fee of fifty cants ‘::a8h:?ld to bs a rekul3tory fee for
the purpo~3 of defroyin,;,cx~encos incident to o~plications
for chain st.orstax licenses, rather than a fe3 undor tkx
pcwcrr of taxation. The o!:ain ?Gore t:?x License, for dich
such filia,; fet, Vief3orlgin3lly paid, is, un;!er th.3 facts
givtxI iA con1?3Ct.i~!1with your fj,rst c~ue~~tio!~,
Outstanding,
and vliU. rexin so until the end of tte calender year. Con-
cequently, any en:pcnso intillent to the transfer or nssicn-
ment of ~uc!2 chain store tax license is not t&en care of
by the flllw f~c,of fifty cents originally paid, noris
any odditiozal fi:e required for r,uch pwposes by eny lar.@ag;o
which can he poir,teC to in tbo Chsla Stork :'LX ;$ct.
-2
F??:pbp | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125062/ | February 11, 2015
The Honorable Andrew Lucas Opinion No. KP-0002
Somervell County Attorney
Post Office Box 1335 Re: Determination of the terms of office for
Glen Rose, Texas 76043 county hospital district board members who
received the same number of votes in the initial
election (RQ-1213-GA)
Dear Mr. Lucas:
You ask about the determination of the terms of office for members of a county hospital
district board of directors when, in an at-large election of the members of the initial permanent
board, two of the members received the same number of votes. 1 You inform us that the Somervell
County Hospital District (the "District") was created pursuant to chapter 286 of the Health and
Safety Code. Request Letter at 1. The petition to create the District calls for a board of seven
directors who are to be elected at large. See id., Exhibit A ("Petition to Create the Somervell
County Hospital District") (on file with the Op. Comm.).
Section 286.042 allows a chapter 286 hospital district to elect its initial permanent directors
either at large, by place, or by a hybrid of precinct and at-large positions. TEX. HEALTH & SAFETY
CODE ANN. § 286.042(b)-(d) (West 2010). For a district that elects its directors at large under
subsection (b), "the appropriate number of candidates receiving the highest number of votes at the
initial election of directors are directors for the district." Id. § 286.042(b)(1 ). In an at-large district,
"the number of directors equal to a majority of the directors who receive the highest number of
votes at the initial election serve for a term of two years; and ... the remaining directors serve for
a term of one year." Id. § 286.042(b)(2)-(3). Thereafter, directors serve two-year terms, so that
the district holds an election each year to select the appropriate number of successor directors for
a two-year term. Id. § 286.042(e).
You state that at the May 2014 election of the initial permanent board, seven persons
received the highest votes out of a field of eighteen candidates. Request Letter at 1. Two of the
seven received the same number of votes, however, tying for the fourth-highest number of votes.
Id. Because seven candidates for seven at-large positions received more votes than the remaining
candidates, the seven have been elected to office. See TEX. HEALTH & SAFETY CODE ANN.
1See Letter from Honorable Andrew Lucas, Somervell Cnty. Att'y, to Honorable Greg Abbott, Tex. Att 'y
Gen. (Aug. 13, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Andrew Lucas - Page 2 (KP-0002)
§ 286.042(b)(1) (West 2010). Your question is not about who has been elected to office, but about
the directors' terms of office. You ask whether the directors who received the same number of
votes are part of the "majority of the directors who receive the highest number of votes" and
therefore both serve a two-year term under section 286.042(b)(2) of the Health and Safety Code,
or whether the District must hold a tie-breaking election under section 2.002 of the Election Code.
Id.; Request Letter at 1-2; see also TEX. ELEC. CODE ANN. § 2.002 (West 2010).
We first consider whether section 2.002 of the Election Code authorizes a second election
in the present circumstances. Subsection 2.002(a) of the Election Code authorizes a second
election only when, "in an election requiring a plurality vote, ... two or more candidates for the
same office tie for the number of votes required to be elected." TEX. ELEC. CODE ANN.§ 2.002(a)
(West 2010) (emphasis added). Even if the election at issue required a plurality vote, that section
authorizes a second election only to fill an office, not merely to establish whether directors who
have been elected will serve a one-year or a two-year term. Here, seven candidates received the
votes required to be elected to the seven at-large director positions, and therefore, each has been
elected to an office. See TEX. HEALTH & SAFETY CODE ANN. § 286.042(b)(l) (West 2010). No
directors tied for the same office. Section 2.002 does not require or authorize a second election
when there is no office to fill because the appropriate number of candidates have been elected to
the same number of at-large positions. See Beeler v. Loock, 135 S.W.2d 644, 647 (Tex. Civ.
App.-Galveston 1939, writ dism'd) (stating that a predecessor statute was "intended to apply in
cases where no one was actually elected," and upholding the election of seven candidates to fill
seven positions even though two or more may have received an equal number of votes); see also
Countz v. Mitchell, 38 S.W.2d 770, 774 (Tex. 1931) (holding that the right to conduct an election
must be authorized by a statute or the constitution).
Section 286.042 of the Health and Safety Code does not prescribe how to determine the
terms of office of members elected to a governing body when two received the same number of
votes in an at-large election. See TEX. HEALTH & SAFETY CODE ANN. § 286.042 (West 2010).
Subsection (b) does not explain what constitutes "a majority of the directors who receive the
highest number of votes at the initial election." Id. § 286.042(b)(2)-(3).
The Legislature may have anticipated that the statutory mechanism it created in section
286.042(b) would result in annual elections of roughly one-half of,a board elected at large.
Subsection (c), applicable to the districts that elect directors by place, and subsection (d),
applicable to districts that elect directors by precinct and at large, both provide for elections of
approximately half of the members of the board each year. Id. § 286.042(c)-(d). But while annual
elections for approximately half of the board in at-large districts may have been the Legislature's
intended goal, the language it chose does not produce that result in all cases. Specifically, section
286.042(b) does not contemplate the possibility that two of the directors may receive the same
number of votes under the unique circumstances presented here. 2 Even if it appears that there may
2You note that the petition calling for the creation of the District specifies that four directors will serve a two-
year term and three will serve a one-year term. Request Letter at 1, Exhibit A (providing that "four (4) directors who
The Honorable Andrew Lucas - Page 3 (KP-0002)
have been an inadvertent omission in a statute, courts will construe a clear statute as written unless
it produces absurd results. Tex. Lottery Comm 'n v. First State Bank ofDeQueen, 325 S.W.3d 628,
637-38 (Tex. 2010). A court could conclude, therefore, that two directors of a seven member
board who both receive the fourth-highest total number of votes are included in the "majority of
the directors who receive the highest number of votes" and that both serve a two-year term under
section 286.042(b)(2). TEX. HEALTH & SAFETY CODE ANN.§ 286.042(b)(2) (West 2010). 3
receive the most votes at the initial election of directors will serve for two years[, and the] remaining three (3) directors
will serve for one (I) year") (on file with the Op. Comm.). Like section 286.042 of the Health and Safety Code, the
petition does not address terms of office when there are not four directors elected who received more· votes than the
remaining three. Thus, the petition is not contrary to the statutory election provisions.
3
You state that you understand "that the district's board of directors is ready to cast lots" to determine who
will serve a two-year term and who will serve a one-year term. Id. at 2. The Legislature has recognized casting lots
as a method for resolving some election issues, although that method is not specifically required here. See TEX. SPEC.
DIST. CODE ANN. § 7201.052(i) (West 2014) (requiring the directors of the Agua Special Utility District to cast lots
to determine terms of office). We are not aware of any statute that would preclude the directors of the District who
received the same number of votes from agreeing that one will serve a one-year term as determined by casting lots.
The Honorable Andrew Lucas - Page 4 (KP-0002)
SUMMARY
When a hospital district created under chapter 286 of the
Health and Safety Code elects its initial permanent board of
directors in an at-large election, the majority of the directors who
receive the highest number of votes serve two-year terms. A court
could conclude ' that when two directors of a seven member board
both receive the fourth-highest total number of votes, they both are
included in the majority who serve two-year terms.
Very truly yours,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
As.sistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131582/ | The Attorney General of Texas
June 16. 1982
MARK WHITE
Attorney General
Honorable Richard G. Morales, Sr. opinion No. MW-479
Supreme Courl Building
Webb County Attorney
P. 0. Box 12546
Austin. TX. 76711. 2546
1810 San Bernard0 Re: Whether a teacher with
5121475.2501 Laredo, Texas 78040 the Laredo Independent School
Telex 9101674-1367 District is disqualified from
Telecopier 51214754286 serving on the Coordinating
Board, Texas College and
1607 Main St., Suite 1400
University System or the State
Dallas. TX. 75201-4709 Board of Education
2141742.6944
Dear Mr. Morales:
4624 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
You have asked whether a teacher from the Laredo Independent
915/533-3464 School District is disqualified from serving on the Coordinating Board
of the Texas College and University System by section 61.022 of the
Texas Education Code, whether section 11.22 of the code disqualifies a
1220 Dallas Ave., Suite 202
teacher employed by Laredo Junior College from serving on the State
Houston, TX. 77002.6966
713/650@66
Board of Education, and, in the event the answers to the above
questions are yes, whether either section 11.22 or 61.022 violates the
civil rights of a teacher or is a deprivation of equal protection.
606 Broadway, Suite 312
Lubbock. TX. 79401.3479
Section 61.022 of the Texas Education Code is very specific on
8061747.5238
the issue of educators serving on the Coordinating Board of the Texas
College and University System. It states, in relevant part:
4309 N. Tenth, Suite S
McAllen, TX. 76501-1685 No member may be employed professionally for
6121662.4547
remuneration in the field of education during his
term of office.
200 Main Plaza. Suite 400
San Antonio. TX. 76205.2797 The statute is plain and unambiguous; the literal meaning must be
5121225.4191 given to the words. Attorney General Opinion MW-198 (1980). A
teacher works in the "field of education" and is therefore
An Equal Opportunity/ disqualified from service on the Coordinating Board of the Texas
Affirmative Action Employer College and University System.
Section 11.22 of the Texas Education Code provides the
qualifications for membership on the State Board of Education.
Section 11.22(b) states:
No person shall be eligible for election to or
serve on the board if he holds an office with the
State of Texas or any political subdivision
thereof, or holds employment with or receives any
p. 1691
Honorable Richard G. Morales. Sr. - Page 2 (MW-479)
compensation for services from the state or any
political subdivision thereof (except retirement
benefits paid by the State of Texas or the federal
government), or engages in organized public
educational activity. (Emphasis added).
Laredo Junior College is a public junior college. Educ . Code
§61.003(2). A teacher at Laredo Junior College receives compensation
from a political subdivision of the state and takes part in an
“organized public educational activity.” The language of the statute
is clear and capable of no other interpretation; any person who fits
into one of the listed categories is barred from service on the State
Board of Education. -See Attorney General Opinion M-1290 (1972).
It has been argued that the 1972 amendment to article XVI.
section 40 of the Texas Constitution liberalized the application of
incompatibility provisions in the constitution, the statutes, and the
common law. However, the amendment makes only the following
exception:
State employees or other Individuals who receive
all or part of their compensation either directly
or indirectly from funds of the State of Texas and
who are not State officers, shall not be barred
from serving es members of the governing bodies of
school districts, cities, towns, or other local
governmental districts; provided, however, that
such State emploree or other individuals shall
receive no salary for serving as members of such
governing bodies. (Emphasis added).
Members of both the State Board of Education and the Coordinating
Board of the Texas College and University System are state officers.
See Educ. Code 0911.24, 61.021, 61.022; Freeman v. Dies, 307 F. Supp.
1028 (N.D. Tex. 1969). The exception to dual office holding is
limited to state employees serving in specified local offices.
Attorney General Opinion MW-149 (1980). See also Attorney General
Opinion H-739 (1975); WW-165 (1957).
Since our answer to your question is that service on the two
state boards is prohibited, we must determine if this prohibition
violates the civil rights of, or deprives equal protection to, a
teacher so barred.
The federal civil rights act has never been held to apply to the
“right to candidacy.” See, e.g., Bullock v. Carter, 405 U.S. 134
(1972). -See 42 U.S.C. 51981, Notes of Decisions.
We turn to the equal protection issue. We note initially that
section 11.22(b) of the Texas Education, Code prohibits a described
class of persons from seeking a particular elective office. Section
61.022. on the other hand, merely limits the group from which the
p. 1692
Honorable Richard G. Morales, Sr. - Page 3 (Mw-479)
governor may appoint a coordinating board member to persons who will
not be “employed professionally for remuneration in the field of
education” during the term of office. We will discuss section
11.22(b) first.
The Supreme Court has upheld election laws which classified
candidates for purposes of access to the ballot on the ground that the
classification served an “important state interest.” Jenness v.
Fortson, 403 U.S. 431 (1971) (petition procedure for independent
candidates who had not won party primary). Compare Bullock V. Carter,
supra (statute denying ballot access on basis of candidate’s ability
to pay large filing fees must be “closely scrutinized”). The
existence of barriers to candidate access to the ballot will compel
close scrutiny where such barriers have a substantial impact on
voters, and where this impact Is related to the economic resources of
the candidate and electorate. Bullock v. Carter, supra. at 144.
State laws which restricted political candidacies of public
employees, without discriminating on the basis of economic resources
or other such imnermlssible considerations. have been sublect to the
“traditional” or - IIrational basis” standard of review. Morial v.
Judiciary Commission of Louisiana, 565 F.2d 295 (5th Cir. 1977). cert.
denied, 435 U.S. 1013 (1978); Wilson v. Moore, 346 F. Supp. 635 (N.D.
W.Va. 1972). Such restrictions on public employees do not violate the
equal protection clause unless they are unreasonably and obviously
arbitrarv and unless no conceivable factual situation would iustifv
the apparently unequal treatment. Wilson v. Moore, supra, it 639:
See also Horial v. Judiciary Commission of Louisiana, supra. at
304-06; Annot., 59 L. Ed. 2d 852 (1979); Annot., 44 A.L.R. Fed. 306
(1979).
In our opinion, section 11.22 of the Education Code is subject to
rational basis scrutiny, and a rational basis for its restrictions can
be shown. Section 11.22(b) prohibits service on the State Board of
Education by any person who holds office with the state or a political
subdivision, or who receives compensation from any such governmental
body. Letter Advisory No. 56 (1973) noted that under this provision a
State Board of Education member represents a particular district in
addition to serving as a state official whose decisions have statewide
effect. His duties are therefore twofold, allowing less time for
other public activities and offering more opportunities for conflict
of interest to arise. Moreover, the extensive activities of a member
of the State Board of Education could create conflicts of interest if
he served the state or a political subdivision as an officer or
employee, or received any compensation therefrom. See also Educ. Code
P8135.03. 135.04 (State Board of Education approves junior college
vocational education programs); Attorney General Opinion H-580 (1975):
These interests provide a rational basis for section 11.22(b) of the
Education Code.
Section 61.022 of the Texas Education Code prevents the
appointment to the Coordinating Board of any person “employed
p. 1693
Honorable Richard G. Morales, Sr. - Page 4 (MW-479)
professionally for remuneration In the field of education during his
term of office." This provision, which concerns an appointive office,
does not restrict anyone's candidacy to elective office or have an
impact on the electorate's choice of a candidate. Since the voters’
and candidate's interests form the basis of equal protection attacks
on ballot access requirements, the Supreme Court cases on this subject
are not necessarily applicable. Section 61.022 need only meet the
usual rational basis test. If any state of facts will sustain the
statute, it will be presumed the legislature had those facts in mind
when it enacted the statute. McDonald v. Board of Election
Commissioners of Chicago, 394 U.S. 802 (1969); Ex parte Tigner, 132
S.W.2d 885 (Tex. Crim. App. 1939).
The Coordinating Board has considerable direct control over state
institutions of higher education, including junior colleges. Educ.
Code 0161.051-.0631. It is also required to encourage cooperation
between public and private institutions, and to consider the availa-
bility of degree and certificate programs in private institutions of
higher education in determining programs for public institutions.
Educ. Code 561.064. Thus, even an educator employed by a private
institution of higher education could find that his responsibilities
as a member of the Coordinating Board conflict with his interests in
his employment. The Coordinating Board also is empowered to order the
initiation, consolidation, or elimination of teacher certification
programs at institutions of higher education. Educ. Code 961i051(e).
See also Educ. Code 113.039(a). This power would have some impact on
the supply of teachers for public elementary and secondary 'schools and
the private institutions that compete with them. Consequently; we
believe there is a rational basis for the prohibition in section
61.022, and that it does not violate the equal protection clause.
SUMMARY
Section 61.022 of the Texas Education Code
prohibits teachers employed by school districts
from serving on the Coordinating Board of the
Texas College and University System; section 11.22
of the code bars teachers employed in a public
junior college from serving on the State Board of
Education. The classifications created by the
legislature do not violate the civil rights of, or
deprive equal protection to, a teacher so barred..
s+/
MARK WHITE
Attorney General of Texas
JOEN W. FAINTER, JR.
First Assistant Attorney General
p. 1694
Honorable Richard G. Morales, Sr. - Page 5 (MU-479)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison 6
Patrlcla Hinojosa
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hlnojosa
Jim Moellinger
p. 1695 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131602/ | The Attorney General of Texas
March 22, 1982
MARK WHITE
Attorney General
Mr. Kenneth El.Ashworth opinion No.MW-459
Supreme Court Building Coordinating Board
P. 0. em 12549
Texas College 8 University System Re: Award of merit Pay
Austin, TX. 76711. 2546
512/475-2501
P. 0. Box 12788, Capitol Station increases by coordinating
Telex 9101674-1367 Austin, Texas 78711 board
Telecopier 5121475-0266
Dear Mr. Ashworth:
1607 Main St., Suite 1400
Dallas. TX. 75201.4709
You ask whether the Coordinating Board of the Texas College and
2141742-6944 University System may use appropriated funds to grant merit bonuses in
lieu of merit base salary increases. That is, whether the board may
recognize superior performance by the award of a one-time payment or
4624 Alberta Ave., Suite 160 payments over a limited number of months rather than by a permanent
El Paso, TX. 79905.2793
9151533-3464
increase in base salary.
The board's appropriation is found in article III of the 1981-82
1220 Dallas Ave., Suite 202 General Appropriations Act. Acts 1981, 67th Leg., ch. 875, at 3725~.
Houston, TX. 77002-6966
Article III, section 22 of that act applies to "agencies of higher
713,650~0666
education" not covered by section 1, article V of the act. Section 22
provides in pertinent part:
606 Broadway. Suite 312
Lubbock, TX. 79401-3479 Funds are provided in the appropriations made to
6061747-5236
those agencies covered by this section in
sufficient amounts to permit annual salary
4309 N. Tenth, Suite B increases as follows:
McAllen. TX. 76501-1665
5121662.4547 (a) All regular employees, excluding ranked
faculty in the ranks of Professor, Associate
200 Main Plaza, Suite 400
Professor, Assistant Professor and Instructor in
San Antonio. TX. 76205.2797 the general academic universities; professional
512/225-4191 positions in the Texas A & M Services; and faculty
and professional positions in the health science
centers and other medical education programs,
An Equal Opportunity/
Affirmative Action Employer shall receive a minimum annual salary increase of
14.3% in fiscal 1982 and 8.7% in fiscal 1983.
Such increase shall be in addition to the salary
rates as of January 31, 1981, and shall apply to
only those salaries paid from funds hereinabove
appropriated.
p. 1596
Mr. Kenneth H. Ashworth - Page 2 (Mw-459)
(b) Funds are provided in the appropriations
to agencies covered in this section to permit
salary increase in fiscal 1982 of 17.06% and 8.7%
in fiscal 1983 for all employees excluded by the
preceding section. Salary increases for these
employees are to be awarded on the basis of merit
and performance in accepted activities including
teaching, research and service. Such increases,
if any, are in addition to the salary rates as of
January 31, 1981, and shall apply to only those
salaries paid from funds hereinabove appropriated.
It is expressly provided that institutional
administrators may grant merit salary increases to
employees whose job performance and productivity
is consistently above that normally expected or
required. (Emphasis added).
Article V, section 1 of the General Appropriations Act does not
apply to the board. That section speaks specifically to the issue of
merit pay increases for covered agencies. The board is not, however,
exempt from the terms of article V. section 2 of the act. Subsection
a of that section provides that:
All annual salaries appropriated by this Act...
shall be paid in twelve (12) equal monthly
installments, except as otherwise provided in
Article II of this Act.
Cf. General Appropriations Act, Acts 1981, 67th Leg., ch. 875, art.
III, §8c, at 3719 (nine month employees). The Texas Supreme Court has
noted that "a salary is a fixed compensation for regular work."
Wichita County v. Robinson, 276 S.W.2d 509, 513 (Tex. 1955); see also
Attorney General Opinion H-1223 (1978). Webster's Third International
Dictionary defines salary as "fixed compensation paid regularly... for
services...." Cf. General Appropriations Act, Acts 1981, 67th Leg.,
ch. 875, art. Vxd, at 3791 (merit salary increases to be given on a
monthly basis).
Article III, section 22 speaks of "annual salary increases;"
while article V, section 2a requires that salaries be paid in equal
monthly installments. We believe this statutory language, with the
judicial definition of salary, requires us to conclude that the board
may not grant one-time bonuses in lieu of merit increases to base
salary. The board must either maintain existing salary levels or
increase base pay in recognition of exceptional service.
p. 1597
.
Mr. Kenneth H. Ashworth - Page 3 @fW-45g)
SUMMARY
The provisions of the General Appropriations
Bill for 1981-82 fiscal years preclude the payment
of one-time merit pay bonuses.
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Carl Glaze
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Shawn Jamail
Jim Moellinger
p. 1598 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131608/ | The Attorney General of Texas
March 10, 1982
MARK WHITE
Attorney General
Honorable Ron Wilson, Chairman opinion No. Mw-453
Supreme Court Building Health Services Committee
P. 0. Box 12546
Austin. TX. 76711. 2546
House of Representatives Re: Construction of appro-
512/475-2501 State Capitol Building priations act provision for
Telex 9101674-1367 Austin, Texas 78711 funds to the Department of
Telecopier 5121475.0266 corrections for new priS0l-l
unit
1607 Main St.. Suite 1400
Dallas. TX. 75201.4709 Dear Representative Wilson:
2141742.6944
You have requested our opinion regarding whether funds from Item
8(a) > "Proposed New Unit," in -House Bill No. 656, of the General
4624 Alberta Ave., Suite 160
El Paso. TX. 79905-2793
Appropriations Act, Acts 1981, Sixty-seventh Legislature, chapter 875,
9151533.3464 article I, at 3387, may be used to construct the South Grimes Unit and
the North Grimes Unit.
,220 Dallas A;e.. Suite 202 House Bill No. 656 reads in pertinent part as follows:
Houston. TX. 77002-6966
7131650-0666
8. Building Program (Construction and Renovation
Projects as enumerated herein below).
606 Broadway. Suite 312
Lubbock. TX. 79401-3479 Informational listing of projects to be
6061747.5236
funded from Item 8 (Construction and
Renovation)
4309 N. Tenth, Suite B
McAlle”, TX. 76501.1665 1982 1983
5121662.4547
a. Proposed New Unit 22,266.OOO 25.341,OOO
200 Main Plaza. Suite 400 & U.B.
San Antonio. TX. 76205.2797
512/225.4191
From the funds appropriated in Item 8,
An Equal OppOrtWitVl
Building Program, 86,780,OOO in 1982 and
Affirmative Action Employer 48.016.000 in 1983 are intended for items a
through j in the information listing that follows.
These funds are to be expended for the development
of new cell/bed spaces. The Board of Corrections
may deviate from the exact sums for each project
as may be necessary to fund any project indicated
in items a through j in order to provide the
desired new cell/bed spaces. It is the intent of
p. 1570
Honorable Ron Wilson - Page 2 (Mw-453)
the Legislature that the board expend these funds
in a manner consistent with the long-range
construction needs of the Department.
It seems clear that as long as the construction of The South
Grimes Unit and The North Grimes Unit is "consistent with the
long-range construction needs of the Texas Department of Corrections,"
the funds appropriated under Item 8(a), "Proposed New Unit" may be
expended for that construction. It is without question that these two
units constitute "new bed/cell space" within the meaning of the
Appropriations Act. We see nothing in the General Appropriations Act
that requires the prison unit to be housed in a single building.
S U M,M A R Y
The funds for "Proposed New Unit" in House
Bill No. 656 may be used to construct the South
Grimes Unit and the North Grimes Unit.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by J. D. Hooper
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
J. D. Hooper
Jim Moellinger
Bruce Youngblood
p. 1571 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131655/ | . .
- -
The Attorney General of Texas
December 8, 1981
MARK WHITE
Attorney General
SupremeCowl BulldIng Mr. George l-l. Cowden, Chairman Opinion No. W-406
P. 0. Box 12545 Texas Public Utility Commission
AIlstIn. TX. 78711 7800 Shoal Creek Boulevard Be: Appeals to Texas Public
51214752501 Suite 400N Utility Commission of
Telex 9101874-1367 Austin. Texas 78757 municipal rate orders
Telecooier 5121475J3266
regarding municipally owned
electric utilities
1607 MaIn St.. suite 1400
Dallas, TX. 75201 Dear Chairman Cowden:
21417428944
You have requested an opinion on questions concerning the meaning
4824 Alberta Ave.. Suite 160 of several provisions of the Public Utility Regulatory Act, article
El Paso, TX. 79905 1446(c), V.T.C.S. [hereinafter "the act"]. The hey sections,
915/533.34S4 26(c)-(e), read as follows:
1220 Dallas Ave.. Suite 202
(c) Ratepayers of a municipally owned gas or
Houston. TX. 77002 electric utility outside the municipal limits may
7131850.0665 appeal any action of the governing bady affecting
the rates of the municipally owned gas or electric
utility through filing with the commission or
505 Broadway, Suite 312
Lubbock. TX. 79401
railroad commission, as appropriate, petition for
5061747.5238 review signed by the lesser of 10,000 or 5 percent
of the ratepayers served by such utility outside
the municipal limits. For purposes of this
4309 N. Tenth. Suite 6
subsection each person receiving a separate bill
McAllen. TX. 78501
512B524547 shall be considered as a ratepayer. But no person
shall be considered as being more than one
ratepayer notwithstanding the number of bills
200 u*kl Plaza, .9&e 400 received. Such petition for review shall be
San Antonio. TX. 75205 considered properly signed by any person. or
51a2254191
spouse of any such person, in whose name
residential utility service is carried.
An Equal Opportunity/
Atflrrnative Action Employer (d) The appeal process shall be instituted
within 30 days of the final decision by the
governing body with the filing of a petition for
review with the commission or railroad cormsission
and copies served on all parties to the original
rate proceeding.
p. 1379
.
Mr. George M. Cowden - Page 2 (MJ-406)
- -
(e) The commission or railroad comission
shall hear such appeal de novo and by its final
order shall fix such rates as the municipality
should have fixed in the ordinance from which the
appeal was taken.
Your first question is:
Since the commission has jurisdiction over an
appeal from a municipal rate order regarding a
municipally owned utility, does this jurisdiction
include jurisdiction to set rates charged both
outside and within municipal limits? If the
commission has jurisdiction to set rates both
within and outside municipal limits, then, when a
petition for review is filed pursuant to section
26(c). is the commission required to set rates
charged both outside and within municipal limits?
Municipalities are excluded from the definitions of “public
utility” or “utility” set forth in section 3(c) of the act. But see
V.T.C.S. art. 1446~ )49(a) (municipality within definition of ‘“retail
public utility” for purposes of -article VII of the act); Public
Utility Commission v. City of Coahoma, 25 Tex. Sup. Ct. J. 155 (Nov.
25, 1981). Although section 27(f) prescribes that a municipally owned
utility is subject to the reporting requirements of thst~ section,
article III, which prescribes the basic jurisdiction of the regulatory
authorities subject to the act, provides at section 20:
Nothing in this article shall be construed to
confer on the colmnission or railroad conaaission
power or jurisdiction to regulate or supervise the
rates or service of any utility owned and operated
by any municipality within its boundaries either
directly or through a municipally owned
corporation, or to affect or limit the power,
jurisdiction, or duties of the municipalities that
have elected to regulate and supervise public
utilities within their boundaries, except as
provided in this Act. (Emphasis added).
Your query is whether or not section 26(e). which requires the
commission to “fix such rates as the municipality should have fixed in
the ordinance from which the appeal was taken,” impliedly confers upon
the commission the authority to set rates for those customers inside
the city limits upon an appeal under section 26(c). We conclude that
it does not. Under section 3(c). a municipslity is expressly excluded
from the definition of “public utility.” Section 20 expressly
excludes the commission from regulating a municipal utility within its
boundaries “except as provided in this Act.” Whenever the act seeks
to make exceptions to these exclusions, it does so expressly, as In
section 27(f) concerning reports to the commission. and section 49(a)
p. 1380
Mr. George M. Cowden - Page 3 (HW-406)
involving certification. It does not follow that there could be an
implied inclusion of a subject that had previously been expressly
excluded.
Your second question is as follows:
If in sn appeal brought pursuant to section
26(c) the commission may set rates charged outside
municipal limits only. then in setting such rates,
may the commission consider system-wide data?
Section 22 of the act provides as follows:
Notwithstanding any other provision of this
section. municipalities shall continue to regulate
each kind of local utility service inside their
boundaries until the commission has assumed
jurisdiction over the respective utility pursuant
to this Act. If a municipality does not surrender
its jurisdiction, local utility service within the
boundaries of the municipality shall be exempt
from regulation by the commission under the
provisions of this Act to the extent that this Act
applies to local service, and the municipality
shall have, regarding service within its
boundaries, the right to exercise the same
regulatory powers under the same standards and
rules as the commission, or other standards and
rules not inconsistent therewith. Notwithstanding
any such election, the commission may consider a
public utility’s revenues and return on investment
in exempt areas in fixing rates and charges in
nonexempt areas, and may also exercise the powers
conferred necessary to give effect to orders under
this Act, for the benefit of nonexempt areas.
Likewise. in fixing rates and charges in the
exempt area, the governing body may consider a
public utility’s revenues and return on investment
in nonexempt areas. Utilities serving exempt
areas shall be subject to the reporting
requirements of this Act. Such reports shall be
filed with the governing body of the municipality
as well as with the commission. Nothing in this
section shall limit the duty and power of the
commission to regulate service and rates of
municipally regulated utilities for service
provided to other areas in Texas. (Emphasis
added).
The Texas Supreme Court, In City of Corpus Christ1 v. Public
Utility Commission, 572 S.W.Zd 290 (Tex. 1978). held that the
commission could consider system-wide data in setting rates for
p. 1381
Mr. George M. Cowden - Page 4 @W-406)
I
customers within the city limits which were served by a public
utility. Although a municipally owned utility is not a “public
utility” for purposes of section 22. the final sentence of that
section clearly imports that the commission has the same powers with
regard to municipal utilities operating outside the city limits as are
given with regard to public utilities under the former provisions of
that section. Since under those provisions data from nonexempt areas
may be used, the commission may consider system-wide data in fixing
rates in a section 26(c) appeal.
Your third and fifth questions are as follows:
Inan appesl brought pursuant to section
26(c), does the commission have power to compel
the municipally-owned utility to provide data,
such as expense, revenue, rate base, and financial
information, relevant to the ratemaking issues?
If so, can the commission compel the municipally
owned utility to provide such data on a
system-wide basis? Are there any limits on the
commission’s power to require the municipally
owned utility to provide data relevant to the
ratemaking issues?
Does the commission have jurisdiction to
compel the municipally-owned utility to provide
data, such as customer lists, relevant to the
determination of the validity of the petition for
review filed pursuant to section 26(c)?
Section 27 of the act provides that the commission may require
the reporting of certain information from public utilities, including
municipal utilities:
(a) Every public utility shall keep and
render to the regulatory authority in the manner
and form prescribed by the commission...
commission uniform accounts of all business
transacted. The commission or railroad commission
t=Y also prescribe forms of books. accounts,
records, and memoranda to be kept by such
utilities, including the books, sccounts. records,
and memoranda of the rendition of and capacity for
service as well as the receipts and expenditures
of moneys, and any other forms, records, and
memoranda which in the judgment of the commission
or railroad commission may be necessary to carry
out any of the provisions of this Act.
. . . .
p. 1382
Mr. George M. Cowden - Page 5 @W-406)
(c) Every public utility shall keep separate
accounts to show all profits or losses resulting
from the sale or lease of appliances, fixtures.
equipment, or other merchandise. No such profit
or loss shall be taken into consideration by the
regulatory authority in arriving at any rate to be
charged for service by any such public utility, to
the extent thst such merchandise is not integral
to the provision of utility service.
(d) Every public utility is required to keep
and render its books, accounts, records, and
memoranda accurately and faithfully in the manner
and form prescribed by the commission or railroad
commission, and to comply with all directions of
the regulatory authority relating to such books,
accounts, records, and memoranda. The regulatory
authority may require the examination and audit of
all accounts.
. . . ,
(0 For the purposes of this section,
“public utility” includes “municipally owned
utility.” (Emphasis added).
Subsections (a) and (d) require each public utility to render its
books, accounts and records to the commission. Municipally owned
utilities are subject to this requirement. Sec. 27(f). Furthermore.
section 16 provides the commission with “the general power... to do
all things, whether specifically designated in this Act or implied
herein, necessary and convenient to the exercise of this power and
jurisdiction.” That section goes on to state:
The commission may call and hold hearings,
administer oaths, receive evidence at hearings,
issue subpoenas to compel the attendance of
witnesses and the production of papers and
documents, and make findings of fact and decisions
with respect to administering the provisions of
this Act or the rules, orders, or other actions of
the commission. (Emphasis added).
We conclude that since section 26(c) authorizes the commission to
review the ordinance of the city upon the filing of the petition
therein, the commission may compel the production of informa,tion
necessary to perform that function pursuant to the portion of section
16 cited above. Thus. the commission may compel the production of the
information specified in your questions three and five.
Your fourth and sixth questions respectively are as follows:
p. 1383
Hr. Ccorge U. CuwJcn - i’:tgc! 6 (MU-406)
Must a petition for review brought pursuant
to section 26(c) be filed within 30 days of the
final decision of the governing body of the
municipality, in accordance with section 26(d)?
Must the commission hear appeals brought
pursuant to section 26(c) de novo. in accordance
with section 26(e)?
The query here is whether the provisions of sections 26(d) and
(e) apply to appeals under section 26(c). Section 26 provides in
full:
(a) Any party to a rate proceeding before
the governing body of a municipality may appeal
the decision of the governing body to the
commission or railroad commission.
(b) Citizens of a municipality may appeal
the decision of the governing body in any rate
proceeding to the commission or railroad
commission through the filing of a petition for
review signed by the lesser ~of 20,000 or 10
percent of the number of qualified voters of such
municipality.
(c) Ratepayers of a municipally ovned gas or
electric utility outside the municipal limits may
appeal any action of the governing body affecting
the rates of the municipally owned gas or electric
utility through filing with the commission or
railroad commission, as appropriate, petition for
review signed by the lesser of 10.000 or 5 percent
of the ratepayers served by such utility outside
the municipal limits. For purposes of this
subsection each person receiving a separate bill
shall be considered as a ratepayer. But no person
shall be considered as being more than one
ratepayer notwithstanding the number of bills
received. Such petition for review shall be
considered properly signed if signed by any
person. or spouse of any such person, in whose
name residential utility service is carried.
(d) The appeal process shall be instituted
within 30 days of the final decision by the
governing body with the filing of a petition for
review with the commission or railroad commission
and copies served on all parties to the original
rate proceeding.
p. 1384
Hr. George M. Cowden - Page 7 (MU-406)
a
(e) The cossnission or railroad emission
shall hear such appeal de novo and by its final
order shall fix such rates as the municipality
should have fixed in the ordinance from which the
appeal was taken. (Emphasis added).
Section 26 thus provides for three forms of appeal from the
governing body of the municipality to the commission:
(a) Party to proceeding before commission;
(b) Petition of citizens of the municipality;
(c) Petition of ratepayers outside the city limits.
All three provisions refer to sn “appeal” of the municipal
ordinance, while subsections (d) and (e) refer to the “appeal process”
and “such appeal .‘I Also, subsection (e) refers to the “petition for
review.” All five provisions are grouped together under one section.
Because of this, we conclude that both subsections Cd) and (4
prescribe the procedure for the .three types of appeal listed under
(a), (b), and (c). Therefore, subsections (d) and (e) do apply to
appeals made under subsection (c).
Your seventh question is as follows:
If the commission is required to hear appeals
brought pursuant to section 26(c) de novo, does
that require the commission to establish the total
revenue requirement of the utility even if the
petition for review is limited to revenue
allocation and rate design?
Under section 26(e) the review of the city ordinance is de novo.
Since the effect of this requirement is that the commission must make
a complete redetermination of the rates, the commission would
necessarily be required to redetermine the revenue requirement.
However, this would not preclude the commission from honoring an
agreement of the parties as to what the revenue requirement would be.
Your final question is as follows:
In a petition for review brought pursuant to
section 26(c). do all of the ratemaking provisions
of article VI apply?
As previously stated, municipalities are excluded from the
meaning of “public utility” and “utility” by section 3(c). All
provisions under article VI refer to public utilities or utility. No
exceptions are made for municipal utilities as under sections 27 and
49. Therefore, we conclude that the provisions of article VI do not
apply to appeals under section 26(e).
p. 1385
Hr. George kl. Cowden - Page 8 (MJ-406)
SUtiMARY
In hearing an appeal pursuant to section
26(c) of article 1446(c). V.T.C.S., from
ratepayers of a municipally owned utility outside
of the municipal limits, the Texas Public Utility
Commission does not have authority to set rates
for customers inside the city limits. In setting
the rates for ratepayers outside of the city it
may consider system-wide data, and may require
municipal utilities to submit the indicated
information. The procedural requirements found in
sections 26(d) and (e) apply to an appeal under
section 26(c). In hearing such appeals, the
commission must redetermine the revenue
requirement.
Very truly yours,
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by J. Scott Wilson and Jon Bible
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
J. Scott Wilson
p. 1386 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131674/ | l .
.
The Attorney General of Texas
November 9, 1981
MARK WHITE
Attorney General
Mr. Maurice S. Pipkin Opinion No. m-387
Supreme Court Building
P. 0. BOX 12546
Executive Director
Austin. TX. 70711 state commission on Re: Whether person appointed
512147i-2501 Judicial Conduct county court of law judge
Telex 9101674-1367 211 Reagan Building pursuant to article 1970-341,
Telecopier 5121475.0266
Austin, Texas 78711 section 6 must comply with
requirements of elected judge
1607 Main St., Suite 1400
Dallas, TX. 75201 Dear Mr. Pipkin:
2141742-6944
You have asked whether a person who has not been actively engaged
4624 Alberta Ave., Suite 160
in the practice of law for a period of at least four years may be
El Paso, TX. 79905 validly appointed judge of the County Court of Law in Hidalgo County.
915/533-3484
The County Court at Law of Hidalgo County was created in 1951.
See Acts 1951, 52nd Leg., ch. 25, at 33; V.T.C.S. art. 1970-341. The
1220 Dallas Ave., Suite 202
Houston, TX. 77002
qualifications of the judge thereof are specified in section 6 of
713/650-0666 article 1970-341, V.T.C.S.. which states:
Sec. 6. There shall be elected in Hidalgo
606 Broadway, Suite 312
County by the qualified voters thereof, at each
Lubbock, TX. 79401
6061747-5236
general election, a Judge of the County Court at
Law of Hidalgo County who shall be a regularly
licensed attorney at law in this State, and who
4309 N. Tenth, Suite B shall be a resident citizen of Hidalgo County, and
McAllen, TX. 76501
shall have been actively engaged in the practice
5121682.4547
of law in this State for a period of not less than
four (4) years next preceding such general
200 Main Plaza, Suite 400 election, who shall hold his office for two (2)
San Antonio, TX. 76205 wars and until his successor shall have been dulv
512/225-4191
elected and qualified. As soon as this Ac;
becomes effective, the Commissioners Court of
An Equal OppOriunitYl Hidalgo County shall appoint a Judge to the County
Affirmative Action Emplow Court at Law of Hidalgo County, who shall hold
this office as such Judge until the next general
election and until his -successor is elected and
qualified; any subsequent vacancies in the office
of the Judge of the County Court at Law of Hidalgo
County shall be filled by appointment of the
Commissioners Court of Hidalgo County and when so
filled, the said Judge shall hold his office until
p. 1314
..
Mr. Maurice S. Pipkin - Page 2 (MW-387)
the next general election and until his successor
is elected and qualified. (Emphasis added).
While the statute requires that persons elected to the office at
each general election shall have practiced law actively for not less
than four years immediately preceding their election, it does not
expressly require that persons appointed to fill the post have
practiced law for that length of time prior to their appointment. In
our opinion, however, it does impose this requirement by reasonable
and necessary implication.
The title of the act creating the court stated it to be, inter
m, "[a]* act creating the County Court at Law of Hidalgo County...
and the election, qualification, appointment and removal of a judge
thereof." The title gives no notice that the qualification of an
appointed judge was meant to be different or less demanding than the
qualification of an elected judge. On the contrary, it suggests
affirmatively that the qualification requirements and the standards
for removal apply to elected and appointed judges alike.
In our opinion, a person who has not been actively engaged in the
practice of law for a period of at least four years next preceding his
appointment may not be validly appointed judge of the County Court at
Law in Hidalgo County. -See Code Grim. Proc. art. 30.03.
SUMMARY
A person who has not been actively engaged in
the practice of law for a period of at least four
years next preceding his appointment may not be
validly appointed judge of the County Court at Law
in Hidalgo County.
-MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
p. 1315
Mr. Maurice S. Pipkin - Page 3 (Mw-387)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
James M. Allison
Jon Bible
Rick Gilpin
Jim Moellinger
p. 1316 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144624/ | THIEATTOX~NEY GENERAL
OF TEXAS
Honorable Charley Lockhart
State ~Treasurer
Austin, Texas
Dear Sir: Attention: Jesse James
Opinion No. O-1776
Ije: Article 2530 Vernon's
Civil Statutes -- State
depository -- custodian
bank for depository
securities -- Federal
Reserve Bank.
We have your letter of December 16, 1939,asklng for the
opinion of this department as to whether the Federal Re-
serve Rank of Dallas is authorized or permitted by lay to
act as- custodian for the securities to be deposited by a
depository bank, under Article 2530 Vernon's Civil Statutes.
Article 2530 provides:
VIn the event the state depository, as designated
in thepreceding Article, shall elect to deposit said
pledged securities, above mentioned, with the State
Treasurer, the said securities shall be delivered
to the Treasurer and receipted for by him, and
retained by him in the vault of the state treasury.
Provided, however, that such bank so designated as
depository shall have the option, instead of deposit-
ing said pledged securities with the State Treasurer,
of depositing same with another~state..o~rnational
bank situated in the State, subject to the approval
of the Board; said securities to be held in trust by
"said custodian bank to s'ecure funds deposited by
the State Treasurer in the depository bank."
It is the opinion of this department that a Federal Reserve
Bank situated in this State is an eligible custodian of
securities under the statute above quoted. The statute
makes no attempt to prescribe the qualifications of such
custodian other than it must be a "state bank" or a
"national bank situated in the State" and be subject to the
Honorable Charley Lockhart, Page 2, o-1776
approval of the Board. This classification is general but
comprehensive. There are technically different kinds of
State banks-- there is the nstate bank", the "state bank
and trust cornpa@, "savings bank", and "Morris Plan bank"
(so called) organized under the State law,. and there are,.
on the other hand, the ordinary~associations known as
national banks and Federal Reserve banks, organized under
the acts of the Congress. The Legislature did not~use the
words state banks and national banks in any restrictive
sense but in the general sense as including, in the first
place, all institutions organized as banks under state law,
and, in the next place, all banks organized under the laws
of the United States, having authority under the organic
law to perform such functions as holdings deposits or pledges
of securities, such as that under consideration.
A "national bank:, therefore, under the provisions of Arti-
cle 2530 means a-bank organized under the laws of the -
United States. This construction is inkeeping with the
various articles.or sections of the U.S. code, especially
sections 37, 90, 221, and 391. (U.s..c,A.)
Very truly yours
AlTOiiNEy GENERAL OF 'I&AS
S/ Ocie Speer
BY
Ohie Speer
OS-m/cg Assistant
APPROVED DEC. 21, 1939
s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144636/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
@auoM9doran
mm. Ella Ita4 Murphy, P* 3
‘or lioansersrtorrd wlthln one (1) $rar after
the dats of rxplration, upon thr payment of tha
required ronawal tsa and satl~faotory proof of
his or her quallfloatlons to resume praotloa.”
The qusstlon prsesated lh aaoh of tha oplnlons
under oonsldaration, 1s whether an lndlrldual, who tells
to apply for a lleanse when tha Aot wsat into erreot and
thereby assert hid iremptlon from ax&atlon, may do so
at any time subsaquently and more thaaa a year after Aug.
31, 1936, and be antltled to raoelve a lioenae, rlthout
taking the required axamlnatlon.
Tbe~oplnlon rrltten May 30, 1935, hsld, as to
praotltlonars, that ona antltlad to e llomse on the sf-
fsotira date of the Aot rlthout being oompellsb to take
tho examlnatlon, who iailrd to apply for suob lloenee prior
to 080 year after the Aot wont into erieat, must thsre-
aftor, to ba intltlrd to a lioanae, take the examlnatlan.
Our oplnlon No. O-434, he13 llkewlae as to the
lloaase of an lnb$r+Gr.
our op!alon Ho. O-1574 la susoogtlble of the
interpretation ot .holdlns as to a praotltlonar, that oae
quallflod undrr Ssotlan 16 (a), supra, who did not apply
for a lloonso on the effeotlrr data ot the Aot, or wlth-
in twrlvs (12) months’ there@fter, would, aetsrthel~ea be
entitled to a lloense, without taking the examlnatlon, at
any mbmquen$ tlmar
The fundamental purposa of this law, as stated tn
its caption, above quoted was to prots’ot the publio health,
and one.matbod of aoooraplishlng ,thls daslrable result was
deemed ,%o I)r,thr lloenso requlramants embodied in the ;:ot.
Ssotlons 1; 15, 16, 17 ,and 18 thereof pertain to lloenses.
Baa18 la thasa p~ovlslond 1s t,ha requirement of examlnatlone,
and the pwposa undirlylag Sea., la., ‘supra, whereby an ln-
strwtor or prqatlt-ioner should oontlnuously keep the li-
oens* aurront.
Tha soo~a of No. 18 is, perhaps, doubtful, but
one of its OfrO0tO la to oompal any praot4tioner or lnetruotor
to take anothorpl sxamlnatlon betore rsoalvlng another llosns%~
upon hls falh\lrs to’restore an smplred 1lOans~n one year
aiter its ex$iratioa data. The obtloua pui-pese OS suoh pcrnalty
1s a reooqnltion of the Paot the% lmprowaonts mw.ld be mad*
from tlole to’tlrae 18 ~netbods of sanltatlon and 10 the Prevention
of the spreading oi dlssasret with whioh tha praotitioner and fn-
struotor should be iamiliar.
Mrs. Ella Mae Murphy, p. 4
Buoh being the effect of 500. 18, supca, as to lloenaec
upon axamlnatlan, it ooaports with the purpoea of the law to
llkewlse oouitruc it as to lioensee upon exemption. To hold
otherwise would say thet an fnatruotor or preatltloner who was
ellglble ?or the lloense without examlnatlon et the time of the
alieotlrr, date of the Aot, and rho did not apply for suoh license
at that tlmo, or wlthln one year after Aug. 31, 1936, would, not*
wlthstandlng such faU,ure, ba entltled to a lloeaeo without hen
examination, upon applloatlon therefor at any time therea?ter.
In Tex. Jur., Vol. 27 et p. 870, wq read1
aOons~truotlon.-In oonstrulng a lloenae law,
a aourt will saek, to asoertein and gl,Yc effeot
to the legislative intent. Every part o? the
aot wil. ba oonaidered, so a6 to make all parts
hamonl ‘r&l? praotloable, and lve a seaolble
,efibot 1o eaoh. But the aourt f;8 not oontlned
to a oonalderatlon o? the language used in an
lnaotment . fa deteralni,ng the meaning soopo
and purpose OS an rot. it may be read 1x1 oon-
motion-wltb sfatyter~la pari matarla; em6 ju-
diolal aotlor ISAYbe taken of oondltf’ons o?
00-n notorlety~ex~sting at tha time or its
eaaetiaent, lnoltilng the bablts of buslnass re-
latlag to the rtlbjeot matter smbraoed wlthln
the law. MQreQver, A lloeaee law will be given
a’reasonable oonstruotlon, with a view to meet-
ing the misobief and adtanolng the re!aedy, and
in order to susteln the validity of the eaaot-
znent. ‘#hon,neaeasary to oarry out the apparen%
leglslatioe latent, the words or a ~statute may
be trsaapossd. * (Vn5ersooring ours).
~Aooordlngly, you are respeotiullp advised that it is
our oplnioa that an lnstruotor or praotlbloner who was cllglble
ror a lloense undsr Art. 734(b), supra~, witbout taking an exami-
netloa, by fore* o? tbe statutory exemptiqn, at tha time OS the
erfeotlvc date or the Aet, must hare. applied tar suob lloense within
one year a?ter Aug. 31, 1936; otherwlee, upon an mpplioation for
lleense therea?ter, sueh instruotor or prcotltioncr mar be CQmpellcd
;;1,i;Etlt, to the statutory examlaatlon before bfilnu entltlcd to a
l
w the extent that our opinion No. O-1574 OOQ?lfOt~ with
thl6 oon&&uslon, it la hereby overruled.
ma* Ella Y. lrurpho, PI 5
BY ($1
WM. J. Fanning
Asslatant
APzBam ma. 21, 1939
(m) Qeald,C. SiRnIl
ATTORISYOEXRRALOF TEXAB | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144641/ | Hon. W.E. Yancy
County bud itor
Tarrant County
Fort Worth, Texas
Dear Sir: Opinion No. O-1759
Re: Under Article 1052, C.C.P., can
the county auditor legally with-
hold justice's fees on cases which
are appealed to county court, pay-
ing such fees only upon dlsposl-
tlon of the cases by the county
court?
Your request for opLnion upon the above question has
been received and considered by this department. We quote
from your letter as follows:
"Please give us an opinfon from your Depart-
ment on the constructIon of ArtLcle 1052, Code
of Criminal Procedure relative to disposition
of fees to Justice of the Peace in criminal cases.
"Article 1052 reads in part as follows:
'1I..0. Two Dollars and fifty cents shall be
paid by the county to the Justice of the Peace
for each criminal action tried and finally dis-
posed of before him'....
"The point we are Interested in is: whether
or not the county auditor can legally withhold
justice fees on cases which are appealed to the
County Court, paying such fees only upon disposi-
tion of the cases by the County Court. The au-
thority of the county auditor of course, to with-
hold such fees pending disposition by the County
Court depends upon the construction and meaning
of the term 'disposed of before him' and whether
or not a case Is finally disposed of when the
case Is appealed to the County Court,
"We have been taking the position that 'finally
disposed of before him' does not mean that the cases
Hon. W.E. Yancy, page 2 o-1759
are finally disposed of before the justice of
the peace where an appeal has been made to the
County Court.."
Opinion No. O-616 of this Department, written by Hon.
hrdell Williams, Assistant Attorney General, holds that Article
1052, Code of Criminal Procedure of Texas, provides that the
Justice of the Peace shall receive~$2.50 in all counties hav-
ing a population in excess of 20,000 Inhabitants and $3.00 In
all counties having a population of 20,000 inhabltants or less
for-each criminal action tried and finally disposed of before
him, such fees to be pald by the county when such claims are
filed in compliance with Article 1052, C.C.P., and that It is
immaterial whether the defendant who is convicted in such
criminal action pays his fine and costs or works his ffne and
costs out on the county farm, public roads or other public
works of the county, or satisfies such fine and costs by stay-
ing in jail a sufficient length of time to discharge his fine
and costs.
Article 833, Code of Criminal Procedure of Texas, reads
as follows:
"In appeals from the judgments of justice or
corporation courts, the defendant shall, if he
be In custody, be committed to jail unless he
give bond with sufficient security, to be approv-
ed by the court from whose judgment the appeal is taken,
in an amount not less than double the amount of fine
and costs adjudged against him, payable to the State
of Texas; provided said bond shall not in any case
be for a less sum than fifty dollars. Said bona shall
recite that in said cause the defendant was convicted
and has appealed, and be conditioned that the defend-
ant shall make his personal appearance before the
court to which the appeal Is taken instanter, if
said court be then in session; and if said court be
not in session, then at its next regular term,
stat~ingthe time and place of~holdlng the sam~e,and
there remain from day to day and term to term,and
answer In said cause in sala court."
Article 834, Code of Criminal Procedure of Texas, reads
as follows:
'In appeals from justice and corporation
courts, when the appeal bond provided for in the
preceding article has been filed with the justice
or judge who tried the case, the appeal in such
case shall be held to be perfected. No appeal
Hon. W.E. Yancy, page 3 O-1759
shall be dismissed because defendant failed to
give notice of appeal in open court, nor on ac-
count of any defect in the transcript."
Article 836, Code of Criminal Procedure of Texas, reads
as follows:
"If the defendant is not in custody, a notice
of appeal shall have no effect whatever until the
required appeal bond has been given and approved;
and such appeal bond shall, in all cases, be
given within ten days after the judgment of,the
court refusing a new trial has been rendered, and
not afterward."
Article 837, Code of Criminal Procedure of Texas, reads
as follows:
"In all appeals from justice and corporation
courts to the county court, the trial shall be
de novo In the county court, the same as if the
prosecution had been originally conrmencedin that
court."
Article 838, Code of Criminal Procedure of Texas, reads
as follows:
"In appeals from justice and corporation
c0urt3, all the original papers In the case,
together with the appeal bond, if any, and to-
gether with a certified transcript of all the
proceedings had inthe case before such court
shall be delivered wlthout delay to the clerk
of the court to which the appeal was taken,
who shall file the same and-docket the case.'
Article 911, Code of Criminal Procedure of Texas, reads
as follows:
“A Justice may, for good cause shown, grant
the defendant a new trial, whenever such justice
shall consider that justice has not been done
the defendant in the trial of such case.'
Article 912, Code of Criminal Procedure of Texas, reads
as follows:
"An application for a new trial must be made
within one day after the rendition of judgment,
and not afterward; and the execution of the
Hon. W.E. Yancy, page 4 0 -1759
judgment shall not be stayed until a new trial
has been granted."
The case of Guenzel vs. State, 47 Cr. R. 111, 80 S.W. 371,
holds that where a defendant was convicted in justice court
and a defective appeal bond to the county court was given and
the defendant allowed to go free, he could not afterwards
within the ten days again subject himself to the jurisdiction
of the justice court and give another and sufficient bond, so
as to perfect his appeal; that an imperfect appeal bond from
justice to county court cannot be amended; that there are two
ways by which county court can acquire jurisdiction; one is
where defendant remains in the custody of the sheriff and the
record so shows and the other is where defendant gives a good
appeal bond.
The case of Chatfield vs. State, 47 S.W. 2nd 315, Texas
Court of Criminal Appeals, holds that where motion for new
trial is not made within one day after judgment, as required
by statutes, justice loses jurisdiction to set aside judgment
and that where defendant is not in custody, appeal bond must
be filed within ten days after judgment of the justice of the
peace. In this case the judgment of the justice court was en-
tered May 27, 1931, convicting the defendant. Appellant filed
his appeal bond on June 9, 1931 and transcript filed in the
county court, at the next term of the county court the State
moved to dismiss appellant's appeal because appellant's appeal
bona had not been filed within the time allowed by law. The
county court dismissed the appeal from which appellant appeal-
ed to the court of criminal appeals. The judgment of the
Court of Criminal Appeals was rendered March 2, 1932, about
ten months after the original conviction. The Court of Criminal
Appeals affirmed the judgment of the county court.
The case of Ex Parte Jones, 128 Cr. R. 380, 81 S.W. 2nd
706, Texas Court of Criminal Appeals, holds that, an appeal
to county~court from justice court the complaint must be read
or waived, such plea must be entered as defendant sees fit,
evidence must be heard and verdict and judgment rendered in
accordance with law without regard to evidence, plea or manner
of conduct trial took in justice court.
As we view it, the purpose of Article 1052,~supra, is
to provide compensation for the justice of the peace forhis
Services In disposing of criminal actions before him which are
final judgments insofar as his jurisdiction is concerned. If
the defendant is acquitted and the State's attorney makes the
proper certificate the justice is entitled to his fee. If the
defendant is convicted and no new trial be granted within the
time allowed by law, the judgment of conviction is final inso-
. -
Hon. W.E. Yancy, page 5 0 -1759
far as the jurisdiction of the justice court is concerned. If
the defendant is convicted in justice court and appeals to
county court by filing a defective bond and motion to dismiss
appeal is granted in the county court and no appeal had there-
from to the~court of Criminal Appeals, or if the judgment of
the county court in dismissing the appeal is affirmed by the
Court of Criminal Appeals, the judgment in the justice court
'isvalid and enforceable. The effect of such appeals was to
delay the enforcement of and the collection of the final
judgment of-~thejustice court. As pointed out in opinion No.
O-616, supra, the justice of the peace's right to compensa-
tion from the county does not depend upon the collection or
enforcement of the judgment but rather on the rendition of
his
- final judgment.
You are, therefore, respectfully advised that it is the
opinion of this Department that your question should be answered
in the negative and it is so answered.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Wm. J. Fanning
Wm. J./Fanning
Assistant
WJF:hW:wc
APPROVED DEC 13, 1939
s/Gerald C. Mann
ATTORNEYGENERALOF TEXAS
Approved Opinion Committee By s/BWB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144718/ | Hon. A. J. Bryan, Jr.
Criminal District Attorney
Hillsboro, Texas
Dear Sir: Opinion NO. 0-1685
Re: May the bommissioners~ court
rent road machinery at a
monthly rental for use on a
jY; P. A. project without first
advertising for bids for the
rental of same?
We have received.your request for an opinion on the following
situation:
“Will you please advise us whether or not the commis-
sioners' court may rent road machinery at a monthly
rental for use on a W.P.A. project, without first ad-
vertising for bids for the rental of the same.
"Briefly, the facts are as follows: In may, 1939,
certain road machinery was purchased or rented by the
Court without having advertised for bids, the rental
contract including an option to purchase the machinery.
The monthly rental was $185.00. Later the question of
the validity of this transaotion.was raised and the
option to purchase was stricken from the contract.
Later the question of advertising was raised and the
Court then advertised for bids and on October 29th,
19391 opened and read the bids on the machinery. The
machinery was in possession of Hill County all of this
time and was in actual use by the county. Only two
bids were received. One of these bids was from the
Company who had rented or sold the machinery to the
county in May, 139. The other bid was for a smaller
amount by about 9
.l,OOO.OO, but did not include a
monthly rental on the machinery. The higher bid pro-
viding for a monthly rental was accepted, this bid
being on the machinery already in possession of the
county as aforesaid.
"During the time the quastrofi'of'advertisingwas raised
and the present time two or three monthly rental
Hon. A. J. Bryan, Jr., page 2, O-1685
payments have accrued and the question is whether
or not these rentals may be paid, these particular
rentals having accrued just prior to the date of
advertising for bids~and one payment just after the
acceptance of the above described bid."
Article 2351, Vernon's Annotated Civil Statutes, constitutes
the general grant of power to the commissioners court of a
county.
Among other things it provides:
“3. Lay out and establish, change and discontinue
public roads and highways.
"5. Appoint road'overseers and apportion hands.
“6. Exercise general control over all roads, highways,
ferries and bridges in their counties."
The power expressly given to the commi.ssioners'court to lay out
and establish public roads carries with it by implicationall such
other powers as are reasonably necessary to carry into effect the
granted authority.
Lasater v. Lopei, 202 S.W; 1039
Owen v. Fleming-Stilaer Road Building Company,
250 S.'ry..1038.
The commissioners' court of a county has express authority under
Art. 6751, Revised Civil.Statutes, 1925, to lease, rent or hire
necessary road machinery, tools, implements, etc. for grading,
draining, or repairing the roads of the county.
Article 675’1,supra, reads as -follows:
"The commissioners court of any such county is authorized
to purchase or hire all necessaryroad machinery, tools,
implements, teams and labor required to grade, drain, or
repair the roads of such county, and said court is
authorized and empowered to make all reasonable and
necessary rules, orders and regulations not in conflict
with law for laying out, working and otherwise improving
the public roads, and to utilize the labor and money
expended therecn, and to enforce the same.’
On thebasis of the above authorities ~itis our opinion that the
county commissioners1 court has both express and implied authority
Hon. A. J. Bryan, Jr., page 3, O-1685
to rent or lease road machinery for necessary uses on county
roads.
The question now presents itself as to.whether or not the
commissionersl court may rent or lease road machinery without
first advertising for bids for the rental.
Article 165'9,Revised Civil Statutes 1925, provides for
competitive bid advertisements for purchase of road and bridge
material. As pertinent hereto, it reads as follows:
wSupplies‘of every kind, road andbridge material or
any other material, for the use of said county, or any
of its officers, departments, or institutions must be
urchased on competitive bids, the contract tobe
Pawarded to the party wh in the judgment of the
commissioners1 court, hzi submitted the lowest and best
bid." (Underscoring ours)
Article 1659, aupra, does not apply to rentals or leases of road
machinery by the county. This is evident from its own terms. It
is to be noted moreover that it was enacted subsequent to Article
67% supra, (Acts 1891, p. 149, General and Special Laws 22nd
Leg.) authorizing the commissioners' court to..."hire
all necessary
road machinery, etc." (Art. 1659 was originally Acts, 1905,
p. 384, amended Acts-1921, p. 185).
We have reached the conclusion that it was not the intention of
the Legislature to require advertisement for bids in the leasing
or renting of road machLnery by the county commissioners1 court.
It is our opinion and you are so advised that the commissioners'
court of a county has the authority to rent road machinery at a-
monthly rental for use on a W.P.A. project without first adverA
tising for bids for the rental of said machinesy.
your attention is called to Opinion O-7117 of this department to
Hon. Wm. J. Fanning to Hon. T. K. Wilkinson, County Auditor,
Hill County,-Hillsboro, Texas, holding that the commissioners'
court cannot lease or rent, with the option to purchase, road-
machinery, pickups or trucks, warehouses for the storage of
equipment.
We note that in the penultimate paragraph of your letter you
refer to the fact that "two or three monthly rental payments
"the question is whether or not
have accrued" and st,a_te,that
these rentals may be paid." The answer to this question depends
upon whether therentals accrued under the old lease contract
including the option to purchase or a subsequent lease contract
omitting the option provision. We refrain from passing upon this
Hon. A. J. Bryan, Jr., page 4, O-1685
phase of the matter because of insufficient information.
The bid requirement of Afticle 16.59,supra, _is applicable to
any purchase of road machinery or equipment by a county commls-
sioners' court and cannot be avoided in any manner.
Trusting that we have fully answered your inquiry, we are
Yours very truly
ATTORNEY GENER.ALOF TEXAS
s/ Dick Stout
BY
Dick Stout
.Assistant
DS:jm/cge
APPROVED DECEMBER 16, 1939
s/.Gerald.G..Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee
By BWB, Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125069/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
JULIO MOLINAR, No. 08-15-00083-CV
§
Appellant, Appeal from
§
v. 65th District Court
§
S.M., of El Paso County, Texas
§
Appellee. (TC # 2011PO1176)
§
OPINION
Julio Molinar appeals from an order denying his motion to vacate an agreed protective
order. We affirm.
FACTUAL SUMMARY
On February 17, 2011, M.V. filed an application for a protective order on behalf of her
minor daughter, S.M., alleging that Julio Molinar had committed acts of family violence and
sexual assault against S.M. She sought a protective order under both Title 4 of the Texas Family
Code1 and Article 7A of the Texas Code of Criminal Procedure.2 The hearing before an
associate judge was attended by M.V., an Assistant El Paso County Attorney, and Molinar’s
1
See TEX.FAM.CODE ANN. §§ 85.001-88.008 (West 2014 & Supp. 2016).
2
See TEX.CODE CRIM.PROC.ANN. art. 7A.01-.07 (West 2015 & Supp. 2016).
attorney.3 Molinar did not attend the hearing. The parties entered into an agreed protective
order, and it is signed by M.V., the Assistant County Attorney, and Molinar’s attorney. The
agreed protective order recites that the application is based on both the Texas Family Code and
Article 7A of the Texas Family Code. Further, the associate judge made a finding in the order
that “…the parties have agreed, as evidenced by their signatures and subject to approval by the
Court to the terms set out below, that such terms of the protective order are in the best interest of
the applicant, the family or household, or a member of the family or household; and that such
agreement shall be made a part of this Protective Order.” The agreed protective order prohibits
Molinar from committing acts of family violence, communicating with S.M., going within 200
yards of her residence, school, or child care facility, and engaging in conduct directed toward
S.M. or a member of the family or household, that is reasonably likely to harass, annoy, alarm,
abuse, torment, or embarrass the person. The agreed order granted M.V. exclusive possession of
S.M., prohibited Molinar from removing S.M. from M.V.’s possession or removing her from
El Paso County, and further provided that Molinar shall have no visitation with the child.
Additionally, the agreed order provided that the order expires on April 7, 2024. It is undisputed
that Molinar did not request a de novo hearing before the referring court or file a motion for new
trial. Likewise, he did not appeal the agreed protective order.
On July 11, 2012, Molinar filed a motion to vacate the agreed protective order alleging
the following grounds: (1) there was and is no threat to S.M.; (2) S.M. is not afraid of Molinar;
(3) Molinar was not present at the hearing to present evidence contrary to M.V.’s testimony; (4)
3
The agreed protective order recites that a reporter’s record was made of the hearing, but a transcription of the
hearing has not been made part of the appellate record.
-2-
the termination date of the protective order exceeds two years; (5) Molinar has not been charged
or arrested on any of the criminal allegations that M.V. alleged to obtain the protective order; and
(6) M.V. pursued the protective order as a means of harassment and to terminate Molinar’s
visitation rights. Following a hearing, the associate judge denied the motion to vacate on
January 17, 2013.
Molinar filed a second motion to vacate on July 8, 2014. The grounds alleged in the
second motion are identical to the grounds in the first motion to vacate. At the hearing before
the associate judge, Molinar readily admitted that he had agreed to the protective order on the
advice of counsel, and he was aware that his attorney signed the protective order. Molinar had
been under investigation for sexually abusing S.M. when he agreed to the protective order, but he
had not been charged with any offense. He asked the trial court to vacate the protective order so
that he could resume contact with his daughter. Molinar had two other children and he would
like for S.M. to have a relationship with her half-siblings. The associate judge found that there
was no continuing need for the protective order and granted the motion to vacate. M.V., acting
on behalf of S.M., filed a request for a de novo hearing and the district court denied Molinar’s
motion to vacate.
LACK OF STANDING
Molinar raises four issues challenging the district court’s order denying his motion to
vacate the agreed protective order. We find that it is necessary to address whether Molinar had
standing to file a motion to vacate the agreed protective order.
The Family Code permits either the original applicant or the person subject to the
-3-
protective order to move the issuing court to reconsider the continuing need for a protective
order after one year. TEX.FAM.CODE ANN. § 85.025(b). A protective order entered under Article
7A of the Code of Criminal Procedure may be rescinded only upon the request of the victim.
TEX.CODE CRIM.PROC.ANN. art. 7A.07(b).
In R.M. v. Swearingen, --- S.W.3d ---, 2016 WL 4153596 (Tex.App.--El Paso 2016, no
pet.), we held that the respondent did not have standing to file a motion to rescind a protective
order issued on family violence grounds under Chapter 85 of the Family Code and sexual assault
grounds under Article 7A of the Code of Criminal Procedure. The protective order in the
Swearingen case was issued after a contested hearing and the trial court made findings related to
family violence and sexual assault. Here, the applicant sought a protective order under the
Family Code based upon an allegation of family violence and the Code of Criminal Procedure
based upon an allegation of sexual assault. Because the parties entered into an agreed protective
order as permitted by Section 85.0054, the trial court did not make findings of family violence or
sexual assault. The agreed order provides relief under both the Family Code and the Code of
Criminal Procedure. For example, it prohibits Molinar from committing acts of family violence,
communicating with S.M., or going within 200 yards of her residence, school, or child care
facility. See TEX.FAM.CODE ANN. § 85.022 (protective order may prohibit person found to have
committed family violence from committing family violence, community with the victim or a
member of the family or household, and going to or near the residence or a person protected by
an order, and from engaging in conduct directed specifically toward a person protected by an
order, including following the person, that is reasonably likely to harass, annoy, alarm, abuse,
4
TEX.FAM.CODE ANN. § 85.005 (authorizing the parties to enter into an agreed protective order).
-4-
torment or embarrass the person); TEX.CODE CRIM.PROC.ANN. art. 7A.05 (protective order may
prohibit the alleged offender from communicating directly or direct with the applicant or any
member of the applicant’s family or household in a threatening or harassing manner, going to or
near the residence, child care facility or school of the applicant or any member of the applicant’s
family or household, engaging in conduct directed specifically toward the applicant or any
member of the applicant’s family or household, including following the person, that is
reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person). The agreed
protective order prohibits Molinar from removing S.M. from M.V.’s possession. See
TEX.FAM.CODE ANN. § 85.021(1)(A)(i) (protective order may prohibit a party from removing a
child who is a member of the family or household from the possession of a person named in the
order). Further, the parties agreed that the protective order would be effective until the victim’s
18th birthday as permitted by Article 7A.07. See TEX.CODE CRIM.PROC.ANN. art. 7A.07
(providing that a protective order issued under Article 7A.03 may be effective for the duration of
the lives of the offender and victim or for any shorter period stated in the order). A protective
order issued under Title 4 of the Family Code is limited to two years. See TEX.FAM.CODE ANN.
§ 85.025. Because the agreed protective order granted relief under both the Family Code and the
Code of Criminal Procedure, we conclude that a motion to vacate the order is governed by
Article 7A.07. Applying our decision in R.M. v. Swearingen to this case, we hold that Molinar
does not have standing to file a motion to vacate or rescind the agreed protective order. R.M. v.
Swearingen, 2016 WL 4153596 at *4.
Even if Molinar had standing to file the motion to vacate the agreed protective order, he
-5-
failed to preserve the issues raised on appeal. To raise an issue on appeal, the record must reflect
that the party made the complaint in the trial court by a timely objection, motion, or request that
stated the grounds for the ruling with sufficient specificity to make the trial court aware of the
complaint. TEX.R.APP.P. 33.1(a)(1)(A); see Shoemaker v. State for Protection of C.L., 493
S.W.3d 710, 720 (Tex.App.-- Houston [1st Dist.] 2016, no pet.). Molinar’s second motion to
vacate stated six grounds for vacating the agreed protective order:
(1) there was and is no threat to S.M.;
(2) S.M. is not afraid of Molinar;
(3) Molinar was not present at the hearing to present evidence contrary to M.V.’s
testimony;
(4) the termination date of the protective order exceeds two years;
(5) Molinar has not been charged nor arrested on any of the criminal allegations that
M.V. alleged to obtain the protective order; and
(6) M.V. pursued the protective order as a means of harassment and to terminate
Molinar’s visitation rights.
On appeal, Molinar raises four issues:
(1) Molinar did not sign the agreed protective order;
(2) the agreed protective order does not comply with Rule 11 of the Texas Rules of Civil
Procedure;
(3) the order expired two years after it was signed pursuant to Section 85.025 of the
Texas Family Code; and
(4) the trial court did not have authority to enter a protective order prohibiting Molinar
from communicating with S.M. because the court did not make a finding that family
violence had occurred and that it was likely to occur in the future.
Molinar’s motion to vacate did not include the arguments made in Issues One, Two, or Four.
-6-
While Molinar’s motion to vacate complained that the protective order exceeded two years, the
argument he makes in Issue Three is that the protective order expired by operation of law after
two years. These are two different arguments. Thus, Molinar did not preserve any of the issues
raised on appeal. We overrule Issues One through Four and affirm the judgment of the trial court
denying Molinar’s motion to vacate the agreed protective order.
February 8, 2017
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating
-7- | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131679/ | The Attorney General of Texas
November 4, 1981
MARK WHITE
OVERRULES IN PART BY JM-314
Attorney General
Supreme Court Building
Honorable W. J. Estelle, Jr. opinion No.M+382
P. 0. Box 12548 Director
Austin. TX. 78711 Texas Department of Corrections Re: Classification of inmates
5121475-2501 P. 0. Box 99 as state approved trusties
Telex 910,874.,367
Huntsville, Texas 77340
Telecopier 5121475-0266
Dear Mr. Estelle:
1607 Main St., Suite 1400
Dallas, TX. 75201 You have asked our opinion concerning the authority of the Texas
2141742-8944
Department of Corrections to classify certain inmates as trusties.
Your first question is:
4824 Alberta Ave., Suite 160
El Paso, TX. 79905 Does the Texas Department of Corrections have the
91515333484 discretion to classify an inmate who has served a
portion of the Texas sentence in the actual
1220 Dallas Ave., Suite 202
custody of federal authorities, another state's
Houston, TX. 77002 penitentiary or a jail, as a state approved
7131650-0886 trusty?
Article 6184a, V.T.C.S., provides in pertinent part:
806 Broadway, Suite 312
Lubbock, TX. 79401
8061747.5238 Any person serving a prison sentence of one
or more years in the Texas State Penitentiary, who
has a good prison record may be appointed a trusty
4309 N. Tenth, Suite S
after he shall have served three months in the
McAllen, TX. 78501
5121682-4547
ranks, and not before....
Article 6184~1,V.T.C.S., permits the appointment of an inmate as
200 Main Plaza, Suite 400 trusty only after he has served three months "in the ranks." In our
San Antonio, TX. 78205
opinion, service in the ranks refers to time spent as an inmate in one
512/225-4191
of the classifications established by article 6181-1, V.T.C.S.
Inmates are classified according to conduct as swan as practicable
An Equal Opporfunityl after they reach the pris00. The statute providing for the
Affirmative Action Employer appointment of trusties was enacted after the statute requiring
classification of prisoners and apparently in reference to it. _See
Acts 1925, 39th Leg., ch. 19, at 46; Acts 1910, 31st Leg., 4th C.S.,
ch. 10, 533, at 151.
Article 6184~1, in our opinion, permits the appointment of an
inmate as trusty only after he has served three months in the actual
custody of the prison. Thus, time served in the actual custody of
p. 1292
.
Mr. W. .I.Estelle, Jr. - Page 2 (MW-382)
federal authorities. another state's penitentiary or a jail would not
count toward his three months service "in the ranks."
You next ask the following question:
Does the Texas Department of Corrections have the
discretion to classify an inmate who is a parole
violator or mandatory supervision returnee as a
state approved trusty retroactively for the period
of incarceration prior to his release on parole or
mandatory supervision?
We are of the opinion that the Texas Board of Corrections does not
have the discretion to classify an inmate who is a parole violator or
mandatory supervision returnee as a state approved trusty until at
least twelve months after the inmate's return to the Texas Department
of Corrections.
Our opinion is based upon article 6184f, V.T.C.S., which states
in part, "[wlhenever a convict violates his trust or his conduct is
such that he makes himself objectionable to the citizens of the
community in which he is located...such convict shall not thereafter
be eligible to appointment as a trusty for twelve months." We believe
that a parole violator or returnee from mandatory supervision has
conducted himself in an objectionable manner; if not, he would not
have been returned to the Texas Department of Corrections. The
inmate's return to the Texas Department of Corrections in itself could
be construed as a violation of his trust and would fell within the
purview of article 6184f, V.T.C.S.
SUMMARY
The Texas Board of Corrections may classify
an inmate as a state approved trusty after he has
served three months in the custody of the Texas
Department of Corrections. The board's discretion
in classifying an inmate as a trusty where the
inmate is a parole violator or mandatory
supervision returnee cannot be exercised within
twelve months after the inmate's return to the
Texas Department of Corrections.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 1293
. .
Mr. W. J. Estelle, Jr. - Page 3 @W-382)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1294 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131712/ | The Attorney General of Texas
May 30, 1981
MARK WHITE
Attorney General
Honorable Chris Victor Semoe, Chairman Opinion No. MW-349
Committee on Business & Industry
House of Representatives Re: Constitutionality of House
P. 0. Box 2910 Bill 995, 67th Legislature, Regular
Austin, Texas 78769 Session, concerning the use of
county law library funds
Dear Representative Semos:
House Bill 995, as introduced in the regular session of the 67th
Legislature, is styled ‘An Act relating to the authority to establish and
maintain law libraries in the district, county, and justice courts in each
county and the use of the county law library fund.” Your letter states:
I would like to request your opinion as to the
constitutionality of this bill. You issued your
opinion No. MW-9 dated March 1979 that the
“County Law Library Fund” was a trust fund and
could not be used to buy books for the judges.
The above bii seeks to do this in a different
manner. It has been brought to my attention
that this trust fund is a State of Texas trust
fund which is being administered by the
Commissioners Court and the original purpose
has to be followed.
Until 1977, there were a number of statutes dealing with law libraries.
Several of them applied only to counties of a certain population, but article
1702h, V.T.C.S., applied to all counties in the state. In 1977, all the statutes
other than article 1702h were repealed, and article 1702h was amended. Acts
1977, 65th Leg., R.S., ch. 131 at 271. It is article 1702h that House Bill 995
would again amend.
Three opinions of the attorney general have addressed article 1702h,
as amended in 1977. The first of them, Attorney General Opinion H-1062
(1977), concluded that the law library fund established by article 1702h was
earmarked for certain purposes by the statute and could not be used for
different purposes. The second, Attorney General Opinion H-1246 (1978),
determined that the statute was broad enough, when read with other laws, to
allow the establishment of branch libraries and the loan of library materials
to other libraries, so long as the dominant purpose of the statute was served.
Finally, Attorney General Opinion MW-9 (1979) stated that fees collected
pursuant to article 1702h could be used only “for county law library
purposes.”
p. 1154
Honorable Chris Victor Semos - Page Two (Mw-349)
In none of these opinions was it suggested that the legislature had no power to
divert the fund to other uses. All of them referred to statutory provisions, not
constitutional provisions, which restricted the use of such funds, and we are aware of
no constitutional provisions that would limit the power of the legislature to deal with
such funds in the manner which H.B. 995, as submitted to us, would deal with them.
See Gulf Insurance Co. v. James, 185 S.W.2d 966 (Tex. 1945). Where pursuant to
article 1702h. section 3. V.T.C.S.. the countv has heretofore acceoted eifts aurrmentina
the fund which gifts ‘were lawfully condi”tioned upon a particular use the&of, the
county may continue to devote the gift to those uses, but the legislature is not
constitutionally barred from opening the statutory fund to additional uses, or from
abolishing it altogether. cf. V.T.C.S. art. 4335 (officers entitled to laws).
SUMMARY
House Bill 995, 67th Legislature, Regular Session, if enacted,
would not unconstitutionally divert a special fund.
r MARK WHITE
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 COMMlTTEE
Susan L. Garrison, Chairman
James Allison
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
P. 1155 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150729/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Carter Safety Consultants, Inc. ) ASBCA No. 60779
)
Under Contract No. W912P8-10-P-0255 )
APPEARANCE FOR THE APPELLANT: Ms. Cliftena Carter
CEO
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
David R. Dyer, Esq.
Engineer Trial Attorney
U.S: Army Engineer District,
New Orleans
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL
ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
The United States Army Corps of Engineers moves to dismiss this appeal for lack
of jurisdiction, contending that Carter Safety Consultants, Inc. (Carter) failed to file a
timely appeal from the contracting officer's final decision (COFD). We grant the
government's motion and dismiss the appeal.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. The government and Carter entered into Contract No. W912P8-10-P-0255
(contract) on 30 September 2010 for information and project scheduling support (R4, tab 29).
2. By letter dated 8 February 2016, Carter submitted a certified claim to the
contracting officer (CO) for $109,542.60 for final payment under the contract (R4, tab 5).
3. By letter dated 21 April 2016, the CO issued a final decision denying the claim
(R4, tab 1). The COFD notified Carter of its right to appeal the decision to the Board
within 90 days of receipt or to bring an action directly in the United States Court of
Federal Claims within 12 months of receipt (id. at 22). The COFD also provided the
mailing address for the Board (id.).
4. The contracting officer emailed the final decision to Carter on 21 April 2016
and also sent it by certified mail. Carter received the certified mail copy on 25 April
2016. (R4, tab 1 at 1-2)
5. By letter dated 5 August 2016, Carter appealed the COFD to the United States
Government Accountability Office (GAO) (R4, tab 3). The letter stated that Carter had
sent its appeal to the GAO several times before, the most recent attempt having been
returned to Carter's offices on 12 July 2016 (id. at 1). Carter has not provided us with
copies of its earlier appeals to the GAO.
6. By letter dated 22 August 2016 (submitted in an envelope bearing a postal meter
stamp of 3 September 2016 and received by the Board on 6 September 2016), Carter filed
its appeal with the Board from the 21April2016 COFD. In the notice of appeal, Carter
stated it received a letter on 19 August 2016 from the GAO Contract Appeals Board
(CAB) in which the CAB stated that it did not possess jurisdiction to consider Carter's
appeal and referred Carter to this Board.
DISCUSSION
The government moves to dismiss this appeal for lack of jurisdiction, asserting that
Carter failed to file its appeal with the Board within 90 days of receiving the COFD. In its
response, Carter did not address the timeliness of its appeal but merely argued the merits
of its appeal.
The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, requires a contractor
to file an appeal of a COFD with the Board within 90 days from receipt of that COFD.
41 U.S.C. § 7104. We lack jurisdiction over any appeal filed outside this 90-day appeal
period. Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1391 (Fed. Cir. 1982).
For purposes of this motion, we will assume that Carter received the COFD on
25 April 2016 (the date that it received the certified letter) rather than 21 April 2016 (the
date that the contracting officer emailed it). With a starting date of 25 April 2016, Carter's
appeal had to have been filed no later than Monday, 25 July 2016. Carter did not mail a
notice of appeal to the Board until at least 22 August 2016 (ignoring for the moment the
12-day gap between the date of its letter and the postal meter stamp of 3 September 2016 ),
which is more than 90 days after Carter received the COFD (SOF ii 6).
We have held that we possess jurisdiction under the CDA in narrow circumstances
where the contractor sent a timely notice of appeal to other officials in the Department of
Defense. E.g., Contraves-Goerz Corp., ASBCA No. 26317, 83-1 BCA ii 16,309 (timely
notice of appeal addressed to the Secretary of the Air Force through the CO); Brunner
Bau GmbH, ASBCA No. 35678, 89-1BCAii21,315 (timely notice of appeal to
government counsel); Thompson Aerospace, Inc., ASBCA Nos. 51548, 51904, 99-1 BCA
ii 30,232 (timely notice of appeal to CO).
In Carter's letter to the GAO dated 5 August 2016, Carter stated that it had tried to
file an appeal with the GAO on or before 12 July 2016 (SOF ii 5), which raises the
possibility that Carter filed an appeal within the 90-day period, albeit at the wrong forum.
2
We have held that, in contrast to appeals filed with the wrong official within the
Department of Defense, we do not possess jurisdiction over appeals filed at other tribunals.
See Waterstone Environmental Hydrology and Engineering, Inc., ASBCA No. 57557,
12-1 BCA ~ 35,028 (late appeal to ASBCA dismissed after wrongful appeal to the Civilian
Board of Contract Appeals). Thus, Carter's alleged timely appeal to the GAO, which is not
within the executive branch of the government, does not provide us with jurisdiction.
Finally, we observe that this is not an appeal where we would have expected the
appellant to be confused by litigation options which a novice in contracting with the U.S.
Army Corps of Engineers might find daunting. Our records indicate that we docketed an
appeal filed by appellant on 3 October 2011 from another contract it had with the Corps,
which we docketed as ASBCA No. 57800. The docket identifies appellant's representative
as Cliftena Carter, the same representative as in this appeal. The parties litigated that
appeal for 14 months and then reported a settlement to the Board. Accordingly, we see no
explanation for appellant's failure to file a timely appeal with the Board.*
CONCLUSION
The government's motion is granted and the appeal is dismissed for lack of jurisdiction.
Dated: 22 February 2017
\\ II ' \
MICHAEL N. O'CONNELL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
/~p?:~---
STEMPLE~
MARK N.
M
__ ___ _ RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
* We express no opinion as to whether appellant may file an action in the Court of
Federal Claims, which, as noted above, has a 12-month filing deadline from receipt
of the contracting officer's final decision.
3
I certify that the foregoing is a true copy of the Opinion and Decision of the Armed
Services Board of Contract Appeals in ASBCA No. 60779, Appeal of Carter Safety
Consultants, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
4 | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131814/ | The Attorney General of Texas
September 23, 1980
’AlBnncdby&?&T
i
Honorable Evans N. Wentz Opinion No. hB+247
Executw Director
Texas Commission fcr the Blind Re: Whether a terminated employee
Austin, Texas of the State Commission for the Blind
was entitled to be paid fcr accrued
sick leave
Dear Mr. Wentz:
You have requested our opinion as to whether an employee terminated
by the State Commission for the Blind on June 25,1979, is entitled to be paid
for accrued sick leave. We assume that there is no question of wrongful
termination.
The 1975-77 General Appropriations Act, which expired on August 31,
1977, contained a provision requiring that all state employees, lpon
separation, be paid for are-half of their accrued sick leave. Acts l975,64th
Leg., ch. 743, art. V, sec. 7(b), at 2850. See Attorney General Opinion H-
1083 (1977). Neither of the appropriations3 enacted since 1975,however,
has contained any provision permitting payment for sick leave.
The side leave ~provisions of the General Appropriations Act are
applicable to all employees Paid with funds appropriated thereby. Attorney
General Opinion H-996 fl977). On June 25, 1979, when the employee of
whom you inquire was terminated, the 1977-79 General Appropriations Act
was in effect. That indivi&al’s compensation, as well as that of other
employees of the Commission for the Blind, was clearly included within the
agency’s appropriation. Acts l977,65th Leg., ch. 872, art. II, at 2729-34. As
a result, unlike the situation in Attorney General Opinion H-1083 (1977),
agency policy regard@ payment of sick leave is irrelevant. The statute
controls, and therefore, no payment may be made.
Neither cb we believe that refusal of the Commission to pay this
employee for accrued sick leave constitutes a violation of the Federal
Rehabilitation Act of 1973, 29.U.S.C. section 794. The individual has not
been denied any benefits to which he was lawfully entitled.
P. 780
Honorable Evans N. Wentz - Page Two (HN-247)
SUMMARY
An employee of the State Commission for the Blind who was
terminated cn June 25, 1979, is not entitled to be paid for
accrued sick leave.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Susan Garrison, Acting Chairman
Carla cox
Rick Gilpin
Bruce Youngblood
P. 781 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131829/ | The Attorney General of Texas
September 4, 1980
MARK WHITE
Attorney General
Honorable Oscar H. Mauzy Opinion NO. MN-2 32
Chairman
Senate Education Committee Re: Allocation of funds t&m
Texas Senate, State Capitol student services fees to student
Austin, Texas 78711 directed nonprofit corporations
engaged in public interest research
activities
Dear Senator Mauzy:
You have requested our opinion regardirlg the allocation of funds from
student services fees to student directed nonprofit corporations engaged in
public interest research activities.
Prior to its amendment by the 66th Legislature, Acts 1979, 66th
Legislature, chapter ‘756, at 1872, section 54.503(b) of the Education Code
provided, in pertinent part:
The governing board of an institution of higher
education may charge and collect from students
registered at the institution fees to cover the cost of
student services which the board deems necessary or
desirable in carrying out the educational functions of
the institution. The fee or fees may be either
voluntary cr compulsory as determined by the
governing board.
(Emphasis added). In 1979 the Legislature deleted the underlined portion of
the statute. You ask whether this deletion affects the constitutionality of
section 54.503(b), as applied to public interest research activities.
In Letter Advisory No. 6 (1973), this office concluded that the
governing board of an institution of higher education:
might validly dstermine, in the reasonable
exercise of their delegated legislative discretion, that
public interest research activities constitute student
services ‘necessary or desirable in carrying out the
educational functions of the institution’, and collect
voluntary student fees to cover the cost thereof.
Honorable Oscar H. Mauzy - Page Two (MW-232)
The opinion said that the determination required by the statute, that the board &em
the activity “necessary or desirable in carrying out the education functions of the
institution,” was essentially a version of the public purpose test. As was indicated in
the opinion:
[el xpenditures for a true public purpose do not violate
Article 3, S51 of the Constitution [prohibiting grants of public
money to corporations or individuals], even when a private
agency is used to achieve the purpcee.
In our opinion, the deletion of the referenced language from section 54.503(b) of
the Education Code does not affect its constitutionality. Even though the governing
board may no lcnger be required to make the determination formerly directed by
statute, the board, in order to authorize the expenditure, must nevertheless find that it
will serve a valid public purpose. Although Letter Advisory No. 6 was limited to
activities funded by voluntary, rather than compulsory fees, the statute makes no such
distinction, end in cur view, article HI, section 51 of the state constitution &es not
require such a distinction. So lcng as the board properly makes a determination that
the expenditure will serve a valid public purpcee, we believe it may allocate funds
from student services fees to student directed nonprofit corporations engaged in public
interest research activities.
SUMMARY
So long as the governing board of an institution of higher
education makes a &termination that the expenditure will
serve a valid public purpose, it may allocate funds from student
services fees to student directed nonprofit corporations engaged
in public interest research activities.
A
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jon Bible
Susan Garrison
Rick Gilpin
Peter Nolan
P. 737 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144704/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Hon. George H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:
Opinion No. O-1698
Re: Compensation of Actua
I)epartmenton examination
By your letter of Novembe
in the Insurance Department
the fact situation reflecte
your letter, which facts
Fleet, Actuary in
of Insurance CoImnission-
he Chairman of the
Board to rssist an insurance cclapany
towit, the American
Life Insurazc It appears that.
Mr. Van Fleet October on this out
ars that the rate of
day, the examinercs remunera-
home state of the company
nducting the examination of
o business :!.n
that state.
ars that Mr. Van Fleet was inadver-
gular Exomination Division payro91,
or the entire month.of October, and
It seems that the warrant' for
be issued in order to work an adjustment
auned to be due Ur. Van Fleet for the eight
days he served as examiner, and the emount actually paid him
for the month of October, inbluding the eight days he served
as examiner, under the item appropriated for the payment of
the Salary of the Actuary of the Examining Division.
Hon. George II.Sheppard, Page 2
Senate Bill 397, passed by the 46th Legislature,
Regular Session, 1939, provides the method of compensating
examiners of this State who conduct examinations of insurance
companies not organized under the laws of Texas. That Act
provides in part ns follows:
"Examiners' remuneration and expenses shall
be the same as that which would be paid by the
home State of a company under examination to per-
sons conducting the examination of a Texas company
admitted to do business in that State."
This provision has been fully discussed in our
Conference Opinion No. 3075, dated August 3, 1939 with which
you are familiar. The question was likewise inci.denMly in-
volved in our Opinion NO. O-1471, addressed tothe Honorable
Walter C. Wooaward, Chairman, Board of Insurance Ccuumission-
ers, under date of October 14, 1939, with which you are
likewise familiar.
Your question, however, does not involve the method
of computing the canpensation or the availability of an Q-
propriation for the purpose of paying the compensation of
examiners conducting examinations of insurance companies not
organized under the laws of the State of Texas; but your
inquiry seems~to be concerned with the proposition whether
the Actuary of the Edamining Division assisting in the exam-
ination of an out-of-state insurance company may be compensat-
ed as an examiner, rather then as Actuary, for such period of
time as he may actually engage in such out-of-state exemina-
tion.
Your question, it seems, is explicitly answered
by the below-quoted provisions appearing in Senate Bill 397:
Where the Chairman of the Board shall deem
it advisable.,he may commission the Actuary of the
Board, the Chief Examiner or any other examiner (r
employee of the department, or any other person,
to conduct or assist in the examination of any oom-
pany not organized under the laws of Texas and allow
them compensation as herein provided, except .that
they may'not be otherwise compensated during the
time they are assigned to such foreign company ex&-
ination.*
It follows that during the time Xr. Van Fleet,
the Actuary of the Examining Division, was by commission
Hon. George I?.Sheppard, Page 3
of the Chairman of the Board assisting in the exam&nttion
of the out-of-state insurance company referred to, he %Q~S
permitted to be calpensnted for such services in the man-
ner provided in Senate Bill 397. Of course, for the eight
days he served.as, in effect, Examiner, he could not,
under the provisions of Senate Bill 397, be compensated
as "Actuary"; but we do not feel that the inadvertent pay-
roll certification which reported him a? serving as Actuary
during the entire month of October will or should prevent
the account of your Department from being corrected to show
that for eight days of such month he actually served as
"Examiner," under the provisions of Senate Bill 397, nor
does it, in our opinion, prevent the adjustment of his
compensation according to the actual fact situation.
Trusting that the foregoing adequately answers
your inquiry, we are
Very truly yours
ATTORNrEYGENERAL OF TZXAS
BY
R. W. Fairchild
Assistant
A?PRCVED DEC '7,1939
/s/ Gerald C~.Mann
ATTGRBBY GENERU OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150702/ | [Cite as State v. Williams, 2017-Ohio-803.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2016 CA 00074
ANTHONY L. WILLIAMS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2015 CR 02055
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 6, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO GEORGE URBAN
PROSECUTING ATTORNEY 116 Cleveland Avenue NW
RENEE M. WATSON Suite 808
ASSISTANT PROSECUTOR Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016 CA 00074 2
Wise, John, J.
{¶1} Appellant Anthony Lamar Williams appeals his convictions on one count of
Domestic Violence and one count of Assault entered in the Stark County Common Pleas
Court following a jury trial.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS
{¶3} Appellant Anthony Williams was charged with and convicted of one count
of Domestic Violence, in violation of R.C. §2919.25, a third degree felony, one count of
Assault, in violation of R.C. §2903.13, a first-degree misdemeanor, and one count of
Resisting Arrest, in violation of R.C. §2921.33 a second-degree misdemeanor. The
charges arose from an incident which occurred on December 23, 2015. The relevant facts
as set forth at trial are as follows:
{¶4} On December 23, 2015, at approximately 8:00 p.m., “Victim 2” was living at
1000 16th Street NW in Canton, Ohio, when she answered a knock at her door and found
a panicked woman (Victim 1) standing outside whom she did not know. She noticed not
only that the woman was in a panic, but also that she had a scratch on her neck near her
collar bone. The woman asked her to go with her to her apartment because she needed
to get something inside. (T. at 147-149).
{¶5} Victim 2 followed Victim 1 a couple doors up the street to an upstairs
apartment at 1010 16th Street NW. Victim 1 walked into the apartment and, because she
seemed worried, Victim 2 followed. There was a black male inside the apartment, later
identified as Defendant-Appellant Anthony Williams. He and Victim 1 started arguing, and
Stark County, Case No. 2016 CA 00074 3
the verbal argument quickly became physical when Appellant began pummeling Victim
1. (T. at 151-152).
{¶6} Victim 2 witnessed Appellant punch Victim 1 in the face, then swing a glass
bottle at her. Victim 2 called 911 but could not be heard over screaming from Appellant
and Victim 1. (T. at 152-153).
{¶7} Victim 2 then tried to break up the fight, but Appellant picked her up and
slammed her down on top of Victim 1. Victim 2 was eventually able to get Victim 1 away
from Appellant, and the two ran out of the apartment just as police arrived. (T. at 153-
154).
{¶8} Canton Police Officers Coates and Eckelberry were first on the scene and
heard screaming from inside the apartment. The officers activated their body cameras
and proceeded to the apartment. Officer Coates announced himself and opened the
apartment door. As he did, two women ran from the residence. (T. at 182-187).
{¶9} Officer Coates recalled that when he approached Victim 1, she was
hysterical, screaming, and her face was bleeding. She advised Officer Coates that
Appellant might have a gun. The officers called for backup and then called for Appellant
to come out of the apartment. Appellant initially challenged the officers to come and get
him but eventually came out on his own. (T. at 188-194).
{¶10} Victim 1 and Victim 2 were standing outside the building when the officers
brought Appellant outside and as he walked past the women, Appellant kicked Victim 1
and then began fighting the officers. Appellant grabbed Officer Coates's pinky finger and
tried to twist and break it. After some struggle, the officers managed to secure Appellant
in the police cruiser. (T. at 194-197).
Stark County, Case No. 2016 CA 00074 4
{¶11} Three Canton police officers entered the apartment to make sure that no
one else was inside. Footage from their body cameras shows only one furnished room in
the apartment - a bedroom. The bedroom contained both male and female clothing items.
A second bedroom just had a mattress on the floor.
{¶12} Officer Coates stated that he had had previous interactions with Appellant
and Victim 1 which led him to understand that the two lived together.
{¶13} Victim 1 told Officer Coates that evening that she would not cooperate with
prosecution if Appellant was charged. This too was captured on the body camera video.
(T. at 197-198, 211-219, 231-232). Sergeant Garren arrived on the scene to photograph
the residence and Victim 1. There was some blood splatter in the bedroom and blood on
the walls. Victim 1 had bite marks on her shoulder and back, a bloody nose, and additional
injuries to her lip and the back of her neck. Victim 2 was sore for a few days after the
incident from being slammed down on top of Victim 1. (T. at 159, 198- 204).
{¶14} As a result of these events, the Stark County Grand Jury later returned an
indictment charging Appellant with one count of domestic violence, a third degree felony
due to prior domestic violence convictions, one count of assault, and one count of
resisting arrest.
{¶15} Appellant pled not guilty to the charges and rejected the state's offer of 18
months in exchange for his plea of guilty. Appellant elected to proceed to a jury trial which
began on March 14, 2016.
{¶16} At trial, the state presented testimony from Victim 2 and Officer Coates, who
gave the above outlined information to the jury. A video containing body camera footage
from several officers was also played for the jury. Victim 1, as promised, failed to appear
Stark County, Case No. 2016 CA 00074 5
at trial on the first day. She did, however, appear the following morning, dramatically
hysterical. Victim 1 claimed her brother had died the previous evening, that she was
"unstable," and that she had been drinking since 9:00 p.m. the evening before. The trial
court allowed Victim 1 to be called as a court's witness and further found her competent
to testify. (T. at 231-232, 253-255, 257).
{¶17} Victim 1 denied that she and Appellant lived together or had any significant
relationship. According to Victim 1, she has many "everythings" and "husbands" because
she simply tells men what they want to hear. She also testified that she knows the
difference between a simple assault and domestic violence and that domestic violence
requires a "child or a relationship with that person" to support a conviction. (T. at 263-
268).
{¶18} The jury deliberated for two hours and forty-two minutes and returned
verdicts of guilty as charged.
{¶19} The trial court immediately proceeded to sentencing wherein it sentenced
Appellant to 36 months incarceration for domestic violence, 180 days for assault, and 90
days for resisting arrest. Appellant was ordered to serve the sentences concurrently.
{¶20} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶21} “I. APPELLANT'S CONVICTION OF DOMESTIC VIOLENCE WAS
AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE
BECAUSE THE STATE FAILED TO PROVE THAT [VICTIM 1] WAS APPELLANT'S
"FAMILY OR HOUSEHOLD MEMBER."
Stark County, Case No. 2016 CA 00074 6
{¶22} “II. APPELLANT'S CONVICTION OF ASSAULT AGAINST [VICTIM 2] WAS
AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.”
I., II.
{¶23} In his two Assignments of Error, Appellant argues that his convictions for
domestic violence and assault were against the manifest weight and sufficiency of the
evidence. We disagree.
{¶24} A review of the sufficiency of the evidence and a review of the manifest
weight of the evidence are separate and legally distinct determinations. State v. Gulley
(Mar. 15, 2000), 9th Dist. No. 19600, at 3. “While the test for sufficiency requires a
determination of whether the State has met its burden of production at trial, a manifest
weight challenge questions whether the State has met its burden of persuasion.” State v.
Thompkins (1997), 78 Ohio St.3d 380, 390, 678 N.E.2d 541.
{¶25} In order to determine whether the evidence before the trial court was
sufficient to sustain a conviction, this Court must review the evidence in a light most
favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus, superseded by State constitutional amendment on other
grounds in State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668.
{¶26} Specifically, an appellate court's function, when reviewing the sufficiency of
the evidence to support a criminal conviction, is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. State v. Jenks, supra. This test raises a
question of law and does not allow the court to weigh the evidence. State v. Martin (1983),
20 Ohio App.3d 172, 175, 485 N.E.2d 717. The relevant inquiry is whether, after viewing
Stark County, Case No. 2016 CA 00074 7
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.” State
v. Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541.
{¶27} “Because sufficiency is required to take a case to the jury, a finding that a
conviction is supported by the weight of the evidence must necessarily include a finding
of sufficiency.” State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462. Thus, a
determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency. Cuyahoga Falls v. Scupholm (Dec. 13, 2000), 9th
Dist. Nos. 19734 and 19735, unreported.
{¶28} In determining whether a conviction is against the manifest weight of the
evidence, an appellate court: “[M]ust review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine whether, in
resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” State v. Otten (1986), 33 Ohio App.3d 339, 340, 515 N.E.2d 1009.
{¶29} A weight of the evidence challenge indicates that a greater amount of
credible evidence supports one side of the issue than supports the other. State v.
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Further, when reversing a conviction
on the basis that the conviction was against the manifest weight of the evidence, the
appellate court sits as the “thirteenth juror” and disagrees with the fact finder's resolution
of the conflicting testimony. Id. at 388, 678 N.E.2d 541. An appellate court must make
every reasonable presumption in favor of the judgment and Findings of Fact of the trial
court. Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19, 526 N.E.2d 1350. “The verdict
Stark County, Case No. 2016 CA 00074 8
will not be disturbed unless the appellate court finds that reasonable minds could not
reach the conclusion reached by the trier of fact.” State v. Clemons (1998), 82 Ohio St.3d
438, 444, 696 N.E.2d 1009, citing State v. Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492.
Therefore, this Court's “discretionary power * * * should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” State v.
Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717; See, also, Otten, 33 Ohio
App.3d at 340, 515 N.E.2d 1009.
{¶30} In State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, the Ohio
Supreme Court held “[t]o reverse a judgment of a trial court on the basis that the judgment
is not sustained by sufficient evidence, only a concurring majority of a panel of a court of
appeals reviewing the judgment is necessary.” Id. at paragraph three of the syllabus.
However, to “reverse a judgment of a trial court on the weight of the evidence, when the
judgment results from a trial by jury, a unanimous concurrence of all three judges on the
court of appeals panel reviewing the case is required.” Id. at paragraph four of the
syllabus; State v. Miller (2002), 96 Ohio St.3d 384, 2002-Ohio-4931 at ¶ 38, 775 N.E.2d
498.
{¶31} In the case sub judice, Appellant was convicted of domestic violence in
violation of R.C. §2919.25, and assault, in violation of R.C. §2903.13 which state:
{¶32} R.C. 2919.25(A) Domestic Violence
(A) No person shall knowingly cause or attempt to cause physical
harm to a family or household member.
***
Stark County, Case No. 2016 CA 00074 9
(F) As used in this section and sections 2919.251 and 2919.26 of the
Revised Code:
(1) “Family or household member” means any of the following:
(a) Any of the following who is residing or has resided with the
offender:
(i) A spouse, a person living as a spouse, or a former spouse of the
offender;
(ii) A parent, a foster parent, or a child of the offender, or another
person related by consanguinity or affinity to the offender;
(iii) A parent or a child of a spouse, person living as a spouse, or
former spouse of the offender, or another person related by consanguinity
or affinity to a spouse, person living as a spouse, or former spouse of the
offender.
(b) The natural parent of any child of whom the offender is the other
natural parent or is the putative other natural parent.
(2) “Person living as a spouse” means a person who is living or has
lived with the offender in a common law marital relationship, who otherwise
is cohabiting with the offender, or who otherwise has cohabited with the
offender within five years prior to the date of the alleged commission of the
act in question.
{¶33} A person acts knowingly, regardless of his purpose, when he is aware that
his conduct will probably cause a certain result or will probably be of a certain nature.
R.C. §2901.22(B).
Stark County, Case No. 2016 CA 00074 10
{¶34} “Physical harm” is “any injury, illness, or other physiological impairment,
regardless of its gravity or duration.” R.C. §2901.01(A)(3).
{¶35} Appellant argues that the State failed to prove that Victim 1 was a family or
household member.
{¶36} In State v. Williams, 79 Ohio St.3d 459, 465, 683 N.E.2d 1126., the Ohio
Supreme Court addressed the definition of “cohabitation” as follows:
[W]e conclude that the essential elements of “cohabitation” are (1)
sharing of familial or financial responsibilities and (2) consortium. R.C.
2919.25(E)(2) and related statutes. Possible factors establishing shared
familial or financial responsibilities might include provisions for shelter, food,
clothing, utilities, and/or commingled assets. Factors that might establish
consortium include mutual respect, fidelity, affection, society, cooperation,
solace, comfort, aid of each other, friendship, and conjugal relations. These
factors are unique to each case and how much weight, if any, to give to
each of these factors must be decided on a case-by-case basis by the trier
of fact.
{¶37} The Court further defined cohabitation in State v. McGlothan, finding where
the state demonstrated the defendant was the victim's boyfriend and they had lived
together for about a year, the state had no obligation to demonstrate the sharing of familial
or financial responsibilities and consortium to prove cohabitation. 138 Ohio St.3d 146,
149, 2014-Ohio-85, 4 N.E.3d 1021, ¶15.
{¶38} As set forth above, Victim 1, in her testimony, denied that she and Appellant
lived together. However, at trial, Officer Coates testified that he had prior dealing with
Stark County, Case No. 2016 CA 00074 11
Appellant and Victim 1 and that in those prior interactions, he was given the impression
that the two lived together. He further stated that the only furnished room in the apartment
was one of the bedrooms and that bedroom contained a bedroom set and both male and
female clothing. Additionally, Victim 1 admitted that she had a sexual relationship with
Appellant, that she refers to him as her husband, and that the bedroom set was acquired
by Appellant at Rent-a-Center. The jury was also given the opportunity to view the
apartment via the video from the officer’s body camera.
{¶39} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Victim 1 was a family or household member and that Appellant inflicted physical harm on
Victim 1. We hold, therefore, that the state met its burden of production regarding each
element of the crime of domestic violence and, accordingly, there was sufficient evidence
to support Appellant's conviction.
{¶40} As an appellate court, we are not fact finders; we neither weigh the evidence
nor judge the credibility of witnesses. Our role is to determine whether there is relevant,
competent and credible evidence, upon which the fact finder could base his or her
judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911 (Feb. 10,
1982). Accordingly, judgments supported by some competent, credible evidence going to
all the essential elements of the case will not be reversed as being against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376
N.E.2d 578 (1978). The Ohio Supreme Court has emphasized: “ ‘[I]n determining whether
the judgment below is manifestly against the weight of the evidence, every reasonable
intendment and every reasonable presumption must be made in favor of the judgment
Stark County, Case No. 2016 CA 00074 12
and the finding of facts. * * *.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d
517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is
in the best position to determine the credibility *420 of witnesses. See, e.g., In re Brown,
9th Dist. No. 21004, 2002-Ohio-3405, 2002 WL 1454025, ¶ 9, citing State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967).
{¶41} Ultimately, “the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’ ” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
2008 WL 5245576, ¶ 31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-
3395, 813 N.E.2d 964 (2nd Dist.2004), ¶ 81. In other words, “[w]hen there exist two fairly
reasonable views of the evidence or two conflicting versions of events, neither of which
is unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th
Dist. Mahoning No. 99 CA 149, 2002 WL 407847, at ¶ 13, citing State v. Gore, 131 Ohio
App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶42} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960
N.E.2d 955, ¶ 118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86
L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d
646 (1983).
Stark County, Case No. 2016 CA 00074 13
{¶43} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness's credibility. “While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 2000 WL
297252 (Mar. 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,
1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill, 176 Ohio St.
61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003-
Ohio-2889, 2003 WL 21291042, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d
1096 (4th Dist.1992). Although the evidence may have been circumstantial, we note that
circumstantial evidence has the same probative value as direct evidence. State v. Jenks,
supra.
{¶44} We find that this is not an “ ‘exceptional case in which the evidence weighs
heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor
created a miscarriage of justice in convicting Appellant of the charge of domestic violence
{¶45} Based upon the foregoing and the entire record in this matter, we find
Appellant's conviction is not against the sufficiency or the manifest weight of the evidence.
To the contrary, the jury appears to have fairly and impartially decided the matters before
them. The jury as a trier of fact can reach different conclusions concerning the credibility
of the testimony of the state's witnesses and Appellant's testimony. This Court will not
Stark County, Case No. 2016 CA 00074 14
disturb the jury's finding so long as competent evidence was present to support it. State
v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses,
evaluated the evidence, and was convinced of Appellant's guilt.
{¶46} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime of domestic violence beyond a reasonable doubt.
ASSAULT
{¶47} Appellant was also charged with one count of assault as to Victim 2:
{¶48} R.C. §2903.13 Assault
{¶49} (A) No person shall knowingly cause or attempt to cause physical harm to
another or to another's unborn.
{¶50} A person acts knowingly, regardless of his purpose, when he is aware that
his conduct will probably cause a certain result or will probably be of a certain nature.
R.C. §2901.22(B).
{¶51} “Physical harm” is “any injury, illness, or other physiological impairment,
regardless of its gravity or duration.” R.C. §2901.01(A)(3).
{¶52} Appellant specifically claims that because the only witness to the assault
charge was Victim 2 herself, that her testimony was not credible, the conviction cannot
stand.
{¶53} At trial, Victim 2, testified that when she was attempting to break up the fight
between Appellant and Victim 1, Appellant picked her up and threw her down on top of
Victim 1. She also stated that she was sore for days after the altercation. (T. at 153-154,
159).
Stark County, Case No. 2016 CA 00074 15
{¶54} Ohio courts have held that the testimony of one witness, if believed by the
jury, is sufficient to support a conviction. The issue of witness credibility is a matter within
the province of the jury. State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180.
{¶55} Victim 2’s testimony alone, if believed, supports the conviction for assault.
There is no requirement for the State to produce corroborating evidence.
{¶56} Here, the jury chose to believe Victim 2’s testimony and to find that the
evidence presented by the State met that burden of persuasion.
{¶57} Accordingly, Appellant’s First and Second Assignments of Error are
overruled.
{¶58} For the reasons stated in the foregoing opinion, the judgment of the Stark
County Court of Common Pleas is affirmed.
By: Wise, John, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/d 0227 | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144706/ | TEE ATTORNEY GENERAL
OF TEXAS
ATJEVX-IN~
TExAe
opm00 SO. o-i696
St& JeqpleDt lfoa -- roenptlea fn
p et b y l ju02a lio a o e. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144665/ | OFFICE OF THE AmORNEY GENERAL OF TEXAS
AUSIIN
Your attention ls oellsd to the feat that the gene
oral ap ropriationbill pe66sd by th6 46th L4~&l6lattu% made
00 prowill
ion for the oarryw out of the purposes end provl-
sions of the act entitledY?&ote Soil Conservationmt.*
BoweTer, Eccse 9iU No. EC, finrsllyyessed nnd adopt6d by the
46th L@slatura on the 11th duy ct ~iprllr1939, provides a8
follows in Ssotlon l4a thhereof:
The several sums of smey herein epeolfled
or 80 aRlohthemor as may bo neoeo8ery, are hereby
agproprlatadout oi any moneys in the State Trw-
not othorwl80e proprlatsdror the eupport au6
tato Soil Conaarvatlon?&oar6
ELI tenrmoe of the Ii
for the two y6s.rperiod be&inning Sept. 1, 1939,
end ending &ugust 3l, 1941."
Theroaftor is 8ot out the authorized erpendltureu
to be allowsd in the furtheranceof the dutler of the mu&are
of the State Soil ConservationBoard. Item Ro. 7 of t!m au-
thorir;u6 erpemdlturusthareund~sr provides for hotel.8and mals
'aotto exoaed 8330 per day per mmbor. Th6 sum oi #l!?so.was
appropriatedfor the year endln& nutpst 31, 1940, rot this
item and a like mm tar the ysar eadlng a&ust 31 194L ram-
gmph D of seotlon 4 or the sot defd&mted State doil ~Connarva-
tbm Board prorid@ CL6Solbw :
*Paotumlea n suoh bwrtl shall be filled
foranunapired. T ormof ~Sglltt+ma, by the
am1168anner ia uNohthe retiriag mtmbtw u?re
rcwQeot;lrcl4sleated. Eleotlvo ~~aab6m3 or the
board may rooelvm oaap8n6atlontar their mm-
viooa on the board, not to exceed the sum af $10.
per diem for saeh d&y of aatu&l sorvioo rwtiemd,
Para.gra?h
P ot the saze osation of safd 80t provides
BB follcws:
=* * + It shall hare authority to l.oOuteits
ofrloo at the point to be seleotcrdby the bcsrd.w
Now themfore, it acroordingly fol.lOwSthat the Of-
floe or t&m State Soil Conssnatlon Bard ha@!been looatad b
said board ln the oity ot T the boarii
The sot OTrnt;lptt
snrgls*
huv$,tgprovided that eaoh mem er of the Stat8,Soi(TCOAX-
Boa. Charley LQakhart,rag0 3
tlon Board ahall be entitled to erpensos, Includingtravel-
ing expenses,neoeaserllyinaurred in the disohargsof their
duties as me&m-s of the board, and a 6peoifIo ap~roprlatloa
having been made uriderSection 14a of suld aot for money to
pay said trtmellng expenses and other expenses of the nmubers
of eald Stats Soil ConservationBoard, it Is aooordliqlythe
opM011 of this Deparlanaut aad pou my be 80 advisedthat vx,
V. C. Ihrshall. a mmiber ot tbs State Soil ConservationBoard,
shall be entitled to reoalve expenses Inoludlngtravellugex-
pemies, neoessarilyinourred In the disahaqe of hle duties
as a member of the boerd. It Is the further opinion of this
Departmnt that the item3 of eupense Inquired sboutL;g&y,
lunch tt the ljoaringEstel Ten~10, T6ftas,when
made Sor this Iten doss no4 exoeed the amount ~rov
"?Ided Sor ln
the appropriationunder Eouse Bill Eo. 20 heretoforerefer-
red to, is e proper 6xpendIture and nhoulrf WJ allowed.
TrustIq that this satiafaotorllyanuw6rs your quos-
tloa, we rmualn | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144667/ | OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
PP. 0. B. NoUo~miok,Dir-eotmr
BOndhi& dr tiOWMin6 Divirlon,
Dqwtmen0 at Agrioulbutr
2'. 0. Box 111
mwllryen, Toxarl
Dear Yirr
avokea Mb who is
iwus pPo&oaPs
00 worth of oitrus
SeabOn and whloh
uat fOP ha opinion
S Agrioulture requlr-
$ Aot (Apt. lltib, Ver-
tuto8--xrB* 99, Act0
Mr. 0. B. LleGQrmiok,’
Page e
a ant’ ehsll
t;raurf.wg mamnmy purson
by MJ 1sraansad dealer
to sot for him
,in the handling OS oltrua fruit a6 derined in (a)
or thl.8 Sootlon.*
The war4 Whandlo* means, aaoordlnig to Yeotion 1
(d) of Artlole llBb, supra, “buying OF offerlne; to buy, sell-
lng or OitbdQ3 to 6011, or bhippinf3 for the pur oae or Sell-
ing, whcther~aa owner, agent or otherwise, any oPtrue fruit
within the Stmte of Texn6, and persons buying and/or ohlpplnq
aitrua fruit for aennlng anb/or proaessing or handlers, as
the term la aertnud.*
Beotion 18 of hrtlole 118b, mpra, providea,among
othur thin@; th6tr
TQion fippliaatien %o Ohr hmmlaaioner by any
lidanae6 daAbP, a reasonable mmbar of ‘buying
A&Mt’ and 'tPansportin$ agent’ idantlfloatlon
tsar48 mmybe isouad And AooPadite4 to ruoh dealer,
under aaoh ruler an& raguliatlons a8 raid Commia-
alone?rrj prararlba, an4 arid Cmudmionar 10
hereby aaptbwmre4 a0 ohargb 6 fee not to exoee6 One
~Dollar (#l) tar *aoh oWl 10 isausdr
*(a) Such crud8 dell bear the name or the
Zlbe~~ad, daalei, Ati Qha’nrnnber o? hla license,
ml80 thawrime of the 6rmlarts. agent,and ahiill
atate therean that raid lioenseb dealer, as tho
principal, hb.8 rutkmrtacrd the ageat name4 on the
oud, the holderthar6Of; te aot for and on br-
halt Ot ml& pPinOipal, either a8 *bugling agbnt’
or AI *trmnrprtlo(( agent’ a6 above’darined,
9uylag :agent* ibeatifioatlon omrda &all be of
A dltfueab solar fro= ttranqmrting a6entc oar48.
&oh i4Mtifio6Qtoa oarbrrShall, br At ~11 tine8
Qhe u6o na o f luoh ye&m who ahall,
o ur lo bp lp ea
upon daam& ,&Sap fy nuoh oar68 to Ohs OaPratl6alon6r
aP hi6 ~&@lb# eP rg asaQtatiYa8,or to .Anypamon
iith *am ~re$d aganP may be trmnr&etia~ bualnoar
UQdaPtld6 AOQ.
*(a) Z? ~a& w&an thr holder of any ldentlfi-
oar6 oaasa8’to bo the agaat pf the dealer
oatlon’
by wkm ho was an~pMyed, It ahall be the duty of
8aafd agent tQ r4Hm7n laediatalf saoh 4nt*n oard
te the OoarniBeh#n@r for oAnsellatienan 2 failure
to da ao ahall oongtltute a tlolation of thla AOt.*
Mr. c. E. NoaoPmlok, PA&w3
8aOtfon 4 o? Artlole 118b, aupra, preearlbaa the
i40 for % lioansa ma A *buying a$ent*a a8 followa:
"(a) (4) Yor A lioao6a 68 a *buying agent,'
tha mm of One Dollet ($l.)."
It would lp p a utbat the W~yiq &gent* lloema,
66 mime6 In Seotlon 4 o? Artlole 118b, aupra, 18 l&entio6l
with the *buying Agent? ldantl?loatlon aard provided ?or In
Seotlon 18. They are ode a& the rame, end are’lrubjeot to
all the lloenae requlremanta o? the Aot.
64ati6n 4 a? kti6le 118b, mapra,oontainain part
the 501-S ~QYi8iOn8:
*All Applio&tiona ?or lioenae under thie Aot
ahall be aeQolrpcmiw3 by a ten4er of paymentin
fall o? the tar ?or suoh lloenn6,raquired; on
rooeipt. Of p&id ~appllomtionduly uteoated, toga-
thar rlth rwulr84 fee, it ,ahall be the duty of
th e OT hi8 ltgttn86&ml/or amplofaeg
Co iwla r lo ner
therausUo~&~ly ruthWised to lmmedlat~y lame
rueh 118enrb, p~Q+i&a& that no lleana~ ahqll laaua
te lm, paNon rhan’tha A pllamtfen for lioanao
fllbn by luob p4rmm 6ha f 1 ladio&ta that luoh
pegma’ La a ay8pan~eB~lteaa~aa within the State
of T8xa8’.or that auoh parison*a lloanao to da
bu6lna8b in,Teraahaa-be@ sevoke4,tmtllthe Gw
hl8alonerIs furalahadwith ratlaimtory proo?
thms the mppliosnt 18, ori the data~a? the ?iun&
of ruoh~.mp~llomtloa, quallilad to reoelra tha
lioeaae 8pplied fort the larwno* of lloen8e to.
paraoncwho have 8u??ara4 prlar auapanalon OT ravoom-
itlon s? ~loaaia tn thi8 State ahall.be dl8oPatlon-
uy with the. ~aaionar in ‘the exaroisa a?
awh ~IOEatb3il,tpb cc wit clrioner la authorized
to tAka’lnto oowldaPation the fAot8 and obwun~-
stadoaa parta&& to the prior rwpansion and/of
retooatlw; the f'I:nmnelal ocm4ltlon of the appll-
Owb, As, Of t&~&&w Of thin AppliOAti~nt 6Qd the
obli&&na due and orin@ by the appl%eant. to
gxwrera~wd’po4u0er6 of oitrua trust8 and/or
perishable agrloultural oonmoilltiaa; *obligmtion, t
as t&a;tezm la we& in ?&la Beetion, shall be
aaQa~~‘tI~ to 6leM Any judgmcmtor any Oourt with-
in : this ,aSato otrtrtanding agninst the gpplioWt
lfr.C. IL f[oCormlok,
~FaFagb
4
or certified olalms as of the data of the appliae-
tion -am oonsl4uatlonby the 'Caaa144lon4r~
prior to refusal OS lioeaae by thr Gommlss1oaer,
any applicant for lloansa rhall be entitled to an
open hearlng on the faetr partaln$nR to mob ap-
DLlciation, said hearing to be oonduoted by the
Coxdasloner, or his agent thereunto duly authorla-
ml; I?, ,after such hearias, the Comalssloner, in
the rreroiae of hlr disoret$on, refutes the license
a~pl$a&for, the appllaant shalt, within ten (,lO)
da78 from and ltter the dental of mob lloensa
by tha U~mmfulowr and not thereafter, tile his
appeal from the order ot the Co&ssloner denylag
suah 116aasa, in any Court oi oompetent #w$sblo-
tloa within this 19tatet ii the Uomtnlssloner~shall
doterains that the lloense appllad for shall not
ba ([ramed, the OQrmAssioaer lhall de&at from
the llaense fee tenbered with mob lpplleatlon,
the N,Of five Doll.am OS), said Pi*4 DollaSS
($5) to’br retained by tho.C%maissloner to aeiray
tw4ts tnd expei3846i iima4nt t0 th4 filing aa
extmlnattan-of ,r a l pplloatlon an6 shall return
itl
~the~baliuae oi~the lloeme fee WJ tendered with suoh
~agplloat~lep te the applioant.*
It 18 cur apinionthat the provlslon*of Seation -4
above quoted war0 int4na4d by the Legislature to govern ln
the eare~otall type8 ol lioexsesissueif
ullderthe hot and
later sat’mt
la the same motions *dealerW lloense;
*0du$oa merOh(LLlt*m~and/or *ooatraot dealer*rR l1oaawj
%lnlmum oarh 4ealel:*#* lloanno~ ubuy$ng agent’8* lloenaa
(1bentliloationoar&)$ ntraarportlng agent*8” lloensa (Iden-
tliloatlon0+24).
9%; luuanoe 02 iny liaensa protided for ontIer the
Aovte pera wh0 bOlLd~4riyOf the lieenru 'revloual~, and
who had au~futi @Or swpm8lon or rerooatPon oi IlO4M4,
has bran &OOlarcb i U8ttOZ’ Of UiMl’atiOn with the ~Sl4iB@iOB-
er of AgrloulWr*~ ft would not be ooaslrtent to malntaln
that the comuluionbr*r ai44wi0n m limit46 to one type
or lleenu Lo., the baler*8 lloemm. The purporo or see-
tioa 4, w&h In undoubtbaly to eliainabe inmtar aa poeri-
ble unrelinbl~,un8erupulen* aiadbohaudlng lloearsesunder
the Aat, muia be alroumsnt*6 entirelyif tha Commlsslone~
WM pomuleu t9 amy a dlfferonttype of lloensa under the
MT. C. lb MoComlok, Pa&e S
Aot to a piTSon whose~prerlous lioensshad been suspendad
or rerolce& The soundest oonrtruotlonto plaae upon Se+
tloa 4 is’ that the authorltr and ~$s~ret$o~ of the COQ-
Qi#SiOaelT in issuingMy liocsnse under the Ast to a person
whoa6 ionair lioeBae was revoked or saaptmded a&wacea all
the types Of li60n8es ls8ued. This will stieotlrely close
the door to the subterfuge. of opOrat$B8 under 6 dlfterent
typo of lioanse when a prior llsense is revoked or suspend-
ed.
S’urthermore, a8 15 prorlded in Seation 4, in the
ererolse of his dlsoretlon in sush a matter, the Comlssion-
of say takb into ~onslderatioa, amona other things, *the
obllgatlans due and ming br the spplloant to growers and
produoerr of citrus fruitsand/or piwlshableagrioultural
oomm~i8les.*
fn the prerentlnstanoe the applicantfor a
"bUyin l@lb” lloenseor laeatltIoatlon card is still in-
debtad foi~approximate~ #'l&M) north of aitrusfruit whlah
he pur0hu0a as a Oe*ler during a pretloos aeaaon. In paw-
ing upon this applloetlen,lt was clesrlr the intention of
the I&g$s&ature thlrtthe Qodssloa~r of AgrloaJture take
this faab'lnto OOnmld~atlOti before issuing the party oon-
semied ns+only anotker tlealer*s lloensa, but any kind of
'lloeliu.
&eotlon14 gives the Cormls8loaerof Agrleulture
full power and authorityto ed'oreethe prorislonsof the
A&. It read8 as follows:
-I&m the purpose of enforola~ the protislons
of this Aot, $hr Commlrolonoris hereby ruted with
Sull powor aad authority and it shall be h$s duty,
slthsr upm his om initiative or tnponthe receipt
of i pro#erly rezlfle4oomplalnt, to lnrestlgets
all ,aLtegad rlolatlons air this Aot and for the
g\lrpora oi m&ing euoh $nreatigstlon, he shall
have, ,at all t-8, free end u~ta\peded aoaeds to
all books, r000ra8~, bulldings,7ar48,warehouses,
stmaga, and.traasportation aad other faollltles
m plases la wlriohaal altrus fruit is kspt stor-
ed, hurdled, processed or traaaported, and in
furtharanati of suoh $nveatlgatlaa either the GOBI-
mlssiamr lh pe]Pson ,or through hi& authorized
representatives, aay exacaine any portion ot tha
Xr. C. E. MoCormlok, ?dge 6
ledger;baoks, aoaousts, memorandum; 600tti7k4nt8,
soales, meaeures,and other matters, objeots or
persons psrtlnent to suoh alleged vlolatlon under
li:restlgatlon. The Commissioner shall take suoh
aotlon and hold suoh public hearings aa in hla
ftdgment are shows to be neoessary after such
lntsst&gatloas, and shall take the proper aotlon
with reterenoe to the ornarllatlon or suspen8lon
of the ~l~aense o? any dealer hexeunder shown to
II;;; yy guilty of a rlolatlonot the terms of
Suop hearings shall be held in the
nearest hty.oT townin the oountr tihere rlola-
Wane are alleg to hare oosua~ed. An7 order
made by tha Oommlssloaer nlth reiereooe to the
rerooatlon or arnoellat$on of any llaensegrsntea
under %he prorlslons of,thls Aat, rhall be sub-
jrot to reviewbr a Court of Pro&potent Jurlsdlo-
tion.*
After a oareful oonsl~eratlon of the above quoted
eeotlons et the Citrus Fralt Uromrs Aot la the light ot
its Objastlre8 and the abuses it %a18 ln%end6dto eradloate,
it ls OPT opinion, and rou are.80 advl8ed that under the
terms ma provlslons ot Artiole 116b, Vernon!8 Annotated
Olrll Stattites,~tha Commlssloaer of Agrleultwe la not re-
quired ‘to, Issue a buying agent’s idautlfioatlon oar6 to an
laaltlaual who has had his dealer*8 llaenseoanoelled or
revoked ana ,nho is ina4btea to numerous oltrus prcduoers
ior approrimateZ~ ,000 worth of oltrus fruit, purohased
last suson and whr ch smount is still unpaid; but under
Seatlonr4 aad 18 of Article $lSb, the Commissioner of iqrl-
oolture has th e lutherlty to use his dlsoretlon la issuing
a lloense iti sueh a oa8e and to presorlberules and regula-
tions applldable to the sltuatloa.
Truatln8 that we hare fully aBb satlataetoril7
amwerea four inwlrf, we are
Your8 very trul7 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288777/ | Dismissed and Opinion Filed June 25, 2018
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-18-00287-CV
IN THE INTEREST OF T.Y., A CHILD
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-17-00341-W
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Fillmore
Following a bench trial, the trial court signed an order terminating Mother’s parental rights
to T.Y. and appointing the Department of Family and Protective Services (the Department) as
T.Y.’s permanent managing conservator.1 Mother couches her sole issue on appeal as a challenge
to the legal and factual sufficiency of the evidence to support the trial court’s finding that
termination of Mother’s parental rights was in the best interest of T.Y. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)–(2) (West Supp. 2017) (court may terminate parent–child relationship if it finds
by clear and convincing evidence (1) one or more statutory grounds for termination and (2) that
termination is in the child’s best interest). Mother, however, substantively argues only that it was
1
The trial court also signed an order of non-parentage as to Mother’s husband and terminated the parental rights of an individual named by
Mother as the possible biological father of T.Y. and of any unknown father of T.Y.
in T.Y.’s best interest for Cousin,2 rather than the Department, to be appointed permanent
managing conservator.
An order terminating a parent’s rights to a child divests the parent and child of all legal
rights and duties with respect to each other except the child’s right to inherit from and through the
parent. TEX. FAM. CODE ANN. § 161.206(b) (West Supp. 2017). Mother does not appeal the trial
court’s ruling regarding the grounds for termination or its finding that termination of the parent–
child relationship is in the best interest of T.Y. See TEX. FAM. CODE ANN. § 161.001(b)(1)–(2).
Therefore, the trial court’s rulings are binding on Mother. See In re A.N.A., No. 05-18-00169-CV,
2018 WL 2228624, at *1 (Tex. App.—Dallas May 16, 2018, no pet. h.) (mem. op.); In re A.G.,
No. 05-16-01207-CV, 2017 WL 655954, at *1 (Tex. App.—Dallas Feb. 17, 2017, pet. denied)
(mem. op.). Upon the termination of the parent–child relationship between Mother and T.Y.,
Mother lost all legal rights with respect to T.Y. See TEX. FAM. CODE ANN. § 161.206(b).
Consequently, Mother does not have standing to challenge the portion of the trial court’s order
appointing the Department, not Cousin, as T.Y’s managing conservator. See In re A.N.A., 2018
WL 2228624, at *1; In re A.G., 2017 WL 655954, at *1.
Because Mother does not have standing to challenge the appointment of the Department as
permanent managing conservator of T.Y., or the failure to appoint Cousin as T.Y.’s permanent
managing conservator, we do not have subject matter jurisdiction over her claim. Accordingly,
we dismiss this appeal.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
180287F.P05
2
The evidence showed this individual was Mother’s father’s cousin’s daughter.
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF T.Y., A CHILD On Appeal from the 304th Judicial District
Court, Dallas County, Texas,
No. 05-18-00287-CV Trial Court Cause No. JC-17-00341-W.
Opinion delivered by Justice Fillmore,
Justices Lang and Schenck participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want
of jurisdiction.
It is ORDERED that appellee the Texas Department of Family and Protective Services
recover its costs of this appeal from appellant Shaniqwa Monique Nnorodim.
Judgment entered June 25, 2018.
–3– | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4131884/ | The Attorney General of Texas
my 1, 1980
MARK WHITE
Attorney General
Honorable WilhelminaDelco Opinion No. Mw-17 7
Committee on Higher Education
P. 0. Box 2910 Re: Whether various state
Austin, Texas 78769 statutes apply to Higher Education
Authorities created under chapter
53 of the Texas Education Code.
Dear Representative Delco:
You ask whether various state statutes apply to Higher Education
Authorities created under chapter 53 of the Texas Education Code. A
Higher Education Authority is created by the governing body of a city or
cities by ordinance pursuant to section 53.R of the Education Code. An
authority is a “body politic and corporate? Educ. Code S 53.13. It is also
referred to as ‘a vmunicipal corporation.” Educ. Code S 53.47(d). It
comprises cnly the territory included within the boundaries of the city or
cities creating it. Educ. Code’ S 53.12.’ Nonetheless, it may acquire
educational facilities outside the city limits. Educ. Code S 53.33. It may
also purchase student loan notes executed by students attending school
anywhere in Texas. Educ. Code S 53.47(b).
You first ask whether Higher Education Authorities are subject to
article 6252-9b, V.T.C.B., which establishes standardsof conduct for persons
employed by a state agency, the courts, or the legislature. Sec. 2(7).
Section 3 of this statute requires officers and executive heads of state
agencies to file financial disclosure statements. A state agency is defined
as follows:
(A) any department, commission, board, office, or
other agency that:
(i) is in the executive branch of state government;
(ii) has authority that is not limited to a
geographical portion of the state; and
(iii) was created by the constitution or a statute of
this state; or
(B) a university system or an institution of higher
education as defined in Section 61.003, Texas
Education Code, as amended, other than a public
junior college.
p. 561
Honorable WilhelminaDelco - Page Two (W-177)
V.T.C.S. art. 6252-9b, S 2(E).
In our opinion, a Higher Education Authority is not a state sgency within this
definition. A body politic and corporate is not an instrumentallty of the state, but a local
public corporation like a municipal corporation. Hatcher v. State, 81 S.W.2d 499 (Tex.
1935). A Higher Education Authority, created by a city, is an instrumentality of local
government and is not in the executive branch of state government. See Attorney General
Opinion M-538 (1969). It is not an institution of higher education~defined in section
6LOO3,of the Texas Education Code. Therefore, a Higher Education Authority ls not
stiject to article 6252-94 V.T.C.S., relating to fhtancial disclosure.
You next ask whether Higher Education Authorities are subject to article 6252-llb,
V.T.C.S., which requires state agencies to post listings of job opportunities. This statute
defines “state agency” in the same way as does article 6252-94 V.T.C.S. Thus, we
conclude that a Higher Education Authority is not a state agency within its definition and
not subject to its requirements.
You next ask whether a Higher Education Authority ls subject to article 6252-l3a,
V.T.C.S., which requires the publication of state agency ruIes. nAgencywis defined as
any state board, eommlssion, department, or officer having
statewicls jurisdiction, other than an agency wholly financed by
federal funds, the legislature, the courts, the Industrial Accident
Board, and institutions of higher education, ‘that makes rules or
determines contested cases..
V.T.C.S. art., 6252-134 S 3(l). We cb not believe the Higher ,Educatlon Authority is a
“state board, commission, [or] department”for the same reasons relied upon in answer to
your first two questions.
You next inquire whether the Open Meetings Act, V.T.C.S. art. 6252-17, applies to
Higher Education Authorities. The Open Meetings Act applies to meetings of a quorum of
members of a governmental body. Sec. L “Governmental body” ls defined ln pertinent
part 85 follows:
every deliberative body having rule-making or quasi-judicial power
and classified as a department, agency, or political subdivision of a
county or city. . . .
V.T.C.S. art. 6252-17, S I(c). A Higher Education Authority has authority to make, amend,
and repeal its bylaws. Educ. Code S 53.13. We believe this constitutes rule-making power
within the above definition. It is therefore a governmental body, and meetings of its
directors are subject to the Open Meetings Act.
You ask whether a Higher Education Authority is subject to the Open Records Act,
V.T.C.S. art. 6252-17a. This statute applies to records held by a “governmental body”
defined in pertinent part as follows:
Honorable WllhelmlnaDelco - Page Three (~~-177)
(P) the part, section, or portion of every crganixation,
corporation, commission, 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 funda of the
State of Texas or any governmental subdivisionthereof;
V.T.C.S. art. 6252-Da, S 2. A Higher Education Authority is supported by public funds
acquired through the issuance of revenue bonds. Educ. Code SS 53.34, 53.47. Therefore,
it ls a governmental body subject to the Open Records Act.
You next inquire about article 6252-llc, V.T.C.S., relating to the use of private
consultants by state agencies. “State agency” is defined as
any state department, commission, board, office, institution,
facility, or other agency, including a university system or an
institution of higher education as deflned in Section 6LOO3,Texas
Education Code, as amended, other than a public junior college.
V.T.C.S. art. 6252-llc, S l(3). This definition tracks in pertinent part the definition of
“state agency” in article 6252-13a, V.T.C.S., which we said did not include Higher
Education Authorities.
You next inquire whether article 6Olb, V.T.C.S., the State Purchasing and General
Services Act, applies to Higher Education Authorities. This statute applies to state
agencies &fined to include
(A) any department, commission, board, office, or other agency
in the executive branch of state government created by the
constitution or a statute of this state;
(B) the Supreme Court of Texas, the Court of Criminal Appeals
of Texas, a court of civil appeals, or the Texas Civil Judicial
Council; or
(Cl a university system or an institution of higher education as
defined in Section 61.003,Texas Education Code, as amended, other
than a public junior college.
V.T.C.S. art. 601b, S LO2(2). A Higher Education Authority is not an agency in the
executive branch of state government; consequently it is not subject to the State
Purchasing and General Services Act.
You next ask whether board members are required to take statutory or
constitutional oaths of office. No statute requires an oath of directors of a Higher
Education Authority. Article XVI, section 1 of the Texas Constitution requires appointed
officers to take an oath. Section 53&(b) of the Education Code refers to the position of
the directors as an office. Moreover, we believe the position of a director fills the legal
criteria of an office. The key factor which distinguishes a public officer from an
p. 563
Honorable WilhelmlnaDelco - Page FOUC (NW-1771
employee ls that some sovereign function of government is confwwd upon him to be
exercised for the benefit of the public largely independent of the control of others.
Aldlna Independent School Dist. v. Standle& 280 S.W.2d 578 (Tex. 1955). The directors
exercise governmental authority in authorming the issuance of revenue bonds and the
expenditure of bond proceeds. Educ. Code SS 53.34, 53.35, 53.47. In our opinion, they are
officers required to take the constitutional oath for appointed officers.
SUMMARY
Higher Education Authorities organized pursuant to chapter 53 of
the Education Coda are subject to articles 6252-17, V.T.C.S., and
6252-174 V.T.C.S. They are not sajact to articles 601b, V.T.C.S.,
6252-9b, V.T.C.S., 6252-l.@, V.T.C.S., 6252-llc, V.T.C.S., or
6252-134 V.T.C.S. The directors of a Higher Education Authority
are officers required to take the constitutional oath of office.
Attorney General of Texas
JOHN W. FAINTER,JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by SusanGarrison
Assistant Attorney General
APPROVED:
OPINIONCOMMlTl’EE
C. Robert Heath, Chairman
SusanGarrison
Rick Gilpin
Eva Loutxanhiier
Bruce Youngblood
p. 564 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131831/ | The Attorney General bf Texas
August 20, 1980
Honorable Ben Z. Grant, Chairman Opinion No. MW-230
Judiciary Committee
House of Representatives Re: Whether a schoolteacher may
P. 0. Box 2910 receive compensation for service
Austin, Texas 78769 as a member of a city council
Dear Representative Grant:
You inform us that two school teachers employed and paid by the
Angleton Independent School District have been elected to the Argleton
City Council. You ask whether it violates article XVI, section 40 ‘of ‘the
Texas Constitution for these persons to receive payment for city council
service.
Thk office addressed a similar question in Attorney General Opinion
Ii-6 (19731, which concluded that a junior college teacher paid by the State
could serve as a member of the commissioners court only if he renounced his
salary for service as a commissioner. This conclusion was based on the
following language of article XVI, section 40:
State employees op other individuals who receive
all ap part of their compensation either directly or
indirectly from funds of the State of Texas and who
are not State officers, shall not be barred from
serve as membq of the governing bodies of school
districts, cities, towns, or other local governmental
districts; provided, however, that su?h State
employees or other individuals shall receive no salary
for servirg es members of such governing bodies.
Tex. Const., art. XVI, S40. The reason@ of Attorney General Opinion H-6
is applicable to your question. A teacher k indirectly paid in part by the
state, and may serve on a city council only if he receives no salary for the
latter service. See ako Letter Advisory No. 29 0973). We note that your
question and our response are limited to a city’s payment of salary to a city
councilman, and neither the question nor the answer extends to any
legitimate reimbursement of expenses.
p. 731
Honorable Ben 2. Grant, Chairman - Page Two (Mw-230)
The district court decision in Hairgrove v. Pasadena Independent School District
is not inconsistent with our answer to your question. Hairgrove v. Pasadena
Independent School District, Cause No. 79-27154, District Court of Harris County,
T29th Judicial District of Texas, Seotember 10, 1979. In that case a teacher emoloved
by an independent school district was also a.salaried member of the Pasadena City
Council. When the sdiool district became aware that he received compensation for
serving on the city council, it withheld his salary. The teacher sued for back pay and
won. The judgment stated that “Article 16, Section 40 does not empower P.I.S.D. to
withhold Plaintiff’s school teacher salary.” Article XVI, section 40 bars the teacher
from receiving compensation for his service on the governing body of a city but it does
not affect his compensation for State employment as a teacher. Thus, the court
considered a different question from the one you asked, and its decision does not
affect our answer to your inquiry.
SUMMARY
Article XVI, section 40 of the Texas Constitution permits a
school teacher paid from state funds to serve as a city council
member only if he receives no compensation for the city council
service.
Very truly yours, //
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMHTEE
C. Robert Heath, Chairman
Jon Bible
Walter Davis
Susan Garrison
Rick Gilpin
Bruce Youngblood
P- 732 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131836/ | The Attorney General of Texas
August 21, 1980
MARK WHITE
Attorney General
Honorable Tim Curry Opinion NO. m-225
Criminal District Attorney
Tarrant County Courthouse Re: Whether a married woman
Fort Worth, Texas 76102 may register to vote tmder a
hyphenated last name consisting of
her maiden name and her husband’s
surname
Dear Mr. Curry:
You ask the following question:
May a married woman register to vote under a
hyphenated last name consisting of her maiden name
and her husband’s surname.
Article 5.13b of the Election Code provides in pertinent part:
An application form for voter registration shall
provide that the following required information be
furnished by the applicant:
(1) The applicant’s first name, middle name (if
any), and surname. If the applicant is a married
woman using her husband’s surname, she shall furnish
her first name, maiden name, and husband’s surname.
section requires every applicant to state his surname. A married
woman who uses her husband’s surname must also give her maiden name.
The law &es not require that every married woman use her husband’s
AnEqual
.~opportunity/ surname on her application for voter registration.
:tionEmployer -See Attorney General
Opinion H-432 (1974).
In our opinion, a married woman may assume a hyphenated surname
consisting of her maiden name and her husband’s surname. Attorney General
Opinion H-432 (19’74)discussed the common law right of a person to change
his name “by repute.” Section 32.21 of the Family Code did not abolish that
right, but merely provided a method for recording the change. In re Evett’s
Appeal, 392 S.W.2d 781 (Tex. Civ. App. - San Antonio 1965, writ ref’dl. The
P. 717
Honorable Tim Curry - Page TWO (MN-2251
Court of Criminal Appeals has recognized the right of a married woman to be known
by her maiden name or a name other than her husband’s surname. Rica v. State, 38
S.W. 801 (Tex. Crim. App. 1897). The court also quoted a legal encyclopedia which
stated that a couple on marriage might join their names together. In Young v. State,
17 S.W. 413 (Tex. Civ. App. 18911,the court recognized the use of a double surname by a
native of Mexico known by both his mother’s and father’s surnames.
We believe that a woman may change her name by repute at the time of her
marriage to a hyphenated combination of her maiden name and her husband’s surname,
as long as she uses that name consistently and non-fraudulently. See Attorney General
Opinion H-432 (1974). She may register to vote under the hyphe=ed surname which
she has assumed.
SUMMARY
A married woman may register to vote under a hyphenated
last name consisting of her maiden name and her husband’s
surname.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jon Bible
Susan Garrison
Rick Gilpin
Iris Jones
P- 718 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150737/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Ameresco Select, Inc. ) ASBCA No. 61019
)
Under Contract No. N4 7408-00-D-8131 )
APPEARANCES FOR THE APPELLANT: James D. Bachman, Esq.
Ron R. Hutchinson, Esq.
Doyle & Bachman, LLP
Arlington, VA
APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq.
Navy Chief Trial Attorney
David B. Stinson, Esq.
Trial Attorney
ORDER OF DISMISSAL
The dispute has been settled. The appeal is dismissed with prejudice.
Dated: 15 February 201 7
/~#
MARKN.STE~
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 61019, Appeal of Ameresco Select,
Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131892/ | .I” .
I
The Attorney General of Texas
April 14, 1980
MARK WHITE
Attorney General
Honorable Selden N. Snedeker Opinion No. NW-169
Criminal District Attorney
Cameron County Courthouse Re: Whether Cameron County
Brownsville, Texas 78520 may transfer funds within the 1979
county budget after the 1979 fiscal
year to pay a claim for county
membership dues incurred during
the fiscal year.
Dear Mr. Snedeker:
You state that Cameron County incurred an obligation for dues in a
local area development organization prior to the end of the 1979 fiscal year
on September 30, 1979. We assume, without deciding, that this constitutes a
proper expenditure of public funds. See Attorney General Opinion H-397
(1974). The invoice for the dues wasyceived after September 30, 1979.
Upon receipt of the invoice, the 1979 Cameron County budget contained
insufficient funds In its “dues and subscriptions” budget item to pay the
invoice. However, sufficient unexpended 1979 budget funds are available for
transfer from another 1979 budget item. You have requested our opinion on
three questions. First, must the payment of the membership dues constitute
an emergency expenditure to allow a budget amendment? Second, can the
1979 budget be amended after September 30, l979? Third, must the budget
amendment be requested prior to January 1,1980?
Your first question concerns the provisions of article 689a, V.T.C.S.,
particularly article 689a-11 and article 689a-20, concerning budget
amendments. An Rl Paso Court of Civil Appeals decision, affirmed by the
Texas Supreme Court, defined the applicability of the emergency
requirements of article 689&l& V.T.C.S.
The quoted portion of Art. 689a-ll and Art.
689a-20 Seems to be the only provisions relating to
amendment of the budget. Art. 689~11 is very
specific as to when the county budget may be
amended and the steps to be taken to make the
amendment. It is thought that the restriction as to
amendment applies only when new or additional
expenditures not provided for in the original budget
are sought to be added by amendment. . . .
,p. 538
I
Honorable Selden N. Snedeker - Page Two (NW-16 9 1
(Emphasis added). Rains v. Mercantile National Bank of Dallas, 188 S.W.2d 798 (Tex. Civ.
4~. - El Paso l945), affirmed, 191S.W.2d 850 (19461.
Following this interpretation, Attorney General Opinion C-499 (1965) outlined the
procedures for transferring funds within the budget.
(Wlhere all of the budgeted funds for a particular line item have
been expended, but there is a surplus in other line item accounts in
the department budget, and the Commissioners’ Court reallocates
the funds, transferring funds from the surplus line item account to
the depleted line item account, this would require an amendment to
the budget as contemplated by Section 20 of Article 689a. Also, it
is our opinion that funds may be transferred from the budget of one
department to the bu%et of another. However, Constitutional
funds may not be transferred in contravention of Section 9 of
Article VIII of the Texas Constitution. The transferring of the
funds in both instances above Q not require new expenditures not
included in the original budget, therefore, the provisions of Section
11of Article 689a are not applicable.
It is our opinion that the correct procedure in transferring the
funds in the above two situations would be to amend the budget.
However, this would not require the existence of an emergency as
contemplated by Section 11 of Article 689a. An order of the
Commissioners’ Court showing how the funds were reallocated and
show@ that the budget was amended would, in our opinion, suffice
to affect the amendment of the budget under the above situations.
Therefore, in reply to your first question, a finding of an emergency Is not required
before funds may be transferred by a budget amendment to increase the budget item for
“dues and subscriptions” to allow payment of the membership &es.
Your second question concerns whether the 1979 budget can be amended after
September 30, 1979. You have indicated that, pursuant to article 1644a, V.T.C.S.,
Cameron County has adopted a fiscal year beginning on October 1 of each year. You have
further indicated that the obligation for membership dues was incurred prior to the end of
the fiscal year with the invoice being received after the end of the fiscal year. The
Beaumont Court of Civil Appeals in Morrison v. Kohler, 207 S.W.2d 951 (Tex. Civ. App. -
Beaumont 1947, writ ref’d n.r.e.), discussed the question of amending the budget to provide
for obligations previously incurred.
We find nothing in the budget law requiring the budget be amended
at the time or before an obligation not included in the budget could
be legally assumed. We feel that it would be altogether too strict a
construction to place upon the provisions of the budget laws
governing counties to require that the budget should be amended at
p. 539
..’ .
,
Honorable Selden N. Snedeker - Page Three (NN-169)
the time the obligation was incurred. On the contrary we believe
that the Commissioners’ Court in amend@ any budget to cover any
item of expense not already covered in the original budget should
be controlled by the facts and circumstances as existed at the time
the obligation was incurred or assumed.
In Rains a, the court also stated that “[ulnder Art. 689a-20, subject to the
limitatton.f o Art. 689k-11, a county budget can be amended at any time.” Id. 188 S.W.2d at
803. Therefore the 1979 budget may be amended after September 30, lg9, to transfer
unexpended funds for payment of claims charged to the 1979 fiscal year.
Your third question, concerning whether the budget amendment request must be
ma& prior to January 1, 1980, is covered in our answer to your second question. The
budget may be amended at any time to transfer unexpended funds to existing budget
items.
SUMMARY
Cameron County may transfer funds within the 1979 county budget
after the 1979 fiscal year to pay an obligation incurred during the
fiscal year.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Jim Allison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jim Allison
Walter Davis
Susan Garrison
Rick Gilpin
P- 540 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131894/ | The Attorney General of Texas
April 14, 1980
MARK WHITE
Attorney General
Honorable Ben Z. Grant, Chairman Opinion No. MW-167
Judiciary Committee
House of Representatives Re: Authority of a municipality
Austin, Texas to enact an ordinance providing for
a fine for possession of marihuana.
Dear Representative Grant:
You ask whether there exists in Texas a criminal offense of “criminal
intent” to possess a controlled substance such as marihuana, and whether a
city can enact an ordinance providing for imposition of a fine for possession
of less than two (2) ounces of marihuana.
Criminal intent, or mens rea refers to a culpable mental state defined
by Penal Code section m&which provides that “[al person acts
intentionally, or with intent, with respect to the nature of his conduct or to
a result of his conduct when it is his conscious objective or desire to engage
in the conduct or cause the result” Although “criminal intent,” without
more, would not constitute a penal offense, it is one of the constituent
elements of the offense of “criminal attempt.”
Criminal attempt is defined by Penal Code section 15.01(a), which
provides that “[aI person commits an offense if, with specific intent’ to
commit an offense, he &es an act amounting to more than mere preparation
that tends but fails to effect the commission of the offense intended.” The
punishment for criminal attempt is one category lower than the offense
atte’mpted. Penal Code S 15.01(d).
The Texas Court of Criminal Appeals has repeatedly held that the
offense of criminal attempt under Penal Code section 15.01 does not apply to
offenses under tbe Controlled Substances Act, article 44i6-15, V.T.C.S.,
which contains no general criminal attempt provision. Brown v. State, 568
S.W.2d 137 (Tex. Crim. App. 1976) Rx
Crim. App. 1976); Rx parte Barne~,‘&%%$l’~~l %?!48~4 lah7;
Moore v. State, 545 S.W.2d 140 (Tex. Grim. App. 1976).
An amendment to section 4.09(a)@) of the Controlled Substances Act,
effective May 2, 1979, prohibits an attempt to acquire or obtain possession
of a controlled substance by misrepresentation, fraud, forgery, deception, or
;. 532
c ,
7
. -
/~ . . - .
Honorable Ben 2. Grants - Page Two (Mw-167)
subterfuge. However, the legislature did not provide’s general criminal attempt provision
for violations of the Controlled Substances Act.
Since possession of marihuana is regulated by the Controlled Substances Act, there
can be no offense of “criminal intent” (or criminal attempt) to possess marihuana, or any
other controlled substance, unless the attempt to possess the controlled substance
constitutes a fraud offense pursuant to section 4.09(a)(3). An offense under section
4.09(a)(3) is a felony of the second degree if the controlled substance is classified in
Schedule I or II of the Controlled Substances Act. V.T.C.S. art. 4476-15, S 4.09(b)(l).
Marihuana is a Schedule I controlled substance. V.T.C.S. art. 4476-15, § 2.03(d)(13). Ex
574 S.W.2d 568 (Tex. Crim. App. 1978); Whitaker v. State, 572 S,W.2d 956
Penal Code section LO8 provides:
No governmental subdivision or agency may enact or enforce a law
that makes any conduct covered by this code an offense subject to
a criminal penalty. This section shall apply only as long as the law
governing the conduct proscribed by this code is legally
enforceable.
Penal Code section LO8 is made applicable to the Controlled Substances Act by Penal
Code section L03(b), which provides that the provisions of Titles I, 2, and 3 of the Penal
Code apply to offenses &fined by other laws, unless the statute defining the offense
provides otherwise.
Since the possession of two (2) ounces or.less of marihuana is punishable as a Class B
misdemeanor under section 4.05(b)(3) of the Controlled Substances Act, a municipality
would be preempted by state law from enacting sn ordinance providing for a fine for the
possession of less than two (2) ounces of marihuana as long as section 4.05(b)(3) of the
Controlled Substances Act is legally enforceable.
SUMMARY
There can be no.offense of wcriminal intent” (or criminal attempt)
to ~possess marihuana. A municipality is preempted by state law
from enacting an ordinance providing for the imposition of a fine
for possession of msrihuana.
/-2i!=
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 533
Honorable Ben Z. Grant - PageThree (m-167)
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Gerald Carruth
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Gerald Carruth
Susan Garrison
Rick Gllpin
Bruce Youngblood
‘P. 534 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131851/ | The Attorney General of Texas
July 10, 1980
MARK WHITE
Attorney General
Honorable II. S. Harris, Jr. Opinion No. NW-210
Chairman
Texas Industrial Accident Board Re: Whether MWMR Community
L.B.J. Building Centers are covered for workers
Austin, Texas ‘787ll compensation under article 8309g
or 8309h
Dear Mr. Harris:
You have requested our opinion regard@ the construction of an
amendment to section 3.01 of article 5547-203, V.T.C.S. The statute was
amended in the 66th Legislature by adding s§ion (cl, which provides:
A community center is an sgency of the state and
a unit of government as &fined by Section 2, Texas
Tort Claims Act (article 6252-19, Vernon’s Texas Civil
Statutes).
You ask whether the amendment changes the workers compensation
coverage of mental health and mental retardation centers from article
8309h to article 8309g, V.T.C.S.
Subsection (cl &es not relate to workers compensation coverage. Its
purpcee is limited by the caption of the bill to indicating “the status as a
state agency and the tort liability of a community mental health and mental
retardation center.” H.B. 1989, Acts 1979, 66th Leg., ch. 797, at 2028.
Nothing contained in the definition of “unit of government” in section 2(l) of
article 6252-19, V.T.C.S., would preclude such a center from continuing to be
classified as a “political s&division” for purposes of article 8309h, V.T.C.S.
Furthermore, in article 5547-203, section 3.08, V.T.C.S., the bcerds of
trustees of community centers are specifically authorized to provide
workmen’s compensation benefits. We believe the benefits provided by the
local board would be under article 8309h, V.T.C.S. In our opinion, therefore,
section 3.01(c) &es not affect the workers compensation coverage of mental
health and mental retardation centers. -See Attorney General Opinion H-291
(1974).
P. 674
Honorable H. S. Harris, Jr. - Page Two (Nw-210)
SUMMARY
The addition of section 3.01(c) to article 5547-203, V.T.C.S.,
does not affect the workers compensation coverage of mental
health and mental retardation centers.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
C. Robert Heath, Chairman
Diane Cox
Susan Garrison
Rick Gilpin
Bruce Youngblood
P. 675 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147487/ | Filed
Washington State
Court of Appeals
Division Two
February 22, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48470-6-II
Respondent,
v.
DAVID DEVON JACKSON, UNPUBLISHED OPINION
Appellant.
WORSWICK, P.J. — David Jackson appeals from his second degree rape conviction,
asserting that his defense counsel was ineffective for (1) failing to consult with an independent
expert witness before trial and (2) failing to object to hearsay testimony. We affirm.
FACTS
A.O.1 was sixteen years old when her boyfriend coerced her to engage in prostitution. On
August 20, 2014, when A.O. was eighteen years old, she was approached by a man sitting in his
car at a Tacoma gas station. A.O. recognized the man, who was later identified as Jackson, from
a social media website she used to find prostitute customers. A.O. entered Jackson’s car, and
Jackson drove south on Interstate 5.
1
We use the victim’s initials to protect her interest in privacy.
No. 48470-6-II
According to A.O., Jackson became dominant and controlling during the drive. A.O. told
Jackson she wanted to get out of the car but he refused, stating that “he owned [her].” Report of
Proceedings at 41. Jackson took her cell phone from her. Jackson gave her pills and sexually
assaulted her multiple times during the drive before letting her out of the car in Vancouver,
Washington.
A.O. went to a nearby gas station where an employee called 911 for her. A.O. was
transported to a hospital. While at the hospital, A.O. was examined by Jillian Zeisler, a sexual
assault examination nurse. Zeisler collected blood, urine, and potential DNA (deoxyribonucleic
acid) samples from A.O. A.O. detailed the sexual assault allegations to Zeisler. Based on A.O.’s
allegations, the State charged Jackson with three counts of first degree rape and one count of first
degree kidnapping with sexual motivation.
Before trial, the State filed a motion in limine to admit statements A.O. had made to
Zeisler under ER 803(a)(4), the medical diagnosis or treatment exception to the hearsay rule.
Defense counsel requested a hearing to determine the admissibility of A.O.’s statements to
Zeisler. After argument on the motion, the trial court ruled that some of A.O.’s statements were
admissible under ER 803(a)(4).2
At trial, Zeisler testified about some of the statements A.O. had made to her during the
sexual assault examination. Zeisler stated that A.O. complained of pain on the right side of her
head due to being hit against a window and being scratched by Jackson’s nails; Zeisler noted that
2
As discussed below, Jackson did not designate the December 2 pretrial hearing for the record
on appeal. The facts are gleaned from court clerk minutes.
2
No. 48470-6-II
she saw three separate abrasions around A.O.’s chin and neck area. Zeisler also noted that
A.O.’s genitalia appeared raw and excoriated. Zeisler testified that A.O. had stated her vagina
was too sore to allow Zeisler to examine her with a speculum. Zeisler further noted that A.O.
was experiencing anal spasms. Zeisler concluded that A.O.’s injuries were consistent with her
account of what had happened to her. But on cross-examination, Zeisler clarified that she could
not determine whether A.O. had internal injuries to her vagina consistent with her allegations due
to A.O.’s decision to decline being examined with a speculum.
David Stritzke, a forensic scientist at the Washington State Patrol Crime Laboratory,
testified that semen found on A.O.’s jacket matched Jackson’s DNA. The trial court granted the
State’s request for second degree rape jury instructions as lesser-included charges to the three
counts of first degree rape. The jury returned verdicts finding Jackson not guilty of three counts
of first degree rape and not guilty of first degree kidnapping with sexual motivation, but guilty of
one count of second degree rape.3 Jackson appeals.
ANALYSIS
Jackson contends that his defense counsel rendered constitutionally ineffective assistance
for failing to consult with an independent expert witness before trial and for failing to object to
testimony he contends was inadmissible hearsay. We disagree.
3
The jury returned a verdict finding Jackson not guilty of one count of second degree rape, and it
left the verdict form blank for another count of second degree rape.
3
No. 48470-6-II
I. STANDARD OF REVIEW
We review ineffective assistance of counsel claims de novo. State v. Thach, 126 Wn.
App. 297, 319, 106 P.3d 782 (2005). To demonstrate ineffective assistance of counsel, Jackson
must show both that (1) his counsel’s performance was deficient in that it fell below an objective
standard of reasonableness based on all the circumstances and (2) the deficient performance
resulted in prejudice in that there was reasonable possibility that the outcome of his trial would
have differed but for counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Reichenbach, 153 Wn.2d 126, 130, 101
P.3d 80 (2004). If Jackson fails to demonstrate either showing, we need not inquire further.
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
We strongly presume that counsel is effective. Reichenbach, 153 Wn.2d at 130. To
overcome this presumption, the defendant bears the burden of “establishing the absence of any
‘conceivable legitimate tactic explaining counsel’s performance.’” State v. Grier, 171 Wn.2d 17,
42, 246 P.3d 1260 (2011) (emphasis added) (quoting Reichenbach, 153 Wn.2d at 130). If the
defendant’s claim rests on evidence or facts not in the existing trial record, filing a personal
restraint petition is the defendant’s appropriate course of action. Grier, 171 Wn.2d at 29; State v.
McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
II. CONSULTATION WITH INDEPENDENT MEDICAL EXPERT
Jackson first contends that defense counsel was ineffective for failing to consult with an
independent medical expert before trial, arguing that this failure prejudiced his case because,
absent such consultation, his counsel could not effectively cross-examine Zeisler. On the record
4
No. 48470-6-II
before us, Jackson cannot demonstrate that his counsel was constitutionally ineffective on this
basis.
Fatal to Jackson’s first claim of ineffective assistance of counsel is the absence of any
evidence in the record that defense counsel failed to consult with an independent expert witness
before trial. That defense counsel did not name an independent medical expert on the defense
witness lists does not show that counsel failed to consult with one before trial. It is conceivable
that defense counsel consulted with such a potential expert witness but decided not to call the
witness to testify at trial because the witness would not provide any evidence favorable to the
defense.
Moreover, even if the record definitively showed that defense counsel had failed to
consult with an independent medical expert before trial, Jackson cannot demonstrate any
prejudice flowing from that failure. There is nothing in the record to support Jackson’s claim
that consultation with an independent medical expert would have provided information
beneficial to defense counsel’s cross-examination of Ziegler. In this regard, Jackson’s reliance
on In re Pers. Restraint of Brett, 142 Wn.2d 868, 16 P.3d 601 (2001), is unavailing. There, our
Supreme Court held that defense counsel was ineffective for failing to adequately investigate the
defendant’s mental and physical impairments and for failing to present competent expert
testimony regarding the same. In re Brett, 142 Wn.2d at 880. But In re Brett is clearly
distinguishable from the present case because our Supreme Court’s holding in In re Brett relied
on the postconviction reference hearing testimony of several medical professionals. 142 Wn.2d
at 874-80.
5
No. 48470-6-II
Because Jackson’s assertions that (1) his defense counsel failed to consult with an
independent medical expert and that (2) such consultation would have assisted cross-examination
so as to create a reasonable likelihood of affecting the jury’s verdict are speculative and without
any support in the record, he fails to demonstrate ineffective assistance on this ground.
III. HEARSAY
Next, Jackson contends that his defense counsel was ineffective for failing to object to
testimony that he asserts was inadmissible hearsay.4 Specifically, Jackson argues that his
defense counsel was ineffective for failing to object to Zeisler’s testimony regarding certain
statements A.O. had made during the sexual assault examination. Again, we disagree.
“Hearsay” is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
ER 801(c). Hearsay is not admissible “except as provided by [evidentiary] rules, by other court
rules, or by statute.” ER 802. Statements made for medical diagnosis and treatment are
admissible as exceptions to the hearsay rule under ER 803(a)(4).5 “A party demonstrates a
statement to be reasonably pertinent [to diagnosis or treatment] when (1) the declarant’s motive
in making the statement is to promote treatment and (2) the medical professional reasonably
4
Jackson does not assign error to his defense counsel’s alleged failure to object to hearsay
testimony. However, it is clear from the context of his argument that he is raising the issue.
5
Specifically, ER 803(a)(4) provides a hearsay exception for “[s]tatements made for purposes of
medical diagnosis or treatment and describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.”
6
No. 48470-6-II
relied on the statement for purposes of treatment.” State v. Williams, 137 Wn. App. 736, 746,
154 P.3d 322 (2007).
Although Jackson claims that his defense counsel was ineffective for failing to object to
Zeisler’s hearsay testimony, the record shows that defense counsel had requested a pretrial
hearing to address the State’s motion in limine to admit such testimony under ER 803(a)(4).
Minutes from the pretrial hearing show that Zeisler testified regarding A.O’s statements, counsel
for the defense and the State argued about the admissibility of those statements, and the trial
court ruled in favor of admissibility.
Jackson, however, did not designate a transcription of this pretrial hearing for the record
on appeal. See State v. Tracy, 158 Wn.2d 683, 691, 147 P.3d 559 (2006) (Appellant has the
burden of providing adequate record for review.). We therefore cannot determine on the record
before us whether the hearsay statements now challenged on appeal were addressed during the
trial court’s ruling on the State’s motion in limine and, if so, the trial court’s reasons for
admitting or excluding such statements. Accordingly, we cannot determine whether defense
counsel performed deficiently for failing to challenge the admissibility of such statements at trial.
Because Jackson’s claim rests on evidence not in the record on appeal, his appropriate course of
action would be to file a personal restraint petition. Grier, 171 Wn.2d at 29; McFarland, 127
Wn.2d at 335.
Because Jackson fails to meet his burden of producing a record sufficient to review
whether his defense counsel was ineffective for failing to object to certain hearsay testimony, he
7
No. 48470-6-II
cannot demonstrate ineffective assistance on this basis. Accordingly, we affirm Jackson’s
conviction for second degree rape.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J.
We concur:
Johanson, J.
Sutton, J.
8 | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131854/ | The Attorney General of Texas
July 8, 1980
MARKWHITE
Attorney General
Honorable James M. Windham Opinion No. Mw-2 07
Chairman
Texas Board of Corrections Re: Authority of the Department
Livingston, Texas 77381 of Corrections to lease land under
its control for the removal of sand
and gravel
Dear Mr. Windham:
Ycu have asked whether the Texas Board of Corrections is authorized
to lease land under its control for the purpose of selling sand and gravel in
deposits located on said land. Since you have specified that the land in
question is under the control of the Department of Corrections, we assume
that none is stiject to the provisions of section 86.001, et seq., of the Parks
and Wildlife Code. We understand that applicants would bid competitively
for “permits,” or surface leases, and that the Board would determine which
applicants, if any, would receive contracts. A rental fee for the lease of the
surface area would be charged, as well as a fixed fee at the market rate per
cubic yard for the sand and gravel sold Lease revenue would be deposited in
the Mineral Lease Fund, and funds collected as royalty from the sale of sand
and gravel would be deposited in the Department Operating Fund.
Various statutes authorize the Board of Corrections to lease land under
its control. Article 61660, V.T.C.S., permits the Board to lease “real estate
for &cultural or grazing purpcees” or “other fixed property... upon such
terms as it may &em advantageous. . . .I’ Article 6203a, V.T.C.S.,
establishes a “Board for Lease of Texas Prison Lands” and provides that
lands may be leased “to any person... or corporation... for the purpose of...
exploring for and mining, producing... and disposing of the oil and/or gas
therein. . . J’ Finally, article 6203aa-1, V.T.C.S., allows the Board of
Corrections to “lease state-owned land under its... control at its fair market
lease value for an initial period not to exceed 20 years” under such terms as
the Board &ems appropriate.
Other statutes authorize the Board of Corrections to sell or otherwise
dispose of certain property. see, e.g., article 61660, V.T.C.S., (sale of prison
products and personal and moveable property); article 6166~8, V.T.C.S.,
(sale of prison made goods); article 6203c, V.T.C.S., (sale of Shaw Farm and
Prison-made Goods Act of 19631 However, no statute explicitly or
implicitly authorizes the sale of sand and gravel in deposits located on
P- 666
.
Honorable James M. Windham - Page Two (MW-207)
leased land. The question, therefore, is whether express or implied authority to lease
land for this purpose is needed, or whether the Board of Corrections may proceed
absent some clear prohibition against its doing so.
We conclude that the former is the correct interpretation. Viewed as a whole,
the statutes governing the Department of Corrections, articles 6166, et se+, V.T.C.S.,
clearly indicate an intent on the part of the legislature to regulate closely the hinds of
dispositions that the Board of Corrections may make of property under its control.
The fact that the legislature has singled out certain purposes for which, and conditions
under which, property may be leased or sold, i.e., real estate may be leased for
agriculture or grazing, land may be leased for purposes of extracting oil and gas, and
certain products may be sold, leaves little room for doubt that the legislature did not
intend other property dispositions to be made. Article 61660, for example, specifically
authorizes the sale of personal and moveable property, but only the lease of real estate
or other fixed=perty and appurtenances. Had the legislature~hed to confer
unlimited authority won the Board of Corrections to disease of land as it sees fit, it
could easily have done so. See, e.g., Education Code 565.39, which vests in the
University of Texas System board of regents the “exclusive management and control
[of System lands]” and authorizes the regents to “sell, lease, and otherwise manage,
control, and use the lands in any manner... and under terms and conditions the board
deems best. . . .l(
SUMMARY
Absent express statutory authority, the Board of Corrections
may not lease land under its control for the purpose of selling
sand and gravel in depceits located on said land.
Very truly yours,
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
P. 667
Honorable James M. Windham - Page Three (MW-207)
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jon Bible
Susan Garrison
Ride Gilpin
Bruce Youngblood
P. 668 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4162746/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2264
JOSEPHAT MUA,
Plaintiff - Appellant,
v.
CALIFORNIA CASUALTY INDEMNITY EXCHANGE; MARSDEN &
SELEDEE; THE O'NEAL LAW FIRM, LLP; THATCHER LAW FIRM;
MITCHELL I. BATT, (Individual capacity); BRYAN CHAPMAN; MR. RAOUF
ABDULLAH, (Individual capacity); ROBERT E. CAPPELL; C. SUKARI
HARDNETT, (Individual capacity); BRADFORD ASSOCIATES; MARYLAND
STATE EDUCATION ASSOCIATION; ASSOCIATION OF SUPERVISORY &
ADMINISTRATIVE SCHOOL; SHANI K. WHISONANT; O'MALLEY, MILES,
NYLEN & GILMORE, P.A.; MARYLAND STATE DEPARTMENT OF
EDUCATION,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Ellen L. Hollander, District Judge. (8:16-cv-03267-ELH)
Submitted: April 20, 2017 Decided: April 24, 2017
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Josephat Mua, Appellant Pro Se. Thomas V. McCarron, James Olin Spiker, IV,
SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Josephat Mua seeks to appeal the district court’s order remanding the underlying
action to state court. Subject to exceptions not applicable here, “[a]n order remanding a
case to the State court from which it was removed is not reviewable on appeal or
otherwise.” 28 U.S.C. § 1447(d) (2012); see E.D. ex rel. Darcy v. Pfizer, Inc., 722 F.3d
574, 579-83 (4th Cir. 2013). Because the district court’s order does not fall within the
exceptions provided by § 1447, the order is not appealable.
Accordingly, we grant California Casualty Indemnity Exchange’s motion to
dismiss this appeal for lack of jurisdiction, but deny its motions for attorney’s fees and
for reconsideration of our order granting Mua extensions of time. We grant Mua’s
motions to exceed the length limitations for his appellate filings and for leave to file a
supplemental brief, but deny Mua’s motion to suspend these proceedings. We dispense
with oral argument because the facts and legal contentions are adequately presented in
the material before this court and argument would not aid the decisional process.
DISMISSED
3 | 01-03-2023 | 04-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131853/ | The Attorney General of Texas
July 9, 1980
MARK WHITE
Attorney General
Honorable Douglass Hubbard Opinion No. NW-208
Executive Director
The Admiral Nimitz Center Re: Whether a private foundation
Fredericksburg, Texas 78624 may purchase insurance covering a
state facility
Dear Mr. Hubbard:
The Nimitz Steamboat Hotel in Fredericksburg is an historic building
restored to its original appearance with funds donated by the Admiral
Nimitz Foundation, a private, non-profit corporation. The structure is the
property of the State of Texas and in its restored condition is a major unit of
the Admiral Nimitz Center administered by the Fleet Admiral Chester W.
Nimitz Memorial Naval Museum Commission. See Acts 1969, 6ls.t Leg., ch. 8
at 19; Attorney General Opinion H-744 (1975). The restoration was
accomplished with donated money after the legislature failed to appropriate
funds for that purpose.
You wish to know if the private foundation may legally purchase fire
insurance covering the hotel. The answer depends on whether its interest
therein is insurable. A fire insurance policy issued to one without an
insurable interest in the subject matter is unenforceable on grounds of public
policy. See Hartford Fire Insurance Co. v. Evans, 255 S.W. 487 (Tex. Civ.
App. - Azhlo 1923, no writ).
It is not always necessary to prove title in an insured in order to prove
an insurable interest in the property. In Smith v. Eagle Star Insurance Co.,
370 S.W.2d 448 (Tex. 1963), the Texas Supreme Court concluded that an
insurable interest in a house located on state land existed in a woman who
used the house as though it were her own. The court approved the rule that
an insurable interest exists when the assured derives pecuniary benefit or
advantage by the preservation and continued existence of the property or
would sustain pecuniary lass from its destruction, and it quoted a textual
source for the following:
‘An irrrurable interest in property does not
necessarily imply a property interest in, or a lien
upon, or possession of, the stiject matter of the
insurance, and neither the title nor a beneficial
interest is requisite to the existence of such an
interest; it is sufficient that the insured is so situated
with reference to the property that he would be liable
to lass should it be injured or destroyed by the peril
against which it is insured.’
P. 669
Honorable Douglass Hubbard - Page Two (MN-268)
See 43 Am. Jur. 2d, Insurance 5466 at 508. In Texas, a finding of pecuniary loss is not
necessary to show an insurable interest if there is proof of a pecuniary benefit or
advantage in the preservation and continued existence of the property. First Preferred
Ins. Co. v. Bell, 587 S.W. 798 (Tex. Civ. App. - Amarillo 1979, writ rePd n.r.e.l.
We conclude that an insurable interest in the hotel exists in the foundation. The
articles of incorporation for the corporation state:
The foundation shall have as its principal... objective the
support of the Fleet Admiral Chester W. Nimitz Memorial
Naval Museum in Fredericksburg, an agency of the State of
Texas operating under the Fleet Admiral Chester W. Nimitz
Memorial Naval Museum Commission.
To accomplish these objectives the corporation will . . .
assist in restoring and maintaining the famous Nimitz Hotel as a
part of the museum and visitor center. . . .
The corporation has invested a considerable sum in the hotel, routing its
donations through the state treasury. The sums donated are earmarked by the
foundation &nor for particular expenditures, for which purchase vouchers payable to
the appropriate vendors are then issued by the comptroller.
Should the hotel or its contents be damaged or destroyed, the corporation would
not only lose the benefit of its previous investments, but in order to accomplish its
corporate purposes would be faced with the task of restoring the building and articles
destroyed or damaged, whether they l-ad been previously purchased with money
donated by it or not.
It is our opinion that under such circumstances the Admiral Nimitz Foundation
may legally purchase fire insurance covering the Nimitz Steamboat Hotel and its
contents.
SUMMARY
The Admiral Nimitz Foundation has an insurable interest in
the Nimitz Steambcat Hotel in Fredericksburg, a state-owned
structure, and may legally purchase fire insurance covering the
hotel and its contents.
A-l
MARK WHITE
Attorney General of Texas
P. 670
Honorable Douglass Hubbard - Page Three (MW-208)
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant ~Attorney General
APPROVED:
OPINION COMMFTEE
C. Robert Heath, Chairman
Carla Cox
Susan Garrison
Rick Gilpin
Bruce Youngblood
p. 671 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131935/ | The Attorney General of Texas
January 10, 1980
(ARK WHITE
,norney General
Honorable Joe Resweber Gpinion No. NW126
Harris County Attorney
1001 Preston, Suite 634 Re: Implementation of appraisal
Houston, Texas 77002 boards under the property tax code.
Honorable Kenneth H. Ashworth
Coordinating Board
Texas College and University System
P. 0. Box 12786, Capitol Station
Austin, Texas 787ll
Gentlemen:
Mr.. Raeweber asks-several questions about the election of directors to
the governing board of an appraisal district established by sections 6.01
through 6.08 of the Property Tax Code. Acts 1979, 66th Leg., ‘ch 841, at
2224. Dr. Ashworth’s question also concerns the election of directors. The
Code establishes an appraisal district in each county which is responsible for
appraising property in the district for ad valorem tax for the state and for
taxing units other than the county. Sec. 6.01 The district is governed by a
board of five directors who are elected by vote of the governing board of
certain taxing units that participate in the appraisal district.
Mr. Resweber’s fist question is as follows:
L Is the first board of directors election to be
conducted by the County Clerk pursuant to
section 8.03 to be in the fall of 1979 for the
board terms to begin on January l, l980?
Section 3, subsection c(l) and (2) provide as follows:
(c)(l) Except as otherwise provided by this sub-
section, Subchapter A of Chapter 8 takes effect
January l,l980.
(2) For the purpose of appointing the first members
of the appraisal district board of directors, Section
6.03 takes effect September 1,1979.
P. 395
Honorable Joe Resweber
Honorable Kenneth H. Ashworth - Page Two (NW-126)
The first board of directors election should be held in the fall of 1979 with the board of
directors terms to begin on January 1, 1980. See section 6.03(b). In view of the answer to
question 1, we need not answer question la. QGtion 2 restated:
2. May the County Clerk allow incorporated ‘villages’ to
participate in the board of directors elections pursuant to
section 6.63?
Section 6.03(c) empowers “incorporated cities and towns” and school districts to
participate in the board of directors elections. Harris County contains a number of
incorporated municipalities which use the term “village” in their name in lieu of “city” or
“town.” Chapter ll of Title 28, V.T.C.S., makes provision for the incorporation of towns
and villages without distinguishing between the terms “town” and “village.” See,.e.g.,
V.T.C.S. art l133. Article 96l, V.T.C.S., permits any incorporated city, town, or village
with a population of 800 or over to adopt the provisions of Title 28. “When such city, town
or village is so incorporated as herein provided, the same shall be known as a city or town,
subject to the provisions of this title relating to cities and towns. . .” V.T.C.S. art 96L
Article 970a, the Municipal Annexation Act, defines “city” as “any incorporated city, town
or village in the State of Texas.” Sec. 2A. Since the legislature has not distinguished
between cities, towns, and villages in these provisions, and in fact has equated %llagen
with the other two municipalities, we believe %corporated cities and towns” as it appears
in section 6.03(c) also includes incorporated villages.
3. For purpose of the County Clerk’s determining voting
entitlement of taxing units that may exercise the choice of
appraisal districts as set forth in section 6.02, when is the
firsttax year in which appraisal districts will appraise
property?
Section 3 of the Act provides in part as follows:
SECTION 3, (a) Except as otherwise provided by this section, the
Property Tax Code takes effect January l,l982. The first tax year
for which the appraisal districts must make assessments
commences January Ll982.
4. If appraisal districts do not begin their appraisal functions
until the 1981 tax year or later, how should the County Clerk
determine the voting entitlement of taxing units covered by
section 6.02 subsection b which have not yet exercised their
option to designate one appraisal district in which they will
participate pursuant to subsection c thereof?
Section 6.02 of the Act permits taxing units which have boundaries that cross county
lines to choose to participate in only one appraisal district. The governing body must
P- 396
Honorable Joe Resweber
Honorable Kenneth H. Ashworth - Page Three (NW-12 6)
make the choice by official action “at least 90 days before the first day of the tax year in
which appraisal districts first begin appraising property for ad valorem tax purposes.”
Sec. 6.02(c). The clerk can only act upon the record as it exists at the time of the 1979
directors election and must assume that any political unit subject to section 6.02 will
participate in each appraisal district within its boundaries unless it has previously decided
otherwise.
5. If a taxing unit covered by section 6.02 does not timely file
an election to participate in one of the appraisal districts
within its boundaries, shall the County Clerk presume that it
has elected to participate in each appraisal district within the
boundaries?
The governing body of a taxing unit covered by section 6.02 must exercise its option
to participate in only one appraisal district by an official action adopted at least 90 days
before the first day of the fist tax year in which appraisal districts begin appraising
property. If the taxing unit covered by section 6.02 does not take this action, it will
participate in each appraisal district.
6. If the County intends to contract with the appraisal district
for appraisal services, may the County Clerk allow it to
participate in the selection of the appraisal district’s board of
directors prior to 1982?
The assessment district is not required by the Property Tax Code to appraise county
property. Sec. 6.OL A county may, however, contract with the appraisal district to have
it appraise property and prepare the appraisal records for county tax purposes Sec.
8.25(a). When a county does so, the commissioners court is entitled to participate in the
appointment of district directors in the same manner as an incorporated city or town or a
school district. Section 3(d) of the Property Tax Code provides that a county which
intends to contract with an appraisal district pursuant to section 6.25 may participate in
appointing the district directors before 1982 “if it adopts an order expressing that intent
and delivers a certified copy of the order to the county clerk and the governing body of
each taxing unit in the district before September 15 of any year in which nominations are
made and amendments determined”
7. Must the County Clerk give the notice required by section
6.03g to those political units which are not actually essessing
or collecting taxes?
Section 6.03g provides:
fg) The governing body of each taxing unit entitled to vote shall
determine its vote by resolution and submit it to the county clerk
before November 15. The county clerk shall count the votes,
declare the five candidates who receive the lalgest cumulative
P. 397
Honorable Joe Resweber
Honorable Kenneth H. Ashworth - Page Four (MN-126)
vote totals elected, and submit the results before December 1, to
the governing body of each taxing unit in the district and to the
candidates
The term “taxing unit” is defined in section LO4 as follows:
(12) ‘Taxing unit’ means a county, an incorporated city or town
(including a home-rule city), a school district, a special district or
authority, or any other political unit of this state, whether created
by or pursuant to the constitution or a local, special, or general
law, that is authorized to impose and is imposing ad valorem taxes
on property. (Emphasis added).
The county clerk would not be obligated to give notice of election results to political
units which are not actually imposing ad valorem taxes on property as they do not
constitute %xing units” within the statutory definition.
6. May the County Clerk require taxing units which are eligible
to vote for the appraisal district board of directors to provide
information as to their tax collections and related matters
necessary for determination of their voting entitlement under
section 6.03.
We find no provision in the Property Tax Code empowering ‘the county clerk to
require taxing units to furnish ~the stated information, which consists of the total dollar
amount of property tax imposed by the taxing unit for the preceding year. However, this
information is a matter of public record and obtainable by any person including the, county
clerk even if the taxing units do not furnish it voluntarily. See Open Recor& Decision
Nos. 140 (1976) (information on value of taxable property in sc~districts); ll2 (1975) (city
tax department’s appraisal cards); 76 (1975) (school district tax assessor-collector’s
rendition book); 39 (1974) (information on bank stockholdings filed with a tax assessor-
collector). Of course, the taxing unit may agree to furnish voluntarily the information
needed by the county clerk. In view of our answer to question 8, we need not answer
question 8a.
9. May the County Clerk request the State Property Tax Board
to adopt rules to clarify the appraisal district board of
directors voting procedure?
Section 6.03, which governs the election of the board of directors, contains no
provision granting rule-making power to any body. Section 5.03 states the rule-making
power of the State .Property Tax Board It “shall adopt rules establishing minimum
standards for the administration and operation of an appraisal district and a county
assessor-collector’s office.” Section 5.03(a). Although the directors govern the appraisal
district, they are elected by the governing bodies of the taxing units that participate in
the district. The clerk is required to determine the number of votes to which each taxing
P. 398
Honorable Joe Resweber
Honorable Kenneth H. Ashworth - Page Five (NW-1261
unit is entitled Set 6.03(e). We do not believe the board’s authority to establish
minimum standards for the administration of an appraisal district includes the authority to
make binding rules for the conduct of district elections by member taxing units and the
county clerk.
10. Which if any of the following units may the County Clerk
allow to vote in the board of directors election for the
appraisal district:
Harris County Flood Control District
i Harris County Mosquito Control District
Harris County Hospital District
: Port of Houston Authority
e. Harris County Board of School Trustees
f. Houston Community College System
North Harris County College
t. San Jadnto College
Dr. Ashworth asks whether community junior college districts are eligible to vote for the
board of directors of the appraisal district. Section 6.03(c) provides for election of the
board of directors “by vote of the governing bodies of the incorporated cities and towns
and the school districts that participate in the districtw Counties which contract with the
appraisal district for appraisal services are also entitled to participate in the election of
directors. Sec. 6.25. None of the units inquired about constitute counties, cities, or
towns, and none of the first four units on Mr. Resweber’s list constitute school districts
within section 6.03(c). The Harris County Board of School Trustees, established under
chapter 17 of the Education Code, has the general management and control of public
schools in the county. It participates in the creation, consolidation, subdivision and
abolition of school districts, see Educ Code S 17.23, but does not constitute a school
district itself. School districts~e established under chapter 19 of the Education Code and
each is governed by its own Board of Trustees. -See Educ. Code SS 19.066-19.067, 22.01,
23.01, 25.03.
It is suggested on the authority of Shepherd
363 S.W.Bd 742 (Tex. 1962) that community junior college districts constitute school
districts within section 6.03(c). In the Shepherd case, the Supreme Court concluded that a
district created under the Junior College Act, Education Code SS 130.011-130.121@assiml,
is a schod district within the tax authorlxation clause of article VII, section 3 of the
Texas Constitution. However, section 6.02(b) of the Property Tax Code treats a junior
college district as an entity distinct from a school district:
A school district, an incorporated city or town, a water control
and improvement district . . . irrigation districts . . . or a junior
college district that has boundaries extending into two or more
counties may choose to participate ln only one of the appraisal
districts. . . .
p. 399
Honorable Joe Resweber
Honorable Kenneth H. Ashworth - Page Six (N+1261
It is orooer to lock at all Darts of a statute to ascertain its orooer construction and
mea&g.- City of Cotpus Christi v. Southern Community Gas Company, 368 S.W.2d 144
(Tex. Civ. App. - San Antonio 1963, writ ref’d n.r.e.1. The legislature distinguished
between ‘kchool district” and “junior college district” in section 6.02(b), and we believe
this distinction must be maintained in section 6.03(c). Thus, community junior college
districts do not constitute school districts for purposes of section 6.03(c). In view of our
answer to this question, we need not answer Mr. Resweber’s final question regarding
calculation of the voting entitlement
SUMMARY
The first election for board of directors of a property tax appraisal
district should be held in the fall of 1979. Incorporated villages
may participate in the election pursuant to section 6.03. Appraisal
districts begin appraising property for the tax year starting
January 1, 1982. If a taxing unit with boundaries that cross county
limes has not opted to participate in only one appraisal district
pursuant to section 6.02, the county clerk .must assume it will.
participate in each appraisal district within its boundaries. A
county which inten& to contract with an appraisal district may-
participate in -appointing the district directors before 1982 by
following the procedure in section 3(d) of the Property Tax Code.
The county clerk need not give notice’ of election results to
political units which do not impose ad valorem taxes on property.
The county clerk has no authority to require taxing units to provide.
information on their tax collection and related matters to
determine voting entitlement under section 6.03. The State
Property Tax Board lacks authority to make rulesclarifying the
procedure for electing the appraisal district board of directors.
The Harris County Board of School Trustees is not eligible to vote
for directors of the appraisal district Nor are community junior
colleges eligible to vote in the election.
MARK ,WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
P- 400
Honorable Joe Resweber
Honorable Kenneth H. Ashworth - Page Seven (NW-126)
APPROVED:
OPINION COMMIE
C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Walter Davis
Susan Garrison
Rick Gil&
William G Reid
p. 401 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131943/ | The Attorney General of Texas
December 28, 1979
MARK WHITE
Attorney General
Honorable Hal H. Hood Opinion No. N1+118
Firemen’s Pension Commissioner
503-F Sam HoustonState Office Bldg. Re: Whether or not income from
Austin, Texas 78701 invested funds of the pension fund
under article 6243e.3 may be used
to pay for the cost of an actuarial
study.
Dear Mr. Hood:
You have requested our opinion as to whether income derived from the
Fire Fighters’ Relief and Retirement Fund may be used to finance a biennial
actuarial study required by statute.
Article 6243e.3, V.T.C.S., enacted in 1977, created, on behalf of
volunteer firemen, a statewide Fire Fighters’ Relief and Retirement Fund,
to be administered by the Firemen’s Pension Commissioner and a Six-
member state board of trustees. Sections 18-21. Section 24 provides:
The commissioner and state board of trustees shall
certify the actuarial and financial soundness of the
fund every two years The state board shall employ a
qualified actuary and a certified public accountant to
assist in the required certification.
You explain that the 1979 session of the legislature failed to make a separate
appropriation for the purpose of financing this actuarial study. You ask
whether income derived from the Fund may be expended for this purpose.
Section 14(e) of the statute provides:
No portion of the cotpus or income of the fund may
be used for purposes other than the benefit of
member fire fighters and their beneficiaries.
In our opinion, the state board of trustees should determine whether the
actuarial study will accrue to the “benefit of member fire fighters and their
beneficiaries.” The state board is empowered to “establish rules and
regulations necessary for the administration of the fund” Section 21(b). -See
P. 372
Honorable Hal H. Hood - Page Two (~~-118)
Attorny General Opinions H-1093 (1977); H-896 (1976). In this csse, the boardis directed
by the legislature to “employ a qualified actuary and a certified public accountant to
assist in the required certification. ” Sec. 24. If the board reasonably concludes that the
use of income from the Fund to finance the actuarial study would be of benefit to member
fire fighters and their beneficiaries, it may expend a portion of that income for such
purpose. See Attorney General Opinion II-1152 (l978).
SUMMARY
If the state board of trustees of the Fire Fighters! Relief and
Retirement Fund determines that the use of income from the Fund
to finance a statutorily required actuarial study would be of benefit
to member fire fighters and their beneficiaries, it may expend a
portion of that income for such purpose.
xg
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Les King
and Rick Gilpin
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
Les King
Eva King Loutzenhiser
P. 373 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131949/ | The Attorney General of Texas
December 21, 1979
MARK WHITE
Attorney General
Honorable Joe Resweber Opinion No. NW-112
Harris County Attorney
1001 Preston, Suite 634 Re: FilIne of a death certificate
Houston, Texas 77002 attached tz an affidavit of heirship
with the county clerk.
Dear Mr. Resweber:
You ask two questions regarding the filing of an affidavit of heirship
with a certified copy of a death certificate attached thereto in the public
record3 of real property of Harris County. You first ask whether the Open
Records Act prevents the county clerk from accepting the death certificate
and making it available to the public.
Section 3(a)(15) exempts from public disclosure “birth and death
records maintained by the Bureau of Vital Statistics in the State of Texas.”
In Attorney General Opinion H-115 (1973) this office CoILStNed the provision
ss applicable to birth and death recor& of the type maintained by the
Bureau of Vital Statistics and thus determined that the Act applied to birth
and death records maintained by the county clerk. Of course, even if the
records are excepted from required disclosure, the custodian is not
prohibited from releas% them. Texas Open Records Act, V.T.C.S. art.
625~Da, S 3(c); Open Recor& Decision No. 177 (1977).
Moreover, although a particular record may be expressly excepted
from disclosure when in the custody of one state agency, the exception does
not apply to the record when a private party voluntarily makes it available
to another public body. In Open Record Decision No. 157 (1977) this office
determined that a college transcript In an e@neer% licensing file held by
the State Board of Registration for Professional Engineers was available to
the public under the Open Records Act. The transcript would have been
excepted from public disclosure pursuant to section 3(a)(l4) of the Act while
in the possession of any “educational Institutions funded wholly, or In part,
by state revenue” However, the ergineei’s transcript held by the Board at
his request was available to the public. We believe the death certificate
offered for filing by a member of the public may be accepted by the clerk
and will be available for public inspection in the clerk’s files.
Section 6600, V.T.C.S., provides In part:
p. 355
Honorable Joe Resweber - Page Two (~1+112)
The county clerk shall give attested copies whenever demanded of
all papers recorded in his office. . . .
The clerk is thus required to give certified copies of the affidavit with attached death
certificate to persons requesting it.
SUMMARY
The Open RecorQ Act does not prevent the county clerk from
accepting for filing in real property records a death certificate
attached to an affidavit of heirship. The clerk is required to give
certified copies of the affidavit with the attached death certificate
to persons who request it.
*a
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney GeneraI
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Bob Gam mage
Susan Garrison
Rick Gilpin
William G Reid
p. 356 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295078/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4144755/ | THEA~~ORNEY GENERAL
OFTEXAS
Hon. R. T. Burns
County Attorney
Walker County
Huntsville, Texas
Dear Sir: Opinion No. O-1649
Re: Is the salary of the half-time employee
of the county attorney, as described,
an expense that can be deducted in ar-
riving at the maximum salary of the
county attorney?
Your recent request for an opinion of this depart-
ment on the above stated question has been received.
We quote from your letter as follows:
"I am'writing you with reference to a ques-
tion that has come up in regard to my office;
that is, in making my annual report and deducting.
the expenses allowable under Article 3883 to 3899,
inclusive, and the facts are as follows, to-wit:
"I have employed here in my office a'young
lady who works half time and goes to the Sam
Houston State Teachers College one&half day for
six days a week and, Ln my opinion, she Is a clerk,
or office helper, ‘inmy office. Her duties are
as follows: to obtain the mall'at the post office,
file letters,prepare judgments and criminal cases
where the defendants have.been convicted and carry
said judgments to the County Court, or County
Judge, for signatures and to the County Clerk for
filing, preparing complaints and informatlons to
be filed in the Justice and County Courts, and also
to write letters, and several other things that
I could give you. But I believe this 'ISenough to
convince you that she is not a stenographer, but a
clerk, or office helper. I want you to know the
character of work that she~is dolng.
"I would like for you tb give me an opFnLon
as to whether or not, under law, I am authorized
to deduct her wages as expenses of the office,
Ron. R. T. Burns, page 2 O-1649
which I believe I am entitled to do. On the 15th
day of July, 1039, I received a letter from the
Honorable Tom 0. King, state auditor, about the
9ame question, and he informed me .and I cuote from
his letter, as follows:
"1 wish to refer you to Article 3899,
Vernon Civil Statutes, which 1s the act
regulating expenses of public officials in
which your office would be fncluded, the
article providing for all actual and
necessary expenses Incurred in the conduct
of the office. In my opinion, this author-
ity cannot be questioned and is one coming
under the authorized ad.mlnlstrativedis-
,~cretLon granted to administrative officials.
"'It would se'emto me that the only ques-
tion that could be raised in this instance
would be'the necessity of such service In
your office as.~~a
county offlclal. This mat-
ter is included under the authorized dis-
cretion to adminlstratjve authorlty confer-
red by our statutes creating county adminis-
trative offices and cannot be otherwise
questioned.'
"This.~is'the'letter~inwhich Mr.'King gave me
hfs opinion on July 15, 1939. As stated above, the
young lady, in,my.oplnlon, 1s just an office helper,
and I believe that under 'the reasoning of thLs
statute, Article 3903, and the other articles taken
into conjunct,lon,,therewith,
I am entltled to this
deduction; and I would appreciate very much having
your opfnlon on this matter."
The county offlcinl~sof Walker County are compensated
on a fee basls. The populatlo'nof said county according to
the last Federal Census 1s eighteen thousand five hundred and
twenty-eight (18,528):.
Articles ,3883, 3891 and ,389g of Vernon's Civil An-
notated Sts$utes resd in part as follows:
AptLcl.e 3483:
"Except as o'therwlseprovided in this Aat,
the annual fees that may be re~talnedby precinct,
aountg and district offi.cersmentioned in this
Article shall be 8s follows:
Hon. R. T. Burns, page 3 o-1649
"1.' In counties containing twenty five
(25,000) thousand or less inhabitants: County
Judge, District or Criminal District Attorney,
Sheriff, County Clerk, ,,County
Attorney, Dls-
trlct Clerk, Tax Collector, Tax Assessor, or
the Assessor andcollector of Taxes, Twenty-
four Hundred ($2400.00) Dollars each;.Justlce
of the Peace and Constable, Twelve Hundred
($1200.00) Dollars each-~..."
Article 3891:
"Each offlaer named In this Chapter shall
first out of the current fees of his office pay
or be paid the amount allowed him under the
provisions of Article 3883, together wl.ththe
salaries of his assistants and deputies, and
authorized expenses under Article 3899, and the
amount necessary to cover costs of premlum on
whatever surety bond may be required by law. If
the current fees of such office collected In
any year be,more than the amount needed to pay
the amounts above specified,,same shall be deem-
ed excess fees, and shall be disposed of in the
manner hereinafter provided.
"In:counties,containing twenty-five thou-
sand (25,000) or less ,inhabitants,District ana
County officers named herein shall retain one-
third of such excess fees until such one-third,
together with the amounts specified in Article
3883, amounts to Three Thousand Dollars $3,000).
Precinct offfcers shall retain one-third until'
such one-third; together with the amount speci-
fied In Article 388 , amounts to Fourteen Hun-
dred Dollars ($1400 . .....II
Article 3899:
"(a) Atthe close of each month of his
tenure of office each officer named herein who
is compensated on a.fee basis shall make as part
of the report now ,requiredby law, an Itemized
and sworn statement of all the actual and.neces-
sary expenses incurred by him in the conduct of
his office, such as stationery stamps, telephone,
premiums on offlcla,ls'bonds, inoluding the cost
of surety bonds,for his Deputies, premFum on
fire, burglary, theft, robbery insurance protect-
ing public funds, traveling expenses and other
Hon. R. T. Burns, page 4 o-1649
necessary expenses. The Commlssloners’ Court
of the county of the Sheriff’s residence may,
upon the written and sworn applicationof the
Sheriff stating the necessity therefor, pur-
chase equipment for a bureau of criminal iden-
tlflcat-Ionsuch,as cameras, finger print cards ;~
inks, chemicals, microscopes, radFo and labora-
tory equipment, flllng cards, filing cabinets,
tear gas and other equipment in keeping with
the system in use by the Department of Public
Safety of this State or the United State Depart-
ment of Justice and/or Bureau of Criminal Ident-
ficatlon. If such expenses be incurred in con-
nection with any particular case, such state-
ment shall name such case. Such expense account
shall be subject to the audit of the County
Auditor, If any, otherwise by the Commissioners’
Court; and if It appears that any item of such
expense was not incurred by such officer or
such item was not a necessary expense of offlce,
such item shall be by such auditor or court rejected,
in which case the collections of such item may
be adjudicated in~any court of competent jurisdiction.
The amount of salaries paid to Assistants and
Deputies shall also be clearly shown by such
officer, glvlng the na+me,position and amount
paid each; and in no event shall any officer
show any nreater ,atnountthan actua!,Iypaid any
such Assistant or Deputy. The amount of such
expenses, together withtbe amount of salaries
paid to Assistants, Deputies and Clerks shall
be paid out of the fees earned by such officer.
The Commlsslonersl Court of the county of the
Bherlff’s residence may, upon the written and
sworn applloation of the Sheriff stating the
necessity therefor, allow one or more automobiles
to be used by the Sheriff in the discharge of
his official duttes, which, if purchased by the
County, shall be bought in the manner prescribed
by law for the purchase of supplies and paid
for out of the General Fund of the oounty and
they shall be and remain the property of the
county. The expense of maintenanoe, depreoia-
talonand operation of suoh automobiles as may
be allowed, whether purchased by the oounty or
owned by the Sheriff or his Deputies personally,
shall be paid for by the Sheriff and the amount
thereof shall be reported by the Sheriff, on the
report above mentioned, In the same manny as
herein provided for other expenses......
Hon. R. T. Burns, page 5 o-1649
Artlcla 3902, Vernon's Civil Annotated Statutes,
reads in part as follows:
"Whenever any district, county or pre-
cinct officer shall require the services of
deputies, asslstants or clerks in the perform-
ance of his duties he shall apply to the
County Commissioners' Court of his county for
authority to appoint such deputies, assistants
or clerks, stating by sworn application the
number needed, the position to be filled and.
the amount to be paid. Said application
shall be accompanied by a statement showing
the probable receipts from fees, commissions
and compensation to be collected by said
office during the fiscal year and the probable
disbursements which shall include all salarles
and expenses of said office; and said court
shall make its order authorizing the appolnt-
ment of such deputies, assistants and clerks
and fix the compensation to be paid them within
the limitations herein prescribed and determine the
number to be appointed as In the discretion of
said court may be proper; provided that In no
case shall the Commissioners' Court or any member
thereof attempt to influence the appointment
of any person as deputy, assistant or clerk In
any office. Upon the entry of such order the
officers applying for such assistants, de-
puties or clerks shall be authorized to appoint
them; provided that said compansation shall
not exceed the maximum amount herelnafter set
out. The compensation which may be allowed to
the deputies, assistants or clerks above named
for their services shall be a reasonable one,
not to exceed the following amounts:
"1. In counties havi a population of
twenty-five thousand (25,000
Y or less lnhabi-
tants, first assistant or chief deputy not to
exceed Eighteen Hundred ($1800.00) Dollars per
annum; other assistants,,de utiesor clerks not
to exceed Fifteen Hundred ($ 1500.00) Dollars
per annum each....."
In counties where the county offlclals are compen-
sated on a,fee basis, Section (a) of Article 3899, supra,
specifically provides that the-amount of salarles paid to
assistants, deputies and clerks shall be paid out of the fees
earned by such officer. Article 3902, supra, provides the
Hon. R. T. Burns, page 6 o-1649
manner in which deputies, assistants or clerks or any dis-
trict, county or precinct offLcer must be appointed. Any
deputy, assistant or clerk of any district, county or pre-
cinct officer must be appointed in compliance.wlth Article
3902, to be entFtled to receive compensation as such. -Under
the above mentioned statute the salaries of assistants, dep-
uties and clerks are authorized expenses which may be deducted
in arriving at the maximum salary of their principals.
Therefore, in view of the foregoing statutes you
are respectfully advised that it is the opinion of this de-
partment that when a clerk Is appointed by the county attor-
ney in compliance with Artiole 3902, the salary of such
clerk can be legally deducted in arriving at the maximum
salary of the county attorney as provided by law.
Trusting that the foregoing fully answers your in-
quiry, we remain
Yours very truly
ATTORNEY GENERAL OF TEXAS
By a/Ardell Williams
Ardell Williams
Assistant
AW:AW:
APPROVED PEE 5, 1940
s/Gerald C. Mann
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/4144757/ | OFFICE OFTHEA-ITORNEY GENERALOFTEXAS
AUSTIN
Hon. '&nlcy 'Pimmloe
county i:t.tofney
JiazTisca county
XarshaU., Texas
IO UOOCJ8X-
undur the
5.0 used for storage,
office, bookkeeping
I!ighvmy i%parttTsent,
bolongln~ to the
all trucks, GrGc-
equipant bel~ori-
"T'ha purchaaa of the real antate end
warehouse mod in the ~cxxl I:. %ic&o yecart-
nent wco paid out of end frown the Eoad &?
&iAg6 Punds end is cexrlod in the cost ao-
oountin-7 systcn nonthly stntemntn WIA b:!lonce
8f;,eotS and anntia~ roportn of the %ed &. 2rfgqe
1.85
HOI+ Stanley Timmine, Pago 2
em capital outlay,
“The tax rate set by the Oommissloners’
Court for the Road E Bridge Fund is and has
been for many years at St5 oonntitutional
limit of 3O$ on tho 3100.00 vnluatlon of taxa-
ble property.
“The tax rate in the Permanent T~TQI~OVC-
rent Fund set by the Co!w:issj.onera* Court
for the past sovercl years has been some
nomlnzal’rate to t&e oare of thn additions
and repairs to the Ccunty Courthouse and
County Jail vrhioh purpose and enticipation
has been incorporated end refleotod by the
budgets of Harrison County shoMng the purposes
for the Piling and lsvyins of this nomlnal
rote in the Permanent Improverent Fund.
“The tax rate so fixed and levied for
t.he year 1939 and the tax rates for prior
years were fixed and levied by the Commis-
Honors’ Court for the purpose and antlcipa-
tlon only of additions and repairs to the
Ccunty Courthouse and the County Jail and
,for no other purpose and there does not exist
at this time any surplus OX bnlanae in tho
Permanent Jmprovanent Fund over and above
the smounts to be used in antioipation of the
above mentioned additions and repairs to the
county Courthouse and County aall,
“It furthor appears that there is now
in the permanent improvement fund of thia
OOuntY, $3,800 with no outstand1nq debts
or olaina.
HAt tho tir.e of writing, the count wviohes
to make some rcreirs tot he building entailing
an expenditure of ebo.:.t $2,000 they consid0~-
ing 6cm.e 0 valuable improvement and neccssary
;,” ;$nebest Interest of the G~nty thnt same
IA . Therefora, the questiou as to paying
for same out of tho ~ermnnent improvement
Funds of EIarrison Ccuntjr, Texas?”
seotfon 9 of Artiole e of’ the Texas constitu-
tlon reads a8 follor~s:
“The %x&e
tax on proprty, eXalUSiVe
of the necessary
tax to pay the public debt,
and of the taxes prOViC?ed for the benefit
of the public tree dchoolo, shall. never ex-
ooed thirty-five cents on the one hundred
+llars valuation; and no oounty, city or
town shall levy Ip.ore than twenty-ffvo cents
for oity or county purposes, and notexoxoedd-
lng fifteen cents for:rgaW ana brideea, an8
not exoeodi.ng fiftoez cent0 to pay jurors,
on tho one hunclrod dollars valuation, cx-
ocpt for the paymmt of debts incurrad prior
to ths adoption of the ar,endm?nt 8optember
Wth,' 1383) and for the erection of pub1l.o
buildings, strecto, sewera, water works sud
other permunent improvments, not to mooed
twenty-flvo cents on ths one hun&red dollars
valwtlon, In tiny one year, and axcopt as is
in this Constitution othcmiso provided; and
the Legialmtuye my also authorize an addi-
tionnl annual a6 valorm tax to bc levied
'and oolleoted for tho further Ir,aintenanoe of
the public roadnr provided, that a majority
of the @mlifiod property tax-paying votors
of the county vctinc at an electicn to be
held for that purgosc shall vote such tax,
not to exoeecl fifteen oents on~tho one hun&xed
dollars valuation of tie property gubjeot, to
taxation in such county. AM the Qgislature
my pass locnl Laws for the naintcnance of
the public roads and hl&ways, without the
i;c~~l notice required for speak1 or local
r"
Article Z531, Vernon's Civil Statut~oo, setting forth
the powers .&?d duties of the oomiasionnml court, reads in
part as follor~o:
I(.I....
"'7. Provlae and keep in repair court
houacs, jails an8 all nooessary public build-
s.ngEL..."
Ron. Stanley Tin?ins; Page 4
Article 2352, Verticn's Civil Statutes, reierr-
iii% to the ccmzisnioners~ ccurt, reads as follows:
'Said court shall have the power to
levy and colleot a tax for ocunty puqoees,
not to exceed tvmnty-five cents on the one
hundred dollars veluetion, and a tax not to
exceed fifteen cents on the one hundred dol-
lars vuluat:on to suFplet-.ent the jury fund
of .the co&&y, and not to exceed fifteen
osnts for roads and bridges an the one bun-
dred dolllnrs valuation, exaept for the fay-
ment of debts incumed prior to the adoption
of the emendvent of the %mstitution, S.eptexber
23, A. IL lSS3, and for the exection of publia
buildings, st&ets, sewers, water works end
other pcmanent in~rovtments, not to exceed
twenty-five oents on the one hundred-dollars
,valuation in any one year, and exoegt 80 in
the Constitution otherwise provided. They
my levy en edditional tax for road purposes
not.to exceed fifteen cents on the one hun-
dred Iioller valuation of the property subjeot
to taxation, under the linitatious and in the
namer provided for in ~xticle 6, Sec. 9, of
the Constitution and in pursuance of the laws
relating thereto."
Vie quote Prm Texas Zurisprudence, Vol. 34,
pa@ 2, as follorfs:
w"Fublic buildinSa* is a torn ordin-
arily used to designate such struotures a5
the onpitol in the capitol Srounds at
Austin, includlnf: the executive mnsion,
tho verious &rite asylms, collc~o or
university buildin, erected by the State,
oourthousos and jails gnd other buildings
held for public use by;nny depaztmnt or
bmnch of goircrment, state, county or
nunicipal." See ht. 880 Of the ?onnl
Code, defi.?inS the tem'"publia building".
:ye further quota from Text-s Jurisprudonoe,
'io1. 34, yage 0, nn follows:
Vhe terms 'publio buiidih$ and, 'publio
ground~,~ within the Ir;ennins of these panel
Ii88
statutes &ve'alrehd3 been defined (I::).'
Ilut,acmrki?,: to the statute, 'The qeci-
flc e3umrctionr...shall not 0xcluCo other
Ixzlldix~sn5t nmod, properly conk3 w,it'nLr.
t:m :ieni12iy
and Cescriptionof a public
buQd:zg.' Z'hsbuilding named - as, for
exe.;plo,cxnty Jails - are in tcrss designat-
ed fpubllcbuild::!gs*.And an3 other build-
in2 sxmld sea to cane vlt:!inthis definition
provided~it is paoparly shvn tii%:t
it ia Gsn-
ed or cr;ltrolled2nd held by g~iblioauthori-
ties icr public use..,." tieethe case or
ThuTStc.n03, Stota, 125 S, Vi.31,
Tho ~.bov~+ootsd pmvisiono of t& Coxttitution
nnc?statutes authorize the ~~tissioners' CDIIX%to build
and.mpriir@~lio bulldln~s a.& the tsra "public bulldiinz"
is brom5 '&IOU& to include a 'rrcrehouse ov.~odaad wed ox-
clc51v01y by t!le couuty f.-ir the gurpcsos above m.ntio?,od.
neXefore, you are r%3?5CtfU~y CdViS8d that it is our
opinion t&t the comicsionerti c' court in authorized to
repair said warehouse and pay for such inproveznmtsout of
the pemenent imgrsvezent funds of the county.
Trust& th?.ttha foregoins fully answers your
inqiiisy,
we remin
Vsry truly yours
hrOcl1 :~illiSiils
Aaaistant
APPROVEDNOV 17, 1939
Ati
)&‘
ATTORNEY GENERAL Oli TEXAS ' | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144758/ | Ronor(lbze
Burl Rrittain
Comty Auditor
San Pstriciocounty
Sinton, Texas
Dear Sir: opinionBo. o-U36
ore: Doss OpinionO-880 apply to countieswhere
constablesare workingon a fee b&bsisand not
under the salfry law?
If the sheriffand one or more of his deputies
are in attendanceupon the court at the same
time, are each entitledto the $4.00 per diem?
Your requestfor an opinionon the above statedquestionshas been received
by this depsrtment.
As we understandyour first questionyou desire to know whetheror not a
constablewho is compensatedon a fee basis can serve es bailifffor the
grand jury and receive:pay for such services.
This departmenthas repeatedlyheld that a constsblecannotserve as bailiff
for the grand jury and receivepay therefor. The same rule applies in all
countiesprohibitingconstablesfrom servingas bailifffor the grand jury
and receivingpey for such service. It is immaterialwhetherthe constables
are compenliatedon a fee or salerybasis.
For your conveniencewe enclosecopiesof our opinionsNo. O-880 and O-130.
Regardingyour second question,we call your attentionto Article 3933,
Vernon'sCivil Statutes,which reads in part as follows:
11 . For every day the sheriffor his deputy shall attend the
&hict or county court,he shall receiveFour Dollers ($4.00)a &Y
to be paid by the countyfor each day that the sheriffby himselfor
a deputy shall attend said court."
In the case of L&better vs. Dallas County, lllS.W. 193, in which a writ
of error was deniedby the Suprune Court, the court pssed upon the sams
questionas here presentedwith the exceptionthat bt that tims the statute
providedfor Two Dollars ($2.00)per day for such servicesinsteadof Four
Dollers ($4.00)aa is now providedby Article 3933, supra,and holds that
the county is only liable for the $2.00 per day for the attendanceof the
sheriffor his deputy,and that even the districtjudge does not have
authorityto bind the countiesbeyond that.
Hon. Rurl Rrittain,Page 2 (04646)
In view of the foregoingauthoritiesyou are rl)spectfullyadvisedthat it4
is the opinionof this departmentthat the county is ~@y liablafor the
SUJII
of Four Dollars ($4.00)per day for the serv$cesof the sheriffor his
deputy in att&ding the couutyor districtcourt,and in no event could the
sheriffand.his deputyor deputiesbe paid $4.00 per diem each for attendance
upon the court at the same time.
Trustingthat the foregoingfully axwrersyour inquiry,we remain.
Yours very truly
ATTORNEYGE%ERALOF TEXAS
s/ Ardell Will+amR
By
ArdellWilliams
Assistant
AWrjm
EllCl.
- NOV. 6, 1930
s/W. F. Moore
FIRSTASSISTBNT
A'l%XNEYGBV'ERALOF- | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131966/ | The Attorney General of Texas
December 6, 197b
MARK WHITE
Anornsy General
Honorable Joe Resweber Opinion No. MW-95
liarrb County Attorney
1001 Preston, Suite 634 Re: Access by an individual to his
Houston, Texas 77002 own criminal history record.
Dear Mr. Resweber:
You request our opinion on whether the Harris County Sheriff is
required to furnish an individual with a copy of hi own criminal history
F&Xd.
No Texas statute speaks directly to this question. Criminal history
record information is excepted from required public dIscsclosure under an
exception to the Texas Cpen Records Act. V.T.C.S. art. 6252-17a, S 3taX6).
This was established in Houston Chronicle Publishing Co. v. City of Houston,
531 S.W.?d 177, 187-186 (Tex. Civ. App. - Houston U4th Dist.] 19751, writ
reM n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). This office has followed
and applied this holding in a number of open records decisions. Open
Records Decision Nos. 216, p. 5 0978); 183, p 5 0976); 144 0976); and 127, p. 6
0976).
The Texas Open Records Act deals primarily with the general public’s
right to information, and does not provide fcr a special right of access to the
subject of records except in two situations. Spe-cial access is given to a
governmental employee to his own records in a proviso of section S(aXZ), and
a student is give&a r@ht of a&es to his own records under section 3ftil4).
However, the Texas Cpen Records Act is not the only means by which
information may be obtained, and this office has said that the Act does not
restrict a right of access based on an individual’s special interest in the
information. Open Records Decision No. 127, p 6 0976).
The basis cn which the court in the Houston Chronicle case, m. held
that criminal history records should not be publicly &cloerd was the
“potential for massive and unjustified damage to the individual” which could
result from indiscriminate release of such records. The court also noted
that unauthorized disclosure could jeopardize the availability of federal
technical and financial aid and assistance provided under the Omnibus Crime
Control and Safe Streets Act of 1968, as amended. 42 U.S.C. SS 3701,
3731(a), and 3771(b).
p. 291
Honorable Joe Resweber - Page TWO (m-95)
A common-law right of acea which entitles an individual to inspect records held by
the government concerning that individual has been recagnized In Hutchins v. Texas
Rehabilitation Commission, 544 S.W.td 802 (Tex. Civ. App - Austin 1976, no writ), the
court held that a former patient of the Texas Rehabilitation Commission had a common-
law right of access to her own records even though a specific statute made those records
confidential as to the general public. We have found no case which has held that this
common-law right applies to criminal history information about oneself, but we believe
that the principle recognized in the Hutchins cese, su r at least provides a sufficient
legal basis for an agency to disclose swmation to
-9i e individual whom it concerns.
The Texas Department of Public Safety has adopted a policy that an individual has a right
of access and review of his own criminal history record on file with the Department, and
has adopted regulations providing a procedure for exercise of this right. Texas
Department of Public Safety Rule No. 2OL14.OLOOl,issued December 15, 1975. This policy
is clearly consistent with the right of individual access recognized in the Hutchins case,
supra.
Your brief discusses the provisions of the Federal Freedom of Information Act, 5
U.S.C. S 552, end the Federal Privacy Act of 1974, 5 U.S.C. S 552a, in relation to these
records. However, neither of these federal Acts applies to a Texas law enforcement
agency such as a county sheriff% office. These Acts apply only to an “agency” which is
defined as an authority of the Government of the United States. 9ee 5 USC. SS 551@,
552(e), and 552a(a)(lX It has been held that the Texas Board of Pardons and Paroles is not
an “agency” within the definition in 5 U&C. S 551(l) became it is not a federal agency.
Johnson v. Wells, 566 F.2d 1016 (5th Cir. 1978). Thus neither the Federal Freedom of
Information Act nor the Federal Privacy Act of 1974 applies to records held by an agency
of this state or its political subdivisions.
Another federal statute and the regulations issued thereunder may affect the
disclosure of criminal history record information held by a state or local agency in Texas.
The Omnibus Crime Control and Safe Streets Act of 1968, and amendments thereto,
established the Law Enforcement Assistance Administration (LEAA) which provides
federal technical and financial aid and assistance to state and local agencies. See 42
U.S.C. SS 3701, 3731(a) and 3771(bL Under the last cited provision, the Law RnfoK?eii;ent
Assistance Administration is required to assure that the security and privacy of criminal
history record information is adequately provided for. The LEAA has issued regulations
pursuant to this authority. See 28 C.F.R. part 20. The regulations are applicable to any
state or local agency which hasreceived LEAA funda since July l, 1973, in connection with
the collection, storage, or dissemination of crimmal history record information. Section
20.21(g) of the regulations requires submission of a state plan to LEAA setting out
procedures including operational procedures to do the following:
(g) Access end review. Insure the individual% right of access and
review of criminal history information for purposes of accuracy and
completeness by instituting procedures so that -
(1) any individual shall, upon satisfactory verification of his
identity, be entitled to review without undue burden to either the
P- 292
. *
;. . ;.
- .. ,
Honorable Joe Resweber - Page Three (Mw-95)
criminal justice agency or to the individual, any criminal history
information maintained about the individual and obtain a copy
thereof when necessary for the purpose of challenge or
correction. . . .
Pursuant to this requirement in the federal regulations, the Criminal Justice
Division of the Office of the Governor has prcposed to adopt rules and guidelines which
have been published in the Texas Register, VOL 4, No. 78, pp. 3767-3770, October 16,1979.
Pertinent portions of the proposed guidelines provide:
.Oll. Access and Review.
(a) Any individual shall, upon satisfactory verification of his
identity, be entitled to review without undue burden to either the
criminal justice agency or the individual, any CHRI [criminal
history record information] maintained about the individual and
obtain a copy of the portion challenged thereof when necessary for
the purpose of challenge cr correction.
(b) Points of review shall be the Texas Department of Corrections
(for inmates of TDC only), DPS Headquarters, and all sheriffs’
offices, police departments, and federal criminal justice agencies
which have fingerprint identification capability.
(c) Administrative review shall be provided and necessary cor-
rection made of any claim by the individual to whom the
information relates that the information ir inaccurate or
incomplete.
In addition to the above provisions relating to an individual’s right of access to
criminal history record information about him held by an agency subject to the federal
regulations because of receipt of federal LEAA funds, separate provisions of the
regulations deal with agencies which participate in the National Crime Information Center
(NCIC) operated by the Federal Bureau of Investigation. Section 20.34 of the LEAA
regulations provides:
S 20.34 Individual’s right to access criminal history record
information.
(a) Any individual, upon request, upon satisfactory verifica-
tion of his identity by fingerprint comparison and upon
payment of any required processing fee, may review criminal
history record information maintained about him in e
Department of Justice criminal history record information
system.
(b) If, after reviewing his identification record, the subject
thereof believes that it is incorrect or incomplete in any
respect and wirhes changes, correction or updating of the
P. 293
.
,. _ I_
. ,
Honorable Joe Resweber - Page Four blw-95)
alleged deficiency, he should make application directly to the
agency which contributed the questioned information. The subject
of a record may also direct his challenge as to the accuracy or
completeness of any entry on his record to the Assistant Director
of the FBI Identification Division, Washington, D.C., 20537. The
FBI wiIl then forward the challenge to the agency which submitted
the data requesting that agency to verify or correct the challenged
entry. If the contributing agency corrects the record, it shall
promptly notify the FBI and, upon receipt of such notification, the
FBI will make any changes necemary in accordance with the
correction supplied by the contributor of the aiginal information.
28 C.F.R. S 20.34, as amended 43 Fed. Reg. 50,173-50174 Q978).
Your question is posed in terms of whether the Harris County Sheriff is required to
furnish an individual a copy of his own criminal history record. The federal LEAA
regulations providing a right to access require only that the individual be given a copy of
the information about him “when necessary for the purpose of challenge or correction.”
28 C.F.R. S 20.21tgXl). The comments ~1 the regulations indicate that the LEAA did not
intend the individual to be able to obtain a copy of hi record on demand. See Appendix -
Commentary on Selected Sections of the Regulations on Criminal History Record
Information Systems, 28 C.F.R. part 20, p 249, at 252-253. In light of the common-law
right of an individual to inspect records about himself, and the federal regulations and
guidelines discussed above, we answer your question as follows: The Harris County Sheriff
should adopt a reasonable procedure in order to permit an individual to inspect and review
criminal history record information about himself. A copy of such information should be
provided to the individual when necessary for the purpose of challenging QCcorrecting the
information about him.
You also ask whether the Harris County Sheriff is required to furnish a copy of a
criminal history record to an individual other than the one to whom the record pertains.
The federal LEAA regulations and the proposed guidelines of the Criminal Justice Division
speak only in terms of an individual’s right of access and review upon satisfactory
verification of his identity. They do not appear to contemplate that the individual may
exercise thii right through an agent. Generally, a person may by contract establish a legal
relatiOnShiD with another to authorize the other to transact business or manaze some
affair for -him. See 2 Tex. Jur.‘ld,Agency S L The relaticnship of attorney and&client is
one of Gent anbprincipal. Dow 357 S.W.2d 565 (Tex. 1962);
Texas Employers Ins. A&n v. Wermske, 349 S.W.?d 90 (Tex. 196B. While we believe that a
law enforcement official such as the sheriff may Dermit en individual to exercise his rkrht
of access to criminal history information about him for purposes of challenging-or
correcting that information through an agent such as his attorney, we have found no law
which would require the sheriff to do so.
You next ask whether the Sheriff is required to obtain identification from the person
seeking to inspect his own record,and what type of identification is required. The LEAA
p. 294
Honorable Joe Resweber - Page Five (NW-95)
regulations applicable to agencies which have received federal funds, 28 C.F.R.
S 20.21(g)(l), and the Criminal Justice Division’s’ proposed guidelines only require
“satisfactory verification” of the person’s identity. The Commentary on the LEAA
regulations explains thii provision as follows:
The drafters of the subsection expressly rejected a suggestion
that would have called frx a satisfactory verification of identity by
fingerprint comparkon. It was felt that States ought to be free to
determine other means of identity verification.
28 C.F.R. part 20, Appendix - Commentary on Selected Sections of the Regulations on
Criminal History Record Information Systems, p. 249 at 252, commentary on S 20.21(gm
We note that access to information in e DeDertment of Justice Svstem (NCIC) does
require verification of identity by fingerprint -comparison. 28 C.F.R: S 20.34. It is our
opinion that the Sheriff of Harris County may verify the identity of an individual seeking
access to his own criminal history record by any reasonable means satisfactory to the
Sheriff.
You next ask whether the Sheriff is required to obtain e fee from the person
requesting access to his criminal history record. The general rule is that in the absence of
some enactment providing for remuneration for a particular service, no fee may be
demanded therefor. 52 Tex. Jur.2d, Sheriffs, Constables, and Marshalls S 38, Attorney
General Opinion H-796 (1976). See Templeton v. Rybum, 59 Tex. 209 (1883). We have
found no specific authority for e Sheriff to collect a fee for providing en individual access
to inspect or copy his own criminal history record. Since the right to inspect or copy &es
not arise under the Texas Open Records Act, we do not believe that the provisions of that
Act concerning costs are applicable. See V.T.C.S. art. 6252-l7a, 29. However, we note
that expenses incurred in connection wx a Sheriff% operation of a Bureau of Criminal
ldentificetion “in keeping with the system in use with the Department of Public Safety of
this State or of the United States Department of Justice and/or Bureau of Criminal
Identification” are specifically authorized as expenses of a Sheriff which may be paid by
the Commissioner’s Court under article 3899, V.T.C.S.
SUMMARY
A law enforcement agency should permit an individual to review
criminal history record information maintained about him end
should provide the individual a copy of that portion of the record
the accuracy or completeness of which is disputed.
Very truly youm, l
*?
A” .’
MARK WHITE
Attorney General of Texas
p. 295
. .
. . ,
Honorable Joe Resweber - Page six (NW-951
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by William G Reid
Assistant Attorney General
APPROVED:
OPINION COMMRTEE
C. Robert Heath, Chaiiman
David B. Brooks
Tom Bullington
Jerry Carruth
Bob Gammage
Susan Garrison
Rick Gilpin
William G Reid
P. 296 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144784/ | SW nclt to tua laallddaals. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144763/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
11.62
Fgton v. saottish Rite I36naro;lsat
wraoclation, 230 S. w.
.
%'%lY6WU3tther6tOthe X.@.616tUr6 -866d ~U%TOUV
aatv relative totcu:6%6z@&a6. Thel66tanmtnmntb6lng
hrtlale 7l.80,Vernon% iknno?&M CW.1 Statut66, which
SOd6, iIl6Ot~ 66 this OpiniOB ie ‘3WMlWBd, W iO~OW51
...Md 6ll6UUhbaildin&6~
end aged by ISIS of aa
6OIl675==6ChOO1~~666; ..." (=+QSis-O-6)
To deter&m the uestlon in~0lv6d here it i6
?iZ%t 1690666627t0 SrrlW at the OOrXWt XWle OS aOnStrUa-
tlon a2 ap lid to tax ~tlom. mtiale VIII se&ton
1,cUths EonstitutlonoiT6xs rovldes thatalitaree
shall be eqml aal rmifora. It 28 the ah&i thaty
of a
~ttoaitardpro~~laatOfhogsmoa6nbpropsrtJr
or oitiaetm and in turn it %6t ho duty or the oltlaem t0
bear & fair ratabfspropmtioa of tha (3
6ffOcdi.Z&such protection. Th6m?ore,
critbsll6rau6tptiymr it0 prot6Qt1on, thu6
fair and 6qu61 dlstributfon of the burtlea dhioh
daandr ofthove rharfry:fts b6na?lt6. 'LBrattia isthem-
tore the rule, and emnptloa fraa tor6tion the esoeptloa.
C00ley 0n TaratiOa, 864an4 Edith, p.804; f&b006 TO
et al, 74 oa. US. sreaptloa, be* t,he ecmpfirm to%F
general rulea is sot tavorsd, and, wh6a found to 0-t
the enaotaeatby rhiohit isgM%a will riotb6 tublargd by
OOn6trUtJtiOn, but, on the Oontmhq ti3.l be 6triOtl.yQoa-
StPUab. f&n46 Y. khrroa,4 8. W. 619 # Santa Rosa Iafina-
cry v. San iiatoalo,230 8, w. 0311 Co6ley on Tazstloa,
ewond EdItIon, pp. 204.203.
wh6th6rorrmtTyl6r
Thed6t;smtna~VO
Lioaorablewarren %.oDotild,page s
(~lOO,OOO.OO), hsrlng two thOUBand shares Of a par Value
of FISty Dollars ($50.00) eaoh. Thsss shares are subjeat
to entering Into the ohannels of Oossisrao. Fe aaaaot say
thst the i.nve6t6mnt or sapltal in the oorporatlen Is 66
endowsent for ths bonsflt ot ths mblio at large, or that
ths buildlrqs in wh1ah it siightbs Invssted lrs bar ths
pub110 use. w'eare, thersfom, of the opinion that the
sohool l.6 qusstfon 16 not a WpublIc aollegs" 8s that tera
IS used in Artlale 7150, Vernon*6 Annotated Civil Statutes.
We next pass to the question of the lffeot on
suah sohools og the portion of Artiole 0150, Vernoa*s An-
notrted Civil Statutes, whloh provides far an exemptlen
for all buIlblng and owned by persons or
awoolatIon6 of purge As 6tated
sbo~s our inVsst%@.tlon d18010666 that ths bulldlngs owned
by Tyler ComsisralalColleg6 are not used 6xalu6lrely by
the oollsgs ror sohool purgo608. In View of suoh faot,
we find it unnepes6uy to paw upon the qwstion as to
whether or not saoh boilding would bs exsmpt 1n ths eVeat
It i6 wed sx~lusl~sly iOr sohool pur&Mses. For, the use
o? a prt of the property for other than 6ohool purpo606,
yl,","In any ersnt rsmots the buildings Xrom the exssip
Red Y. Johnson, 5S Tex. 884; EdmuMs f. P! Antonio,
55 S: t. 495l Llttls Th6atM I. City Of XNlla8, l&C 3. 0.
(Ed) 86S.
You are rurther adrlred that w4 40 not belier0
ths term wbulldlng- should bs l xpanQsd to InOluae ~6rsonal
iTears of the opinion that if sooh sohools are
ifixs?to ally6X66Qt1On at all it Is llmlted to the bulld-
146 and lsnds ussd exala6lv6ly and owned for sehsol pur-
poses and dew not apply to the psrsonal propsrty.
On June &O, 1034, ?onorabls Scott Oalws, A66%6t-
ant AttorMyGeasral, in a lbeter oplalon, held that ths
furniture and fIxtur68 of sush 6OhOoh were sxempt. Insa-
far as thsrs la a oonfllot between thi8 opinion anO that of
the Xonorabl6 Scott M.nss, ths lattsr is hsrsby OXph6664
orurmled .
IWnorable Warrea !doDonald, pI3BTe
4 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150795/ | IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 385 WAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
MICHAEL J. STEPHANIC, JR., :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 7th day of March, 2017, the Petition for Allowance of Appeal is
DENIED. | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147489/ | Filed
Washington State
Court of Appeals
Division Two
February 22, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45665-6-II
Respondent,
v.
DAROLD R. J. STENSON, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Darold R. J. Stenson appeals his convictions for two counts of premediated
first degree murder with aggravating factors. We hold that the trial court did not err when it (1)
granted the State’s motion to continue the trial, (2) denied Stenson’s CrR 8.3(b) motion to dismiss,
(3) denied Stenson’s motion to dismiss based on a due process violation, and (4) denied Stenson’s
motion to suppress evidence. We also hold (5) that Stenson was not entitled to a spoliation
instruction and (6) that the trial court did not err when it denied Stenson’s motions for mistrial or
(7) when it admitted evidence of a defense witness’s prior drug conviction. We further hold that
(8) the trial court’s reasonable doubt jury instruction was proper, (9) the prosecutor’s rebuttal
argument was not misconduct, and (10) there is no cumulative error to entitle Stenson to a new
trial. Thus, we affirm Stenson’s convictions.
45665-6-II
FACTS
I. BACKGROUND
A. FACTUAL HISTORY
In the early morning hours of March 25, 1993, law enforcement arrived at the Stenson
home in response to a 911 call; Stenson met the responding officers outside the home. Stenson
led the officers to the body of Frank Hoerner, Stenson’s friend and business partner, who was lying
face down on the floor in the main-floor guest bedroom, dead of an apparent gunshot wound to the
head. Officers found a gun on the floor near Hoerner’s1 left hand.
Stenson then led the officers upstairs to the master bedroom where they found his wife,
Denise Stenson,2 lying in bed with a gunshot wound to her head. Denise Stenson was alive, but
died the following day in the hospital. The State charged Stenson with two counts of premediated
first degree murder with aggravating factors.
B. THE FIRST TRIAL
During Stenson’s first trial, the pants that Stenson had worn on the day of the murders
provided forensic evidence that directly connected him to the murders—gunshot residue (GSR)3
1
To avoid confusion with Denise Hoerner, Frank Hoerner’s widow, we refer to Frank Hoerner by
his last name only and mean no disrespect.
2
To avoid confusion with Denise Stenson, we refer to Darold Stenson by his last name only and
mean no disrespect.
3
Gunshot residue (GSR) is created during discharge of a firearm and consists of small particles,
visible only with magnification that float in the air and are easily transmitted from one object to
another. Clerk’s Papers (CP) at 4419.
2
45665-6-II
which was found in the pockets of the pants and bloodstains on the front of the pants. In Re the
Personal Restraint of Stenson, 174 Wn.2d 474, 478, 491, 276 P.3d 286 (2012).4 Detective Monty
Martin, one of the responding officers to the scene in 1993, had collected Stenson’s pants, socks,
belt, sweatshirt, and shoes as evidence. Stenson initially told law enforcement that he had
discovered Hoerner’s body and that he had knelt next to it, but Stenson contended that he did not
touch or otherwise contact the body. In Re Stenson, 174 Wn.2d at 478. The bloodstains were
consistent with Hoerner’s blood protein profile. In Re Stenson, 174 Wn.2d at 478.
Michael Grubb, supervising Forensic Scientist of the Washington State Patrol Crime
Laboratory, testified at trial that there were bloodstains on the knee of Stenson’s right pant leg and
left pant leg which were caused by airborne droplets, and additional bloodstains on the left pant
cuff which were caused by medium velocity droplets consistent with a beating by a bloody object.
Grubb testified that the smaller stains on Stenson’s pants appeared to have been “airborne droplets”
of blood that were traveling through the air when they struck the pants leg. Trial Verbatim Report
of Proceedings (VRP) at 2454. Grubb also testified that the larger stains on the right knee were
Hoerner’s blood.
Grubb testified that the blood on the right knee of the pants could not have gotten there by
Stenson touching the body after it was on the floor or by kneeling next to the body, and that the
blood had to have been deposited on the pants before Hoerner’s body came to rest on the bedroom
floor. In Re Stenson, 174 Wn.2d at 478. Grubb concluded that the stains on the right leg of the
pants came to be on the pants while Hoerner was in some position other than his final resting
4
We refer to the Washington Supreme Court’s opinion, In Re Stenson, and adopt their version of
the facts where appropriate.
3
45665-6-II
position at the scene, most likely while he was up off the floor. According to Grubb, the stains on
the right knee area of the pants could not have been caused by contact with any of the bloodstained
vertical surfaces in the laundry room area of the crime scene (the door, the wall, the freezer, or the
dryer). This was so because there was no corresponding pattern of bloodstains on the floor of the
laundry room or bedroom where Hoerner’s body was found. This testimony refuted Stenson’s
statement that he discovered Hoerner dead on the bedroom floor. In Re Stenson, 174 Wn.2d at
478.
In 1994, a jury convicted Stenson of premeditated first degree murder with aggravating
factors for the deaths of Denise Stenson and Frank Hoerner. Stenson was sentenced to death on
August 19, 1994. In July 1997, our Supreme Court affirmed Stenson’s convictions and the death
penalty sentence. See State v. Stenson, 132 Wn.2d 668, 940 P.2d 1239 (1997). Our Supreme
Court rejected four subsequent personal restraint petitions (PRP). Stenson, 174 Wn.2d at 478.
C. EVENTS SUBSEQUENT TO THE FIRST CONVICTION AND APPEAL
1. New Evidence
In 2008, the State notified Stenson’s appellate counsel that the State’s expert witness at the
first trial, FBI Special Agent Ernest Peele, who testified about the GSR analysis, had testified
beyond “the scope of what the evidence could properly show.” In Re Stenson, 174 Wn.2d at 479.
Although the GSR evidence was of relatively little significance at the first trial, the information
about Peele’s testimony raised additional questions for Stenson’s appellate counsel, who then
submitted a discovery request asking the State to turn over all the records “relating to bullet lead
4
45665-6-II
analysis, GSR, and blood spatter testing.”5 In Re Stenson, 174 Wn.2d at 479. In its 2009 response,
the State disclosed new evidence including: (1) photographs of Detective Martin wearing
Stenson’s pants with the right pocket turned out and showing Detective Martin’s ungloved hands
and (2) an FBI file containing notes related to the GSR testing revealing that someone else, other
than Peele, had performed the GSR testing. In Re Stenson, 174 Wn.2d at 479.
2. Stenson’s Fifth PRP and First Reference Hearing
In response to the State’s disclosure, Stenson filed his fifth PRP alleging ineffective
assistance of counsel because his counsel had failed to discover this previously undisclosed
evidence. He then filed his sixth PRP alleging that the State had withheld materially exculpatory
evidence, which violated Brady.6 Our Supreme Court ordered the Clallam County Superior Court
to conduct a reference hearing to determine whether the evidence was “newly discovered” and if
so, whether the newly discovered evidence would have changed the outcome of the trial. In Re
Stenson, 174 Wn.2d at 480.
At the conclusion of the reference hearing, the trial court found that photographs showed
Stenson’s pants being handled by Detective Martin, who was ungloved, and that the pockets were
turned inside out to look for blood evidence six days prior to being sampled by the FBI for GSR.
In Re Stenson, 174 Wn.2d at 480. Subsequently, Detective Martin took the pants to his garage for
sampling and the pants pockets were again turned inside out and the samples were sent to the FBI
for GSR testing. In Re Stenson, 174 Wn.2d at 480-81. The trial court also found that the FBI lab
5
The term “blood spatter” refers to the pattern of blood evidence found on the pants. CP at 2453-
54.
6
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
5
45665-6-II
notes indicated that Kathy Lundy, not FBI agent Peele, had performed the GSR testing, only four
grains of GSR had been found after a series of examinations, and the number of GSR particles that
were found was relatively insignificant. In Re Stenson, 174 Wn.2d at 483. The trial court further
found that both parties were aware of the FBI file and the lab notes but that neither party believed
there was anything worth looking at in the FBI file. In Re Stenson, 174 Wn.2d at 483. The trial
court then concluded that the photographs of Detective Martin wearing Stenson’s pants were
sufficient to cause the subsequent GSR test evidence to be wholly unreliable, and that if this had
been made known to the trial court and an appropriate objection made, the GSR evidence would
have been excluded. In Re Stenson, 174 Wn.2d at 484. But, the trial court ultimately found that
Stenson was not prejudiced because the FBI file and the photographs would not have changed the
outcome of the trial. In Re Stenson, 174 Wn.2d at 484, 491. Furthermore, the trial court declined
defense counsel’s request that it rule on whether the newly discovered evidence violated Brady.
In Re Stenson, 174 Wn.2d at 484.
3. Second Reference Hearing
Upon reviewing the trial court’s reference hearing findings and conclusions, our Supreme
Court remanded the case for a second reference hearing on whether the State had violated Brady.
In Re Stenson, 174 Wn.2d at 484. At the second reference hearing, the trial court concluded that
the evidence in the FBI file relating to the GSR evidence and the photographs contained
exculpatory or impeaching information and that the newly discovered evidence should have been
provided to the defense. In Re Stenson, 174 Wn.2d at 484, 490. The trial court also found and
concluded that that there was no prejudice to Stenson because the newly discovered evidence
6
45665-6-II
would not have changed the outcome of the trial because the blood evidence on the pants provided
the jury with strong evidence of Stenson’s guilt. Stenson, 174 Wn.2d at 484.
The blood spatter evidence, however, not the GSR evidence, was the most
significant evidence at trial. [T]he weight of the circumstantial evidence against
Mr. Stenson coupled with the blood spatter evidence directly linked him to the
initial attack on Mr. Hoerner is compelling.
Clerk’s Papers (CP) at 4434.
At the second reference hearing, the trial court stated, “The question presented to this court
is whether use of [the newly discovered evidence] was so unfair as to undermine confidence in the
verdict.” CP at 4332. The trial court then stated,
Viewing the totality of the evidence at trial[,] I cannot find that had the
evidence of the . . . photos and FBI bench notes been timely disclosed to the defense
that the result of the proceeding would have been different. It would not be
sufficient to undermine confidence in the verdict of the jury.
CP at 4333.
4. Supreme Court’s Review of Second Reference Hearing
Upon reviewing the trial court’s ruling from the second reference hearing, our Supreme
Court agreed with the trial court in part and held that substantial evidence supported the trial court’s
finding that “the FBI file qualifies as impeachment evidence for Brady purposes and . . . was
favorable to Stenson on the issue of guilt.” In Re Stenson, 174 Wn.2d at 489. Our Supreme Court
disagreed with the trial court’s conclusion that there was no prejudice to Stenson as a result of the
State’s Brady violation. In Re Stenson, 174 Wn.2d at 491. Our Supreme Court explained that the
contamination of the GSR evidence called into question the reliability of the pants as evidence in
the case against Stenson and that “the integrity and quality of the State’s entire investigation,
7
45665-6-II
evidence handling procedures and case presentation would have been called into question.” In Re
Stenson, 174 Wn.2d at 491. Further, based on the contaminated evidence,
Stenson’s counsel would have been able to demonstrate to the jury that a key exhibit
in the case—Stenson’s [pants]—had been seriously mishandled and compromised
by law enforcement investigators[, and that] the State's mishandling of the [pants]
with regard to GSR testing would have led to further inquiry by Stenson's counsel
into possible corruption of the blood spatter evidence.
In Re Stenson, 174 Wn.2d at 492.
Thus, the defense theory at trial could have challenged the blood evidence with
the fact that the [pants] may have been folded over when the blood spatter7 was
wet. Instead, the jury was left with only one explanation for the blood spatter,
which was that it could not have appeared on Stenson’s [pants] after [Hoerner]
came to his final resting place.
In Re Stenson, 174 Wn.2d at 492.
In May 2012, Our Supreme Court granted Stenson’s sixth PRP,8 reversed Stenson’s
convictions and sentence, ordered that the GSR evidence be suppressed, and remanded the case
for a new trial. In Re Stenson, 174 Wn.2d at 494.
7
Stenson’s forensic expert on blood evidence, Kay Sweeney, opined that the pants “were folded
over in a manner that allowed for blotting transfer of the original [bloodstains] on the [right] knee
to adjacent fabric.” CP at 1061. She wanted to do additional testing to determine how the blood
came to be deposited on the pants.
8
Our Supreme Court also ruled that Stenson’s fifth PRP was moot. In Re Stenson, 174 Wn.2d at
494.
8
45665-6-II
II. STENSON’S SECOND TRIAL—2013
A. PRETRIAL MOTIONS
1. Motions To Continue
After the Supreme Court’s remand, a new trial date was set for March 4, 2013. In January
2013, Stenson moved to continue the trial date to July due to the discovery demands. At that
motion hearing, the prosecutor indicated that a “more realistic” date for trial would be in September
based on the age of the case, the procedural history, and the anticipated amount of trial preparation
that would be required. VRP (1/11/2013) at 20. The prosecutor also advised the trial court that
she might not be ready for a July trial due to a family member’s serious illness. The trial court
granted Stenson’s motion, continuing the trial to July 15.
On June 5, 2013, the State filed a motion to continue the trial. The prosecutor argued that
good cause existed for a continuance for several reasons: (1) the prosecutor had received seven
public records requests from the defense which had required substantial resources to respond to
and which took away resources from trial preparation, including time spent by the prosecutor’s
investigator to answer the records requests; (2) the resources within the prosecutor’s office were
such that she was the only additional prosecutor assigned to the case; (3) the prosecutor’s
immediate family member’s serious illness over the past year had impacted her ability to be ready
for trial in July because she had lost four months of work time; (4) the State needed additional time
to respond to and argue over 1300 pages of pretrial motions recently filed by the defense; (5) the
prosecutor was having difficulties in locating witnesses, including witnesses who had conducted
the initial investigation of the murders in 1993; and (6) that the defense had been ordered to provide
the State with outstanding discovery, transcripts from witness interviews, and old police reports
9
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no longer available to the State; yet the discovery had not yet been received, and defense experts
had not completed their examinations of the evidence or provided the State with their reports.
Stenson objected and argued that the State had adequate notice and time to prepare.
Stenson suggested that the State should have allocated its internal resources more efficiently.
In addressing any prejudice to the defendant, the trial court stated,
[U]nder the circumstances, the amount of continuance we are talking about here
today can in no way substantially prejudice the Defendant in the presentation of his
defense. I understand he’s in custody. He’s been in custody for a long time. But
while this allows the State some additional time to prepare for trial, it also allows
the Defense team additional time to prepare for trial and deal with several motions
that have been filed by the State as pretrial motions.
So, if there’s any prejudice to [] Stenson it is certainly minimal at this point.
I think the reasons for granting the continuance are compelling.
VRP (6/12/2013) at 37-38. The trial court found good cause, granted the State’s motion, and ruled
that “the administration of justice” required the continuance in order for a fair trial to occur for
both parties. VRP (6/12/2013) at 34. After further discussion with the parties, the trial court set a
new trial date for September 16, the earliest possible date, in part because of defense counsel’s
unavailability due to a preplanned vacation in August.
2. Motion To Dismiss
Stenson filed a motion to dismiss the criminal charges under CrR 8.3(b). Stenson’s motion
alleged State mismanagement of the case: (1) The State’s mishandling of the pants evidence; the
State’s failure to preserve the blood evidence on the pants because cuttings of the blooddroplets
taken from the pants for DNA analysis largely consumed the blood evidence and those cuttings
were subsequently destroyed by the FBI, (2) the destruction of the original 911 CAD log on the
10
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day of the murders, and (3) that a number of critical witnesses9 were unavailable or information
lost; thus compromising his ability to proffer an “other suspect” defense implicating Denise
Hoerner, David Oberman, and Tim Robbins. Stenson argued that the State’s mismanagement of
the case, including the prior Brady violation prejudiced his right to a fair trial, and that dismissal
of the charges was warranted under CrR 8.3(b).
The trial court ruled that, under CrR 8.3(b), government misconduct in this case was not
limited to any actual misconduct by the prosecutor, but also included any misconduct by the
Clallam County Sherriff’s Department, the FBI, and PenCom. The trial court found that the actions
by the State and its agents did not rise to a level that warranted dismissal. The trial court found
that Stenson’s ability to conduct a defense and his right to a fair trial were not violated because
the mistakes, oversights that the Defense relies upon may very well provide grist in
the forthcoming trial for challenging the credibility of witnesses and the reliability
of evidence.
VRP (6/12/2013) at 92.
3. Motion To Suppress the Pants as Evidence
Stenson also filed a motion to suppress the pants themselves as evidence, rearguing the
points in the motion to dismiss—that the State’s mishandling of the pants evidence had increased
the potential for contamination and that the destruction of the blood spatter evidence compromised
his expert’s ability to best analyze the evidence. He also argued that the destruction of the cutouts
from the pants for DNA analysis was not necessary to “facilitate testing” and the State failed to
9
The witnesses include William Perry, David Oberman, Deanne Chapman, Tracey Reed, Cheryl
Fabel, Barbara and Philip Oberman, Becky and Jack Mendorf, Tim Robbins, and Carol Johnson.
11
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show that its inability to preserve this evidence outweighed Stenson’s need for the evidence. VRP
(6/12/2013) at 106-07.
Stenson asserted that the State had to show that the pants were “in substantially the same
condition” as they were when Detective Martin removed them from Stenson on the morning of the
murders.10 VRP (6/12/2013) at 117. Stenson also asserted that the photographs taken of the pants
on the day of the murders were “fuzzy” and not useful for examination. VRP (6/12/2013) at 115.
The trial court denied Stenson’s motion to suppress because there had been “full disclosure
of all the information [about the pants],” Stenson was not prejudiced, and his arguments went to
the weight of the evidence, not its admissibility; and that he could challenge the credibility and
reliability of the pants as evidence at trial. VRP (7/10/2013) at 136. Although the center of the
bloodstains were removed when the cuttings were done, several bloodstains maintained a “partial
halo” that “allow[ed] some limited ability to make a conclusion” about the source of the
bloodstains. VRP (6/12/2013) at 112.
The trial court also ruled that there was “no evidence of actual contamination of the
bloodstain evidence on the pants,” only “evidence of opportunities for contamination,” which
Stenson could point out at trial. VRP (7/10/2013) at 137. The trial court also noted that the
Supreme Court had already imposed severe sanctions on the State based on the Brady violation,
reversing the conviction and sentence, remanding for a new trial, and suppressing the GSR
evidence.
10
Stenson also challenged the pants on grounds that chain of custody was broken, but he
abandoned this argument on appeal. See VRP at (6/12/2013) at 117. Stenson did not dispute that
the pants were the same ones that Detective Martin collected from him on March 25, 1993.
12
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4. Spoliation Instruction
Pretrial, Stenson requested that a spoliation instruction be given at trial on the destruction
of the bloodstain evidence on the pants. Stenson’s proposed instruction read,
If you find that the state lost or destroyed or mutilated, altered, concealed,
or otherwise caused portions of the pants where the State contends blood spatter or
transfer to be present to be unavailable, and the missing portions of the pants would
have been material in deciding the material issues in this case, then you may infer
that the evidence would have been unfavorable to the State. You may consider this,
together with the other evidence, in determining the issues of the case.
CP at 380. In denying Stenson’s request, the trial court found that there was an explanation for
the cuttings taken from Stenson’s pants for DNA analysis of the bloodstains on the pants, there
was no basis for Stenson’s proposed spoliation instruction, and the instruction if given would
constitute an “impermissible comment on the evidence by a trial judge.” VRP at 3953.
B. TRIAL
Stenson’s second trial began on September 16, 2013.
1. Denise Hoerner’s Testimony and Stenson’s Motion for Mistrial
Denise Hoerner testified at the second trial. In her response to the prosecutor’s question
about when Hoerner adopted her son, Denise Hoerner stated,
Um, we got the name changed and everything and afterwards we saw—we saw a
lawyer prior to [Stenson] killing Frank.
VRP at 1288. Stenson objected, and the trial court immediately struck Denise Hoerner’s statement
and instructed the jury to disregard the remark.
At the next trial recess, Stenson moved for a mistrial based on Denise Hoerner’s earlier
statement about “[Stenson] killing Frank.” VRP at 1312-13. The trial court denied the mistrial
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because it had immediately instructed the jury to disregard the comment to cure any potential
prejudice, and the trial court “expect[ed] the jury to follow” its curative instruction. VRP at 1313.
Later, in order to clarify its ruling, the trial court sua sponte addressed Stenson’s mistrial
motion, noting on the record Denise Hoerner’s emotional state when she made the remark. See
VRP at 1354. The trial court made a further record commenting on the testimony from Denise
Hoerner, her emotional outbursts, the fact that she had promised to abide by the court’s rules while
testifying; but that she was hyperventilating, sobbing and shaking uncontrollably at times and that
she was unable to comprehend the rules, or unable to conform her behavior, despite being
reminded by the court before she testified. The trial court commented that Denise Hoerner was 25
years old when her husband and her close friend [Denise Stenson] were killed but during her
testimony, she acted as if these events took place yesterday. The trial court found that Denise
Hoerner’s testimony assisted the defense and impacted her credibility as a witness. The trial court
also stated, “I do think [the jury] will follow my instruction and I am satisfied that I told them to
ignore the remark. I have no reason to believe they will not follow that instruction.” VRP at 1512.
After Denise Hoerner completed her testimony, Stenson again moved for a mistrial,
alleging that Denise Hoerner whispered, “[L]iar, liar, liar” to the jury during her cross-
examination. VRP at 1523. The court asked the court reporter to review the record, but nothing
was found in the record that Denise Hoerner said, “[L]iar, liar, liar. VRP at 1527. The trial judge
noted that he and the court reporter are the two individuals closest to the witness stand, and that
neither of them heard any such comment from Denise Hoerner during her testimony.
The trial court asked the jurors whether anyone heard Denise Hoerner make “a comment
directed to one or more of the jurors other than an answer to a question.” VRP at 1529. Five jurors
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stated that they had heard Denise Hoerner make a comment directed at the jury. The trial court
then questioned each juror individually. The jurors stated that Denise Hoerner mumbled, made a
directed comment to the jury, said that she was “sorry” a number of times, and made comments to
clarify her testimony. VRP at 1533.
One juror stated that Denise Hoerner said “liar”—she “would turn and look and go ‘he’s
lying’”—and that Denise Hoerner would continue her comments to elaborate more on her
testimony. VRP at 1536. The juror also stated that “I don’t think that I heard anything specifically
that was . . . detrimental.” VRP at 1536. Many of the jurors could not recall specifics regarding
the content of Denise Hoerner’s comments. All said that they were still able to be fair and
impartial, and that Denise Hoerner’s comments would not affect their verdict.
After hearing the jurors’ responses, the trial court denied Stenson’s second mistrial motion,
noting that the jury was
incredibly attentive and all of them realized that what was happening was not
appropriate and did their very best to ignore it. I accept their answers that it did not
and will not impact their ability to be fair and impartial as jurors.
VRP at 1540.
2. Rae Ellen Wagner Testimony and ER 609 Evidence
Rae Ellen Wagner11 testified during direct examination that, in 1993, she was friends with
Denise Hoerner, Denise and her husband always fought, Denise was often angry at Hoerner over
finances, Denise said that she would be better off financially if Hoerner died, and that shortly after
11
Rae Ellen Wagner is formerly known as Rae Ellen Shulda. VRP at 3010-11. Wagner is the
name that all parties use to refer to her in the briefing and on the record. This opinion uses the
name “Wagner” to avoid confusion and means no disrespect.
15
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Hoerner’s death, Denise went on vacations with male friends, sold Hoerner’s belongings, and
began dating men. Wagner stated that Denise Hoerner “didn’t paint it as she missed [Hoerner].
She didn’t paint it as she was mourning him,” and that Denise said Hoerner was “not the perfect
man.” VRP at 3024. She also testified that Denise spent a lot of money after Hoerner died.
During cross-examination, the State sought to introduce evidence of Wagner’s prior drug
convictions to impeach her credibility as a witness. Wagner had ten prior felony drug convictions
over the previous five years. The State, in support of admitting the evidence against Wagner,
argued that
[t]his witness seems unusually eager to me to . . . slander Ms. Hoerner. She is going
far beyond even the questions and volunteering her speculation as to Mrs. Hoerner’s
spending habits, stuff that she doesn’t even need [--] sounds like the witness is
jealous of Ms. Hoerner.
VRP at 3030. After hearing argument from both parties, the trial court permitted the prior
convictions for the purposes of impeaching Wagner, stating, “[U]nder 609(a), I think it is proper
impeachment.” VRP at 3030.
After its ruling, the following exchange between the trial court and defense counsel
occurred,
[Defense Counsel]: Your Honor, there has to be a finding under 609(a) that the
probative value of the evidence outweighs the prejudice, and I don’t think that
showing has been made.
[Court]: Well, I do find that. I think it goes right to the credibility of the witness’s
testimony. I think it should be allowable. Let the jury determine the issue of
credibility. I think the State is entitled for the jury to know that those facts exist.
VRP at 3030.
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3. Trial Court’s Reasonable Doubt Instruction
The trial court instructed the jury on reasonable doubt in the following instruction,
The Defendant has entered a plea of not guilty. That plea puts in issue every
element of each crime charged. The State is the plaintiff and has the burden of
proving each element of each crime beyond a reasonable doubt. The Defendant has
no burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues throughout
the entire trial unless during your deliberations you find it has been overcome by
the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the
evidence or lack of evidence. It is such a doubt as would exist in the mind of a
reasonable person after fully, fairly, and carefully considering all of the evidence
or lack of evidence. If, from such consideration, you have an abiding belief in the
truth of the charge, you are satisfied beyond a reasonable doubt.
CP at 289 (Instr. no. 5). Stenson did not object to this instruction.
4. Closing Arguments
During closing argument, Stenson’s counsel argued,
Now, you know [the prosecutor] started out by going over each piece of
evidence with you and trying to kind of mold this into something and another . . .
one of the things she said to you is you have to piece this together because the
evidence is not very clear. Evidence that’s not very clear leads to a reasonable
doubt. The State has the burden of proof . . . . I don’t think anybody could every
really know what happened at the Stenson resident on March 25, 1993. The State’s
evidence is all jumbled up.
VRP at 4097.
In response to this argument, the prosecutor argued on rebuttal,
Defense counsel would have you ignore or toss the evidence if it doesn’t
immediately fir into a nice, clean, tidy picture. It [--] it’s all jumbled up, just like a
jig saw puzzle . . . . [B]ut you can’t tell from [one] piece what the picture is.
17
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CP 4170-71. The prosecutor went on to describe how one organizes the pieces of a puzzle to fit
the pieces together,
[W]hat you do is you pick up a piece. That one does not fit, you look for one with
the same color or pattern . . . . And then you do the same thing over and over again.
....
[Y]ou are missing a piece . . . or [two], and [sometimes four or five], and you say
crap, I’ve just spent all these hours working on it and you are missing a piece of the
puzzle or [two], but you still you have done that. You don’t need the box top to see
the picture.
Here, the evidence is here. The pieces are here. At the end you may
conclude that you’re missing a few pieces, that you have pieces that are gone. But
I submit to you, you may have questions, but I submit to you that after full, fair and
careful consideration of the facts of the evidence, of the lack of evidence, you’re
still going to be able to see the picture of what happened to Frank Hoerner and
Denise Stenson on March 25, 1993. You will be convinced, you will have an
abiding belief in the truth of the charge, that the Defendant killed them.
VRP at 4170-72.
The jury found Stenson guilty of both counts of premediated first degree murder with
aggravating factors. Stenson appeals his convictions.
ANALYSIS
I. CRR 3.3: TIME FOR TRIAL
Stenson argues that the trial court violated CrR 3.3 when it granted the State’s motion for
continuance and set trial for September 16, 2013, past the time for trial deadline. We disagree.
Under CrR 3.3(b)(1)(i) and (b)(5), a defendant held in custody pending trial must be
brought to trial within 60 days of arraignment or within 30 days after the end of an “excluded
period.” “Excluded periods” include the time granted for a continuance. CrR 3.3(e)(3). On a
motion by either party, the trial court may continue the trial date to a specified date beyond the
time for trial period when
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continuance is required in the administration of justice and the defendant will not
be prejudiced in the presentation of his or her defense. The motion must be made
before the time for trial has expired. The court must state on the record or in writing
the reasons for the continuance.
CrR 3.3(f)(2).
A trial court’s decision to grant or deny a motion for continuance is within the trial court’s
discretion, which we will not disturb absent an abuse of discretion. State v. Ollivier, 178 Wn.2d
813, 822-23, 312 P.3d 1 (2013), cert. denied, 135 S. Ct. 72 (2014). The defendant must make a
clear showing that the trial court’s basis for granting the continuance is “‘manifestly unreasonable,
or exercised on untenable grounds, or for untenable reasons.’” State v. Flinn, 154 Wn.2d 193, 199,
110 P.3d 748 (2005) (internal quotation marks omitted) (quoting State v. Downing, 151 Wn.2d
265, 272, 87 P.3d 1169 (2004)). “In exercising its discretion to grant or deny a continuance, the
trial court is to consider all relevant factors.” State v. Heredia-Juarez, 119 Wn. App. 150, 155, 79
P.3d 987 (2003).
“Allowing counsel time to prepare for trial is a valid basis for continuance.” Flinn, 154
Wn.2d at 200. Scheduling conflicts also may be a valid reason for a continuance. See Heredia-
Juarez, 119 Wn. App. at 153 (continuance was valid due to a scheduling conflict with a
prosecutor’s “reasonably scheduled vacation”). A continuance may be proper to allow the parties
time to locate a witness or when a witness is unavailable. See State v. Lillard, 122 Wn. App. 422,
436, 93 P.3d 969 (2004) (witness unavailable due to a medical condition).
Stenson argues that the additional time needed to prepare for trial by the State was due to
inadequate staffing which he asserts is not a proper basis for a continuance. But that is not the
reason the trial court granted the continuance. In granting the continuance, the trial court
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considered the time required by both parties to properly prepare for trial on a twenty-year-old
murder case; the budgetary constraints facing the State; the seven public records requests related
to Stenson’s case investigation requested by the defense since December 2012; the time and
staffing resources required for the State to respond to those requests while also preparing for trial;
its previous continuance granted at Stenson’s request due to discovery demands; the ongoing
discovery needs of both parties, including outstanding discovery due by the defense; witness
coordination issues; and the amount of pretrial motions, briefings, and hearings required before
trial which hearings had not been set. The trial court stated,
The fact that the [d]efense attorneys in the case, again doing what I consider
to be very excellent legal work, have generated a couple thousand hours of work in
this case, there’s no conceivable way that the prosecuting attorney can devote the
same amount of time to that case.
There’s nothing unfair about that. [Stenson] is facing the most serious
charges known to law. He’s entitled to a complete, full, competent defense. He is
being afforded that, and I’m going to make sure that he’s—that level of work and
expertise continues to be provided to him.
But it has to be a level playing field. The State is entitled to a fair trial as
well as are the people of this county who Ms. Kelly represents. And I am not going
to force her to trial a month from now in a position where she honestly tells the
[c]ourt—and I have no reason to question what she’s telling me—she simply can
not be fully and completely prepared to go to trial on July the 8th.
....
The rule requires that a continuance can be granted if it is required in the
administration of justice, and I do find that in this case it is required in the
administration of justice.
VRP (6/12/2013) at 33-34. The trial court also considered any prejudice to Stenson and ruled that
a two-month continuance would not materially prejudice Stenson, and that “if there’s any prejudice
to [] Stenson it is certainly minimal at this point.” VRP (6/12/2013) at 38. In setting the new trial
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date, the trial court considered defense counsel’s August vacation and the court’s own schedule,
and then set trial for September 16, the earliest possible date.
Allowing counsel adequate time to prepare for trial given the demands of a complex case
with extensive evidence is a valid reason to grant a continuance. Further, the record shows that
both Stenson and the prosecutor needed additional time to locate and coordinate witnesses, respond
to pretrial motions, and examine discovery. Stenson fails to show that the trial court’s decision to
grant the continuance based on “the administration of justice” was a manifest abuse of discretion.
Thus, we hold that there was no time for trial violation under CrR 3.3(f)(2).
II. MOTION TO DISMISS
Stenson argues that the trial court erred when it failed to dismiss his case under
CrR 8.3(b).12 Stenson argues that the State did not preserve the bloodstain evidence on the pants,
the State did not properly photograph the condition of the pants on the day of the murders, the
subsequent cuttings of the bloodstains on the pants for DNA analysis largely consumed the
bloodstain evidence, the State then destroyed the cuttings after the DNA testing, and that the State
also failed to preserve and then destroyed the original 911 CAD log. Stenson argues that the
State’s actions amount to government mismanagement and misconduct warranting dismissal of
the charges. We agree with Stenson that the State’s conduct amounts to governmental
12
Stenson argues that the trial court erred when it failed to grant his motion to dismiss because the
State’s Brady violation in failing to produce (1) photographs of Detective Martin wearing
Stenson’s pants, and (2) the FBI file showing that another person tested the GSR on the pants not
the expert witness who testified in Stenson’s first trial justified dismissal. The Brady violation
was already litigated and our Supreme Court reversed Stenson’s convictions and remanded for a
new trial. In Re Stenson, 174 Wn.2d 474. Stenson fails to demonstrate why we should permit him
to relitigate this issue on appeal, and we hold that this argument is without merit.
21
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mismanagement of the case, but we disagree that the State’s conduct materially affected Stenson’s
right to a fair trial because the outcome of the trial would not have been different.
A. LEGAL PRINCIPLES
CrR 8.3(b) provides that
[t]he court, in the furtherance of justice, after notice and hearing, may dismiss any
criminal prosecution due to arbitrary action or governmental misconduct when
there has been prejudice to the rights of the accused which materially affect the
accused’s right to a fair trial. The court shall set forth its reasons in a written order.
In order for a court to dismiss criminal charges under CrR 8.3(b), “the defendant must show by a
preponderance of the evidence both (1) arbitrary action or governmental misconduct, and (2) actual
prejudice affecting the defendant’s right to a fair trial.” State v. Martinez, 121 Wn. App. 21, 29,
86 P.3d 1210 (2004). The government’s misconduct does not need to be “‘of an evil or dishonest
nature; simple mismanagement is sufficient.’” State v. Michielli, 132 Wn.2d 229, 239-40, 937
P.2d 587 (1997) (emphasis omitted) (quoting State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d
1017 (1993)). Dismissal is “an extraordinary remedy used only in truly egregious cases.” State v.
Flinn, 119 Wn. App. 232, 247, 80 P.3d 171 (2003), aff’d, 154 Wn.2d 193.
The mere possibility of prejudice resulting from governmental misconduct is not sufficient
to meet the burden of showing actual prejudice. State v. Norby, 122 Wn.2d 258, 264, 858 P.2d
210 (1993). The alleged governmental misconduct must have “materially affected the defendant’s
right to a fair trial.” State v. Brooks, 149 Wn. App. 373, 389, 203 P.3d 397 (2009). That is, but
for the State’s alleged misconduct, the outcome of trial would have been different.
We review a trial court’s decision on a CrR 8.3(b) motion to dismiss for a manifest abuse
of discretion. Martinez, 121 Wn. App. at 30. “Discretion is abused when the trial court’s decision
22
45665-6-II
is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.”
Blackwell, 120 Wn.2d at 830. A decision is manifestly unreasonable if the trial court, applying
the correct legal standard to the facts of the case, adopts a view “‘that no reasonable person would
take,’” and a decision is based on untenable grounds “‘if it rests on facts unsupported in the record
or was reached by applying the wrong legal standard.’” Martinez, 121 Wn. App. at 30 (internal
quotation marks omitted) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).
We hold that the trial court did not abuse its discretion in denying Stenson’s motion to dismiss
under CrR 8.3(b).
B. THE BLOODSTAIN EVIDENCE AND THE PANTS EVIDENCE
We agree with Stenson that the State mismanaged the case. The State failed to photograph
the pants intact before they were removed on the day of the murders, only one photograph was
taken which was of poor quality, the FBI lab discarded the cuttings of the bloodstains on the pants
after the DNA testing, the State’s detective touched the pants with ungloved hands, and most of
the bloodstain evidence on the pants was consumed during the DNA testing.
But Stenson fails to show that the State’s mismanagement materially affected his right to
a fair trial such that the outcome of the trial would have been different but for the State’s
mismanagement. First, Stenson was able to proffer his expert’s opinion that there was an
alternative explanation for the blood spatter and how the blood was actually deposited on the pants
to rebut the State’s expert as to how the blood came to be deposited on the pants. Second, Stenson
was able to draw attention to the mismanagement and offer testimony and evidence to undermine
the reliability of the blood evidence on the pants. Third, the blood evidence on the pants was
Hoerner’s blood, a fact that Stenson did not dispute, which provided the jury with strong evidence
23
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of Stenson’s guilt. We hold that Stenson fails to show that the outcome of the trial would have
been different. Thus, the trial court did not abuse its discretion in denying the motion to dismissal
on this basis.
C. THE ORIGINAL 911 CAD LOG
Stenson also argues that the State’s failure to preserve and destruction of the original 911
CAD log compromised his ability to challenge the State’s timeline on the day of the murders. He
argues that the State’s mismanagement of the case prejudiced him and that dismissal on this basis
was warranted. We disagree.
The original 911 CAD log was not intentionally destroyed due to the State’s mis-
management. Rather the 911 call service provider inadvertently destroyed the original 911 CAD
log when it upgraded its computer system. And other relevant portions of the 911 call were
preserved, namely the 911 call transcript and the audio copy of the 911 call tape. Stenson was able
to challenge the timeline of the 911 call at trial citing the discrepancies in the State’s evidence.
See VRP (6/12/13) at 55. Thus, he was able to present his defense that the timeline was incorrect.
He fails to show that the destruction of the original 911 CAD log prejudiced his ability to obtain a
fair trial such that the outcome at trial would have been different. Thus, we hold that the trial court
did not abuse its discretion in denying the motion to dismiss on this basis.
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D. UNAVAILABLE WITNESSES AND INFORMATION
Stenson also argues that critical witnesses and information were “unavailable” 13 after 20
years due to the State’s mismanagement and Brady violations, that he was prejudiced, and that
dismissal is warranted under CrR 8.3(b) on this basis. He argues that the witnesses’ testimony
would have established the circumstances about the insurance proceeds he received from his boat
sinking, the status of his business and financial affairs at the time of the murders, Denise Hoerner’s
character, and that there are other suspects, namely Denise Hoerner, David Oberman, and Tim
Robbins. We disagree that the State’s mismanagement of the case directly caused the loss of
information or unavailability of witnesses. Although Stenson claims that this missing testimony
and evidence would have been potentially helpful for his defense, he fails to show actual prejudice
such that the outcome of the trial would have been different. Thus, we hold that the trial court did
not err in denying Stenson’s motion to dismiss on this basis.
1. William Perry and David Oberman
Stenson argues that William Perry and David Oberman were unavailable for a second trial.
William Perry would have testified about Stenson’s financial affairs and business operations, but
13
These witnesses either were deceased, could not remember, could not be located, or were
unavailable for the second trial. Stenson argues that certain information was missing or not
available, including the two applications for insurance proceeds Stenson made, Denise Hoerner’s
medical records, crime scene sketches, and a detective’s interview notes dated March 25, 1993, of
a neighbor who heard shots the morning of the murders. VRP (June 12, 2013) at 65. The insurance
applications were available for trial. VRP (June 12, 2013) at 77. As to the remaining information,
the State responded that Hoerner’s medical records, crime scene sketches, and the detective notes
were not favorable to the defense, that this information was not exculpatory evidence, and that the
State was not required to provide this information to Stenson. VRP (June 12, 2013) at 80-81.
Stenson fails to show that any of this information would have resulted in a different outcome at
trial.
25
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he could not be located. But Perry and Oberman testified at Stenson’s first trial. Thus, transcripts
of their trial testimony were available for use at the second trial. VRP (June 12, 2013) at 61, 78,
176, 202. Stenson’s argument that these witnesses were unavailable fails.
2. Deanna Chapman
Stenson argues that Deanna Chapman was no longer available for trial due to her poor
memory. She said previously that David Oberman told her that the murder weapon belonged to
him but that the weapon had disappeared several weeks before the murders. VRP (June 12, 2013)
at 63-64. There is no evidence that this hearsay evidence would have been admissible even if
Deanna were able to testify.
3. Tracey Reed
Stenson argues that Tracey Reed, David Oberman’s girlfriend, was unavailable. VRP
(June 12, 2013) at 60. She would have allegedly testified to similar things as David and Barbara
Oberman that Denise Hoerner abused her son, that she did not respect personal boundaries, and
that she “was always trying to get back at somebody for something.” CP at 2440. But Reed was
not the State’s witness, Reed was in the Seattle area, and a warrant had been issued for her at some
point. VRP (June 12, 2013) at 78-79. The record is not clear whether Reed could have been
located for trial and Reed’s unavailability for trial cannot be attributed to the State.
4. Cheryl Fabel
Stenson argues that Cheryl Fabel, a friend of Denise Hoerner, had “damaging information”
but was unavailable for a second trial. VRP (6/12/2013) at 62. Fabel would have allegedly
testified that Denise Hoerner “[knew] how to use a gun, had affairs with other men before her
husband died, had concerns about her pre-nupt[ial] agreement, was obsessed with money, [and]
26
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planned to take the ‘SOB’ with everything.” VRP (June 12, 2013) at 62-63. The State responds
that Fabel was uncooperative, that Stenson could have deposed her14 but had not done so, and that
it was unclear whether her testimony at trial would be admissible. VRP (June 12, 2013) at 77-78.
Stenson’s argument fails.
5. Barbara & Philip Oberman, Becky & Jack Mendorff, and Carol Johnson
Stenson argues that several witnesses were deceased and thus were unavailable, including
Barbara and Philip Oberman, Jack and Becky Mendorff, and Carol Johnson. These witnesses
would have allegedly testified about Denise Hoerner’s character, her relationships with her
husband and Denise Stenson, and Denise Hoerner’s activities on the day of and after the murders.
David Oberman, the Hoerner’s neighbor who had died, allegedly would have testified that Denise
Hoerner and Hoerner had a troubled marriage, that Denise would “change her story and lie,” that
she physically abused her son and “thought it was funny,” and that Denise Hoerner harassed him.
CP at 2439. Stenson argues that this testimony would have “significantly” assisted him at trial.
CP at 2473.
Barbara Oberman, Denise Stenson’s mother, would have allegedly given testimony that
Denise Hoerner had boundary issues, had broken into the Stenson home once, and that Denise
Stenson indicated shortly before her murder that Denise Hoerner was not welcome.
Philip Oberman, Denise Stenson’s father, would have allegedly testified that the Stensons
had a good marriage, and that Denise Hoerner had been bothering Denise Stenson.
14
The record is not clear why Stenson did not depose Fabel.
27
45665-6-II
Jack Mendorff and his wife Becky Mendorff, the Stensons’s neighbors, would have
allegedly testified that Denise Hoerner arrived at their house early on the morning of the murders,
contradicting Denise Hoerner’s timeline and indicating that she had “some independent knowledge
of the shootings.”15 CP at 2474. And Carol Johnson, the Stensons’s former neighbor, would have
also allegedly testified that the Stensons “got along well,” which Stenson argues that her
“testimony attesting to a positive relationship is helpful and important.” CP at 2477. Stenson fails
to show how these witnesses’ unavailability materially affected his right to a fair trial such that the
outcome of the trial would have been different. Thus, the trial court did not err in denying his
motion to dismiss under CrR 8.3(b) on this basis.
6. Other Suspect Evidence
Finally, Stenson argues that a number of the unavailable witnesses could have provided
testimony about other persons he asserts are possible suspects, Denise Hoerner, David Oberman,
and Tim Robbins. Robbins was Denise Hoerner’s attorney in another civil matter. Robbins’s
girlfriend was murdered in the summer of 1992, and Robbins allegedly made comments about
killing someone and making it look like a suicide or killing someone with a gun to the head.
Robbins later committed suicide. Stenson argues that Robbins’s prior testimony is helpful to his
defense. But there is no evidence linking Robbins to the murders in this case.
15
Stenson alleges that Jack had said in an interview with the police that “Denise Hoerner appeared
on his door step, clad only in [Hoerner’s] robe, asking what happened to [Hoerner], where is
[Hoerner], before she could have known about the murders had she not been involved in them. He
is the only person who could testify to that and he’s gone.” VRP (6/12/2013) at 59.
28
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Stenson fails to show how the other suspect evidence or testimony would have been
admissible at trial. Nor does Stenson show that the outcome of the trial would have been different.
Thus, we hold that the trial court did not abuse its discretion in denying Stenson’s motion to dismiss
on this basis.
III. MOTION TO DISMISS BASED ON DUE PROCESS VIOLATION
Alternatively, Stenson argues that the trial court erred in denying his motion to dismiss
based on a due process destruction of evidence theory.16 He argues that the “federal test for
destruction of evidence” under Arizona v. Youngblood17 applies. Br. of Appellant at 63. But the
testing related to the blood evidence was not materially exculpatory evidence but only potentially
useful evidence. The State and the FBI attempted to preserve the blood evidence, and handled the
blood evidence in the usual manner and followed proper protocols in testing the blood evidence.
Absent bad faith by the State, which Stenson fails to show, we hold that the trial court did not
abuse its discretion in denying the motion to dismiss based on a due process destruction of evidence
theory.
To comply with due process, the prosecution has a duty to disclose material exculpatory
evidence to the defense and a related duty to preserve such evidence for use by the defense. See
Brady, 373 U.S. at 87-88 (the prosecution has a duty to disclose materially exculpatory evidence
to the defendant); California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 81 L. Ed. 413
(1984) (the prosecution has a duty to preserve materially exculpatory evidence). However, there
16
Our Supreme Court already addressed the Brady violation when it ordered a second trial. In Re
Stenson, 174 Wn.2d at 494. We do not address that issue further.
17
488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
29
45665-6-II
is not an unqualified duty to “retain and to preserve all material that might be of conceivable
evidentiary significance.” Youngblood, 488 U.S. at 58.
Our Supreme Court adopted the Youngblood standard for destruction of evidence in State
v. Wittenbarger, 124 Wn.2d 467, 880 P.2d 517 (1994). “A showing that the evidence might have
exonerated the defendant is not enough,” the evidence must be “‘material[ly] exculpatory
evidence.’” Wittenbarger, 124 Wn.2d at 475 (quoting Trombetta, 467 U.S. at 489). To be
“materially exculpatory evidence,” the evidence must (1) have “exculpatory value that was
apparent before it was destroyed” and (2) “be of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available means.” Wittenbarger, 124 Wn.2d
at 475 (citing Trombetta, 467 U.S. at 489).
Due process is not violated by the State’s failure to preserve “potentially useful” evidence
unless the defendant can prove bad faith by the State. Wittenbarger, 124 Wn.2d at 477 (citing
Youngblood, 488 U.S. at 58). When the State performs one test that interferes with the ability to
conduct a subsequent test, absent bad faith, there is no due process violation. See State v. Lord,
117 Wn.2d 829, 867-68, 822 P.2d 177 (1991) (citing Youngblood, 488 U.S. at 57-58).
Stenson fails to demonstrate that the bloodstain evidence on the pants was materially
exculpatory. His own expert’s qualified opinion mirrored that of the State’s expert–that the blood
was deposited on the right leg of the pants from either dripped blood or contact transfer. Although
Stenson’s expert said it would be best if he could have additional testing of the bloodstain evidence
on the pants, it is not clear that the cuttings from the pants were “materially exculpatory” at the
time the cuttings were taken; thus, the cuttings were only “potentially useful” evidence. Further,
the photographs show that the bloodstain evidence and the pattern of the bloodstains on the pants
30
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(referred to as the halo rings) still had some level of bloodstain deposits remaining; thus, it is not
clear that the evidence Stenson seeks was only available through the cuttings consumed during the
DNA testing. Trombetta, 467 U.S. at 489.
Stenson also fails to show bad faith by the State. VRP (6/12/2013) at 93-94. The evidence
was not lost until after Stenson’s first trial and direct appeal had concluded. Further, the FBI
attempted to preserve the bloodstain evidence and its pattern by photographing the intact pants
before making the cuttings required for the DNA analysis. CP at 992-93. Stenson does not argue
that the State and FBI failed to handle the blood evidence “in its usual manner” or that they failed
to follow the standard protocols used in 1993 and 1994. See State v. Ortiz, 119 Wn.2d 294, 302,
831 P.2d 1060 (1992) (holding that the trial court did not abuse its discretion denying defendant’s
motion to dismiss when it found that the State acted “reasonably and in good faith”).
Thus, because the bloodstain evidence was not materially exculpatory, but only potentially
useful evidence, and the State did not act in bad faith in conducting DNA testing on the bloodstain
evidence on the pants, the trial court did not abuse its discretion when it denied Stenson’s motion
to dismiss based on a due process destruction of evidence theory.18
IV. MOTION TO SUPPRESS THE PANTS BASED ON DUE PROCESS VIOLATION
Stenson argues that due process requires the suppression of the pants as evidence. We hold
that Stenson cannot show a due process violation because he cannot show that the State acted in
18
Stenson argues that there is an “independent due process test” for destruction of evidence derived
in the Washington Constitution. Br. of Appellant at 66-67. However, our Supreme Court
expressly rejected this argument in Wittenbarger. 124 Wn.2d at 496 (holding that the state due
process clause affords the same protection as its federal counterpart regarding a defendant’s right
to potentially exculpatory evidence and the State’s duty to preserve such evidence).
31
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bad faith in handling the pants. Thus, we hold that the trial court did not err in denying his motion
to suppress the pants.
Suppression of evidence is an appropriate alternative sanction to a CrR 8.3(b) motion to
dismiss. See State v. Marks, 114 Wn.2d 724, 730, 790 P.2d 138 (1990) (“Dismissal is unwarranted
in cases where suppression of evidence may eliminate whatever prejudice is caused by
governmental misconduct.”). Suppression of evidence is also an appropriate sanction available to
the trial court when confronted with the destruction of evidence, if suppression will be effective to
assure the defendant a fair trial. See State v. Boyd, 29 Wn. App. 584, 590, 629 P.2d 930 (1981).
But the defendant must still show that the destroyed evidence is (1) “materially exculpatory” or
(2) that the State destroyed the evidence in bad faith. See Youngblood, 488 U.S. at 57-58;
Wittenbarger, 124 Wn.2d at 477.
However, as analyzed above, Stenson has failed to show that the State acted in bad faith.
In denying Stenson’s motion to dismiss, the trial court explained there has been “full disclosure of
all the information [about the pants]” and that Stenson could challenge the credibility and
reliability of the pants as evidence at trial. VRP at 136. The trial court further stated,
[I]t is the [c]ourt’s opinion that the arguments, the challenges, the issues that the
Defense has with the pants do not prohibit or preclude its admissibility as evidence.
They do go to the weight of the evidence, and obviously what I just read is a script
for what the Defense is now able to do on a retrial.
The new evidence that has been disclosed basically means that the approach
taken by the Defense in terms of dealing with this critical piece of evidence offered
by the State will be vastly expanded and very different.
VRP at 137.
32
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There was no evidence of actual contamination of the blood evidence on the pants; there
were only opportunities for contamination that Stenson could point out in trial. Stenson has failed
to show bad faith by the State in its handling of the pants. Thus, we hold that the trial court did
not err when it denied Stenson’s motion to suppress.
V. SPOLIATION INSTRUCTION
Stenson argues that the trial court erred when it refused to give a spoliation instruction
related to the destruction of the bloodstain evidence on the pants. We hold that the trial court did
not abuse its discretion in denying Stenson’s requested spoliation instruction.
We review a trial court’s refusal to give a requested jury instruction on spoliation for an
abuse of discretion. See State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). A trial
court abuses its discretion when its decision is manifestly unreasonable or based upon untenable
grounds or reasons. State v. Reed, 168 Wn. App. 553, 571, 278 P.3d 203 (2012).
Jury instructions are sufficient when they are supported by substantial evidence, allow the
parties to argue their theories of the case, and properly inform the jury of the applicable law. State
v. Soper, 135 Wn. App. 89, 101, 143 P.3d 335 (2006). It is prejudicial error to give an instruction
to the jury that is not supported by the evidence. Soper, 135 Wn. App. at 101.
In determining whether to give a requested spoliation jury instruction, we review the
potential importance or relevance of the missing evidence and the culpability or fault of the adverse
party. Tavai v. Walmart Stores, Inc., 176 Wn. App. 122, 135, 307 P.3d 811 (2013). As for
culpability, we examine whether the adverse party acted in bad faith or conscious disregard of the
importance of the evidence, or whether there was some innocent explanation for the destruction.
Henderson v Tyrrell, 80 Wn. App. 592, 609, 910 P.2d 522 (1996).
33
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Stenson’s requested spoliation instruction pertained solely to the cut out portions of the
pants evidence that contained the bloodstains. CP at 380. During trial, six witnesses testified that
the cutouts were made for the purposes of DNA testing. At least three different DNA tests were
performed on the cuttings in 1993-94 and 2008-09 during which the cuttings were completely
consumed or disposed of after testing. See CP at 1053-55 (Genelex DNA Testing Report 1994);
CP at 1063-64, 1066-68 (WSP Crime Lab Report 2009); CP at 1070 (Marysville Crime Lab Report
2009).
The facts here do not support a spoliation instruction because the State sufficiently
explained that the destruction of the bloodstain evidence resulted from DNA testing. Thus, we
hold that the trial court did not abuse its discretion when it denied Stenson’s requested spoliation
instruction.
VI. MOTIONS FOR MISTRIAL
Stenson argues that the trial court erred when it failed to grant his motions for mistrial after
Denise Hoerner remarked that Stenson killed her husband and after she whispered liar, liar, liar in
front of the jury. We disagree.
A. LEGAL PRINCIPLES
We review a trial court’s decision to deny a motion for mistrial for an abuse of discretion.
State v. Perez-Valdez, 172 Wn.2d 808, 819, 265 P.3d 853 (2011). We will find an abuse of
discretion “‘only when no reasonable judge would have reached the same conclusion.’” State v.
McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (internal quotation marks omitted) (quoting
State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997)). A trial court should grant a
mistrial “‘only when the defendant has been so prejudiced that nothing short of a new trial can
34
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insure that the defendant will be tried fairly.’” State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d
1014 (1989) (internal quotation marks omitted) (quoting State v. Mak, 105 Wn.2d 692, 701, 718
P.2d 407 (1986)).
Under CrR 7.5(a)(5), a trial court may grant a motion for a mistrial “when it affirmatively
appears that a substantial right of the defendant was materially affected” by an irregularity in the
proceedings that prevented the defendant from having a fair trial. When a trial irregularity occurs,
to determine its effect, we examine “‘(1) its seriousness, (2) whether it involved cumulative
evidence, and (3) whether the trial court properly instructed the jury to disregard it.’” State v.
Gamble, 168 Wn.2d 161, 177, 255 P.3d 973 (2010) (internal quotation marks omitted) (quoting
Hopson, 113 Wn.2d at 284).
A trial court has wide discretion to cure a trial irregularity resulting from improper witness
statements. Gamble, 168 Wn.2d at 177. “In some cases[,] curative instructions have been held
insufficient to remove prejudicial effect.” Gamble, 168 Wn.2d at 177 (citing Hopson, 113 Wn.2d
at 284-85). We must decide whether, “when viewed against the [entire] backdrop of all the
evidence,” the improper testimony denied the defendant of a fair trial. State v. Allen, 159 Wn.2d
1, 10, 147 P.3d 581 (2006). Further, we presume that juries follow the court’s instructions, absent
evidence to the contrary. State v. Montgomery, 163 Wn.2d 577, 596, 183 P.3d 267 (2008).
B. DENISE HOERNER’S REMARK THAT STENSON KILLED FRANK
In response to a question from the prosecutor about Hoerner’s adoption of her son, Denise
Hoerner responded,
Um, we got the name changed and everything and afterwards we saw—we saw a
lawyer prior to [Stenson] killing Frank.
35
45665-6-II
VRP at 1288. Stenson objected to her remark that Stenson killed Frank, and the trial court
immediately struck the remark and instructed the jury to disregard the remark.
During the break, Stenson made his first motion for a mistrial based on Denise Hoerner’s
remark. The trial court denied the mistrial motion because any potential prejudice was cured by
his instruction to the jury to disregard the comment, which the trial court “expect[ed] the jury to
follow.” VRP at 1313.
In considering the impact of Denise Hoerner’s remark, the trial court noted that Denise
Hoerner hyperventilated, sobbed, cried, and had a hard time testifying. The trial court commented
that the jury would not be surprised that the witness thought that Stenson killed her husband, but
indicated that it believed the jury would follow the court’s instruction to disregard her remark. Her
single remark, given in the context in which she made it, is not serious enough to warrant a mistrial.
By immediately striking the remark and instructing the jury to disregard the remark, the trial court
cured any potential prejudice. Further, because Denise Hoerner did not repeat the remark, the
remark was not cumulative. We hold that Stenson was not denied the right to a fair trial as a result
of Denise Hoerner’s improper remark. Thus, the trial court did not abuse its discretion in denying
Stenson’s motion for mistrial.
C. “LIAR, LIAR, LIAR”
Stenson also argues that the trial court erred in denying his second motion for a mistrial
based on Denise Hoerner’s comments to the jury when she whispered, “[L]iar, liar, liar.” We
disagree.
We review a motion for a mistrial to determine “‘(1) its seriousness, (2) whether it involved
cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard it.’”
36
45665-6-II
Gamble, 168 Wn.2d at 177 (internal quotation marks omitted) (quoting Hopson, 113 Wn.2d at
284).
After Denise Hoerner completed her testimony, Stenson moved for a mistrial alleging that
Denise Hoerner whispered, “[L]iar, liar, liar” to the jury during her cross-examination. VRP at
1523. The trial court asked the court reporter to review the record, but nothing was found in the
record that Denise Hoerner said liar, liar, liar. The trial judge noted that he and the court reporter
were the two individuals sitting closest to the witness stand, and that neither of them heard this
comment during her testimony.
The trial court asked the jurors whether anyone heard Denise Hoerner make “a comment
directed to one or more of the jurors other than an answer to a question.” VRP at 1529. Five jurors
stated that they heard Denise Hoerner make a comment directed at the jury. The trial court then
questioned each juror individually. All said that they were still able to be fair and impartial, and
that Denise Hoerner’s comments would not affect their verdict.
After hearing the jurors’ responses, the trial court denied Stenson’s second mistrial motion,
noting that the jury was
incredibly attentive and all of them realized that what was happening was not
appropriate and did their very best to ignore it. I accept their answers that it did not
and will not impact their ability to be fair and impartial as jurors.
VRP at 1540.
The trial court properly evaluated whether the remarks impacted the jury. By questioning
each juror as to whether the juror could be fair and impartial, the trial court properly concluded
that the remarks were not so serious or cumulative that the jury could not disregard them as
instructed. We hold that Stenson was not denied a fair trial based on Denise Hoerner’s improper
37
45665-6-II
remarks. Thus, we hold that the trial court did not abuse its discretion when it denied Stenson’s
motion for mistrial.
VII. PRIOR DRUG CONVICTION EVIDENCE-ER 609
Stenson argues that the trial court erred when it admitted evidence of Wagner’s prior drug
convictions for impeachment purposes under ER 609. We disagree.
We review a trial court’s ruling under ER 609 for an abuse of discretion. State v. Garcia,
179 Wn.2d 828, 846, 318 P.3d 266 (2014). A trial court abuses its discretion when its decision is
manifestly unreasonable or based upon untenable grounds or reasons. State v. Powell, 126 Wn.2d
244, 258, 893 P.2d 615 (1995). The burden is on the appellant to prove that the trial court abused
its discretion. State v. Asaeli, 150 Wn. App. 543, 573, 208 P.3d 1136 (2009). Under the abuse of
discretion standard, we will not disturb a trial court’s decision to admit a prior conviction for
impeachment purposes absent a clear showing of abuse. State v. King, 75 Wn. App. 899, 910 n.5,
878 P.2d 466 (1994).
Under ER 609(a)(1), evidence of a witness’s prior felony convictions may be admissible
for the purpose of attacking the witness’s credibility. But the trial court must also determine “that
the probative value of admitting this evidence outweighs the prejudice to the party against whom
the evidence is offered.”
“Prior convictions are . . . only ‘probative’ under ER 609(a)(1) to the extent they are
probative of the witness’s truthfulness.” State v. Hardy, 133 Wn.2d 701, 707-08, 946 P.2d 1175
(1997). Prior drug convictions, in general, are not probative of a witness’s credibility under ER
609(a)(1). Hardy, 133 Wn.2d at 709-10. For a prior conviction to be admitted under ER 609(a)(1),
the party seeking admission of the evidence must affirmatively demonstrate that “(1) the prior
38
45665-6-II
conviction bears on the witness’s veracity and (2) the probative value outweighs the prejudice.”
Hardy, 133 Wn.2d at 711-12 (citing State v. Jones, 101 Wn.2d 113, 120, 677 P.2d 131 (1984)).
The trial court must conduct an analysis balancing the probative value against the
prejudicial effect to the defendant on the record. State v. Bankston, 99 Wn. App. 266, 270-71, 992
P.2d 1041 (2000). Before admitting a prior conviction as impeachment evidence against a
defendant witness who testifies, the trial court must also balance the following factors:
(1) the length of the defendant’s criminal record; (2) the remoteness of the prior
conviction; (3) the nature of the prior crime; (4) the age and circumstances of the
defendant; (5) the centrality of the credibility issue; and (6) the impeachment value
of the prior conviction.
State v. Calegar, 133 Wn.2d 718, 722, 947 P.2d 235 (1997) (citing State v. Alexis, 95 Wn.2d 15,
19, 621 P.2d 1269 (1980)).
The defense’s theory of the case focused on Denise Hoerner as the other suspect who
actually murdered her husband and Denise Stenson. Wagner was friends with Denise Hoerner in
1993, and testified that Hoerner’s marriage was struggling, that Denise was angry over finances,
and that Denise would be better off financially if Hoerner died. Wagner stated that Denise Hoerner
did not seem to miss or mourn Hoerner after he died, spoke poorly about him, and started dating
shortly after Hoerner’s death. Wagner also testified that Denise spent money “like it was water”
after Hoerner died, and speculated about her purchases and motives behind her purchases, “buying
[things] just to be buying them.” VRP at 3024.
During cross-examination, Wagner admitted that she had a falling out with Denise Hoerner
in 2008, and that she was not very familiar with Darold or Denise Stenson. The State then moved
to introduce evidence of Wagner’s prior drug convictions to impeach her credibility as a witness.
39
45665-6-II
Wagner had 10 prior felony drug convictions. The State argued that this evidence would impeach
Wagner who seemed “unusually eager to . . . slander Ms. Hoerner,” that her answers went beyond
the scope of the questions asked, and because she volunteered her opinions and speculated about
Denise Hoerner’s spending habits. VRP at 3028.
After hearing arguments from both parties, the trial court balanced the probative value of
the impeachment evidence against the potential prejudice to Stenson, and admitted the prior
convictions to impeach Wagner, stating, “[U]nder 609(a), I think it is proper impeachment.” VRP
at 3030. The trial court’s ruling was not manifestly unreasonable or untenable, and Stenson fails
to meet his burden. Thus, we hold that the trial court did not abuse its discretion in admitting
Wagner’s prior drug convictions to impeach her credibility as a witness under ER 609(a)(1).
VIII. REASONABLE DOUBT INSTRUCTION
Stenson challenges the definition of reasonable doubt in instruction no. 5, which is identical
to 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01,
at 85 (3d ed. 2008) (WPIC). Stenson specifically challenges the instruction’s language defining
reasonable doubt, “A reasonable doubt is one for which a reason exists and may arise from the
evidence or lack of evidence.” Br. of Appellant at 117 (citing CP 289). Stenson argues that WPIC
4.01’s reasonable doubt definition is analogous to a prosecutor’s “fill-in-the-blank” arguments
which are barred because they imply “that the jury must be able to articulate its reasonable doubt
by filling in the blank,” and impermissibly shift the burden of proof to the defendant. See State v.
Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
We review challenged jury instructions de novo, in the context of the instructions as a
whole. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007). The law is well settled that
40
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the court’s reasonable doubt instruction, which is identical to the WPIC, is a correct statement of
the law. State v. Parnel, Wn. App. 325, 328, 381 P.3d 128, review denied, No. 46995-2, 2016 WL
7166598 (Aug. 2, 2016). Thus, the trial court did not error in instructing the jury on reasonable
doubt.
IX. PROSECUTORIAL MISCONDUCT
Stenson argues that the prosecutor committed misconduct when, during closing argument,
she quantified its burden of proof by using a puzzle analogy.19 We disagree.
A defendant has a constitutional right to a fair trial under the Sixth and Fourteenth
Amendments to the United States Constitution and under article I, section 22 of the Washington
State Constitution. In re Glasmann, 175 Wn.2d 696, 703, 286 P.3d 673 (2012). Prosecutorial
misconduct may deprive a criminal defendant of a fair trial. Glasmann, 175 Wn.2d at 703-04.
Arguments that shift or misstate the burden of proof from the State to the defendant constitute
misconduct. State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125 (2014).
In a claim of prosecutorial misconduct, the defendant bears the burden to prove that the
prosecutor’s remarks were both improper and prejudicial. Emery, 174 Wn.2d at 756. If the
19
The prosecutor argued during closing:
Here, the evidence is here. The pieces are here. At the end you may
conclude that you’re missing a few pieces, that you have pieces that are gone. But
I submit to you, you may have questions, but I submit to you that after full, fair and
careful consideration of the facts of the evidence, of the lack of evidence, you’re
still going to be able to see the picture of what happened to Frank Hoerner and
Denise Stenson on March 25, 1993. You will be convinced, you will have an
abiding belief in the truth of the charge, that the Defendant killed them.
VRP at 4172.
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defendant fails to object at trial, the defendant waives any error unless the prosecutor’s remarks
were so flagrant and ill-intentioned that no instruction could have cured any prejudice. Emery,
174 Wn.2d at 760-61. Thus,
[T]he defendant must show that (1) “no curative instruction would have obviated
any prejudicial effect on the jury” and (2) the misconduct resulted in prejudice that
“had a substantial likelihood of affecting the jury verdict.”
Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).
“In analyzing prejudice, we do not look at the comments in isolation, but in the context of the total
argument, the issues in the case, the evidence, and the instructions given to the jury.” State v.
Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).
Here, Stenson failed to object to the prosecutor’s puzzle analogy statement in closing.
Even assuming that the puzzle analogy statement was improper, if counsel had objected, the trial
court could have given a curative instruction to remedy any possible prejudice. The prosecutor’s
statement was not so flagrant or ill-intentioned that a curative instruction would not have remedied
any possible prejudice. We hold that Stenson’s claim of prosecutorial misconduct fails.
X. CUMULATIVE ERROR
Under the cumulative error doctrine, a defendant may be entitled to a new trial when
cumulative errors results in a trial that is fundamentally unfair. Emery, 174 Wn.2d at 766. Stenson
asserts that the cumulative effect of any two or more of the alleged errors at trial warrant a reversal
of his convictions. Because Stenson’s challenges fail, he is not entitled to a new trial under the
cumulative error doctrine.
42
45665-6-II
CONCLUSION
We affirm Stenson’s convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
LEE, P.J.
MELNICK, J.
43 | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147491/ | Filed
Washington State
Court of Appeals
Division Two
February 22, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
PUGET SOUNDKEEPER ALLIANCE, No. 48267-3-II
Appellant,
v. UNPUBLISHED OPINION
STATE OF WASHINGTON, DEPARTMENT
OF ECOLOGY; and STATE OF
WASHINGTON POLLUTION CONTROL
HEARINGS BOARD,
Respondents.
MAXA, A.C.J. – Puget Soundkeeper Alliance (Soundkeeper) appeals the decision of the
Pollution Control Hearings Board (Board) to uphold in part a National Pollutant Discharge
Elimination System (NPDES) permit issued by the Washington Department of Ecology
(Ecology) to Seattle Iron and Metals (SIM) for SIM’s wastewater and stormwater discharges into
the Lower Duwamish Waterway. Soundkeeper challenges the permit provisions that (1) require
discharges to be tested for polychlorinated biphenyls (PCBs)1 using Method 608 instead of the
more sensitive Method 1668C, and (2) establish limitations on copper and zinc levels in
1
PCBs are a group of manmade chlorinated organic chemicals that contain multiple individual
compounds (“congeners”) and are highly toxic to humans and animals.
No. 48267-3-II
untreated stormwater discharges based on the benchmarks in Ecology’s 2009 Industrial
Stormwater General Permit (General Permit) instead of based on site-specific water quality
standards for those substances.
We hold that (1) SIM’s permit properly required the use of Method 608 for testing PCBs
because we defer to Ecology’s determination that Method 608 is the testing method approved by
the United States Environmental Protection Agency (EPA) and allowed under Washington law;
and (2) substantial evidence does not support the Board’s conclusion that there was insufficient
data to calculate site-specific water quality-based effluent limitations (WQBELs), and
Washington law requires that SIM’s discharges be subject to WQBELs instead of the less
restrictive limitations based on the General Permit. Accordingly, we affirm in part and reverse in
part the Board’s decisions on the two challenged NPDES permit provisions. We remand to
Ecology for revision of the effluent limitations for copper and zinc consistent with this opinion.
FACTS
SIM’s Discharges into Lower Duwamish Waterway
SIM operates an auto shredding and metal recycling facility adjacent to the Lower
Duwamish Waterway (LDW). The SIM facility is located in the LDW federal and state cleanup
site, which includes the approximately 5.5 mile stretch of the Duwamish River that flows into
Elliot Bay. The LDW is heavily contaminated because of major industrial activity in the area
over the last 100 years. Ecology is the lead agency for source control at the LDW site.
SIM’s operations produce two types of water that must be discharged from the facility. A
mix of wastewater from SIM’s operations and some stormwater (referred to as “outfall 001”) is
collected and treated before discharge. Stormwater runoff from rooftops and parking lots
2
No. 48267-3-II
(referred to as “outfall 002”) is not treated before discharge. SIM discharges both the treated
wastewater and the untreated stormwater into the LDW. SIM’s discharges into the LDW are
recognized as a possible source of contaminants in the LDW sediments.
NPDES Permit
Ecology first issued an NPDES permit specific to the SIM site in 2007. The 2007 permit
imposed WQBELs for SIM’s treated discharges from outfall 001, with numeric effluent limits
for cooper, zinc, total PCBs, and other pollutants. That permit did not regulate SIM’s discharge
of untreated stormwater from outfall 002.
On September 16, 2013, Ecology issued an NPDES waste discharge permit to SIM
relating to the discharges of both outfall 001 and outfall 002 into the LDW.2 The permit imposed
daily limitations for PCBs, copper, zinc, and other contaminants at both outfalls.
Regarding PCBs, the permit imposed daily limitations of 0.0089 micrograms per liter
(µg/L) for outfall 001 discharges. That limitation was based on the PCB human health criteria of
0.00017 µg/L adjusted for a dilution factor for the “mixing zone,” the area surrounding the
discharge point where wastewater mixes with receiving water.3 The permit stated that Method
8082A would be used to test PCB levels in outfall 001.4
2
The permit was first issued in 2007, but NPDES permits expire after five years and must be
reissued. On August 26, 2014, before the Board’s review, Ecology modified certain portions of
the permit. The Board reviewed the permit as modified, but still referred to it as the “2013
permit” in its ruling.
3
Pollutant concentrations within mixing zones may exceed the numeric standards without
penalty on the theory that the pollutants will dilute quickly into the receiving water.
4
Before the Board hearing, Ecology modified the 2013 NPDES permit for outfall 001 and
replaced the requirement to use Method 8082A with the requirement to use Method 608.
3
No. 48267-3-II
For outfall 002, the permit imposed a daily PCB limitation of 0.25 µg/L, significantly
higher than the PCB human health criteria used for outfall 001. This limitation was determined
based on the detection limit of Method 608, the EPA-approved analytical test that Ecology
required for outfall 002 PCB testing. The limitation level represented the minimum value that
Method 608 could detect.
Regarding copper and zinc, Ecology’s permit writer Ed Abassi calculated WQBELs for
outfall 001 using historical data from the site. But for outfall 002, Ecology had only two data
points because that discharge had not previously been regulated. Instead of calculating
WQBELs, Abassi imported numeric benchmark values from the 2009 General Permit. The
General Permit is an NPDES permit that Ecology issued to regulate more than 1,000 facilities
statewide that discharge industrial stormwater. Using the General Permit benchmarks, Ecology
imposed daily limitations of 14 µg/L for copper and 117 µg/L for zinc in outfall 002 discharges.
Board Appeal
On October 14, 2013, Soundkeeper filed a petition for Board review of certain portions of
SIM’s permit. Soundkeeper challenged (1) the inclusion of a mixing zone for PCBs, (2) the
imposition of different PCB limits for outfall 001 and outfall 002, (3) the use of Method 608 for
PCB testing instead of more sensitive methods, and (4) the imposition of limits on copper and
zinc levels for outfall 002 based on General Permit benchmark values instead of site-specific
WQBELs. The Board reviewed the permit, as modified by Ecology, during a four-day hearing in
March 2015.
The Board entered extensive findings of fact and conclusions of law. The Board agreed
with Soundkeeper that Ecology could not grant a mixing zone for PCBs because the LDW was
4
No. 48267-3-II
known to be saturated by PCBs and PCBs do not dilute easily. The Board also agreed with
Soundkeeper that there was no basis for Ecology to impose higher PCB limits for outfall 002
than for outfall 001. The Board remanded the permit to Ecology for correction of the discharge
limitations for PCBs.5
However, the Board rejected Soundkeeper’s two other challenges. The Board ruled that
the use of Method 608 for PCB testing was consistent with existing law because Method 608 was
the only method approved by the EPA. The Board also ruled that Ecology’s use of the General
Permit’s benchmark values to impose limitations on daily copper and zinc levels in outfall 002
discharges was reasonable and that those limitations were consistent with applicable law. The
Board deferred to Ecology’s determination that it lacked sufficient data to develop site-specific
limitations.
APA Appeal
Soundkeeper petitioned for judicial review in the superior court, and this court granted its
petition for direct review of the Board’s order. Ruling Accepting Direct Review, Puget
Soundkeeper All. v. Dep’t of Ecology, No. 45609-3-II, at 3 (Wash. Ct. App. Dec. 22, 2015).
ANALYSIS
A. STANDARD OF REVIEW
The Administrative Procedures Act (APA) governs our review of agency decisions,
which includes decisions by the Board. RCW 34.05.510; Cornelius v. Dep’t of Ecology, 182
5
The Board did not state what PCB limitation should be imposed on remand for outfall 002.
Presumably, the limitation will be the same as for outfall 001: 0.00017 µg/L.
5
No. 48267-3-II
Wn.2d 574, 584-85, 344 P.3d 199 (2015). We can provide direct review of an environmental
board’s decision if that board files a certificate of appealability. RCW 34.05.518(1).
Under the APA, we may grant relief from the Board’s order based on one of nine reasons
listed in RCW 34.05.570(3), including that the order is (1) outside the agency’s statutory
authority, (2) based on an erroneous interpretation or application of the law, (3) unsupported by
substantial evidence, (4) inconsistent with an agency rule, or (5) arbitrary and capricious. RCW
34.05.570(3)(b), (d), (e), (h), (i). The party challenging the Board’s decision has the burden of
demonstrating the invalidity of that decision. RCW 34.05.570(1)(a).
We review questions of law and an agency’s application of the law to the facts de novo.
Cornelius, 182 Wn.2d at 585. We give great weight to an agency’s interpretation of a statute
when the statute is ambiguous and falls within the agency’s area of expertise, if the interpretation
does not conflict with the statutory language or intent. Puget Soundkeeper All. v. Pollution
Control Hr’gs Bd., 189 Wn. App 127, 136, 356 P.3d 753 (2015). We show the same deference
to an agency’s interpretation of its own regulations. Id. More specifically, Ecology’s
interpretation of environmental statutes is entitled to great weight “[g]iven that the legislature
designated Ecology as the agency to regulate the State’s water resources.” Snohomish County v.
Pollution Control Hr’gs Bd., ____ Wn.2d ____, 386 P.3d 1064, 1075 (2016). And the Board’s
review of Ecology’s actions also is entitled to deference. Id.
However, we are not bound by an agency’s interpretation of the law. Puget Soundkeeper
All., 189 Wn.2d at 136; see also RCW 34.05.570(3)(d). “[D]eference to an agency is
inappropriate where the agency’s interpretation conflicts with a statutory mandate.” Dep’t of
Labor & Indus. v. Granger, 159 Wn.2d 752, 764, 153 P.3d 839 (2007).
6
No. 48267-3-II
B. LEGAL PRINCIPLES
1. General Water Quality Policy
The goal of the federal Clean Water Act (CWA)6 is to “restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters” and attain water quality
which provides for the protection and propagation of fish, shellfish, and wildlife. 33 U.S.C. §
1251(a)(2). The CWA expresses “the national policy that the discharge of toxic pollutants in
toxic amounts be prohibited,” 33 U.S.C. § 1251(a)(3), and states that “the discharge of any
pollutant by any person shall be unlawful,” except as authorized by specified statutory
provisions. 33 U.S.C. § 1311(a).
The CWA prohibits any discharge of pollutants into the nation’s waters unless the
discharge is made according to the terms of an NPDES permit. 33 U.S.C. §§ 1311(a), 13427.
Congress authorized the EPA to delegate the NPDES permitting program to the states. 33
U.S.C. § 1342(b). The EPA delegated authority to Ecology to implement the NPDES
permitting program in Washington. RCW 90.48.260(1). The legislature has recognized that
Ecology has “[c]omplete authority to establish and administer” the program. RCW
90.48.260(1)(a); Snohomish County, 386 P.3d at 1067.
The Washington legislature also has adopted a water quality policy, which seeks to
“maintain the highest possible standards to insure the purity of all waters of the state.” RCW
90.48.010. And RCW 90.48.520 states, “In no event shall the discharge of toxicants be allowed
6
The CWA’s formal name is the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1388.
7
33 U.S.C. § 1342 has been amended since the events of this case transpired. However, these
amendments do not impact the statutory language relied on by this court. Accordingly, we do
not include the word “former" before 33 U.S.C. § 1342.
7
No. 48267-3-II
that would violate any water quality standard, including toxicant standards, sediment criteria, and
dilution zone criteria.”
2. NPDES Permit Compliance with Water Quality Standards
Under federal law, NPDES permits must impose limits on discharges as necessary to
meet water quality standards set by both state and federal statutes and regulations. 33 U.S.C. §
1311(b)(1)(C); Snohomish County, 386 P.3d at 1067. Specifically, State agencies may not issue
NPDES permits if “the conditions of the permit do not provide for compliance with the
applicable requirements of CWA, or regulations promulgated under CWA” or if “the imposition
of conditions cannot ensure compliance with the applicable water quality requirements of all
affected States.” 40 C.F.R. § 122.4(a), (d).
Similarly, WAC 173-220-130(1)(b)(i) provides that any NPDES permit shall apply and
ensure compliance with limitations necessary to “[m]eet water quality standards . . . pursuant to
any state law or regulation.” And WAC 173-201A-510(1) states that NPDES permits “must be
conditioned so the discharges authorized will meet the water quality standards” and that no
permit can be issued that “causes or contributes to a violation of water quality criteria.”
These provisions demonstrate that the purpose of the NPDES permitting system is to
ensure compliance with state water quality standards. Port of Seattle v. Pollution Control Hr’gs
Bd., 151 Wn.2d 568, 603, 90 P.3d 659 (2004). The Washington legislature has “in no uncertain
terms” prohibited Ecology from issuing NPDES permits that allow discharges of toxic
substances in violation of applicable standards. Puget Soundkeeper All., 189 Wn. App at 138.
As a result, “NPDES permits may be issued only where the discharge in question will comply
with state water quality standards.” Port of Seattle, 151 Wn.2d at 603.
8
No. 48267-3-II
Finally, WAC 173-220-150(1)(c) provides that each NPDES permit shall require that
“[a]ny discharge of any pollutant . . . at a level in excess of that identified and authorized by the
permit” constitutes a violation of permit terms and conditions. (Emphasis added.) Under this
regulation, NPDES permits must require that each discharge comply with applicable water
quality regulations. See Puget Soundkeeper All., 189 Wn. App at 138.
3. Washington Water Quality Standards
Washington has developed its own water quality standards. Port of Seattle, 151 Wn.2d at
590. These standards include narrative water quality statements and numeric criteria for toxic
substances. Id.
WAC 173-201A-240(1) provides the narrative water quality standard governing
discharges of toxic substances.8
Toxic substances shall not be introduced above natural background levels in waters
of the state which have the potential either singularly or cumulatively to adversely
affect characteristic water uses, cause acute or chronic toxicity to the most sensitive
biota dependent upon those waters, or adversely affect public health, as determined
by the department.
See also Puget Soundkeeper All., 189 Wn. App at 138-39.
WAC 173-201A-240(5) and the attached Table 240 provide specific numeric water quality
standards for numerous toxic substances. The human health criteria for PCBs is 0.00017 µg/L.
WAC 173-201A-240(5), tbl.240. The toxic substances criteria for marine water aquatic life for
8
WAC 173-201A-240 has been amended since the events of this case transpired. However,
these amendments do not impact the statutory language relied on by this court. Accordingly, we
do not include the word “former" before WAC 173-201A-240.
9
No. 48267-3-II
copper is 4.8 µg/L (acute) and 3.1 µg/L (chronic) and for zinc is 90 µg/L (acute) and 81 µg/L
(chronic).9 WAC 173-201A-240(5), tbl.240.
C. USE OF METHOD 608 FOR TESTING PCB LEVELS
SIM’s NPDES permit requires the use of Method 608, an EPA-approved PCB testing
method, to measure PCBs in discharges from outfall 002. But the minimum detection limit of
Method 608 is only 0.25 µg/L and Method 608 has a practical quantitation limit (PQL) of 0.5
µg/L.10 This PQL is significantly higher than the PCB human health criteria of 0.00017 µg/L.11
Soundkeeper argues that Ecology violated Washington law by issuing an NPDES permit
that required the use of Method 608, because that method is not sensitive enough to determine
whether SIM’s discharges violated the applicable water quality standard for PCBs. Soundkeeper
claims that Ecology could not lawfully have issued the permit unless it specified the use of
Method 1668C, a more sensitive test that can quantify PCB concentrations in the range of the
water quality standard. Ecology argues that it was required to specify Method 608 in the permit
under WAC 173-201A-260(3)(h) because it is the only testing method approved by the EPA.
We agree with Ecology.
9
“Acute” refers to short-term exposure, and “chronic” refers to long-term exposure. WAC 173-
201A-020. The permit’s “daily” limits relate to acute limits.
10
The PQL represents the lowest level at which a pollutant concentration reliably can be
quantified.
11
Ecology imposed an effluent limitation for PCBs of 0.25 µg/L on outfall 002 discharges based
on the minimum detection limit of Method 608. However, the Board ruled that this high
detection limit did not justify imposing a higher effluent limit than the 0.00017 µg/L limitation
for outfall 001. The Board remanded to Ecology for the revision of effluent limits for PCBs.
Presumably, on remand Ecology will impose the 0.00017 µg/L limitation for outfall 002.
10
No. 48267-3-II
1. Legal Principles
Under federal law, monitoring must be done using “sufficiently sensitive” test methods.
40 C.F.R. § 122.44(i)(1)(iv). A method is sufficiently sensitive when either (1) the method
minimum level is at or below the effluent limit established in the permit for the measured
pollutant or (2) the method has the lowest minimum level of the analytical methods approved
under 40 C.F.R. part 136 for the measured pollutant. 40 C.F.R. § 122.44(i)(1)(iv)(A)(1)-(2).
Washington law provides additional regulations regarding testing methods. WAC 173-
201A-260(3) outlines how Ecology should set and measure water quality criteria. When setting
numeric criteria for water quality, Ecology “will give consideration to the precision and accuracy
of the sampling and analytical methods used, as well as the existing conditions at the time.”
WAC 173-201A-260(3)(g). Further, WAC 173-201A-260(3)(h) provides:
The analytical testing methods for these numeric criteria must be in accordance
with the ‘“Guidelines Establishing Test Procedures for the Analysis of Pollutants’”
(40 C.F.R. Part 136) or superseding methods published. [Ecology] may also
approve other methods following consultation with adjacent states and with
approval of the [EPA].
This regulation allows the use of a testing method that is (1) listed in 40 C.F.R. Part 136, (2) a
superseding method that has been published, or (3) approved for use by Ecology following
consultation with the EPA.
Method 608 is listed in 40 C.F.R. Part 136 for monitoring PCBs, but Method 1668C is
not. 40 C.F.R. 136, app. A. And Ecology has not approved Method 1668C for testing PCBs.
The EPA developed Method 1668C with the intention of listing it as an approved PCB
testing method in 40 C.F.R. Part 136. The EPA also “published” Method 1668C for use in CWA
programs. In April 2010, the EPA stated:
11
No. 48267-3-II
The Office of Science and Technology (OST) in EPA’s Office of Water developed
Method 1668C . . . for use in Clean Water Act (CWA) programs. EPA is publishing
this Method for users who wish to measure PCBs as congeners now, and in 2010,
EPA expects to publish a proposal in the Federal Register for public comment to
add this Method to other CWA Methods published at 40 CFR Part 136.
Administrative Record (AR) at 2751 (emphasis added).
Although the EPA proposed rulemaking to add Method 1668C to the list in 40 C.F.R.
Part 136, it chose not to add the method. The EPA did not reject Method 1668C, but merely
deferred approval. The EPA noted that it “is aware that this method is being used in some states
in their regulatory programs and by other groups for some projects with good success.” AR at
3587. But the EPA stated that it was “still evaluating the large number of public comments and
intends to make a determination on the approval of this method at a later date. . . . This decision
does not negate the merits of this method for the determination of PCB congeners in regulatory
programs.” AR at 3587.
2. Interpretation of WAC 173-201A-260(3)(h)
The Board concluded that Ecology’s specification of Method 608 as the PCB testing
method in SIM’s NPDES permit was consistent with WAC 173-201A-260(3)(h) because Method
608 is the only method the EPA has approved. Soundkeeper argues that Ecology could have
required Method 1668C for PCB testing because that method qualifies as a “superseding
method[] published” under WAC 173-201A-260(3)(h).
To interpret agency regulations, we apply the same principles used to interpret statutes.
Puget Soundkeeper All., 189 Wn. App. at 136. Statutory interpretation is a matter of law that we
review de novo. Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 1003 (2014). The purpose of
statutory interpretation is to determine and give effect to the legislature’s intent. Gray v. Suttell
12
No. 48267-3-II
& Assocs., 181 Wn.2d 329, 339, 334 P.3d 14 (2014). To determine legislative intent, we first
look to the plain language of the statute, considering the text of the provision, the context of the
statute, related provisions, and the statutory scheme as a whole. Id. If a statutory term is
undefined, we may use a dictionary to determine its plain meaning. Nissen v. Pierce County, 183
Wn.2d 863, 881, 357 P.3d 45 (2015).
The parties apparently agree that Method 1668C is a “published” method. The question
is whether Method 1668C is a “superseding” method. WAC 173-201A-260(3)(h) does not
define the term “superseding.” Supersede has numerous dictionary definitions, including “[1] to
make obsolete, inferior, or outmoded, [2] to make superfluous or unnecessary, [3] to take the
place of and outmode by superiority: supplant and make inferior by better or more efficiently
serving a function.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2295 (2002).
Soundkeeper argues that Method 1668C falls within the definition of a superseding
method. Method 1668C has a PQL as low as 0.000022 µg/L.12 Method 608’s PQL is only 0.5
µg/L. Because Method 1668C’s detection limit is much lower than Method 608’s detection
limit, Method 1668C can be considered a superior testing method that can take the place of
Method 608.
But Ecology emphasizes that the EPA decided not to add Method 1668C to the list in 40
C.F.R. Part 136, and therefore Method 1668C cannot be said to have “superseded” the approved
Method 608. Method 608 is not “superfluous or unnecessary” because it is still the only EPA-
approved testing method. Ecology also argues that WAC 173-201A-260(3)(h)’s reference to a
12
Method 1668C tests each of the 209 congeners that comprise the total PCBs individually, so
the PQL may vary among the congeners.
13
No. 48267-3-II
superseding method refers only to new versions of methods already included in 40 C.F.R. Part
136, not entirely new methods.
The term “superseding method” is ambiguous. But Ecology and the Board have
interpreted WAC 173-201A-260(3)(h) as not applying to Method 1668C. Because the regulation
is ambiguous and its interpretation falls within Ecology’s area of expertise, we will defer to
Ecology’s interpretation of its own regulation.13 See Snohomish County, 386 P.3d at 1075.
We hold that under Ecology’s interpretation of WAC 173-201A-260(3)(h), Method
1668C is not a published superseding method, and therefore Ecology could not consider that
method for use in SIM’s NPDES permit.
3. Use of Method 608
Soundkeeper also argues that even if Method 608 is the only approved method for testing
PCBs, Washington law precludes Ecology from using Method 608 because it is not sensitive
enough to enforce compliance with water quality standards. Soundkeeper’s position is that
Ecology’s only lawful option is to refuse to issue the NPDES permit. We disagree.
The human health criteria for PCBs is 0.00017 µg/L. WAC 173-201A-240(5), tbl.240.
Ecology adopted that standard as the effluent limitation for outfall 001, and the Board ruled that
there was no justification for a higher effluent limitation at outfall 002. The problem is that
Method 608 has a PQL of 0.5 µg/L. This means that Method 608 cannot detect when the PCB
levels in SIM’s discharges are higher than the 0.00017 µg/L limitation but less than 0.5 µg/L.
13
Under WAC 173-201A-260(3)(h), Ecology also could use Method 1668C in NPDES permits
if it approved that method after consulting with adjacent states and with the approval of the EPA.
But the regulation states that Ecology “may” give such approval, WAC 173-201A-260(3)(h), and
the Board noted that it had no authority to require Ecology to seek EPA approval of a different
method.
14
No. 48267-3-II
Therefore, Soundkeeper argues that the use of Method 608 is improper because it potentially
would allow SIM to discharge PCBs in concentrations that would violate the water quality
standards in its NPDES permit.
But Soundkeeper’s argument is inconsistent with federal and state law regarding testing
methods. Federal law requires that monitoring be done using “sufficiently sensitive” test
methods. 40 C.F.R. § 122.44(i)(1)(iv). Under 40 C.F.R. § 122.44(i)(1)(iv)(A)(2), a method is
sufficiently sensitive when it has the lowest minimum level of the analytical methods approved
under 40 C.F.R. part 136 for the measured pollutant. Method 608 is the only approved method
for PCBs, and therefore it necessarily is the method with the lowest minimum level.
We hold that it is lawful for Ecology to issue an NPDES permit that calls for the use of
Method 608 to test PCBs.
D. EFFLUENT LIMITATIONS FOR COPPER AND ZINC IN OUTFALL 002
In developing effluent limitations for copper and zinc discharges from outfall 002,
Ecology imported numeric benchmark values from the 2009 General Permit. Use of the General
Permit benchmarks resulted in daily effluent limitations of 14 µg/L for copper and 117 µg/L for
zinc. These limitations are significantly higher than what Soundkeeper asserts site-specific
WQBELs would be – daily limits of 4.8 µg/L for copper and 90 µg/L for zinc.
Soundkeeper argues that the Board erred in allowing Ecology to use copper and zinc
limitations taken from the General Permit, which it characterizes as technology-based
limitations, instead of calculating site-specific WQBELs. Ecology argues that the permit had to
apply copper and zinc limitations taken from the General Permit because there was insufficient
data for the permit writer to calculate site-specific WQBELs. Ecology also claims that the
15
No. 48267-3-II
General Permit limitations were water quality-based, not technology-based. We agree with
Soundkeeper.14
1. Imposition of Effluent Limitations
When addressing the discharge of pollutants in an NPDES permit, Ecology must first
determine whether an effluent limitation is required. An NPDES permit must contain effluent
limits for a pollutant if there is a reasonable potential that a discharge will contain the pollutant
in excess of water quality standards. 40 C.F.R. § 122.44(d)(1)(iii). A permit writer determines if
an effluent limitation must be included in the permit by conducting a reasonable potential
analysis: whether a facility’s discharge will cause, has the reasonable potential to cause, or will
contribute to a violation of water quality standards. 40 C.F.R. 122.44(d)(1)(ii), (iv).
Ecology’s Permit Writer’s Manual contains instructions for conducting a reasonable
potential analysis. In order to perform a statistical reasonable potential analysis, a permit writer
must develop an estimate of variability over time for each pollutant in a discharge. The most
commonly used estimator is the coefficient of variation (CV), which is based on site discharge
data. The CV is also used in the formula for calculating effluent limits for a permit.
Here, permit writer Abassi stated that in order to accurately calculate a CV, he needed at
least 10 to 12 data points. But only two data points from SIM’s outfall 002 discharge were
available. Abassi testified that based on the lack of outfall 002 data, he could not calculate a CV
and therefore could not perform a statistical reasonable potential analysis.
14
The Board stated that Ecology considered the copper and zinc limitations to be interim
limitations. Soundkeeper argues, and Ecology concedes, that the technology-based copper and
zinc limits cannot be justified as interim limits because they are not part of a compliance
schedule.
16
No. 48267-3-II
However, the Board concluded that Ecology actually did perform a reasonable potential
analysis and determined that SIM’s outfall 002 discharges had the reasonable potential to exceed
water quality standards. The Board stated that although Abassi did not perform a statistical
calculation of reasonable potential, he nevertheless decided that effluent limitations were
necessary. And the Board noted that Abassi’s supervisor testified that Abassi’s evaluation of the
outfall 0002 discharge was the equivalent of a reasonable potential analysis.
Ecology does not dispute the Board’s conclusion that Abassi essentially conducted a
reasonable potential analysis and that effluent limitations were required for zinc and copper for
outfall 002 in SIM’s NPDES permit. The question here is how to calculate those limitations.
2. Calculation of Effluent Limitations
Once Ecology determines that an effluent limitation is required, it next must determine
the level of that limitation. Ecology claims that Abassi had insufficient data to develop
WQBELs for copper and zinc at outfall 002. Abassi testified that because he could not calculate
a CV, he could not calculate site-specific effluent limits. The Board deferred to “Ecology’s
technical determination that it lacked sufficient monitoring data for SIM’s untreated stormwater
discharge to develop site-specific numeric effluent limits.” Clerk’s Papers (CP) at 50. And the
Board concluded that Abassi’s decision to rely on the General Permit under these circumstances
was reasonable.
Under the APA, we may grant relief from an agency order if it is not supported by
substantial evidence. RCW 34.05.570(3)(e). Substantial evidence does not support the Board’s
conclusion for three reasons. First, Ecology did not make a “technical determination” that it had
insufficient data to develop site-specific limitations. Abassi did testify about the absence of
17
No. 48267-3-II
sufficient data, but primarily in the context of his inability to calculate a CV for a specific
effluent limit and to conduct a statistical reasonable potential analysis.
Ecology points to Abassi’s statement that he would not use two data points “for
enforcement or for limit.” Report of Proceedings at 537. But this is Abassi’s only reference to
insufficient data in the context of developing effluent limitations. Further, Abassi did not
expressly state that he was forced to use the General Permit benchmarks because he had
insufficient data. He simply stated that the effluent limits in the permit came from the General
Permit and that they seemed accurate and protective. This testimony did not establish a
“technical determination that it lacked sufficient monitoring data” to develop site-specific
limitations. CP at 50.
Second, the evidence shows that Abassi could have calculated site-specific WQBELs for
outfall 002 despite the lack of data. Soundkeeper’s expert, Allan Chartrand, testified that
effluent data was not necessary to calculate water quality-based limits for an NPDES permit.
Ecology’s Permit Writer’s Manual states that when there are fewer than 20 data points available
to calculate a CV, a default CV of 0.6 may be used instead of a calculated CV. Therefore,
Abassi could have calculated site-specific WQBELs using the default CV. Ecology does not
address why this default CV was not used.
Third, Abassi testified that assuming a finding of reasonable potential, he could have
determined the WQBELs for outfall 002. He stated that he would have used the human health
calculations in Ecology’s fact sheet: water quality standards for copper of 4.8 µg/L (acute) and
3.1 µg/L (chronic) and water quality standards for zinc of 90 µg/L (acute) and 81 µg/L (chronic).
Because the Board found that Ecology had determined that SIM’s discharges had the reasonable
18
No. 48267-3-II
potential to exceed water quality standards, this testimony means that Abassi did have sufficient
information to determine site-specific WQBELs for outfall 002.
We hold that the Board’s conclusion that Ecology lacked sufficient data to develop site-
specific effluent limits for outfall 002 is not supported by sufficient evidence. Because this
conclusion depends on an evaluation of the applicable facts rather than an interpretation of
statutes or regulations, we do not give special deference to Ecology or the Board on this issue.
See Port of Seattle, 151 Wn.2d at 594 (stating the standard of review for factual findings
inherently includes an element of deference to the Board). As a result, we hold that the Board
erred in concluding that Abassi acted reasonably when he relied on the General Permit.
3. Inadequacy of NPDES Permit Limitations
The Board concluded that the effluent limits in the NPDES permit for copper and zinc,
which were based on the General Permit benchmarks, were consistent with applicable law.
Soundkeeper argues that Washington law requires Ecology to use the lower site-specific
WQBELs instead of the higher General Permit limitations. We agree with Soundkeeper.
Initially, Ecology argues that the limitations based on the General Permit were consistent
with applicable law because they were in fact water quality-based limitations. Ecology claims
that these limitations are water quality-based because the General Permit benchmarks involved
pollutant discharge levels that would not exceed water quality standards for the likely pollutants
found in industrial stormwater and were designed to protect water quality in the majority of
receiving water conditions.
However, the Board referred to the limitations based on the General Permit benchmark as
technology-based limits. Ecology does not challenge the Board’s reference to the permit
19
No. 48267-3-II
limitations as technology-based. In addition, Ecology’s own fact sheet for SIM’s NPDES permit
refers to the limitations as technology-based.
More significantly, even if the General Permit limitations were based on water quality
standards generally applicable to all industrial dischargers, Ecology does not explain why those
limitations complied with Washington law. The evidence shows that the limitations Ecology
imposed do not comply with the specific water quality standards applicable here.
Both Abassi and Chartrand’ testified that properly calculated WQBELs for the 002
outfall would have been the same as the water quality criteria in WAC 173-201A-240(5), Table
240: 4.8 µg/L (acute) and 3.1 µg/L (chronic) for copper and is 90 µg/L (acute) and 81 µg/L
(chronic) for zinc.15 But the permit limitations were significantly higher: daily limitations of 14
µg/L for copper and 117 µg/L for zinc. Therefore, SIM’s NPDES permit would allow the
discharge of pollutants in concentrations that would far exceed established water quality
standards.
As stated above, Washington law is clear that Ecology cannot issue NPDES permits that
would allow discharges of toxic substances that would violate applicable water quality standards.
RCW 90.48.520; Port of Seattle, 151 Wn.2d at 603; Puget Soundkeeper All., 189 Wn. App at
138. Therefore, we hold that the Board erred in concluding that the effluent limitations in SIM’s
NPDES permit – which were significantly higher than the water quality standards – were
consistent with applicable law.
15
Normally the water quality criteria are adjusted to account for a mixing zone and dilution to
develop WQBELs. But for the untreated wastewater at outfall 002, there was no mixing zone
and no dilution factor. This means that the water quality criteria would have been the effluent
limit.
20
No. 48267-3-II
CONCLUSION
We affirm in part and reverse in part the Board’s rulings on the proper PCB testing
method and on the effluent limitations for copper and zinc. We remand to Ecology for revision
of the effluent limitations for copper and zinc consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
WORSWICK, J.
SUTTON, J.
21 | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150744/ | i ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
General Electric Company ) ASBCA Nos. 59730, 60155
)
Under Contract Nos. F33657-98-D-OO 19 )
NAS3-01135 )
F33615-03-C-5230 )
N00019-03-D-0003 )
H92238-05-C-0002 )
DAAHl0-01-D-0001 )
FA9201-1 O-C-0206 )
N00383-11-D-002M )
FA8650-09-D-2922 )
F33657-99-D-2050 )
APPEARANCES FOR THE APPELLANT: Gregory A. Smith, Esq.
Stephen D. Knight, Esq.
Smith Pachter Mc Whorter PLC
Tysons Corner, VA
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
Lawrence S. Rabyne, Esq.
Trial Attorney
Defense Contract Management Agency
Arlington Heights, IL
ORDER OF DISMISSAL
The dispute has been settled. The appeals are dismissed with prejudice.
Dated: 8 February 2017
MARK A. MELNICK
Administrative Judge
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA Nos. 59730, 60155, Appeals of General
Electric Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
2 | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131921/ | The Attorney General of Texas
February 7, 1986
MARK WHITE
Attorney General
Honorable Henry Wade Opinion No. MW-&40
District Attorney
Sixth Floor. Records Buildin Re: Authority of county officials
Dallas, Texas 75202 - to act in an emergency, and related
questions.
Dear Mr. Wade:
You pose several questions regardingthe power of county officials to
act in ceses of natural disaster or other emergency, partieularly with
respect to the use of county equipment on private land. Our opinion is
directed to the authority granted by the Disaster Act of 1975, article
6669-7, V.T.C.S., and we do not address any broad constitutionat questtonS
affectiw the Act generally.
The Disaster Act of 1975, article 6889-7, V.T.C.S., is designed to
enable the State of Texas and its political s&divisions to p2an for, respond
to, and recover fmm natural or man-made disasters and the emegencies
such calamities create. To ‘that end section.5 of .tbe .Act cmtfers upon the
governor of the state extremely broad powers to declares disaster
emergencies and todealtwith~~them. Among other things, it gives executive
orders, proclamations, and regulations “the force and effect of law” and
directs the governor to delegate or assign command authority embodiedin
appropriate executive orders or plans “to the greatest ~extent pra#zable.”
In addition to other powers conferred by law lpon the governor, section 5(g)
of the Act empowers him to suspend the provisions of any regulatory statute
that would hinder necessary action in coping with the emergency. See also
V.T.C.S. arts. 989a-k (emeqency funds); 589Oe (use of militia &ring state
of emergency). It also authorizes him to commandeer ar utilize any private
property if he finds it necessary to cope with the dbaster emergency,
stiject to any applicable requirements for compensation.
Executive Order No. WPC-11, issued August l5, 1979, superseded prior
executive orders of the governor implementing the Disaster Act of 1975. In
recognitkn of the fact thet the Act autkkee a eeuM+ 4tzmmhdoners
court to declare a local disaster emergency but fails to expressly confer
upon zany local offR%Di% extraordinary powers it ConYers upon ‘the governor
when he, rather than the local body, declares a disaster emergency, the
current executive order follows precedents, established by prior governors
p. 450
Honorable Henry Wade - Page Two (Mb’-1401
and designates the county judge of each county as the Disaster Director/Coordinator for
the county.
We think it is the intent of Executive Order WPC-11 to delegate to the county judge
in locally declared disaster emergencies the same powers, on an appropriate local scale,
that it delegates and assigns to the Director of the Division of Disaster Emergency
Service co a statewide basis. It intends that the county judge serve as the governor’s
designated agent in the administration and supervision of the Ter,as Disaster Act of 1975,
and that he may exercise the powers granted the governor therein. The executive order
expressly gives comparable authority to the statewide Director.
Under the Act and executive order, the county judge, by employing the delegated
power in a disaster emergency that has been locally declared by the commissioners Court,
may commandeer cr utilize any private property if he finds it necessary to do so in crder
to cope with the disaster emergency as long as his order is consistent with tha appliceble
disaster emergency plan. When he acts reasonably and justly in response to an impending
disaster or its spread, i.e., to meet an impending peril that threatens the public health and
safety when the public need greatly outweighs the private loss, the constitutional
requirement that property shall not be “taken, damaged or destroyed for or applied to
publfc use without adequate compensation” is not appIicable, tholrgh compensation may be
paid later if other law permits. Tex. Const. art. I, S 17; KeIler v. City of Corpus ChrIsti,
50 Tex. 614 (1879); Petty v. City of San Antonio, 181 S.W. 224 (Tex. Civ. App. - San
Antonio 1915, writ rePd1. Se City of Austin v. Teagu e, 570 S.W.2d 389 (Tex. 1978);
Crossman v. Cit ‘of Galvegn 247 S.WT. 23); Daven t v. East Texas
--la7 Civ. App. - Texarkanfel939, writ sdl. The Disaster
ct o 975, section 13, recognizes the obligation of every person to manage hw affairs and
property in ways that will not unreasonably detract from the ability of the public
SuccessfuIly to meet disaster emergencies, and specifies that compensation for the taking
or use of property shall be made only to the extent such obligations “are exceeded”
There are specific references in the Disaster Act of I975 regarding the clearing of
debris or wreckage from private property as well as from public property, but they are
cumulative of the provision allowing the commandeering or utilization of any private
property necessary to cope with the emergency. Section S(gl(13) allows the use of state
departments, agencies and instrumentalities to clear debris and wreckage in certain
instances, while section 5(j) requires certain authorizations or indemnifications before
debris can be removed. The latter, section 5(j), is applicable only in the recovery stage of
a disaster emergency when the immediate danger has passed. See 42 U.S.C. 5 5173. It
does not inhibit necessary action in t~he response strrge, when immediate action to avert
disaster is necessary. See Keller v. City of Corpus Christi, s.
When precipitate action is necessary in the response stage, neitherarticle I, section
17 of the Constitution, nor article III, sect,ion 51, prevents the utilization of county
equipment on private property - the first for the reasons already discumed, and the
second because the action is taken to directly accomplish a legitimate public purpose, not
to benefit the property owner. -See w 338 S.W.2d 133 (Tex. 1960).
p. 451
Honorable Henry Wade - Page Three (Mw-140)
Article HI, section 51 is no bar to a use, otherwise authorized, of county equipment on the
property of individuals, associations or corporations to aid in recovery from public
calamities, because the section itself declares that it “shall not be construed to prevent
the grant of aid in public calamities.” Attorney General Opinion WW-1248 (1962). &se Tex.
Co&t. art. VIII, S l6; art. XI, S 8. Cf. Brazes River Conservation and Reclamatiotiit. v.
McCraw, 91 S.W.2d 665 (Tex. 1936ra Attorney General Letter Advisory No. 92 (19751
7ikiZiiergency situation).
Absent authority similar to that delegated under the 1975 Act, county officials would
be greatly hampered in responding to many emergencies, for counties do not posseas the
general police power available to home rule cities Nevertheless, they have implied
authority to exercise a broad discretion in accomplishing the particular objectives
entrusted to them. Anderson v. Wood, 152 S.W.Bd 1084 {Tex. 194% Commissioners Court of
Harris County v. Kaiser, 23 S.W.2d 840 (Tex. Civ. App. - Galveston 1929, writ ref’dl. See
e.p,. V.T.C S 190 - l92b (destruction of animals) 695c S 39 (relief aervices~ Id
addibonal*~w~orcement officers); 1659. 1659a. li59b (kmergency purchases); 2351
(specified powers); 235la - 2351a-5 (fire fighting); 2372m (rabies -epidemics 4434 (public
health cooperation); 4459; 4480 (quarantine); 4477-7 (waste d@osal); 4478 (medical
facilitiess);~ 6687-S (abandoned vehicles); 6699 (traffic officers); 6701g (traffic regulations);
Code Grim. Proc. arts. 8.01- 8.09 (riots). And the county ju@, of course, is individually
a ,ma&trate and a conservator of the oeace ooesesainx all the nowers of a oeace officer.
Tex. Const. art. V, SS 12, l5; Code Crik Proc: arts. 2.1%, 2.10; Jbnes v. Stat;, 62 S.W. 758
(Tex. Crim. 19OD.
Under the 1975 Act as implemented by Executive Order No. WPC-ll, the county
judge may use county equipment on private land if he reasona bly deems it necessary to
meet or prevent a locally declared disaster emergency, asPuming his action is consistent
with the local disaster plan so activated. We have examined the Emergency Operations
Pian of Dallas County approved by the commissioners court November 8, 1976, and find
that its 9th section provides:
During the emergency only, all resources within the limits of Dallas
County and its municipalities, both publicly and privately owned,
will be used when deemed necessary by local government officials
and upon orders of the County Judge/Mayor. Accurate records will
be kept concerning the use of privately owned resources for
purpose of possible reimbursement.
SUMMARY
Under the Disaster Act of 1975 as implemented by Executive Order
No. WPC-11 and the Emergency Operations Plan of Dallas County,
the county judge of Dal!as County may use county equipment on
private land if he reasonably &ems it necessary to meet or prevent
a locally declared disaster emergency.
mfi
MARK WHITE
Attorney General of Texas
P. 452
Honorable Henry Wade - Page Pour NW-140)
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLRY
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Aasbtnnt Attorney Geneml
APPROVED:
OPINION COMMI’lTEB
C. Rtit Heath, Chairman
David B. Brooks
Walter Davis
Bob Gammage
Swan Garrison
BruceYoungblood | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131948/ | . .
The Attorney General of Texas
December 21, 1979
MARK WHITE
Attorney General
Honoreble Henry Wade Opinion No. NW-113
Dallas District Attorney
6th Floor, Records Building Re: Division of responsibilities
Dallas, Texas 75202 between city and county health
officers, and related matters
Dear Mr. Wade:
You ask if Dallas County and the county health officer have any
responsibility for the provision of health services and facilities within
incorporated areas of the county, particularly with respect to the report and
treatment of tuberculosis and venereal disease.
The contrd of Infectious and conta@ous diseases, such as tuberculosis
and venereal disease, is a topic about which the legislature has been
specific. See V.T.C.S. arts 4445, 4477-U. To combat such maladies, it has
given extraordinary power to various officials. It is expressly within the
power of a county commissioners court, for example, to direct that the
county health officer declare and maintain a quarantine, to establish,
maintain and supply camps or hospitals for those infected, and to asmme the
costs V.T.CS. art 4460; see Attorney General Opinion G-4960 (1942).
Article 4460 further provides:-
. . . Chartered cities and towns are embraced within
the purview of this article, and the mere fact of
incorporation does not exclude them from the
protection against epidemic diseases given the
commissioners court to other parts of their
respective counties. The medical officers of
chartered cities and towns may perform the duties
granted or commanded in their several charters, but
must be amenable and obedient to rules prescribed by
the [Texas] State Board of Health. This article,
however, must not be construed as prohibiting any
incorporated town or city from declaring, maintaining
and paying for local quarantine.
Cf. V.T.C.S. arts 4450 (local quarantine disputes); 4451 (local authorities
suborbnate); 4459 (local quarantine). Protection against epidemic diseases,
P. 357
Honorable Henry Wade - Page Two (MW-113)
such as tuberculosis and venereal disease, is a service the county government is required
by state law to furnish county residents within - as well as without - incorporated
cities. -See Attorney General Opinion M-683 0970).
In our opinion the establishment and maintenance of places to quarantine land treat
tuberculosis and venereal disease patients within the county is primarily a county
responsibility, whether or not those infected are originally discovered within an
incorporated area. V.T.C.S. art 2351, S 7. There is ample authority, however, for
incornorated cities to exoend fun& for such oumoses. and to comerate with the countv in
such-matters V.T.C.S. ‘arts 1015, 4436a-1, -4434, 4459, 44774 S 5(c); City of DalIa; v.
u 107 S.W.2d 872 (Tex. 1937).
Texas statutes provide for both a city health officer and a county health officer,
each of whom is chaged with reportb to state authorities the presence of all contagious,
infectious and dawerous epidemic diseases “within his jurisdiction.” V.T.C.S. arts. 4423,
4425, 4427,443O. The city health officer is also required by article 4430 to aid and assist
state health officials in matters of quarantine, vital and mortuary statistics, inspection,
disease prevention and suppression, and sanitation “within his jurisdiction”; the county
health officer is required by article 4427 to do the same ragarcIng such matters “within
his county.”
Appointment of health officers for both cities and counties is mandatory, and the
failure to appoint them does not relieve local governments of responsibility or expense for
protection of the public health. See King County v. Mitchell, 71 S.W. 610 (Tex. Civ. App,
1903, no writ); Attorney GeneralTpfnion G-816 (1934). If the offices become vacant and
are not filled promptly by the appropriate local body, the Texas Board of Health is
empowered to appoint a county or city health officer. V.T.C.S. art 4426. See also
V.T.C.S. art. 4455. The state board may also take steps to remove a local health=
or forfeit his salary. V.T.CS. arts. 4428, 4429, 4431, 4432. See also V.T.C.S. arts 4419,
44%
In White v. City of San Antonio, 60 S.W. 426 (Tex. 1901), the Supreme Court noted
that statutes then in force made all county and municipal quarantine actions subject to
such rules and regulations as the governor or state health offiier might prescribe, and that
local health officers were bound to obey them. The court said:
These provisions make the health officers of a city officers of the
state, and show that in our state their functions are governmental,
and are conferred in the interest of the public at Large.
Id. at 427. Current statutes are of the same tenor. See V.T.C.S. arts 4419, 4427, 4428,
n30, 4431, 4451; City of Dallas v. Smith, e -
We think the statutes found in chapters l, 2, and 4B of Title 71, V.T.C.S., regarding
public health, taken together and read in pari materia, show that when city and county
health officers are discharging local duties independently laid upon them by the local
P. 358
Honorable Henry Wade - Page Three (NW-113)
governments which appointed them, the jurisdiction of the city officer ordnarily includes
only the incorporated area of the city, and the jurisdiction of the county officer ordinarily
includes only unincorporated areas of the county. But see V.T.C.S. arts 1072, 4460. Cf.
V.T.C.S. arts. 4435 (unincorporated towns); 4436 (incorporated cities, towns and villagex
When, however, they are engaged in the performance of duties devolving upon them ‘as
officers of the state subject to the supervision and control of the Texas Board of Health,
the “jurisdiction” of each as to reports, et cetera, is a matter for determination by the
Texas Board of Health within legislative guidelines. V.T.C.S. art 4450.
Although there is broad language in Ex parte Ernest, 136 S.W.2d 595 (Tex. Crim.
1940), to the effect that our statutes should not be construed to give a city or county
health officer jurisdiction over another city or county, the court was discussing out-of-
county duties assigned a city health officer by the city’s governing body. It was not
discussing the jurisdictional division between a county health officer and the health
officers of cities within the county. Nor was the court addressing the discharge of duties
as officers of the state under state contrd. The distinction is skrnificant Citv and
county health officers are not purely local officers, even though thYey are appointkd by
local bodies. White v. City of San Antodo, su a; see also Ci ty of Dallas v. Smith, supra.
-Cf. Attorney General Opinion G-816 (1939) (diet
+ .
SUMMARY
Counties, not cities, are primarily responsible for the establishment
and maintenance of places to quarantine and treat tuberculosis and
venereal disease. The jurisdictions of city and county health
officers are ordnarily limited to municipal boundaries on the one
hand and unincorporated areas on the other, but when they are
acting as officers of the state, the Texas Board of Health has
power to determine their respective jurisdictions.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
P. 359
Honorable Henry Wade - Pege Four (NW-113)
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Swan Garrison
Rick Gilpin
Bruce Youngblood
P. 360 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131952/ | .!.- .
The Attorney General of Texas
December 20, 1979
MARK WHITE
Attorney Genenl
HonorMe Norman V. Suerex Opinion No. MI+109
General Counsel
Texas Department of Public Safety Rer Rights of state employees to
Box 4007 accrued sick leave when returning
Austin, Texas 78773 to state setvice after military
leave.
Dear Mr. Suerex:
You ask several questions concerning the rights of a state employee
with respect to vacation and sick leave entitlement when he returns to state
employment following active military service You inform us that en
employee requested military leave to attend a military educational course
and presented properly prepared orders &om his National Guard commander
for duty commencirg March 18, 1978, and endii July 30, 1978. The
employee reported for wollc on August l,l678. Prior to commencing military
leave, the employee had accumulated 214 hours of sick leave. Pursuant to
department policy, he was paid a lump-sum payment for his eccnred
vacation time.
With regard to the above facts, you ask the following questions:
L Taking into consideration the Veterans’
Reemployment Rights Statute, 38 U.S.C.A., Sec.
2021, et seq., and the applicable State statutes, should
the Department under the above facts have credited
the employee on reinstatement with the sick leave he
had aCeNed on the date he left for his military
leave?
2. Would the fact that the accumulated
vacation leave was paid under Department policy and
not requested by the employee, even though accepted
by the employee, make a9 difference?
Article 6252-44 V.T.CS., provides for the restoration to employment
of state employees following their discharge from military service. Section
3 of article 625He provides in part 89 follows
P. 344
Iionoreble Norman V. Susra - Pege TWO (Mw-109)
Any person who is restored to e posit&n. . . shell be considered en
having been on fur-h or leave of absence . . . and tisll be
entitled to participation in retirement or other benefits to which
employees of the State of Texes . . . are, or may be, entitled
to. . . .
The provisions of article 625He conform with the requirements of the federal
Vetera& Reemployment Rights Statute, 38 U.S.C. 202l, et sea., section (b) (1) of which
states in perk
Any person who is restored to or employed in a positbn. . . shell be
consldered es having been on furlough or Ieeve of absence during
such person% period of training end service . . . [ends shell be
entitled to partidpete in insurance or other benefits offered by the
employer pvslent to esteblished rules end practices relating to
employees on furlough or leave of absents . . .
If the employee, upon restoretbn, is to be considered es having been on leave of
etxience, it follows thet the sick leave accrued prior to that leave should be credited the
employee es it would have been to en employee on e norrmilitaly leave of absence. The
fact that accumulated annual leave we.9peid by the department would make no difference
with reqxct to his sick leave entitlement The statutory mandate is clear that the
restored employee should be treated as having been on furlough or leave of absence. ‘l%e
epppriete procedve would have been not to pay the employee for his accumulated
vacation et the time he began his military leeve, but in any event 36 U.S.C. section
2021(b)(3)requires that the mistake in handing the employee’s vacation entitlement not
constitute e termination where none was intended
You esk severel eddtlonel questions which relate to the status of en employee while
he or she is on military leave longer then the ennual 15 days authorized by article 5765,
V.T.CS., for plaposes of accrued vacation end sick leave entitlement
With one excqation later not4 both the relevant state end federal statutes speak
only in terms of restoretlon of en employee who hes returned to employment In this
respect they are retrospective in netwe, so that whether or not the restored employee had
actually termhated employment to perform milltery service he is to be treated
restoration aa if he had been on furlough or leave of absence end is entitled to the ben 3=Its
allowed such en employee, including crediting of any unused vacation or sick leave.
The exception to the restroqective nature of the federel statute is subsection (d) of
36 U.S.C. section 2024 which povides that en employee other then e member of a Reserve
component who is ordered to en initial period of active duty for training for et least three
months shell upon request be granted e leave of ebsence “for the period required to
perform active duty for trafning or inactive duty training.” Certain types of duty
performed by 8 member of the Netlonal Guard 88 described in subsection (f) are included
as duty for which the employer may not treat the employee es terminated, but must grant
the requested leave of absence, end
p. 345
Honoreble Norman V. Susres - Page Three (s9+109 )
arch en employee shall he permitted to return to arch employee’s
posftbn with atch senbrity, status, pay, and vacstbn as arch
employee would have had if uch employee had not heen ahsent for
mrch pvposee.
38 us.c. s 202ud).
You inquire as to the effect of carry-over provisions of state statutes on time
carried forwerd through a leave of absence from one fiscal year to the next. Such leave
would he carried over in the same manner ss it would he for any other employee. While it
is clearly the htent of the relevant statutes to protect the return* employee from bss
of ground in his employment, it is not their intent to plsce him in 8 better posltbn then
other employees. See Lipam v. Boheck Cotp., 546 P.2d 487 (2d Cir. 1976); see also
Fishsold v. Sullivan Edock dc Repair Carp,. 3 28 U.S. 275 (1946).
You ssk, finally, whether en employee eccrues either vacation or sick leave while on
military leave. The U.S. Supreme Court has stated with regard to veterans’ reemployment
rights that vacation time should eccrue during military service only where it appears that
such time wss “intended to accrue eutometicsllv as e function of continued sssocistbn
with the [employed ,s end not where such hen&s are “intended as e form of short-term
compensation for wok performed” Foster v. Drevo Corporetbn, 420 U.S. 92, LOO (1975).
In this r=eN Attorney GeneraI Opfnion Ii-94l U977) has held that vecetbn end sick leave
benefits “kc forms of compensstbn and generally e&rue only while an employee is on the
state peyrdl,” and not psyahle to en employee on militery leave of absence.
SUMMARY
Under article ~6252-48, V.T.CS., end 38 USC. 202l, .~-+p et s en
employee who is restored to state employment followmg m ltmy
service is generally to he considered as having been on furlough or
leave of absence! and as such, is entitled to all benefits to which en
employee returmng from a non-military leave of absence would he
entitled, including the credit& of sick leave 8CcNed prior to such
militery service.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney Genersl
TED L. HARTLEY
Executive Assistant Attorney General
p. 346
Honorable Norman V. Suarez - Pege POW (~-109)
Prepared by Diane Ritzen Cox
Assist& Attorney Geneml
APPROVBD:
OPINIONCOMhlMTEE
C. Robert Heath, Chairmen
David B. Brooks
Diane Ritzen Cox
Bob Gemmege
Susan Garrison
Rick Gilpin
Bruce Youqblood
Lonny Zwiener
p. 347 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131992/ | The Attorney General of Texas
October 16, 1979
MARKWHITE
Attorney General
Honorable Harvey Davis Opinion No. .m-6 9
Executive Director
Texas Department of Water Resources Re: Failure of the 66th
P. 0. Box 13087, Capitol Station Legislature to fund the Office of
Austin, Texas 787ll Public Interest in the General
Appropriations Act.
Dear Mr. Davis:
You have requested our opinion in reference to the failure of the 66th
Legislature to fund the Office of Public Interest. Section 5.181 of the Water
Code creates an office of public interest to insure that the Texas
Department of Water Resources promotes the public interest. The Office is
headed by a public interest advocate appointed by the commission and the
board. He is to be a party to all proceedings before the board. Water Code
s 5.181(c). A bii to repeal this section was introduced in the 66th
Legislature but failed to pass. The department’s budget request for fiscal
years 1980-81 included funding for the Office of Public Interest, but the
legislature failed to include an item for that purpose in the General
Appropriations Act. You ask whether the department may fund the Office
of Public Interest by transferring available state appropriated monies into
the Office of Public Interest Program.
Even though the appropriations act does not include a specific item to
fund the office of public interest advocate, there is no prohibition against
spending funds for that purpose. Indeed, there has never been a specific item
of appropriation for that office. See Acts 1977, 65th Leg., ch. 872, at
2986-2991. During the past bienniumhe office was funded from a general
administrative account. Since section 5.181 of the Water Code requires that
the public interest advocate be a party to all proceedings before the board,
we believe the board is obligated to appoint a public interest advocate and it
may fund that position from any appropriations available for that purpose.
Attorney General Opinion H-2ll (1974). Your specific question is phrased in
terms of transferring funds to the office of public interest function;
however, there is no necessity that the office be treated as a separate
expenditure item. So long as the funds for the office come from a single
appropriations item, no question of fund transfer need arise.
In light of our answer to your first question, we need not address your
second question which involves the effect of a failure to have a public
interest advocate.
P. 213
Honorable Harvey Davis - PageTwo (MW-69)
SUMMARY
The Department of Water Resources is required to have an office
of public interest advocate.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by C. Robert Heath
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
Rick Lowerre
William G Reid
Bruce Youngblood
p- 214 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144795/ | 3
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
?&‘a! Xor A. Elshb
I;hbf Aogeunteint
Board or Caunty and Ditatrlat Road fndebtadtm a
dwatln, T0xm c\
wax 3121
?dr. 000. Aa Hight, page 8
County, 40 $8. 3. (Zd) 43, wherein the court saldr
“The oommiosloners~ oourt may expend oounty
road bond fund8 for improvement of oity streets
forming part of county road8 where made with
oity*s oonsent.*
It will be noted thkt these deolaions restrict a
oounty’s jurisdiotlon over the streets of an lnoorporated
oitp, but that where oounty roads form a part or the city
streeta, it seems ta be settled law that tha oounty has the
rlKht to expend county funds for the improvement of such
;o&, am though oonstltutlng a part of a olty thorough-
.
You are, therefore, advised that it is our opinion
thct the claim of Tarrant county is Legal, provided same
complies in, al.1 other reepeota with the provisions of House
Bl,. #MS, above olted.
Truski~ that the foregoiq eatlefaotorily answers
your inquitiy, we are
Very truly yours
BY (01
Clarenae E. Crowe
Assistant
AFI~ROT’ED(TAN, 10, lG40
(a) Gerald c. Mann
ATTORNEY
GEmSRAL
OF TXXAS
APFROVED
opinion committee
,By Bii
aairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144797/ | Ron. Cliffora B. Jones Opinion No. O-1607
President Re: Building college print-
Texas Technological College ing shop. and issuing revenue
Lubbock, Texas bonds in payment thereof.
Dear Sir:
We have your letter wherein you request our opinion
on the following question:
“Does the Board of Directors of Texas Tech-
nological College have authority to issue evi-
dence of obligations for building a building
to house’ the college printing shop under a
pledge of revenues therefrom, same to: be built
from funds borrowed from sources other than the
United States Government?U
The authority of the Board of ~Directors to borrow
money to build a building to house the college printing shop
is’ contained in the provisions of Article 2603~ of Vernon’s
Annotated Civil Statutes, as amended. Section 1 of said Anti-
cle 2603~ as amended by Senate Bill 393, Acts of the Regular
Session, Porty-sixth Legislature, 1939, reads in part as fol-
lows:
“Section 1. That the Board of Regents of the
University of Texas and its branches, and the Board
of Directors of the Agricultural and Mechanical
College , and Its .:branche s, and the Board of Direc-
tors of Texas-Cal Collesei and the Board
of Regents of the State Teachers Co leges, and the
Board of Regents of the Texas State College for
Women and the, Board of Directors of the College
of Ar c s and Industries are hereby severally author-
sized and empowered to construct or acquire. through
funds or loans to be obtained from the Government
of the United States, or any agency or agencies
thereof, created under the National Recovery Act,
or otherwise created by the Federal Government or
from any other source private or aublic, without
cost to the State of Texas and accept title, sub-
ject to such conditions and .limitations as may be
. . ,.
Hon. Clifford B. Jones, page 2
prescribed by each of said Boards, dormitories,
kitchens and dining halls, hospitals, libraries,
student activity buildings, gymnasia, athletic
buildings and stadia, e
as mav be needed for the F
and the moral welfare and social conduct of ~the
students of such institutiong when the total
cost, type of construction, capacity of such
buildings, as well as the other plans and speci-
fications have been approved by the respective
Governing Boards; provided, however, that the Leg-
islature shall never make an appropriation out of
the general fund of this State, either in the reg-
ular appropriation bill or in a supplemental or
emergency appropriation bill, for the purpose of
equipping or for the purpose of purchasing and
installing any utility connections in any of the
buildings erected under and by virtue of the pro-
visions of this Act.” ‘~
Section 2 of said Article 2603, as amended by Chapter
459, Acts of the Second Called Session, Forty-fourth Legislature
(1934) provides that the Boards for the various colleges are au-
thorized to fix fees and charges for the use of the buildings
erected. Said section then further provides as foll’ows:
“The fees and charges thus fixed along with
all other indome therefrom shall be considered as
revenue derived from the operation of the build-
ings thus constructed. n
Section 3 of said Article 26o3~, as amended by Senate
BLlL ‘m, Ax-!!&rzf *Jm BfXJLLax.sks.mL, F~.fk.y-a&JL LvgA!!J&T%
(1939) reads in part as follows:
“Section 3. Subject ,to, the above restric-
tions, each of said Boards is given complete dis-
cretion in fixing the form,~conditionsand details
of such bonds or notes. ,&~y‘bonds ~,or notes issued
hereunder shall not be an indebtedness of the State
of Texas but shall be payable solely .from the reve-
nues to ge derived from the operation of said~ build-
ings; provided that such bonds may be ~refinanced by
the said~Boards whenever such action is, found by the
Board to be necessary.”
Section 4 of said Article: 2603~, as amended by Chapter
204, Acts of the Forty-fourth Legislature (1934) provides in
part as follows:
Hon. Clifford B. Jones, page 3
‘lSection 4. Each of said Boards is authorized
and empowered to pledge all or a part of such reve-
nues to the payment of such bonds or notes, and to
enter such agreements regarding the Imposition of
sufficient charges and the collection, pledge and
disposition of such revenues as It may deem proper.”
We believe that the above quoted provisions of Article
2603~ authorizes the Board of Directors of Texas Technological
College to issue evidence of obligations for building a building
to house the college printing shop under a pledge of revenues
derived from the operation of said building. Said bonds must be
paid solely from the revenues derived from the operation of the
building end no payment can be made from funds appropriated to
the College by the Legislature. Section 1 of said statute au-
thorizes the construction of buildings which "may be needed for
the good of the institution.11 However, we point out here that
the Board of Directors of said institution must in the exercise
of good faith and discretion determine whether or not said build-
ing is one that is needed for the good of the institution. Sec-
tion 1 of said statute also provides that such a loan may be ob-
tained from any source, either private or public. Under Section
2 of said article, as well as other portions of said statutes
above quoted, authority is given to execute notes bearing inter-
est as high as six per cent, payable over a period not exceed-
ing forty years. We might add that this department has, in
Opinion Number O-1694, addressed to Honorable Tom C. King, State
Auditor, Austin, Texas, held the above quoted statutory provi-
sions constitutional. Therefore, it is the opinion of this de-
partment that the Board of Directors of Texas Technological Col-
lege has authority to issue evidence of obligations for building
a building to house the college printing shop under a pledge of
revenues derived from the operation of said building same to
be built from funds borrowed from sources other than {he United
States Government.
Trusting that this satisfactorily answers your ques-
tion, we remain
APPROVED JAN 16, 1940 Very truly yours
/s/ W. F. Moore
FIRST ASSISTANT ATTORNEY GENERAZOF TEXAS
ATTORNEY GENERAL By /s/ Claud 0. Boothman
Claud 0. Boothman, Assistant
APPROVED:OPINIONCOMMITTEE
BWB, CHAIRMAN
:%-s:wb | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150747/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Ruby Emerald Construction Co. ) ASBCA No. 60983
)
Under Contract No. W5K9FH-12-P-0028 )
APPEARANCE FOR THE APPELLANT: Mr. Bashir Ahmady
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT William T. Wicks, JA
Trial Attorney
ORDER OF DISMISSAL
By Order dated 12 January 2017, the Board requested that appellant provide a
copy of the claim it had submitted to the contracting officer prior to the filing of this
appeal. In response, appellant indicated that it desired to submit its claim to the
contracting officer for a decision. The government provided appellant with the contact
information for the cognizant contracting officer. By Order dated 19 January 2017, the
Board informed the parties that it intended to dismiss this appeal unless either party
objected within 14 days of the date of the Order. The Board has not received an
objection from either party. It appears that appellant has submitted a claim to the
contracting officer.
Accordingly, this appeal is dismissed without prejudice to a subsequent appeal
from the contracting officer's denial, or deemed denial, of the contractor's claim.
Dated: 7 February 2017
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 60983, Appeal of Ruby Emerald
Construction Co., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
2 | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4178366/ | Filed 6/16/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.G. et al., a Person Coming Under
the Juvenile Court Law.
D071620
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ15122ABC)
Plaintiff and Respondent,
v.
A.J.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Blaine K.
Bowman, Judge. Affirmed in part; reversed in part.
Neale Bachmann Gold, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, Patrice Plattner-Grainger, Senior Deputy County Counsel, for Plaintiff and
Respondent.
A.J. appeals from a 12-month review hearing at which the juvenile court returned
his children to their mother's care. (Welf. & Inst. Code, § 366.21, subd. (f).)1 He
contends the court erred when it found that he had been offered or provided reasonable
services. We agree and reverse the reasonable services finding as to A.J. In all other
respects, the findings and orders are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A.J. and R.G. are the parents of three children, who are now ten, nine and seven
years old. In November 2011, A.J. was arrested and deported to Mexico after he
assaulted R.G. R.G. obtained an order prohibiting A.J. from having contact with her and
the children.
After A.J. was deported, the San Diego County Health and Human Services
Agency (Agency) investigated 13 child protective services referrals on behalf of the
children. The referrals were largely related to R.G.'s alcohol use and failure to supervise
the children. In February 2013, October 2013, and February 2014, the Agency
substantiated allegations that R.G. was neglecting the children. In October 2015, the
Agency detained the children in protective custody and initiated dependency proceedings
after an "extremely intoxicated" R.G. was arrested and jailed on charges of grand theft.
R.G. said she did not have contact information for A.J. The Agency conducted a
due diligence search for father in California, but did not try to locate him in Mexico. In
November 2015, the court sustained the dependency petitions, removed the children from
1 Further unspecified statutory references are to the Welfare and Institutions Code.
2
parental custody, and ordered the Agency to offer or provide reunification services to
R.G.
On April 14, 2016, A.J. telephoned the social worker to ask about the children's
welfare. He said R.G. had contacted him through Facebook and told him about the
children's dependency proceedings. On April 18, A.J. told the social worker he wanted
custody of the children. He had not seen them in approximately two years. The social
worker sent a copy of the petition and other paperwork to A.J., who was living in
Tijuana, B.C., Mexico.
On June 9, A.J. told the social worker he wanted the children to be placed with
him and was willing to participate in reunification services and "do whatever is needed to
have contact with the children." The Agency submitted a request to the International
Liaison to arrange a border visit with the children at the Mexican Consulate. The Agency
asked the social services agency, Desarrollo Integral para la Familia (DIF), to conduct an
evaluation of A.J.'s home and provide parenting education and domestic violence
prevention classes to him. At the six-month review hearing on June 13, the court ordered
the Agency to offer or provide reasonable services to the parents, and to prepare a case
plan for A.J. by July 18.
On July 19, A.J. told the social worker he wanted to have regular contact with the
children as often as possible. He had had one visit with the children, with no concerns.
The Agency submitted a request for ongoing visitation to the Mexican Consulate.
However, A.J. withdrew his requests for a home evaluation and reunification services
after speaking to DIF. He decided not to ask for placement because he was unable to pay
3
for the children's education in Mexico. A.J. believed it was in their best interests to stay
in the United States to complete their education. The social worker advised A.J. to speak
with his attorney before waiving reunification services. A.J. said he had not heard from
his attorney and asked the social worker to contact his attorney and give her his telephone
number, which the social worker did.
After speaking with his attorney, A.J. asked the court to order the Agency to
provide reunification services to him. He wanted to be able to care for the children if
they did not reunify with their mother. On July 25, the court2 ordered the Agency to
provide supervised visitation between A.J. and the children at the international border,
and prepare a case plan for A.J. within 30 days.
On August 19, the Agency submitted a case plan for A.J. to the court. The case
plan required A.J. to attend individual or group counseling to address domestic violence,
and participate in a parenting education program.
On October 24, the Agency reported it had sent a referral to DIF to provide case
plan services to A.J. DIF was unable to find a domestic violence group and had not yet
referred A.J. to a parenting education program. The Agency was looking for alternate
service providers to locate services for A.J. A visit between A.J. and the children was
scheduled for November 10.
In the Agency's court report dated October 24, the social worker wrote: "[A.J.]
has been in contact with the Agency to ask about the children and for visitation. At this
2 Prior to the 12-month review hearing, Commissioner Michael J. Imhoff presided
over the children's dependency proceedings.
4
time the father is not asking for reunification as he believes the children are better off
here in the U.S. with the mother. The father lives in Tijuana, Mexico and that will make
providing services more difficult and will take longer for him to engage and make
progress in services. [A.J.] has had contact with the children during this report period but
has not contacted the Agency for regular visits which calls into question his commitment
to the children." On the next page of the report, the social worker stated, "The father is
willing and able to participate in services. However, the Agency via DIF has been unable
to provide services in the father's home town of Tijuana Mexico. At this time the father
is requesting regular visits with the children at the border. The Agency will continue its
efforts to provide the father with services."
The 12-month review hearing was held on January 3, 2017.3 Without submitting
an addendum report for November and December 2016, the Agency recommended that
the court return the children to their mother's care under a plan of family maintenance
services and provide discretionary services to the father.
A.J. did not contest the placement recommendation, but said he did not receive
any services and asked the court to find that the Agency did not offer or provide
reasonable services to him. A.J. said he wanted custody of the children if they were
removed from their mother's care.
The Agency acknowledged it did not provide "gold-plated services" to father but
argued the services were reasonable under the circumstances. The Agency was willing to
3 The 12-month review hearing was heard by Judge Blaine K. Bowman.
5
provide discretionary services to A.J. while the case continued under a family
maintenance plan.
The court found that A.J. initially wanted to engage in services but then changed
his mind and declined reunification services. The court said, "The bigger problem is that
he was in Mexico . . . and unable to benefit from the services provided by the Agency
here. And the reason the father was in Mexico is because he was deported to Mexico for
domestic-violence related offenses. So through the father's own actions, he was deported,
and then the Agency couldn't provide services to him. But the Agency made reasonable
efforts to attempt to get the services provided by the Mexican officials through DIF, and
then he showed up at DIF and said he didn't want the services."
The court found by clear and convincing evidence that reasonable services were
offered or provided to the parents. The court placed the children with their mother under
a plan of family maintenance services and ordered the Agency to continue to provide
visitation and discretionary services to A.J.
DISCUSSION
A
Relevant Legal Principles and Standard of Review
Family reunification services play a critical role in dependency proceedings under
federal and state law. (42 U.S.C. §§ 629, 629a(a)(7); Welf. & Inst. Code, § 361.5, subd.
(a); In re Alanna A. (2005) 135 Cal. App. 4th 555, 563 (Alanna A.).) At each review
hearing, the court is required to determine the "extent of the agency's compliance with the
case plan" in making reasonable efforts to return the child to a safe home. (Welf. & Inst.
6
Code, § 366, subd. (a)(1)(B); see also 42 U.S.C. § 671(a)(15)(B).) Services "may include
provision of a full array of social and health services to help the child and family and to
prevent reabuse of children." (Welf. & Inst. Code, § 300.2; 42 U.S.C. § 629a(a)(7).)
To support a finding that reasonable services were offered or provided to the
parent, "the record should show that the supervising agency identified the problems
leading to the loss of custody, offered services designed to remedy those problems,
maintained reasonable contact with the parents during the course of the service plan, and
made reasonable efforts to assist the parents in areas where compliance proved
difficult . . . ." (In re Riva M. (1991) 235 Cal. App. 3d 403, 414.) Reunification services
should be tailored to the particular needs of the family. (David B. v. Superior Court
(2004) 123 Cal. App. 4th 768, 793.)
"The standard is not whether the services provided were the best that might be
provided in an ideal world, but whether the services were reasonable under the
circumstances." (In re Misako R. (1991) 2 Cal. App. 4th 538, 547.) The "adequacy of
reunification plans and the reasonableness of the [Agency's] efforts are judged according
to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal. App. 4th
1158, 1164.) If reasonable services are not provided or offered to the parent, the court is
required to continue the case for the period of time permitted by statute. (See Welf. &
Inst. Code, § 366.21, subds. (e) & (g)(1).) A finding of no reasonable services may also
have consequences for the state in receiving federal funds pursuant to the Adoptions and
Safe Families Act of 1997. (42 U.S.C. §§ 671(a)(15), 672(a)(1), (2)(A)(ii); 45 C.F.R.
1356.21(b).)
7
We review a reasonable services finding to determine if it is supported by
substantial evidence. (In re Christina L. (1992) 3 Cal. App. 4th 404, 414.) We consider
the evidence in the light most favorable to the prevailing party and indulge in all
legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra,
2 Cal.App.4th at p. 545.) The burden is on the petitioner to show that the evidence is
insufficient to support the juvenile court's findings. (In re L.Y.L. (2002) 101 Cal. App. 4th
942, 947.)
B
The Court's Reasonable Services Finding Is Not Supported by Substantial Evidence
The uncontroverted record shows that the Agency did not provide court-ordered
reunification services to A.J. We conclude that the court erred when it found that under
the circumstances, the Agency provided reasonable services to A.J.
The court's finding was based in part on A.J.'s statement he was withdrawing his
request for reunification services. This statement does not constitute substantial evidence
to support the finding that services were reasonable under the circumstances. On June
13, Commissioner Imhoff ordered the Agency to provide reunification services to A.J.
The Agency sent a referral to DIF. After meeting with DIF, A.J. decided it was in the
children's best interests to stay in the United States. On July 19, he told the social worker
he did not need reunification services. The social worker warned A.J. not to relinquish
his right to reunification services until he had consulted his attorney. At the next hearing,
on July 25, A.J. asked for reunification services and Commissioner Imhoff ordered the
Agency to provide reunification services to him. Thus, any confusion about A.J.'s
8
interest in receiving reunification services was cleared up within the week, and the
Agency was required to offer or provide court-ordered reunification services to A.J.
(§ 361.5, subd. (a) [the court shall order the social worker to provide child welfare
services to the child and to the child's mother and statutorily presumed father].)
Further, statutory protections apply when a parent expresses a wish not to
participate in reunification services. The court may bypass services if the parent has
advised the court that he or she is not interested in receiving services or having the child
returned to his or her custody and does not wish to receive services. The parent must be
represented by counsel and must execute a waiver of services form. The court is required
to advise the parent of any right to services and of the possible consequences of a waiver
of services. The court is prohibited from accepting the waiver of services unless it finds
on the record that the parent has knowingly and intelligently waived the right to services.
(§ 361.5, subd. (b)(14).) Thus, as applicable here, a court may not rely on a parent's
uninformed statement about not wishing to receive reunification services to curtail the
parent's right to such services.
The court's finding the Agency could not provide services to A.J. because he was
responsible for his own deportation is legally indefensible. A.J.'s arrest and deportation
to Mexico do not make the Agency's failure to provide court-ordered services to A.J.
reasonable under the circumstances. Just as there is no " 'Go to jail, lose your child' " rule
in California (In re S.D. (2002) 99 Cal. App. 4th 1068, 1077), there is no "Go to Mexico,
lose your child" rule in California (§ 361.5, subd. (a)(3)(A)). The Legislature recognizes
there may be barriers to providing services to a person who has been arrested and
9
deported to his or her country of origin. (§ 361.5, subd. (a)(3)(A).) However, under the
California dependency scheme, this circumstance may constitute reason to provide an
extended period of reunification services to the parent. (Ibid.) It does not relieve the
Agency from its obligation to provide reunification services to a deported parent.
The Legislature acknowledges in some circumstances, court-ordered services
may not be available to a parent who has been deported to his or her country of origin.
(§ 361.5, subd. (a)(3)(B).)4 This is not the situation here. The Agency represented that it
was looking for service providers and could provide discretionary services to A.J. in
Mexico. The record shows that visitation services were available, but were not
implemented on a regular basis. Parenting education programs were available through
DIF, but DIF had not yet referred A.J. to a program. Thus, the court's finding the Agency
could not provide services to A.J. because he was in Mexico is not supported by
substantial evidence.
Finally, the Legislature provides that services for a deported parent include
"[r]easonable efforts to assist parents who have been deported to contact child welfare
authorities in their country of origin, to identify any available services that would
substantially comply with case plan requirements, to document the parents' participation
in this services, and to accept reports from local child welfare authorities as to the
parents' living situation, progress and participation in services." (§ 361.5, subd.
4 In those circumstances, the failure to provide services does not prohibit a court
from terminating parental rights. (See § 366.26, subd. (c)(2)(A).) However, the court
must consider the child's wishes to have continued contact with his or her parent when
choosing a permanent plan for the child. (§ 361.5, subd. (a)(3)(B).)
10
(e)(1)(E).) The record does not contain any evidence to show that during the review
period, the Agency assisted A.J. in contacting DIF for service referrals or identified any
available services that would substantially comply with case plan requirements. The
record shows that A.J. was not offered, or provided with, the court-ordered services in his
case plan during the review period. Accordingly, we conclude there is not substantial
evidence to support the reasonable services finding.
C
A Harmless Error Analysis Does Not Apply
The Agency argues providing discretionary services to A.J. will be an adequate
remedy for any failure to provide reasonable reunification services to him, and therefore
error, if any, is harmless. (See, People v. Watson (1956) 46 Cal. 2d 818, 836 [miscarriage
of justice occurs where it is reasonably probable a result more favorable to the appealing
party would have been reached in the absence of error].) The Agency does not cite any
case holding that a harmless error analysis applies to an erroneous reasonable services
finding. The cases on which it relies do not support that proposition. (See, In re Celine
R. (2003) 31 Cal. 4th 45, 60 [harmless error analysis applies to failure to appoint separate
counsel for siblings]; Adoption of A.B. (2016) 2 Cal.App.5th 912, 927 [ICWA notice
errors were harmless where Indian tribe had actual notice]; In re Michael G. (2012) 203
Cal. App. 4th 580, 591 [inadequate adoption assessment reviewed for prejudicial error].)
We are not convinced a harmless error analysis applies to a reasonable services
finding. In view of federal statutes requiring the provision of services to safely reunify
11
families,5 the Legislature has created a statutory scheme with "precise and demanding
substantive requirements" which in part "protect the legitimate interests of the parents."
(Cynthia D. v. Superior Court (1993) 5 Cal. 4th 242, 256.) Among those requirements is
the provision of family reunification services to the child's mother and statutorily
presumed father for a specified period of time. (§ 361.5, subd. (a).) The Legislature has
mandated consequences for the failure to provide court-ordered reunification services to a
parent. (See, e.g., §§ 366.21, subds. (e)(3), (g)(2), 366.22, subd. (a)(3), 366.26, subd.
(c)(2).) There are no equivalent provisions for the failure to provide discretionary
services to a parent.
An erroneous reasonable services finding may have consequences for the parent if
the child is removed again from the other parent's custody during the dependency
proceedings (§ 361.5, subd (a)(1) [time limitations on services]), or if the parent is
5 In enacting the federal Adoption and Safe Families Act, Congress "tied federal
funding of foster care and adoption assistance to each state's adoption of a plan regarding
its foster care system." (In re D.C.D. (2014) 629 Pa. 325, 347; 42 U.S.C. § 671.) Absent
a statutory exception, federal law requires state plans to provide that "reasonable efforts
shall be made to preserve and reunify families." (42 U.S.C. § 671(a)(15)(B).) These
efforts include the provision of reunification services. (42 U.S.C. §§ 629, 629a(a)(7).)
To be eligible to receive federal foster care maintenance payments (42 U.S.C.
§§ 671(a)(15), 672, 674), agencies must make reasonable efforts "to effect the safe
reunification" of families. (45 C.F.R. 1356.21(b).)
The Pennsylvania Supreme Court, interpreting federal law controlling state
dependency plans, holds that the remedy for an agency's failure to provide services is for
the court to conclude on the record that the agency has failed to make reasonable efforts.
(In re D.C.D., supra, 629 Pa. at p. 347.) In this case, however, the record shows that the
Agency made reasonable efforts to reunify the family as to the mother, which may satisfy
federal requirements for funding purposes. (See 42 U.S.C. § 671(a)(15) [reasonable
efforts shall be made to preserve and reunify families and make it possible to a child to
safely return to the child's home].)
12
involved in a future dependency proceeding (see, e.g., § 361.5, subd. (b)(10) [permitting
court to bypass services where parent has not made reasonable efforts to remedy
problems].) The remedy for the failure to provide court-ordered reunification services to
a parent is to provide an additional period of reunification services to that parent and to
make a finding on the record that reasonable services were not offered or provided to that
parent.
DISPOSITION
The finding that A.J. was offered or provided reasonable services is reversed. In
all other respects, the findings and orders are affirmed.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
DATO, J.
13 | 01-03-2023 | 06-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150695/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE TENDERLOIN HEALTH, FKA No. 14-17090
Continuum HIV Day Services, AKA
Tenderloin Health Incorporated, D.C. No.
Debtor, 4:13-cv-03992-
JSW
E. LYNN SCHOENMANN, Trustee,
Plaintiff-Appellant, OPINION
v.
BANK OF THE WEST,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted October 18, 2016
San Francisco, California
Filed March 7, 2017
2 IN RE TENDERLOIN HEALTH
Before: A. WALLACE TASHIMA and MILAN D.
SMITH, JR., Circuit Judges, and EDWARD R.
KORMAN, * District Judge.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Korman
SUMMARY **
Bankruptcy
The panel reversed the district court’s order affirming the
bankruptcy court’s summary judgment in favor of the
defendant in an adversary proceeding brought by a chapter 7
bankruptcy trustee.
The trustee sought to recover for the bankruptcy estate a
$190,595.50 loan payment debtor Tenderloin Health made
to defendant Bank of the West within ninety days of the
filing of the bankruptcy petition. The bankruptcy court
concluded that the trustee failed to satisfy the “greater
amount test,” pursuant to 11 U.S.C. § 547(b)(5), by
demonstrating that by virtue of that payment, the Bank
received more than it otherwise would have in a hypothetical
chapter 7 liquidation where the challenged transfer had not
been made. The bankruptcy court reasoned that the Bank
*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IN RE TENDERLOIN HEALTH 3
had a right of setoff, and the debtor’s account contained at
least $190,595.50 on the petition date.
The trustee asserted that in the hypothetical liquidation,
the trustee would avoid a $526,402.05 deposit, leaving less
than $190,595.50 in the debtor’s account, even allowing for
the Bank’s right of setoff.
The panel held that courts may account for hypothetical
preference actions within a hypothetical chapter 7
liquidation when such an inquiry is factually warranted, is
supported by appropriate evidence, and the action would not
contravene an independent statutory provision. The panel
concluded that the $526,402.05 deposit would constitute an
avoidable preference in the hypothetical liquidation at issue.
The panel therefore reversed the district court’s judgment in
favor of the Bank and directed that the action be remanded
to the bankruptcy court further proceedings.
District Judge Korman concurred in part and concurred
in the judgment. He concurred in the decision to reverse and
remand to the bankruptcy court and joined all but Part II of
the majority opinion, addressing the hypothetical
liquidation. Judge Korman agreed that, under the
circumstances of this case, applying § 547(b)(5)’s “greater
amount” test required the court to construct a hypothetical
liquidation, and that in so doing, the court could consider
whether a reasonable trustee would bring and win a
preference action within the hypothetical chapter 7
proceedings. He wrote that he could not, however, join in
the liquidation constructed by the majority because he could
not agree that the entirety of the $526,402.05 deposit was
itself a preferential transfer subject to clawback under
11 U.S.C. § 547.
4 IN RE TENDERLOIN HEALTH
COUNSEL
Dennis Davis (argued), Goldberg Stinnett Davis & Linchey,
Petaluma, California, for Plaintiff-Appellant.
James A. Tiemstra (argued) and Lisa Lenherr, Tiemstra Law
Group PC, Oakland, California, for Defendant-Appellee.
OPINION
M. SMITH, Circuit Judge:
In this preference action, plaintiff-appellant E. Lynn
Schoenmann (Schoenmann), the trustee in bankruptcy, seeks
to recover for the bankruptcy estate a $190,595.50 loan
payment debtor Tenderloin Health (Tenderloin) made to
defendant-appellee Bank of the West (BOTW) within ninety
days of the filing of Tenderloin’s chapter 7 bankruptcy. To
succeed, Schoenmann must demonstrate that by virtue of
that payment BOTW received more than it otherwise would
have in a hypothetical chapter 7 liquidation where the
challenged transfer had not been made. This inquiry,
required by 11 U.S.C. § 547(b)(5), is called the “greater
amount test.”
The bankruptcy court granted BOTW’s motion for
summary judgment, finding Schoenmann could not satisfy
section 547(b)(5), because BOTW had a right of setoff, and
Tenderloin’s account contained at least $190,595.50 on the
petition date. Schoenmann asserts that in the hypothetical
liquidation, the trustee would avoid a $526,402.05 deposit,
leaving less than $190,595.50 in Tenderloin’s account, even
allowing for BOTW’s right of setoff.
IN RE TENDERLOIN HEALTH 5
In order to resolve the issues presented in this case, we
address whether courts may entertain hypothetical
preference actions within section 547(b)(5)’s hypothetical
chapter 7 liquidation, and if so, whether the $526,402.05
deposited in this case would meet the definition of an
avoidable preference.
We conclude that courts may account for hypothetical
preference actions within a hypothetical chapter 7
liquidation when such an inquiry is factually warranted, is
supported by appropriate evidence, and the action would not
contravene an independent statutory provision. We are also
satisfied that the $526,402.05 deposit in this case would
constitute an avoidable preference in the hypothetical
liquidation at issue here.
We therefore reverse the district court’s judgment in
favor of BOTW and direct that this action be remanded to
the bankruptcy court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2009, BOTW extended a $200,000 line of credit
to Tenderloin, a walk-in clinic serving AIDS patients in San
Francisco. BOTW loaned another $100,000 to Tenderloin
two years later. The loans were secured by Tenderloin’s
personal property, including its deposit accounts with
BOTW.
In late 2011 or early 2012, Tenderloin elected to wind up
its affairs. In carrying out that election, it sold its only real
property for $1,295,000. The escrow on that sale closed on
June 13, 2012. Tenderloin used the proceeds of that sale to
execute two transactions that same day. First, it paid BOTW
$190,595.50 from escrow to satisfy fully its outstanding loan
obligations (debt payment). Next, it moved the rest of its net
6 IN RE TENDERLOIN HEALTH
sale proceeds—$526,402.05—from escrow into its BOTW
deposit account (the deposit).
On July 20, 2012, Tenderloin filed for chapter 7
bankruptcy. Ninety days prior to filing, its account
contained approximately $173,015.00. 1 That sum shrunk to
$52,735.11 on the date of the two disputed transfers, but
grew to $576,603.03 immediately after the deposit.
Tenderloin then spent some of its funds in the days preceding
its bankruptcy, so the account contained $564,115.92 on the
petition date. If we subtract from that sum the amount of the
disputed deposit—$526,402.05—Tenderloin’s account
would have contained only $37,713.87 on the petition date.
Schoenmann sued BOTW on December 12, 2012,
alleging that the debt payment was preferential, and subject
to avoidance under 11 U.S.C. § 547(b). The bankruptcy
court granted BOTW’s motion for summary judgment on
July 31, 2013, concluding that Schoenmann could not show
that BOTW received more than it would have in a
hypothetical liquidation where the debt payment had not
been made. Schoenmann appealed to the district court
pursuant to 28 U.S.C. § 158(a)(1). The district court
affirmed, and Schoenmann timely appealed to our court.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1).
“We review de novo the district court’s judgment in the
appeal from the bankruptcy court, and apply the same de
novo standard of review the district court used to review the
1
There appears to be a factual dispute concerning the amount in
Tenderloin’s deposit accounts on the date ninety days preceding the
filing of its bankruptcy. We need not resolve this dispute because the
difference in the amounts is not material to the outcome.
IN RE TENDERLOIN HEALTH 7
bankruptcy court’s summary judgment.” Suncrest
Healthcare Ctr. LLC v. Omega Healthcare Inv’rs (In re
Raintree Healthcare Corp.), 431 F.3d 685, 687 (9th Cir.
2005).
ANALYSIS
Section 547(b) permits a bankruptcy trustee to recover
for the benefit of the bankruptcy estate preferential payments
from a debtor to a creditor made within the ninety days
preceding the filing of a bankruptcy. 11 U.S.C. § 547(b). To
“avoid” such a payment, the trustee must show, among other
things:
(5) that [it] enables such creditor to receive
more than such creditor would receive if—
(A) the case were a case under chapter 7
of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of
such debt to the extent provided by the
provisions of this title.
11 U.S.C. § 547(b)(5) (emphasis added).
This element—11 U.S.C. § 547(b)(5)—constitutes the
so-called “greater amount test,” which “requires the court to
construct a hypothetical chapter 7 case and determine what
the creditor would have received if the case had proceeded
8 IN RE TENDERLOIN HEALTH
under chapter 7” without the alleged preferential transfer. 2
Alvarado v. Walsh (In re LCO Enters.), 12 F.3d 938, 941
(9th Cir. 1993) (LCO). Schoenmann challenges the
$190,595.50 debt payment, claiming that section 547(b)(5)
is satisfied in this case if BOTW “received a greater amount
than it would have if the [debt payment] had not been made
and there had been a hypothetical chapter 7 liquidation as of
the petition date.” Batlan v. TransAmerica Commercial Fin.
Corp. (In re Smith’s Home Furnishings, Inc.), 265 F.3d 959,
963 (9th Cir. 2001) (Smith).
The bankruptcy court determined that BOTW did not
receive more than it would have in a hypothetical liquidation
because it maintained a right of setoff that entitled it to full
payment, and Tenderloin’s deposit account held the requisite
amount of funds on the petition date. Schoenmann argues,
however, that the trustee would avoid the $526,402.05
deposit in a hypothetical liquidation, such that the deposit
account would contain only $37,713.87 on the petition date,
2
It may at first blush seem incongruous to ask what the creditor
would have received if “the case were a case under chapter 7,” given that
this matter is in fact a chapter 7 liquidation. The reference to chapter 7,
however, defines the character of the hypothetical bankruptcy, which is
then used as a point of comparison to see if the pre-petition payments
rendered the preferred creditor better off. We have previously
recognized that a preference action is permissible under section 547(b),
even when filed in conjunction with a chapter 7 liquidation. See, e.g.,
USAA Fed. Savings Bank v. Thacker (In re Taylor), 599 F.3d 880, 885‒
88 (9th Cir. 2010) (affirming decision concerning a preference action
brought in the course of a chapter 7 liquidation); Busseto Foods, Inc. v.
Charles Laizure (In re Laizure), 548 F.3d 693, 695 (9th Cir. 2008)
(chapter 7 trustee brought preference action); Wood v. Stratos Prod.
Dev., LLC (In re Ahaza Sys., Inc.), 482 F.3d 1118, 1122 (9th Cir. 2007)
(same).
IN RE TENDERLOIN HEALTH 9
a sum far less than the $190,595.50 BOTW actually
received, even allowing for its right of setoff.
BOTW objects to Schoenmann’s analysis for two
reasons. First, BOTW insists it is impermissible to entertain
a hypothetical preference action within a hypothetical
liquidation. Second, BOTW claims that the deposit made by
Tenderloin into its deposit account would not meet the
definition of an avoidable preference. We find neither
argument persuasive.
I. Section 547(b)(5) Does Not Forbid Courts from
Considering Hypothetical Preference Actions.
The text of the Bankruptcy Code, its legislative history,
and current practice in the bankruptcy courts all support the
conclusion that courts may entertain hypothetical preference
actions within hypothetical chapter 7 liquidations. Further,
our holding in LCO does not pose an obstacle to this
conclusion.
A. Text and Legislative History
Statutory interpretation begins with the text. Pakootas v.
Teck Cominco Metals, Ltd., 830 F.3d 975, 980 (9th Cir.
2016). “If the meaning of the text is unambiguous, the
statute must be enforced according to its terms.” Id.
Here, section 547(b)(5) permits the trustee to avoid any
transfer within ninety days of bankruptcy that enables the
creditor “to receive more than such creditor would receive
if—(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and (C) such creditor
received payment of such debt to the extent provided by the
provisions of this title.” 11 U.S.C. § 547(b)(5) (emphasis
added). The phrase “provisions of this title” appears to refer
10 IN RE TENDERLOIN HEALTH
to the totality of Title 11 of the Code, which includes the
preference provisions appearing in section 547.
Accordingly, the text clearly does not directly forbid courts
from considering hypothetical preference actions within a
hypothetical chapter 7 liquidation. However, since the
statute treats the issue globally, our understanding will be
refined by considering the legislative history of section
547(b)(5).
Section 547 was included in the Bankruptcy Reform Act
of 1978. 3 Pub. L. No. 95-598, 92 Stat. 2549 (1978).
Describing element 547(b)(5), the Senate Committee Report
states “the transfer must enable the creditor . . . to receive a
greater percentage of his claim than he would receive under
the distributive provisions of the bankruptcy code.” S. Rep.
No. 95-989, at 87 (1978), reprinted in 1978 U.S.C.C.A.N.
5787, 5873 (emphasis added). The phrase “distributive
provisions” might be thought to narrow the hypothetical
liquidation to disbursement under chapter 7, but the very
next sentence clarifies the meaning of the phrase:
“Specifically, the creditor must receive more than he would
if the case were a liquidation case, if the transfer had not been
made, and if the creditor received payment of the debt to the
extent provided by the provisions of the code.” Id. (emphasis
added). The House Report echoes this language: “A
preference is a transfer that enables a creditor to receive
payment of a greater percentage of his claim against the
debtor than he would have received if the transfer had not
been made and he had participated in the distribution of the
assets of the bankrupt estate.” H.R. Rep. No. 95-595, at 177
3
The preference provisions first appeared as sections 60a and 60b
of the Bankruptcy Act of 1898. See The Bankruptcy Act of 1898 § 60,
Ch. 541, 30 Stat. 544, 562 (1898). The Bankruptcy Reform Act of 1978
superseded those provisions but retained the same basic elements.
IN RE TENDERLOIN HEALTH 11
(1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6138. The
phrase “participate[s] in the distribution” leaves room to
assume the hypothetical chapter 7 trustee might initiate
preference actions in conjunction with the “distribution” of
the assets of the estate.
Evidence bearing more directly on this question appears
in the paragraphs that follow the general overview of section
547(b)(5). The reports provide
The phrasing of the final element changes the
application of the greater percentage test
from that employed under current law.
Under this language, the court must focus on
the relative distribution between classes as
well as the amount that will be received by
the members of the class of which the
preferee is a member. The language also
requires the court to focus on the allowability
of the claim for which the preference was
made. If the claim would have been entirely
disallowed, for example, then the test of
paragraph (5) will be met, because the
creditor would have received nothing under
the distributive provisions of the bankruptcy
code.
H.R. Rep. No. 95-595 at 372 (emphasis added); accord S.
Rep. No. 95-989 at 87. By invoking “allowability,” which
refers generally to whether payment of a claim would violate
some independent provision of the Bankruptcy Code, the
report suggests it is appropriate to consider whether a
hypothetical claim would be affected by the preference
provisions. There are numerous cases that refer to the
greater amount test as implicating the “distributive
12 IN RE TENDERLOIN HEALTH
provisions” of the Code, 4 but in light of this history, we
cannot exclude section 547 from the hypothetical chapter 7
“distribution.”
B. Current Practice Under the Bankruptcy Code
The view that courts may consider hypothetical
preference actions within hypothetical chapter 7 liquidations
is bolstered by the fact that bankruptcy courts are doing
precisely that under two other provisions of the code.
Section 1129(a)(7)(A)(ii) requires bankruptcy courts to
determine what creditors would receive under a hypothetical
chapter 7 liquidation, and then compare that amount to what
the same creditors would receive under a chapter 11
reorganization. It provides that a bankruptcy court may
confirm a chapter 11 plan only if each holder of an impaired
claim “will receive or retain . . . property of a value, as of the
effective date of the plan, that is not less than the amount that
such holder would so receive or retain if the debtor were
liquidated under chapter 7 of this title on such date.”
11 U.S.C. § 1129(a)(7)(A)(ii). Although “[t]he hypothetical
liquidation analysis must be based on evidence and not
assumptions in order to meet the best interests of creditors
test,” Collier on Bankruptcy ¶ 1129.02 n.98 (Alan N.
4
See, e.g., Guttman v. Constr. Program Grp. (In re Railworks
Corp.), 760 F.3d 398, 402 (4th Cir. 2014) (stating that under section
547(b)(5), a transfer “must enable the creditor to receive a greater
percentage of its claim than it would under the normal distributive
provisions in a liquidation case under the Bankruptcy Code”);
Kimmelman v. Port Auth. of N.Y. & N.J. (In re Kiwi Int’l Air Lines, Inc.),
344 F.3d 311, 321 (3rd Cir. 2003) (observing a “trustee could not satisfy
§ 547(b)(5) because the pre-petition payments did not improve the
creditor’s position under the distributive provisions of the Bankruptcy
Code”).
IN RE TENDERLOIN HEALTH 13
Resnick & Henry J. Sommer eds., 16th ed. 2016)
[hereinafter “Collier”] (citing In re Mcorp Fin., Inc.,
137 B.R. 219, 228‒29 (Bankr. S.D. Tex. 1992)), “a trustee’s
avoiding powers in a hypothetical chapter 7 case may []
affect the analysis,” id. ¶ 1129.02.
For instance, in In re Affiliated Foods, Inc., 249 B.R. 770
(Bankr. W.D. Mo. 2000), the court found the statute
“requires an estimation of the value of all of the bankruptcy
estate’s assets, including such hard to determine values as
disputed and contingent claims, the potential disallowance
of claims (under § 502(d)), the probability of success and
value of causes of action held by the estate, and, in this case,
potential preference actions.” Id. at 788 (internal citation
omitted). Likewise, in In re Sierra-Cal, 210 B.R. 168
(Bankr. E.D. Cal. 1997), the court found “all provisions
applicable in a chapter 7 liquidation are to be taken into
account when the court determines what sums would be paid
to whom in a hypothetical liquidation.” Id. at 174. It then
applied two avoidance provisions in the hypothetical
liquidation using the facts and testimony in the record. See
id. at 174‒75 (concluding “a competent chapter 7 trustee
would be able to recover against [the creditor] under § 544
and § 549”).
Chapter 13 has a comparable “best interest of the
creditors” test that requires the same comparison. Section
1325(a)(4) requires a bankruptcy court to confirm a chapter
13 plan if, among other things, “the value, as of the effective
date of the plan, of property to be distributed under the plan
. . . is not less than the amount that would be paid on such
claim if the estate of the debtor were liquidated under
chapter 7 of this title on such date.” When administering
this provision, “court[s] must consider property that would
be likely to be recovered by a chapter 7 trustee’s use of the
14 IN RE TENDERLOIN HEALTH
avoiding powers.” Collier ¶ 1325.05; see also In re Larson,
245 B.R. 609, 614 (Bankr. D. Minn. 2000) (finding that in
the hypothetical liquidation, the court “must look not only at
the Debtor’s assets as listed on his schedules, but [it] must
also consider the recovery of assets by the trustee through
fraudulent transfer and preference actions”).
Lastly, we note that several courts have applied
hypothetical setoff analyses under section 553 within
hypothetical chapter 7 liquidations. See Durham v. SMI
Indus. Corp., 882 F.2d 881, 884 (4th Cir. 1989) (“SMI would
have been entitled to assert its right of setoff under section
553(a) post-petition if the check exchange had not been
executed before Continental’s petition was filed since both
debts were incurred pre-petition.”); Braniff Airways, Inc. v.
Exxon Co., U.S.A., 814 F.2d 1030, 1040 n.11 (5th Cir. 1987)
(“The fact that a setoff never actually took place does not
affect the analysis. The issue is whether Exxon
hypothetically had the right to a setoff, and because of this
right it was secured and therefore the payment received from
Braniff was not a voidable preference.”); Mason & Dixon
Lines, Inc. v. St. Johnsbury Trucking Co. (In re Mason &
Dixon Lines, Inc.), 65 B.R. 973, 976 (Bankr. M.D.N.C.
1986) (“In the case at bar, had the debtor not made the
payment to the creditor carrier, the creditor could have offset
the debt prepetition pursuant to section 553 or if the 30 days
elapsed postpetition had the offset amount as a secured claim
under section 506(a).”); Lingley v. Contractors Grp., Inc. (In
re NEPSCO, Inc.), 55 B.R. 574, 576 (Bankr. D. Maine 1985)
(“Had the debtor in this case not paid CGI the $6,221.56
prior to the filing of the Chapter 7 petition, CGI would have
been entitled to a right of setoff under 11 U.S.C. § 553(a).”).
True, hypothetical setoff analyses, unlike preference actions,
do not require that we assume a party will initiate an
adversary proceeding. That said, it would be odd to permit
IN RE TENDERLOIN HEALTH 15
bankruptcy courts conducting hypothetical liquidations to
look only to section 553, while ignoring other chapter 5
provisions, like section 547.
C. Our Prior Holding in LCO poses no bar.
In response, BOTW relies on our decision in LCO, which
held “the hypothetical chapter 7 analysis required by
§ 547(b)(5) must be based on the actual facts of the case.”
12 F.3d at 940. Since Schoenmann has not challenged the
deposit in Tenderloin’s actual liquidation, BOTW asserts we
may not permit such a challenge in a hypothetical
liquidation. A close reading of LCO reveals that this
argument is misguided because it improperly relies on the
decision’s broad language divorced from the context of the
case.
In LCO, the debtor, LCO Enterprises, leased commercial
space from a company named Lincoln. Id. LCO fell behind
in paying rent and filed for chapter 11 bankruptcy, leading
LCO and Lincoln to restructure their relationship. Id.
Specifically, they changed the terms of the lease agreement,
and LCO disclosed the terms of the revised agreement in its
chapter 11 plan. Id. LCO then faced the decision of whether
it would assume or reject the lease in bankruptcy. Id.
Importantly, under chapter 11, the debtor-in-possession
(LCO) stands in the shoes of the trustee. 11 U.S.C. § 1107.
Additionally, if the debtor was in default on an unexpired
lease before filing for bankruptcy, the lease may not be
assumed “unless, at the time of assumption,” the trustee
cures the default and provides adequate assurance of future
performance. 11 U.S.C. § 365(b)(1)(A)‒(C). LCO, as
trustee, assumed the revised lease and cured the default, in
compliance with section 365(b). LCO, 12 F.3d at 942. The
reorganization plan was eventually confirmed by the
bankruptcy court. Id. at 940.
16 IN RE TENDERLOIN HEALTH
Two months after confirmation, a chapter 11 trustee was
appointed to pursue any preferential payments. Id. The
trustee sued to recover several rent payments LCO
transmitted to Lincoln in the ninety days preceding the filing
of its bankruptcy. Id. The action turned on the “greater
amount test”; i.e., whether Lincoln received more than it
otherwise would have in a hypothetical chapter 7 liquidation
as of the petition date where the prepetition rent payment had
not been made. Id. at 941.
The trustee argued that in a hypothetical liquidation, “a
hypothetical chapter 7 trustee might have rejected the lease,”
giving Lincoln an unsecured claim for its shortfall in rent,
rather than the full payment it received when the lease was
assumed and the default was cured. Id. at 942. The trustee
also said the court “should exercise its own independent
judgment as to whether, if the court were administering the
estate under chapter 7, it would have assumed or rejected the
lease” at the time of the chapter 11 bankruptcy. Id. We
rejected these arguments, holding “[t]he phrase
‘hypothetical chapter 7’ . . . does not mean that the
bankruptcy court can construct its own hypothetical from
whole cloth or from only some of the facts.” Id. at 944.
Rather, “the hypothetical chapter 7 analysis required by
§ 547(b)(5) must be based on the actual facts of the case.”
Id. at 940. Since the lease had been assumed, “the
[bankruptcy] court could neither speculate that there was no
lease nor assume that the lease was rejected.” Id. at 944.
Those assumptions simply did not “reflect[] the facts at any
time.” Id. Moreover, under section 365(b), once the lease
was assumed, the requirement to cure any default was
mandated. This gave Lincoln a secured claim for all
outstanding prepetition rent in the hypothetical liquidation,
IN RE TENDERLOIN HEALTH 17
so it did not receive more than it otherwise would,
precluding satisfaction of the greater amount test. 5
Importantly, we also noted that if we deviated from the
actual facts in the case, and assumed that the hypothetical
chapter 7 trustee had rejected the lease, the trustee would be
allowed to recover payments it was obligated to make to
Lincoln to cure the default pursuant to section 365(b). Id. at
943. In other words, straying from the actual facts would
permit Ҥ 547(b) to circumvent the requirements of
§ 365(b).” Id. To avoid such a statutory collision, we held
“[t]he [t]rustee cannot have his leased property and his rent
payments, too.” Id. at 943‒44.
Mindful of this context, it is apparent that LCO required
fidelity to the actual facts in the case because to hold
otherwise under those circumstances would have violated an
independent statutory provision of the Bankruptcy Code.
Section 365(b) requires the trustee to pay the landlord all
outstanding rent when a lease is assumed, but a preference
action would permit the trustee to recover the very
prepetition rent payments it owes the landlord under that
provision. In light of this conflict, we conclude that LCO
must be narrowly construed. To that end, courts that have
followed LCO’s holding have done so when presented with
the same statutory collision scenario. See In re Kiwi Int’l Air
Lines, Inc., 344 F.3d at 314 (“[T]he assumption of a contract
under 11 U.S.C. § 365 bars a preference claim by a
trustee.”); In re Superior Toy & Mfg. Co., 78 F.3d 1169,
1174 (7th Cir. 1996) (“Section 547 and § 365 are mutually
exclusive avenues for a trustee. A trustee may not prevail
5
“If a creditor is fully secured, a prepetition transfer to him is not
preferential because the secured creditor is entitled to 100% of his
claim.” LCO, 12 F.3d at 941.
18 IN RE TENDERLOIN HEALTH
under both. Nor may a subsequent trustee pursue one course,
when her predecessor has pursued another.”).
Adding further support for the interpretation that LCO
requires fidelity to the actual facts only when doing
otherwise would violate an independent statutory provision,
the opinion explicitly relies on the Eleventh Circuit’s
decision in Seidle v. GATX Leasing Corporation, 778 F.2d
659 (11th Cir. 1985). See LCO, 12 F.3d at 943. There, a
creditor held a chattel mortgage on a debtor’s aircraft which
secured payments due under a note. Seidle, 778 F.2d at 660.
The debtor made partial payments on the note within the
ninety day period preceding its chapter 11 bankruptcy. Id.
Once in bankruptcy, the debtor and creditor entered into a
court-approved stipulation under 11 U.S.C. § 1110,
obligating the debtor to cure its default in exchange for the
debtor’s continued use of the aircraft. Id. at 661. The trustee
later sued to recover as preferential the prepetition payments
made on the note. Id. The court rejected the preference
action because the trustee was seeking to recover payments
it was obligated to make under the court-approved
stipulation. See id. at 665 (“Pursuant to the section 1110
stipulation, a creditor is entitled to unpaid pre-petition
payments, as defaults; a trustee may not later thwart the
effect of the statute by challenging the validity of these
transfers as preferences.”). As in LCO, if the court assumed
a hypothetical trustee would have rejected the stipulation, it
would be permitting a preference action that would
undermine an independent statutory provision—section
1110.
In sum, LCO does not bar us in this case from assuming
in a hypothetical liquidation that the hypothetical trustee
would sue to recover the $526,402.05 deposit. Unlike in
LCO, permitting such an action would not violate any other
IN RE TENDERLOIN HEALTH 19
statutory provision, and it is consistent with the text and
legislative history recited above. 6 Having established that
section 547(b)(5) does not forbid courts from entertaining
hypothetical preference actions, we next must determine if
the deposit in this case would meet the definition of an
avoidable preference.
6
Additionally, though BOTW is correct that we are permitting the
hypothetical trustee to do something the actual trustee did not do, the
actual trustee had no incentive to challenge the deposit when the
bankruptcy was filed. BOTW turned over the $564,276.83 in
Tenderloin’s accounts on November 12, 2012. The trustee then brought
this action in the bankruptcy court roughly one month later. These facts
are significant because the voluntary turnover to the trustee of the
property subject to a creditor’s right of setoff generally precludes any
subsequent claim of setoff by the creditor. See Citizens Bank of Md. v.
Strumpf, 516 U.S. 16, 20 (1995) (noting that requiring a creditor
immediately to turnover funds on account “would divest the creditor of
the very thing that supports the right of setoff”); In re Mauch Chunk
Brewing Co., 131 F.2d 48, 49 (3d Cir. 1942) (finding that when trustee
withdrew funds from account with bank’s knowledge of bankruptcy
filing, bank’s acquiescence was “tantamount to renunciation of its
privilege of setoff”). If BOTW loses this preference action, it might be
able revive its right of setoff given “court[s] may remedy the effect of an
inadvertent, involuntary or improper dissipation of the creditor’s
interest.” COLLIER ¶ 553.07; see also In re Archer, 34 B.R. 28, 31
(Bankr. N.D. Tex. 1983) (finding where bank had mistakenly turned over
property it did not intentionally waive its right of setoff). Still, even
allowing for that possibility, it would not be reasonable to assume the
trustee had an incentive to challenge the deposit from the outset of this
proceeding. BOTW had turned over the funds that supported the right
of setoff, so there was little reason for the trustee to fear BOTW would
later assert such a right if the preference action was successful and the
bank disgorged the debt payment.
20 IN RE TENDERLOIN HEALTH
II. In the Hypothetical Liquidation, the Trustee
Would Avoid the Deposit as a Preference.
Schoenmann concedes BOTW would have a right of
setoff in the hypothetical liquidation.7 BOTW asserts it
would exercise that right sometime after the bankruptcy
petition was filed. In that scenario, if we permit the
hypothetical preference action, BOTW will have received
7
“The right of setoff (also called ‘offset’) allows entities that owe
each other money to apply their mutual debts against each other, thereby
avoiding the absurdity of making A pay B when B owes A.” Newbery
Corp. v. Fireman’s Fund Ins. Co., 95 F.3d 1392, 1398 (9th Cir. 1996)
(quotation marks omitted). There is no federal right of setoff, but “11
U.S.C. § 553(a) provides that, with certain exceptions, whatever right of
setoff otherwise exists is preserved in bankruptcy.” Citizens Bank of Md.
v. Strumpf, 516 U.S. 16, 18 (1995). California law recognizes a bank’s
right to setoff against a depositor’s account. Kruger v. Wells Fargo
Bank, 11 Cal. 3d 352, 357–58 (1974). Accordingly, BOTW’s right of
setoff is preserved in the hypothetical liquidation if it meets the
requirements of section 553. Three conditions must be shown: “(1) the
debtor owes the creditor a prepetition debt; (2) the creditor owes the
debtor a prepetition debt; and (3) the debts are mutual.” United States v.
Carey (In re Wade Cook Fin. Corp.), 375 B.R. 580, 594 (B.A.P. 9th Cir.
2007). In a hypothetical liquidation as of the petition date, these
requirements are met. Tenderloin, the debtor, would owe BOTW, the
creditor, a prepetition debt because the alleged preferential transfer
would not have taken place, meaning the loan balance ($190,595.50)
would be outstanding. BOTW would owe Tenderloin a prepetition debt
arising from the deposit of the property sale proceeds. See Strumpf, 516
U.S. at 21 (explaining banks obtain title to deposited funds subject to a
promise to pay the depositor); Bank of Marin v. England, 385 U.S. 99,
101 (1966) (“The relationship of bank and depositor is that of debtor and
creditor, founded upon contract.”). Finally, the debts are mutual because
they involve obligations owed between the same parties.
IN RE TENDERLOIN HEALTH 21
more as a result of the debt payment than it would have
received in a hypothetical chapter 7 liquidation. 8
Hypothetical Post-Petition Setoff
“Where a creditor fails to exercise its right of setoff prior
to the filing of the petition it does not lose the right, but must
proceed in the bankruptcy court by means of a complaint to
lift the automatic stay so as to be allowed to exercise its
already existing right to offset.” Durham v. SMI Indus.
Corp., 882 F.2d 881, 884 (4th Cir. 1989) (internal quotation
marks omitted). In accordance with that procedure, in the
post-petition scenario BOTW would move to lift the stay,
submit a proof of claim, and then argue its right of setoff
entitles it to receive $190,595.50. “Mandatory claim
disallowance under § 502(d),” however, “is one Bankruptcy
Code provision that applies in chapter 7 liquidations.” In re
Sierra-Cal, 210 B.R. at 173. “It requires that the court
disallow ‘any claim’ of any entity from which property is
8
The result would not be different even if BOTW were to argue that
it would exercise its hypothetical setoff right prior to the filing of the
petition. Prepetition setoffs are generally challenged in three ways, only
one of which would apply here. Section 553(b) provides that if a creditor
exercises a setoff within ninety days of the bankruptcy, the trustee may
recover the amount by which the creditor improved its position between
the ninetieth day before the filing and the date of the bankruptcy. See 11
U.S.C. § 553(b). Ninety days before filing, Tenderloin’s accounts
contained approximately $173,015.00. We also must assume that
BOTW would elect to setoff the full $190,595.50. BOTW would thus
improve its position by $17,580.50 under this scenario. The trustee
would be able to recover that amount from BOTW. At bottom, if BOTW
exercised its hypothetical setoff right prior to the filing of the petition, it
still received more in reality than it would in the hypothetical liquidation
because it actually received $190,595.50, but would receive only
$173,015.00 in the hypothetical.
22 IN RE TENDERLOIN HEALTH
recoverable by a trustee, or that is the transferee of an
avoidable transfer, unless and until the property is turned
over and the transfer is paid.” 9 Id. Pursuant to this
provision, the bankruptcy court likely would decide the
trustee’s hypothetical preference action before allowing
BOTW’s claim. It therefore would consider whether the
deposit satisfies the elements of section 547(b).
The Section 547(b) Elements.
As previously noted, section 547(b) requires that the
“transfer” be (1) to or for the benefit of a creditor, (2) for or
on account of an antecedent debt, (3) made while the debtor
was insolvent, (4) made within 90 days of the bankruptcy,
and (5) one which permits the creditor to receive more than
it would in a hypothetical liquidation where the challenged
payment had not been made. 11 U.S.C. § 547(b)(1)‒(5).
BOTW argues that in the hypothetical preference action it
would no longer be a “creditor,” the deposit would not be
“for or on account of an antecedent debt,” and the deposit
would not constitute a “transfer.” 10 We disagree.
In the hypothetical liquidation where the debt payment
had not been made, BOTW would still be a creditor because
it would be owed the $190,595.50 it loaned to Tenderloin.
9
“The § 502(d) disallowance is in the nature of an affirmative
defense to a proof of claim and does not provide independent authority
for affirmative relief against the creditor.” In re Sierra-Cal, 210 B.R. at
173.
10
BOTW does not dispute the other section 547(b) elements, and
they appear to be satisfied. The deposit was made on June 13, 2012, so
it occurred within ninety days of the filing of the petition. 11 U.S.C.
§ 547(b)(4)(A). In the absence of the deposit, BOTW would not have
been able to setoff the full $190,595.50, so the trustee could satisfy the
“greater amount test.” Id. § 547(b)(5).
IN RE TENDERLOIN HEALTH 23
Though it is a closer question, the deposit also would be “for
or on account of an antecedent debt.” True, Tenderloin
transferred the $526,402.05 in proceeds having already
satisfied its preexisting debt, but the 1978 revision to the
bankruptcy statute defined preferences “solely with respect
to a payment’s effect on the size of the debtor’s estate.”
Marathon Oil Co. v. Flatau (In re Craig Oil Co.), 785 F.2d
1563, 1566 (11th Cir. 1986); see also Vern Countryman, The
Concept of a Voidable Preference in Bankruptcy, 38 Vand.
L. Rev. 713, 748 (1985) (“The function of the preference
concept is to avoid prebankruptcy transfers that distort the
bankruptcy policy of distribution. Transfers that do distort
this policy do so without regard to the state of mind of either
the debtor or the preferred creditor.”). 11 By that measure, in
the hypothetical liquidation, the deposit would have the
effect of diminishing the funds available to Tenderloin’s
creditors because it would increase the size of BOTW’s
secured claim against the bankruptcy estate. The deposit
would also constitute a “transfer” under the terms of the
Bankruptcy Code. It would subject the funds to BOTW’s
security interest, give BOTW title to the funds, and deplete
the assets available for distribution to Tenderloin’s creditors.
Tenderloin therefore would be “disposing of or parting with
. . . an interest in property.” 11 U.S.C. § 101(54)(D); see
also Bernard v. Sheaffer (In re Bernard), 96 F.3d 1279, 1282
(9th Cir. 1996) (finding that “depositing money into a bank
11
Notably, a debtor’s subjective intent may be relevant in
determining the applicability of an affirmative defense. See, e.g., 11
U.S.C. § 547(c)(2) (providing there is no preference where a payment
was made according to ordinary business terms); In re Craig Oil Co.,
785 F.2d at 1566 (“[A] creditor’s state of mind is now immaterial in
finding a preference. . . . It does not follow from the above that a debtor’s
state of mind or motivation is likewise immaterial in applying the
preference exception of § 547(c)(2).”).
24 IN RE TENDERLOIN HEALTH
account is a transfer” and correspondingly concluding that
withdrawing money from a bank account is a transfer).
Arguing to the contrary, BOTW invokes New York
County National Bank v. Massey, 192 U.S. 138 (1904).
There, the Supreme Court observed that
a deposit of money to one’s credit in a bank
does not operate to diminish the estate of the
depositor, for when he parts with the money
he creates at the same time, on the part of the
bank, an obligation to pay the amount of the
deposit as soon as the depositor may see fit to
draw a check against it. It is not a transfer of
property as a payment, pledge, mortgage, gift
or security.
Id. at 147 (emphasis added). For several reasons, we are not
persuaded by BOTW’s invocation of Massey. As previously
noted, “[i]n 1978, Congress fundamentally restructured
bankruptcy law by passing the new Bankruptcy Code.”
Begier v. Internal Revenue Service, 496 U.S. 53, 63 (1990).
Among other changes, Congress elected to expand the
Code’s definition of the term “transfer.” 12 S. Rep. No. 95-
12
In 1904, a transfer was defined “to include the sale and every other
and different method of disposing of or parting with property, or the
possession of property, absolutely or conditionally, as a payment, pledge,
mortgage, gift, or security.” Massey, 192 U.S. at 146; see also The
Bankruptcy Act of 1898 § 1, Ch. 541, 30 Stat. 544, 545 (1898). Today,
the parting may be with a mere “interest in property” and need not be
done “as a payment, pledge, mortgage, gift, or security.” See 11 U.S.C.
§ 101(54); Smiley v. First Nat’l Bank of Belleville (Matter of Smiley),
864 F.2d 562, 565 (7th Cir. 1989) (“[W]e find that the narrow definition
of ‘transfer’ . . . can no longer be the law since the Bankruptcy Reform
Act took effect.”).
IN RE TENDERLOIN HEALTH 25
989 at 27; accord H.R. Rep. No. 95-595 at 314. Pursuant to
the revision, “any transfer of an interest in property is a
transfer, including a transfer of possession, custody, or
control even if there is no transfer of title, because
possession, custody, and control are interests in property.”
Id. Applying that definition, the committee reports state
squarely that “[a] deposit in a bank account or similar
account is a transfer.” Id. The Massey court had no occasion
to contemplate these amendments; it considered only the
Bankruptcy Code’s former and narrower definition of
“transfer.”
We, however, had occasion to consider the revised
definition of “transfer” in Bernard v. Sheaffer, 96 F.3d at
1282. There, the debtors withdrew money from an account
and placed it in a safe. Id. at 1281. They argued that
withdrawals did not constitute transfers because the assets
“merely changed form.” Id. at 1282. We held that the
debtors’ argument “fail[ed] to take proper account of the
Bankruptcy Code’s definition of ‘transfer,’ which is
extremely broad.” Id. (emphasis in original). Recognizing
that title passes to the bank when funds are deposited, we
said the debtors owned only “claims against their bank.” Id.
at 1283. “When they withdrew from their accounts,”
however, “they exchanged debt for money” and thus “parted
with property, satisfying the Code’s definition of transfer.”
Id. “Under the holding in Bernard, there is no ambiguity
around the definition of a transfer; withdrawals and deposits
into bank accounts clearly qualify.” A & H Ins., Inc. v. Huff
(In re Huff), No. 12‒05001‒BTB, 2014 WL 904537, at *6
(9th Cir. B.A.P. Mar. 10, 2014). As is the case here, a
deposit “exchange[s] money for debt . . . result[ing] in a
‘parting with’ property under the holding in Bernard as a
matter of law.” Id.; see also Batlan v. Bledsoe (In re
Bledsoe), 569 F.3d 1106, 1113 (9th Cir. 2009) (invoking
26 IN RE TENDERLOIN HEALTH
Bernard’s interpretation of “transfer” in the context of
another section of the Bankruptcy Code). 13
Next, even though “[a] debtor’s bank deposit ordinarily
constitutes a transfer of the debtor’s property to the title and
possession of the bank,” some courts nonetheless have asked
“whether this ‘transfer’ is of a kind [that] section 547
invalidates.” Collier ¶ 547.03[1][b] (emphasis added)
(citing New Jersey Nat’l Bank v. Gutterman (In re Applied
Logic Corp.), 576 F.2d 952 (2d Cir. 1978); Katz v. First
Nat’l Bank of Glen Head, 568 F.2d 964 (2d Cir. 1977)).
Though we doubt such an inquiry is warranted when
deciding whether a transaction constitutes a transfer, 14 even
assuming it is, the asserted standard is met here.
13
Massey is also factually distinguishable. Here, unlike in Massey,
the accounts were pledged as security on an antecedent loan, and the
deposit itself would render BOTW fully secure. Cf. Smith, 265 F.3d at
964 (“[P]ayments that change the status of a creditor from partially
unsecured to fully secured at the time of petition may be preferential.”);
Porter v. Yukon Nat’l Bank, 866 F.2d 355, 359 (10th Cir. 1989) (finding
transfer preferential where “the effect of the transfer was to change the
status of the Bank from that of a partially unsecured creditor to that of a
fully secured creditor”). It is also worth noting that the Supreme Court
instructs us to look to the “actual effect” of the deposit in bankruptcy,
Palmer Clay Prods. Co. v. Brown, 297 U.S. 227, 229 (1936), and as
explained further below, the deposit would deplete the estate’s assets.
The concurrence is simply incorrect in stating that the deposit “made no
difference to the bank’s security position.” BOTW’s security interest
only attached because the deposited funds were transferred out of
escrow.
14
Both of the cited decisions were decided prior to the 1978
amendments to the Bankruptcy Code. In addition, the “diminution of
estate” doctrine is used “to determine whether property that is transferred
belongs to the debtor,” not whether a transaction constitutes a transfer.
See Adams v. Anderson (In re Superior Stamp & Coin Co.), 223 F.3d
IN RE TENDERLOIN HEALTH 27
The pertinent question is whether the deposit depletes the
assets of the estate available for distribution to creditors. See
Begier, 496 U.S. at 58 (stating that the preference provision
is designed to “preserve the property includable within the
bankruptcy estate”). 15 On the specific facts of this case, as
noted before, the deposit would have that effect. No
bankruptcy creditor had an interest as far as we are aware in
Tenderloin’s real property. Moreover, if the deposited funds
had not been transferred—and therefore remained in
escrow—they would have passed to the estate and thus to
other creditors. Through the deposit, however, one
creditor—BOTW—gained a beneficial interest in the funds.
BOTW also became indebted to Tenderloin for $564,115.92,
and correspondingly increased its right to exercise a setoff
for the full amount of its loan. The deposit therefore
represents the kind of pre-petition “transfer” that the
preference provisions target. See, e.g., Meoli v. The
Huntington Nat’l Bank (In re Teleservices Grp., Inc.), 469
B.R. 713, 744‒47 (W.D. Mich. 2012) (stating that “Massey
has become an anachronism” and finding that a deposit in a
1004, 1007 (9th Cir. 2000). To the extent that BOTW insists the deposit
was not a transfer “of an interest of the debtor in property,” see id., that
argument has been waived, Officers for Justice v. Civil Serv. Comm’n,
979 F.2d 721, 726 (9th Cir. 1982). Finally, the concurrence concedes
that the deposit is a “transfer,” but insists it is not the right kind of transfer
because Massey allegedly controls when determining “what makes a
preference.” We are convinced that satisfying the elements of § 547(b)
“makes” a transfer “a preference,” and the concurrence does not disagree
that those elements would be satisfied here.
15
The key aspect of this investigation is not whether the exercise of
a setoff right depletes the estate’s assets, see Concurrence at 3, as that
necessarily is true in every case. The question is whether the deposit
depletes the estate’s assets because deposits do not always afford the
bank a right of setoff, nor are deposit accounts always pledged as security
for a loan.
28 IN RE TENDERLOIN HEALTH
bank account pledged as collateral for a loan fits the
definition of an avoidable transfer); Ivey v. First Citizens
Bank & Trust Co., 539 B.R. 77, 87 n.14 (M.D.N.C. 2015)
(noting that in Teleservices “a part of the transfers were
deposits into bank accounts that themselves served as
security for the line of credit that the defendant bank
extended to debtor. Therefore, whether or not the bank
actually exercised its rights against the accounts, the deposits
themselves created an actual or potential diminution of the
estate by subjecting the funds to the bank’s power under this
credit agreement” (citation omitted)).
The implication of the above is that if BOTW sought to
exercise its right of setoff after the petition was filed, the
hypothetical preference challenge to the deposit would still
be successful. As a consequence, Tenderloin’s account
functionally would contain $37,713.87 on the petition date,
a sum far less than the $190,595.50 BOTW received, even
allowing for its right of setoff. 16 Under the hypothetical
16
We decline to adopt the post-petition setoff analysis suggested by
the concurrence. First, though there is no question that setoffs are
governed by section 553, the trustee has never argued that it would
challenge a hypothetical post-petition setoff. Instead, Schoenmann
asserts only that the hypothetical trustee would challenge the deposit as
an avoidable preference. Next, while the exercise of a setoff results in a
permissible preference because it does not constitute a transfer under the
Bankruptcy Code, COLLIER ¶ 553.09[1][a], here we have a pre-petition
transfer that renders a creditor fully secure, and thus it is not immune
from preference liability. See supra at 27 n.13. Lastly, though the
concurrence applies section 553(b) to a hypothetical post-petition setoff,
the plain language of the statute indicates that section 553(b) applies only
to pre-petition setoffs. See 11 U.S.C. § 553(b)(1) (stating that “if a
creditor offsets a mutual debt owing to the debtor against a claim against
the debtor on or within 90 days before the date of the filing of the petition,
then the trustee may recover from such a creditor the amount so offset”
subject to certain conditions (emphasis added)); see also Collier ¶
IN RE TENDERLOIN HEALTH 29
facts, the trustee could demonstrate that the elements of
section 547(b)(5) would be met. 17
CONCLUSION
We hold that courts may entertain hypothetical
preference actions within section 547(b)(5)’s hypothetical
liquidation when such an inquiry is factually warranted,
supported by appropriate evidence, and so long as the
hypothetical preference action would not result in a direct
conflict with another section of the Bankruptcy Code.
Here, the undisputed facts demonstrate that BOTW
received two transfers simultaneously within ninety days of
Tenderloin’s bankruptcy. We are also satisfied that in a
hypothetical liquidation where the debt payment had not
been made, the hypothetical bankruptcy trustee would
challenge as preferential the $526,402.05 deposit, as would
any reasonable bankruptcy trustee. Once we permit such a
hypothetical preference action, Schoenmann can
demonstrate that BOTW received more as a result of the debt
payment than it would in a hypothetical chapter 7
liquidation. As a consequence, the trustee can prove each
553.09[2][c] (“The better result is to limit section 553(b) to setoffs
actually taken prepetition. In addition to remaining true to the language
of the text, that result is consistent with the underlying purpose of section
553, which it to encourage creditors not to take setoffs by generally
preserving their setoff rights.”).
17
BOTW mentions in passing one hypothetical affirmative
defense—that the bank “would not be liable pursuant to 11 U.S.C.
§ 550.” Since BOTW does not develop the argument, however, we
decline to reach it. See W. Watersheds Project v. Kraayenbrink, 632 F.3d
472, 499 (9th Cir. 2010); Int’l Healthcare Mgmt. v. Hawaii Coalition for
Health, 332 F.3d 600, 609 (9th Cir. 2003).
30 IN RE TENDERLOIN HEALTH
required element of his claim, and BOTW has not shown it
is entitled to judgment as a matter of law.
We REVERSE the district court’s judgment in favor of
BOTW. BOTW’s summary judgment motion is therefore
DENIED, and the matter is REMANDED to the district
court with directions to remand the matter to the bankruptcy
court for further proceedings consistent with this opinion.
Appellee shall bear costs on appeal. Fed. R. App. P.
39(a)(3).
REVERSED and REMANDED.
KORMAN, District Judge, concurring in part and
concurring in the judgment:
I concur in the decision to reverse and remand to the
bankruptcy court, and join all but Part II of the majority
opinion. I agree that, under the circumstances of this case,
applying 11 U.S.C. § 547(b)(5)’s “greater amount” test
requires us to construct a hypothetical liquidation, and that
in so doing, we may consider whether a reasonable trustee
would bring and win a preference action within the
hypothetical Chapter 7 proceedings. I cannot, however, join
in the liquidation that the majority constructs in this case,
because I cannot agree that the entirety of the $526,402.05
deposit was itself a preferential transfer subject to clawback
under 11 U.S.C. § 547.
The majority is correct that Bernard v. Sheaffer, 96 F.3d
1279 (9th Cir. 1996), binds us to begin with the premise that
a bank deposit is a “transfer” under the modern Bankruptcy
IN RE TENDERLOIN HEALTH 31
Code, see also Maj. Op. at 23–26. 1 But the ultimate issue is
not merely whether Tenderloin’s deposit was a transfer, but
whether it was a preferential one. On the latter question, the
majority’s position runs headlong into Justice Brandeis’s
seminal opinion in New York County National Bank v.
Massey, 192 U.S. 138, 147 (1904). The majority does not
ignore Massey; nevertheless, its treatment of that case almost
totally elides what Massey has to say about the central
question presented here.
Instead of engaging Massey’s analysis of what makes a
preference, the majority opinion focuses at length on
whether, in light of the expanded definition of “transfer” that
Congress adopted in 1978, Massey still means that deposits
are not transfers. The trouble is that Massey never meant that
at all. The Massey Court “never said that customer deposits
were not transfers.” Meoli v. The Huntington Nat’l Bank (In
re Teleservices Grp., Inc.), 469 B.R. 713, 745 (Bankr. W.D.
Mich. 2012) (emphasis added), cited at Maj. Op. at 27–28.
Rather, it said that such deposits were not preferential within
the meaning of the bankruptcy laws solely because they
create a right of setoff in a creditor. Massey, 192 U.S. at 147
(“[A] deposit of money . . . in a bank does not operate to
diminish the estate of the depositor.” (emphasis added)).
The question is whether Massey’s holding, that the
creation of a setoff right does not suffice to make a
preference, has survived Congress’s creation of the
contemporary scheme governing preferences and setoff. In
1
The circuits are divided on this question. See Ivey v. First Citizens
Bank & Trust Co. (In re Whitley), — F.3d —, 2017 WL 416964, at *3–
5 (4th Cir. 2017) (noting the split and reaffirming the Fourth Circuit’s
pre-1978 position that deposits into one’s own bank account ordinarily
are not “transfers”).
32 IN RE TENDERLOIN HEALTH
that respect, the Massey Court faced a similar statutory
landscape to the one we do now. The 1898 Act provided that
an insolvent debtor’s transfer was preferential only if it
“enable[d] any one of his creditors to obtain a greater
percentage of his debt than any other of such creditors of the
same class.” § 60(a), 30 Stat. 544, 562. Nevertheless, it
expressly authorized the setoff of mutually owing debts
without providing an exception applicable when a setoff
would improve the bank’s position. Id. § 68(a), 30 Stat. at
565. The Court held that the preservation of setoff indicated
Congress’s intent that the creation and exercise of a setoff
right exist as an exception to the Act’s definition of a
preferential transfer. Massey, 192 U.S. at 147. After all,
setoff (and the creation of a setoff right) always favors
offsetting creditors, who “receive[] a preference in the fact
that, to the extent of the set-off [right], [they are] paid in
full.” Id. As Justice Brandeis explained, to “enlarge the
scope of the statute defining preferences so as to prevent set-
off in cases coming within the terms of [the provision
authorizing setoff]” would “defeat” Congress’s choice to
preserve setoff under those terms. Id.
In enacting the 1978 Act, or any of the numerous
subsequent amendments to the Bankruptcy Code, Congress
could have included the creation or exercise of a setoff right
in the roster of transactions that are avoidable under § 547,
but it did not. Instead, it preserved the basic feature of the
1898 Act on which Massey relied—the treatment of
preferential transfers and setoff rights in separate provisions
subject to different rules. Like § 68(a) of the 1898 Act, § 553
of the post-1978 Code is an entirely separate provision that
subjects setoffs, exclusively, to different rules than those
applicable to the recovery of preferences generally. See, e.g.,
Woodrum v. Ford Motor Credit Co. (In re Dillard Ford,
Inc.), 940 F.2d 1507, 1512 (11th Cir. 1991).
IN RE TENDERLOIN HEALTH 33
Because that structure is unchanged, to hold that the
creation of a setoff right that the Code preserves under the
terms of § 553 may be preferential under § 547 would, as in
Massey, “operate to enlarge the scope of the statute defining
preferences so as to prevent [the exercise of] set-off in cases
coming within the terms of [§ 553].” As in Massey, a
preference is still defined as a transfer that leaves the
receiving creditor better off than it otherwise would have
been. See 11 U.S.C. § 547(b)(5), see also Maj. Op. at 27
(“The pertinent question is whether the deposit depletes the
assets of the estate available for distribution to creditors.”).
Setoff rights are still preserved, subject to more forgiving
limitations than transfers generally. Compare 11 U.S.C.
§ 553(b) with § 547(b). 2 And as a matter of economic reality,
the creation and exercise of those rights still advantage some
creditors in a way that would—but for Massey’s limiting
construction—meet the hornbook definition of a preference.
Concededly, Massey interpreted the text of a different
statute than the one before us today. Nevertheless, the
ultimate question in any statutory interpretation case is the
intent of Congress, and the Supreme Court has instructed
that “Congress is presumed to be aware of a[] . . . judicial
2
Indeed, the bankruptcy judge in Meoli v. The Huntington Nat’l
Bank (In re Teleservices Grp., Inc.), 469 B.R. 713 (Bankr. W.D. Mich.
2012), quoted by the majority, was discussing § 553(b)’s effect on the
treatment of setoffs when it labeled Massey an “anachronism.” Id. at 746,
quoted at Maj. Op. at 27–28. Its point was not that Congress no longer
intended the law governing setoffs to function as an exception to the law
governing preferences generally, but that the enactment of § 553(b) had
“addressed preferential setoffs,” by providing special terms on which
they, although not subject to § 547, could be clawed back. Id. at 745–46.
In any case, the court in Meoli had no cause to consider whether the
creation or exercise of a setoff right could render a transfer preferential—
the transfers at issue in Meoli were voidable not because they were
preferential, but because they were fraudulent. See id. at 747.
34 IN RE TENDERLOIN HEALTH
interpretation of a statute and to adopt that interpretation
when it re-enacts a statute without change.” Lorillard v.
Pons, 434 U.S. 575, 580 (1978). There is no indication that
Congress meant to disrupt Massey’s bedrock holding when
it enacted a new bankruptcy law, but preserved the structure
that formed the essential basis for the Supreme Court’s
analysis. In such circumstances, we should be mindful not
only of Congress’s intent, but of the fact that “only [the
Supreme] Court may overrule one of its precedents.” See
Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S.
533, 535 (1983) (per curiam).
In a footnote, the majority opinion also argues that this
case is distinguishable from Massey because “the accounts
were pledged as security on an antecedent loan, and the
deposit itself would render BOTW fully secure.” Maj. Op. at
26 n.13. Certainly, the creation of a new lien would have
made a preferential transfer. Nevertheless, the fact that
Tenderloin took the funds out of escrow and deposited the
money made no difference to the bank’s security position.
All of Tenderloin’s personal property was subject to the
same floating lien, including its general intangibles. Those
included Tenderloin’s contractual right to be paid the funds
out of escrow. See In re Merten, 164 B.R. 641, 643 (Bankr.
S.D. Cal. 1994). Tenderloin’s interest in those funds would
have been identically encumbered, and BOTW identically
secured, if the money had stayed in escrow indefinitely, or
transferred out of escrow and into a safe in Tenderloin's
offices.
Because Massey’s reasoning applies with the same force
today as it did in 1904, I cannot join in the majority’s holding
that the $526,402.05 deposit was a preference subject to
attack under § 547. I would have the hypothetical
bankruptcy court treat Tenderloin’s account as containing
IN RE TENDERLOIN HEALTH 35
the full $564,115.92 as of the petition date, and proceed to
apply 11 U.S.C. § 553 to determine what portion of that
amount BOTW could set off against Tenderloin’s
$190,595.50 debt. 3
Section 553 does not preserve setoff rights without
limitation. Rather, creditors may only set off subject to the
strictures imposed by § 553(b), a “miniature preference
provision akin to [§ 547].” Eckles v. Petco Inc., Interstate (In
re Balducci Oil Co., Inc.), 33 B.R. 847, 852 (Bankr. D. Colo.
1983). Much like § 547(b) does for transfers, § 553(b)
directs us to apply an improvement-of-position test—it
disallows setoff to the extent that the creditor was better
secured on the date of setoff than it was on the first day it
became undersecured (or 90 days before bankruptcy, if an
insufficiency existed at the start of the preference period).
To be sure, there is some question whether § 553(b)
applies to limit actual post-petition setoffs. See COLLIER ON
BANKRUPTCY ¶ 553.09[2][c] (noting division of authority).
But as the Fifth Circuit has noted, the safeguards of § 553(b)
are unnecessary post-petition in an actual liquidation, where
the need to proceed by application to lift the automatic stay
gives the bankruptcy judge an opportunity to weigh the
3
The majority opinion faults me for analyzing the permissibility of
a post-petition setoff when the trustee has not raised the issue (having
relied whole-hog on its argument that the deposit itself was a preference).
Maj. Op. at 28–29 n.16. This case raises the important question of how
to measure the preferential impact of commonplace bank deposits, which
will often turn on the permissible extent of a hypothetical post-petition
setoff. “It is important that we address the proper legal standards” for
bankruptcy courts to apply in addressing the ultimate issue presented
here, and we may reach questions “intimately bound up with” that issue,
though not raised by the parties, in order to do so. See Kolstad v. Am.
Dental. Ass’n, 527 U.S. 526, 540 (1999).
36 IN RE TENDERLOIN HEALTH
equities of allowing or denying the creditor’s claim. Braniff
Airways, Inc. v. Exxon Co., U.S.A., 814 F.2d 1030, 1041 n.13
(5th Cir. 1987).
By contrast, in a hypothetical liquidation, there is no
such gatekeeper to protect other claimants. There is of course
no actual bankruptcy judge available to exercise discretion
in such a case, and it would push the already somewhat
strained boundaries of our hypothetical analysis too far to
exercise our own discretion, sitting as a three-headed
hypothetical bankruptcy judge, weighing the imaginary
equities of a fantasy liquidation. The majority asserts that
this adds a new variable to what is supposed to be a
controlled experiment, Maj. Op. at 28–29 n.16, but so would
exercising our own discretion—by substituting our
judgment for that of the real bankruptcy judge.
We cannot construct a hypothetical bankruptcy judge to
review a hypothetical application to lift the stay. So to
analyze a hypothetical post-petition setoff without applying
§ 553(b) would allow preference defendants to “have it both
ways” by avoiding both the statutory improvement-in-
position test and the bankruptcy court’s equitable oversight.
Braniff Airways, 814 F.2d at 1041 n.13. Like the Fifth
Circuit, I would “decline to let [BOTW] have it both ways,”
and hold that if it wants to defend a preference action by
relying “on a pre-petition right to setoff pursuant to [§] 553,
it must comply with . . . [§] 553(b).” Id.
The ensuing analysis is straightforward. Section 553(b)
directs that an offsetting creditor cannot improve its secured
position relative to where it stood on the date of the first
insufficiency. At all relevant times, Tenderloin owed BOTW
$190,595.50. Adopting the majority’s working assumption
that on the 90th day before the petition, Tenderloin's bank
balance was $173,015.00, this left an insufficiency of
IN RE TENDERLOIN HEALTH 37
$17,580.50 relative to its debt. Assuming that Tenderloin’s
debt balance remained unchanged through the petition date,
§ 553(b) would allow BOTW to recover at most
$173,015.00 in a hypothetical post-petition setoff. I assume
that, like any diligent creditor, the bank would take as much
as it could, claiming that amount in full.
Since BOTW received $190,595.50 during the 90 days
before bankruptcy, but only would have received
$173,015.00 in a hypothetical liquidation, the trustee has
made out a prima facie case that the $17,580.50 difference is
voidable as a preference. So like the majority, I would
reverse the judgment below and send the case back to the
bankruptcy court for further proceedings. I would further
instruct the bankruptcy court to limit further proceedings to
considering BOTW’s affirmative defenses, and then—to the
extent that those do not carry the day on remand, and after
resolving any factual dispute as to the amount of
Tenderloin’s account balances on the relevant dates—to
enter judgment for the trustee in the amount given by
applying the foregoing analysis. | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4351931/ | Third District Court of Appeal
State of Florida
Opinion filed December 19, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-2145
Lower Tribunal No. 18-7344
________________
The Local Door Coupons Franchise, Inc.,
Appellant,
vs.
Eric Mayers,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Beatrice Butchko, Judge.
Genovese Joblove & Battista, P.A., and W. Barry Blum and Elizabeth G.
McIntosh, for appellant.
Zarco Einhorn Salkowski & Brito, P.A., and Colby G. Conforti and Robert
M. Einhorn, for appellee.
Before SALTER, SCALES and LUCK, JJ.
ON MOTION TO DISMISS APPEAL
SCALES, J.
The Local Door Coupons Franchise, Inc. (“Corporation”), plaintiff below,
seeks review of a non-final order of the trial court requiring Corporation to
advance to defendant Eric Mayers legal fees and costs associated with the ongoing
litigation in the lower proceeding. Mayers filed a motion to dismiss Corporation’s
appeal, asserting this Court lacks jurisdiction to review the trial court’s non-final
order. Because the trial court’s order has not affixed a dollar amount to be paid by
Corporation, we lack jurisdiction to adjudicate the subject non-final order, and
dismiss the instant appeal as premature.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
Mayers is a shareholder of Corporation. In March 2018, Corporation sued
Mayers, alleging that Mayers was improperly representing himself as
Corporation’s chief executive officer, and interfering with Corporation’s
franchisees. Mayers answered Corporation’s complaint and, both individually and
derivatively on behalf of Corporation, asserted counterclaims against Corporation
and third-party claims against Corporation’s former attorney and law firm, and
several of Corporation’s shareholders and officers.
Mayers then, pursuant to section 607.0850(9) of the Florida Statutes1 and the
indemnification provision contained in Corporation’s shareholder agreement, filed
a verified motion seeking an order requiring Corporation to “pay all of Mayers’
1 This statute provides a mechanism and procedure for a corporate agent to obtain
indemnification from a corporation under specified circumstances.
2
fees and costs incurred thus far and in the future in the action.” After conducting a
non-evidentiary hearing, the trial court determined that the language of the subject
indemnification provision required Corporation to advance fees and costs to
Mayers for both (i) defense of Corporation’s first-party action against Mayers, and
(ii) prosecution of Mayers’s counterclaims and third-party claims. The trial court’s
order, however, does not determine the amount of any fees and costs to which
Mayers is entitled; in fact, the order specifically states that “[t]he amounts of fees
and expenses subject to advancement will be determined in a subsequent hearing.”
Corporation now appeals this non-final order. Asserting that we lack
jurisdiction to review the subject order, Mayers has filed the instant motion to
dismiss the appeal.
II. ANALYSIS
This Court has appellate jurisdiction to review only those non-final trial
court orders scheduled in Florida Rule of Appellate Procedure 9.130(a)(3). See
Jenne v. Maranto, 825 So. 2d 409, 413 (Fla. 4th DCA 2002) (“The enumerated
categories of permissible nonfinal review stated in rule 9.130 must be limited to
their plain meaning. The rule does not authorize judges to enlarge its provisions to
permit review of nonfinal orders not specified within its provisions.”) (citation
omitted). In opposition to Mayers’s motion to dismiss, Corporation asserts that the
3
subject order determines “the right to immediate possession of property” and, thus,
that we have jurisdiction pursuant to rule 9.130(a)(3)(C)(ii).2
We have routinely concluded, in other contexts, that orders determining
mere entitlement to attorney’s fees, without affixing an amount, are non-
reviewable, non-final orders. See Perlberg v. Lubercy Asia Holdings, LLC, 247
So. 3d 627, 628 (Fla. 3d DCA 2018); Tower Hill Prime Ins. Co. v. Torralbas, 176
So. 3d 374, 374 (Fla. 3d DCA 2015); Kling Corp. v. Hola Networks Corp., 127 So.
3d 833, 833 (Fla. 3d DCA 2013); Reid v. Estate of Sonder, 63 So. 3d 7, 11 (Fla. 3d
DCA 2011); Mem’l Sloan-Kettering Cancer Ctr., v. Levy, 681 So. 2d 842, 842
(Fla. 3d DCA 1996). From our jurisdictional perspective, we view the instant
order – determining only a shareholder’s right to advancement of litigation
expenses under an indemnification provision contained in a shareholder’s
agreement and as provided by section 607.0850 – as being substantially similar to
those orders that merely entitle a party to attorney’s fees, without setting an
2 This provision of the rule reads, in its entirety:
(3) Appeals to the district courts of appeal of non-final orders are
limited to those that
....
(C) determine
....
(ii) the right to immediate possession of property, including but not
limited to orders that grant, modify, dissolve or refuse to grant,
modify, or dissolve writs of replevin, garnishment, or attachment[.]
Fla. R. Civ. P. 9.130(a)(3)(C)(ii).
4
amount. Specifically, we conclude that the instant order does not determine
Mayers’s “right to immediate possession of property.” See Fla. R. App. P.
9.130(a)(3)(C)(ii).
In so holding, we distinguish the instant interlocutory order – granting
entitlement to advancement – from an interlocutory order denying such
entitlement. An interlocutory order that outright denies a party’s claim for
advancement of litigation expenses under an indemnification provision contained
in a shareholder’s agreement most assuredly determines a party’s right to
immediate possession of property: it determines that the party has no such right.
Ergo, review of an order denying entitlement to advancement is warranted under
rule 9.130(a)(3)(C)(ii).3
Whereas, an order granting entitlement to advancement under an
indemnification clause, without affixing an amount of such entitlement, lacks two
essential elements required under the rule. Such an order neither defines
specifically the property to which a party is entitled, nor grants immediate
possession of it. Put another way, requiring Corporation to indemnify its
shareholder (Mayers) for fees and costs Mayers has already incurred and will incur
3 Indeed, in this Court’s recent case of MVW Management, LLC v. Regalia Beach
Developers LLC, 230 So. 3d 108, 109 (Fla. 3d DCA 2017), we concluded, without
elaboration, that rule 9.130(a)(3)(C)(ii) provides the jurisdictional basis for
interlocutory review of an order denying entitlement to advancement under an
indemnification clause contained in an operating agreement.
5
during the pendency of the lower proceedings, without setting an amount, does not
determine Mayers’s right to immediate possession of property in this case, as is
required to invoke this Court’s jurisdiction under rule 9.130(a)(3)(C)(ii).
Our conclusion is buttressed not only by rule 9.130(a)(3)(C)(ii)’s plain
language, but also by the philosophy limiting piecemeal appeals. See BE & K,
Inc. v. Seminole Kraft Corp., 583 So. 2d 361, 364 (Fla. 1st DCA 1991) (“[T]he
purpose of rule 9.130 is to limit review of non-final orders to prevent the waste of
judicial resources, a consideration that becomes even more compelling as the case
filings in the appellate courts of this state continue to increase at an incredible rate.
Piecemeal review of non-final orders prior to final disposition of all issues must be
strictly limited as much as possible to conserve the sparse judicial resources
available at the appellate level. This is especially true of non-final orders awarding
conditional affirmative relief that may never result in a final judgment against the
defendant.”). It would be nonsensical for this Court to review an interlocutory
order that merely grants entitlement, and then force the parties to engage in
separate appellate proceedings if the amount of the award is also challenged. Case
in point, allowing appellate review of the instant order would necessitate a separate
interlocutory appeal if the amount of the advancement were challenged.
III. CONCLUSION
6
We lack jurisdiction to review the subject non-final order. Because the
subject order determines merely that Mayers is entitled to advancement of
attorney’s fees and costs under the indemnification clause in Corporation’s
shareholder agreement, but fixes no amount of such entitlement, Corporation’s
appeal of the order is premature.
Appeal dismissed.
7 | 01-03-2023 | 12-19-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289320/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LORETO G. FETTA,
Appellant,
v.
NATIONSTAR MORTGAGE, LLC.,
CYPRESS COVE OF MARGATE HOMEOWNERS ASSOCIATION, INC.,
GE MONEY BANK f/k/a GE CAPITAL CONSUMER CARD COMPANY,
OSCAR K. JOHNSON, AS SUCCESSOR TRUSTEE FOR THE MARY V.
BLYTHE REVOCABLE TRUST DATED JULY 6, 1989,
Appellees.
No. 4D17-2850
[June 28, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barry Stone, Senior Judge; L.T. Case No. 09-30660.
Stephen Karaski, Pompano Beach, for appellant.
Nancy M. Wallace and Ryan D. O'Connor of Akerman LLP, Tallahassee,
and William P. Heller of Akerman LLP, Fort Lauderdale, for appellee for
Nationstar Mortgage LLC.
PER CURIAM.
Affirmed.
DAMOORGIAN, LEVINE and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4359208/ | Citation Nr: 1829936
Decision Date: 11/29/18 Archive Date: 12/06/18
DOCKET NO. 14-39 432 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to accrued benefits.
REPRESENTATION
Appellant represented by: N. Albert Bacharach, Jr., Attorney
ATTORNEY FOR THE BOARD
M. Pryce, Associate Counsel
INTRODUCTION
The Veteran served on active duty from February 1953 to February 1955. The Veteran died in July 2008. The appellant was the Veteran's surviving spouse. The appellant died in June 2013.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.
FINDING OF FACT
On July 25, 2018, the Board was notified that the appellant died in June 2013.
CONCLUSION OF LAW
Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302.
REASONS AND BASES FOR FINDING AND CONCLUSION
Unfortunately, the appellant died during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This appeal on the merits has become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302.
In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106.
ORDER
The appeal is dismissed.
B. T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals | 01-03-2023 | 01-16-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/7606070/ | Affirmed. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4131968/ | The Attorney General of Texas
December 3, 1979
MARK WHITE
Attorney Gan~ml
Honorable Rene A. Querra Opinion No. W-93
Criminal ,Ditrict Attorney Pro Tern
Hidalgo County Re: Payment by board of trustees
Edinburg, Texas 78539 of an independent school district
for expenses incurred by relatives
of board members or other non-
board persons who attended school
board-related activities.
Dear Mr. Guerra:
You ask whether the trustees of an independent school district may
pay expenses incurred by spouses or other persons who accompany school
board members to board-related activities, even thou@ these persons are
not school board memben or emplaydes of the school dbtrict YOUfnform
us that school board members of an independent school district have
attended school-related conventions accompanied by their spouses. The
board of trustees has authorfxed payment for theactual expenses, including
travel, meals, and l-g, incurred by spouses of board members in
attending conventions.
The board’s authority to pay expenses incurred by board members in
attending school-related convenUons derives from the folbwing proviston of
the Education Code:
Looal s&o1 funda . . . may be used for the
purposes enumerated for state and county funds . . .
and for other purposes necessary in the conduct of ,
public schools to be detamfned by the board of
trusteea.. .
Educ. Code S 20.48(c). In Attorney General Opinion H-l23 0973) thfs office
considered whether a school board member could be reimbursed for his
expenses fn attending a convention of school admtnfstrators. He had been
designated a delegate and was to partfcipate in a program concerning
matters important to the school distrfc& The opfnion concluded that the
school board oould pay these expenses .where it determined that payment
was “necessary in the conduct of the public schools.” Each determination
and the legality of a particular expenditure was ultimately for the courts. If
P. 285
. .
Honorable Rene A. Guerra - Page Two (MW-9 3)
the expenditure served only private ends and did not have a public purpose it would make
an unconstitutional grant of public funds in violation of article III, sections 51 and 52 of
the Texas Constitution. E Attorney General Cpinfon H-70 (l973).
The school board generally has discretion to determine whether a Particular payment
is “necessary in the conduct of the public s~hoob%~ However, in our c&nion the board may
not as a matter of law pay the expenses of persons who have no responsibilities or &ties
to perform for the board and whose connection with public school matten is based solely
on their relationship of blood, marriage, or friendship with a board member. You have
submitted no facts indicating that the presence of e school board member’s spotwe,
relative or other associate et a convention will serve school purposes. The presence of
these persons et e convention appears to be purely so&l. Altho4gh a spouse’s presence et
e convention may facilitate personal contact among administrators and thaw contribute in
some small way to school purposes, we believe the benefit accruing to the school district
is too minimal to sustain the expenditure. Cf. Warwick v. United States, 236 P. Supp. 761
(E.D. Ve. 1964) (deductibility from federal income tax return of a wife’s travel expenses).
We note that Attorney General Opinion H-1099 (1977) &cluded that spouses of
public officials could in some cases receive free transportation on state-owned aircraft
where space is available. Whether this benefit could be provided legally depended in part
on the nature of the office, on the spouse% traditional role, and the spouse’s connection
with a particular trip. This opinion must be limited to its facts, and you have presented no
facts and we are aware of none which would establish a public purpose served by the
spouse*s attendance at a convention.
You next ask whether school board members who received payments for expenses
incurred by non-members should be required to reimburse the school district. Where
payment is made from public funds under mistake of law, the public body may seek
reimbursement. City of Taylor v; ?Io&~q 166 S.W.2d 61 (Tex. 1945); Cameron County v.
pox, 2 S.W.td 433 fTex. Comm. App. 1929, jdgmt adopted). This provides an exception to
the general rule that money paid under a mutual mistake of law may not be recovered
City-of Taylor v. Hodxe supra; Gould v. City of El Peso, 440 S.W.2d.696 (Tex. Civ. App.
- El Peso 1969. writ re nr.e.); Nunn-Warren Pub. ,Co. v. Hutchinson County, 45 SW.2d
651 (Tex. Civ. App. - Amari illo 1992. writ rePd). om are ounty of Galveston v.
Gorhem. 49 Tex. 279 (1679h Steaall v. h&annan CountvTf; ,” -&&d llll (Tax. Civ. App. -
Waco 1940, writ di& j,dgmt car.). Although the court in Hayward v. City of Corpus
$Zti, 195 S.W.?d 995 (Tex. Civ. App. - Waco 1946, writ raf’d n&a.) stated in dlcta that
3 payments made by a city under mistake of law could not be recovered, its
decision actually rested on the Sknd that the statute of limitations barred recovery.
Thus, the school board has authority to require reimbursement of travel expenses illegally
paid See also Educ. Code S 23.26(a) (trustees may sue and be sued).
‘As a general rule, school trustees have broad powers of control and management
over the school district, and the courts will not interfere unleas a clear abtme of power and
discretion appears. Nichols v. Aldine Ind School Dist., 356 S.W.2d 182 (Tax. Civ. App. -
Houston 1962, no writ); e SSIC v. 330 S.W.2d 708 (Tex. Civ.
P. 286
. - -,~
. .
Honorable Rene A. Querre - Page Three (NW-931
App. - Dallas 1959, writ ref’d n.r.e.X Where the school board member9 thcmeeka have
received unauthorized travel expenses, their own self-interest prevents them from
impartially deciding to forego repayment. We believe their mnml discretion is
significantly limited in this case. g Penal Code S 39.01 (official misconduct). We
believe the board may exercise reasonable discretion in seeking reimbumment from
persons no longer cn the board In making its decision it can consider arch factors as the
amount of funds to be reimbursed, the ease of collection, and the legal and other costs
incident to collection.
SUMMARY
The trustees of an independent school district may not adinarily
pay the travel expenses of spouses and other persons who
accompany school board members to board-related activities The
board has authority to seek reimament for payments made for
such travel exoensen
JOHN W. FAINTER, JR.
First Assistant ‘Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney Qeneral
APPROVED:
OPINIONCOMMfTTRE
C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
Lenny Zwiener
13. 287 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131972/ | The Attorney General of Texas
November 27, 1979
MARKWHITE
Attorney General
Honorable M. L. Brockette Opinion No. MW- 99
Commissioner of Education
Texas Education Agency Re: Legality of allowing
201 East Eleventh Street professional organizations to
Austin, Texas 78701 utilize the “released time” of
public school personnel.
Dear Commissioner Brockette:
In 1975 the Fort Worth Independent School District, which participates
in the Foundation School Program, adopted a policy that allows certain
professional organizations to use school personnel during working hours to
pursue the business of the organization. You ask if such a policy is
consistent with various constitutional and statutory provisions.
The adopted policy statement reads:
‘Nine days released time with full pay will be
allotted to professional organizations for each 100
members who are in good standing. Such allo:ments
will be in blocks of 100. No allowance will be made
for less than 100 in each block. The released time
may be used at the discretion of the professional
organization for pursuing the busineas of the
organization by its officers or members.
The released time will be based on members ig good
standing for the school year immediately preceding
the school year activating the released time.
Professional organizations wiU include Fort Worth
Classroom Teachers Association, American
Federation of Teachers, and the Fort Worth
Administrators Association.
The roll of members must be filed with the bard of
education for verification of numbers and employee
status.’
p. 270
Honorable M. L. Hrockette - I’ege Two (NW-89 j
You inquire whether the prohibitions of article III, sections 51 and 52 and article XVI,
section 6 of the Texas Constitution render this policy unconstitutional. Article Ill, section
51 prohibits the grant of public moneys to any individual, association of individuals, or
corporation. Section 52 of article IIl prohihits political subdivisions from granting public
money or any thing of value to any individual, association, or corporation. Section 6 of
article XVI prohibits appropriations for private or individual purposes unless authorized by
the constitution. The Fort Worth Independent School District is covered by these
provisions of the constitution. See Rarlingen Ind. School Dist. v. C. H. Page & Bro., 48
S.W.2d 983 (Tex. Comm. App. 1932, jdgmt. adopted); Attorney General Opinions M-1074
(19721, M-950 09711.
These constitutional provisions prohibit the grant of pubhc funds or benefits to any
association unless the transfer serves a public purpose and adequate contractual or other
controls ensure its realization. Attorney General Opinion H-1309 (19781. The released
time allotted to the professional associations constitutes a benefit financed from public
funds. The policy permits teachers to pursue the business of the professional organization
while being paid by the school district. In 1978-79, the Classroom Teachers Association
used 301 days of released time at an estimated total cost of almost 523,000 in teacher
salaries. In addition, the school district was required to pay substitute teachers. Thus,
the poliey authorizes the transfer of a valuable benefit to the professional association.
In our opinion, the school district has neither articulated a public purpose to be
served by the released time program nor placed adequate controls on the use of released
time to insure that a public purpose will be served. The time is to be used at the
discretion of the professional organization for pursuing its business. In our opinion, this
policy grants a substantial benefit to a private professional organization which has no
obligation ‘to apply it to accomplish a public purpose. In Texes Pharmaceutical
Association v. Doolee, 90 S.W.2d 328 (Tex. Civ. App. - Austin 1936, no writ), the court
invalidated an act which unconditionally appropriated public funds to a private
professional association, finding it in violation of article Ill, section 51. See also Attorney
General Opinion M-661 (19701 (county may not grant money to charity;. We believe the
unconditional nature of the grant of services to the professional organization renders the
cited policy in violation of article Ill, sections 50 and 51 and article XVl, section 6.
A!though the school district may constitutionally pay teachers’ expenses at school-related
activities such as training or meetings for teachers, see Attorney General Opinions R-133
(19731, and C-474 (19651, OF adopt certain types ofrelease time programs, it %S not
specifically tailored the present expenditures to the accomplishment of school-related
purposes. Therefore, we conclude that the policy is unconstitutional. In light of our
decision in this issue, we need not address your other questions.
SUMMARY
A policy of the Fort Worth Independent School District, which
p~ermits teachers to work for professional organizations while being
paid salaries by the school district, constitutes an unconditional
grant of public funds to a private organization and is therefore
unconstitutional.
P. 271
Honorable M. L. Brockette - Page Three (NW-891
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Ernest Boardman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
Lonny Zwiener
p. 272 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4131993/ | The Attorney General of Texas
October 15, 1979
Honorable M. L. Brockette Opinion No. MVJ-
68
Commissioner of Education
Texas Education Agency Re: Whether a school board may
201East Eleventh Street authorize supplemental compensa-
Austin, Texas 78701 tion.
Dear Commissioner Brockette:
You have requested our opinion concerning the compensation to be
paid teachers and other employees of the Fort Worth Independent School
District. In the first of your two questions you ask:
Does article 3, section 53 of the Texas Constitution
prohibit e school district from giving a bonus or
making salary increases after the commencement of
the school and fiscal year and after services for such
year have already been rendered by teachers and
other employees and their contracts of employment
performed at least fin part?
Section 53 provides that the legislature
shall have no power to grant, or to authorize any
county or municipal authority to grant, any extra
compensation, fee or allowance to a public officer,
agent, servant, or contractor, after service has been
rendered, or a contract has been entered into, end
performed in whole or in part. . . .
This section embraces school districts. Herlingen Ind. Sch. Diit. v. Page, 48
S.W.2d 983 (Tex. 1932). It is clear that additional compensation may not be
paid for past services rendered. Empire Gas end Fuel Co. v. State, 47
S.W.2d 265 (Tex. 1932); Pierson v. Galveston County, 131S.W.2d 27 (Tex.
Civ. App. - Austin 1939, no writ). Your question raises en issue of your
authority to give teachers a salary increase for the remaining portion of .a
school year for which they are under contract et e lower salary.
The Port Worth IndependentSchool District has adopted the continuing
contract basis for employment of teachers. Educ. Code S§ 13.101- 13Jl6.
Honorable M. L. Brockette - Page TWO (MW-68 )
Under this system, all teachers are to be employed under either a “probationary contract”
or a “continuingcontract.” Educ. Code 5 13.1OL Teachers under a probationary contract
are employed for a fixed term of less than three years as stated in the contract. Educ.
Code S 13.102. Teachers under a continuing contract are entitled to continue employment
with the school district without annualreappointment unlem released fdr reasons stated in
the statute. Educ. Code SS 13.107,13.109. AR contracts shall be in writing in the form
approved by the commissioner of education. Educ. Code S 13.1OLWe have been furnished
with form contracts which provide for an annual salary as authorized by the approved
salary schedule of the school district. The district approves the salary schedule in its
annualbudget which it generally adopts toward the end of August. Educ. Code SS 23.42 -
23.45. Thus, the teacher agrees to work for each year at the salary annuallyapproved by
the district.
Article III, section 53 expressly prohibits the grant of extra compensation after “a
contract has been entered into, and performed in whole or in part. . . .” See Devon v. City
of San Antonio, 443 S.W.2d 598 (Tex. Civ. App. - Waco 1969, writ rep&Shelby County v.
Gibson, 44 SW. 302 (Tex. Civ. App. 1898, writ ref’d). In the absence of additional
consideration, the school district may not increase a teacher’s annual compensation under
the contract once part performance has been rendered The school board may, however,
renegotiate a contract already performed in part where new consideration passes to the
district in exchange for new benefits provided. Rhoads Drilling Co. v. Allred, 70 S.W.Bd
576 (Tex. 1934); Bardiion v. Beard, 430 S.W.Bd53 ‘(Tex. Civ. App. - Dallas 1968,writ rerd
n.r.e.); -see Educ. Code S 13.ll6.
You also ask:
May a school district make e 1egaJlybiding commitment for salary
increases or supplementalcompensation to its employees for future
school end fiscal years, et a time when the availability of eligible
funds for such years cannot be determined, and notwithstandingthe
rule which ~provides that e contract calling for expenditures in
excess of current year funds creates a deficiency debt which is
beyond the authority of a school district?
It is the law of this state that school districts may not create deficiency debts.
Educ. Code S 22.08; National Surety Corp. v. Friendswood Ind Sch. Dist., 433 S.W.2d 690
(Tex. 1968); Aldine Ind Sch. Dmt. v. Stendley 280 S.W.2d 578, 586 (Tex. 1955); Collier v.
Peacock, 54 S.W. 1025(Tex. 1900). The court in Aldine said:
It has been held for many years that the trustees of 8 school
district cannot make a contract for the employment of teachers to
an amount greeter than the school funds belonging to the district
that year; end that any debt contracted greater than that would be
8 violation of law, and constitute no claim against the district. . . .
&et 586.
P. 210
Honorable M. L. Brockette - Page Three (Mw-68)
In Collier the court said:
[Tlhe trustees were not authorized to contract any debt which
would cause e deficiency in the school fund of the district. In other
words, they could not contract debts in the employment of teachers
to an amount greater then the school fund apportioned to that
district for that scholastic year. This limitation won the power of
the trustees in makii the contract with the teachers necessarily
Emits the payment of the debts that might be contracted to the
amount of the fund which belonged to the district for that yeer,
and any debt contracted greater than that would be a violation of
the law, and constitute no claim against the district.
E et 1026.
We believe that the board may adopt a policy that salary increases of certain
amounts will be me& in future years. That action in itself does not obligate any money to
be expended. The obligation arises only when employment contracts are executed and the
board’s policy with regard to the salary increases becomes e pert of the employment
contract and a legally binding commitment. However, such commitment does not create e
deficiency debt any more than entering into a three year teaching contract which covers
gearS for which the availability of funds cannot be determined. The board’s obligation to
grant pay increases is not fixed. School personnel, even though they are under contract to
wopk, may be released due to the reductions necemary to come within the revenue
available for any one school vear. Sec. 13.BO(6). The oronosed salarv increases would not
be a fixed debt-so as to create a deficiency debt. -See Charles Scr&er’s Sons v. Marrs,
262 S.W. 722 (Tex. 1924).
SUMMARY
An independent school district may provide for salary increases for
teachers and employees for a current school year if it receives
additional consideration. It may also adopt a policy to provide
additional salary increases for subsequent years; however, the
obligation arises only when the contracts are executed
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
p. 211
. .
Honorable M. L. Brockette - Page Four (NW-68)
Prepared by David B. Brooks
end SusanGarrison
Assistant Attorneys General
APPROVED:
OPINIONCOMMITTEE
C. Robert Heath, Chairman
Martha Allen
David B. Brooks
SusanGarrison
William G Reid
Bruce Youngblood
i
p. 212 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132012/ | The Attorney General of Texas
August 23, 1979
MARK WHITE
Attorney General
Honorable William P. Hobby Opinion No. -MW-49
Chairman, Legislative Budget Board
Box 12666, Capitol Station Re: Authority of Texas Indian
Austin, Texas 767ll Commission to assist non+rsewa-
ticm Indiana
?01cun~.suiN2al Honorable D. It. Torn” Dher
OalNs. TX. 72202
2W7424244 Chairman, State Affairs Committee
House of Re~tatiVes
Austin, Texas 76769
Gentlemen:
You ask several questions about the authority of the Texas Indian
Commknion to assist the Traditional Kickapoo Indii and intertribal Indii
organizations. Article 54212, V.T.C.S., gives the commission certain
responsibilities and powers with respect to the Alabamaaushatta and the
Tigua htdian Reservations. The 65th Legislature enacted Senate Bill 166,
which added the following provision to article 54212:
Sec. ilk (a) The Traditional Kickapoo Indians of
Texas are recognized as a Texas Indian tribe.
(b) The commission shall assist the Traditional
Kickapoo Indii and the intertribal Indii organixa-
tions chartered in this state in applying for and
managing, joiitly with .the commission, federal
programs and funds secured from the federal govern-
ment or private sources for thepurpose of improving
health, education, and housing standards of these
Jndians or increasing their economic capabilities
(c) The commission may seek the cooperation of
local and state agencies in adminiierhtg programs or
funds covered by Subsection (b) of this section.
Acts 1977, 65th Leg., ch. 399, S 2, at 1090.
Lieutenant Governor Hobby asks if the 1977 amendment allows the
Texas Indian Commission to exercise the same powers and carry out the
same responsibilities on behalf of the Traditional Kickapoo Tribe and the
Honorable William P. Hobby
Honorable D. R. “Tom” Uher - Page Two (Nl+4g)
intertribal organizations (non-reservation Indian community action groups) as those set out
for the Alabama-Coushatta and Tigua tribes. Specifically, he asks (l) If the statute, as
amended, constitutes preexisting law on which state appropriations to the Kickapoo and
intertribal organizations may be based, and (2) if the Texas Indian Commission may enter.
into contracts on their behalf. Representative Uher asks whether appropriation of state
money to “non-Texas Indians” is permitted under the Constitution. We need only address
the constitutionality of section HA in light of the federal equal protection clause. U.S.
Const., amend. XIV.
The federal authority to enact legislation singling out tribal Indians derives from, the
power of Congrew to regulate commerce with the Indian tribes, U.S. Constitution, art. I,
9 6, CL 3, from the treaty power, k& article II, S 2, CL 2, and from the federal trusteeship
over Indian tribes established by the Indian Nonintercourse Act, 25 U.S.C. s 177.
Worcester v. Georgia, 31 U.S. 515 (1632); Cherokee Nation v. Georgia, 30 U.S. l(l83U; Joint
?‘
mrIb 528 P.2d 370 (lst Cir. lm
Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 4l8 F.
Supp. 798 (D&I. 1976). As a result of this paramount federal authority, Congress may
enact legislation singling out tribal Indians,.legislation that might
otherwise be constitutifxmlly offensive.
Washington v. Yakima Indian Nation, 58 L.Kdfd 740 (l979). In upholding a Bureau of
Indian Affairs employment preference for tribal Indians, the Supreme Court has said that
this preference does not constitute ‘racial dIcriminaticn.* Indeed,
hit is not even a ‘racial preference. Rather, it is an employment
criterion reasonably designed to further the cause of Indian self-
government.
Morton v. Mancari, 4l7 U.S. 535, 554-55 (1974). Since the special treatment was “tied
rationally to the fulfillment of Congress’ unique obligation toward the Indians,” it did not
constitute invkiious racial discrimination.
The Supreme Court has emphasized, however. that states ?io not enjoy this same
unique relationship with Indian.%” WashI*on v. Yakima Indian Nation, susu A state
may enact legblation sInglIna out tribal Indians onIv when authormed to do so bv the
fed&I gove&ment. Po.$er ;. P or 189 U.S. 325 4903). State v. Dibble, 62 U.< 366
p8irn\mte laws bene
+ ittmg ederal recognized Indians); cf. Joint Tribal Council of
quoddy Tribe v. Morton, s. The AlabamaCoushatta and TIgua tribes have
been specifically recognized by federal law. 25 U.S.C. S 721-28; P.L. 90-287 (1968). But
neither the Traditional Kickapoo Tribe nor the intertribal organizations have been
accorded distinct and separate recognition, either by Congress or by the federal Bureau of
Indian Affairs.
The state may not, in the absence of federal authorization, enact. laws benefitting
these Indians, and since there has been no federal authorization in this instance, section
1lA is unconstitutional on its face.
.
Honorable William P. Hobby
Honorable D. OR.“Tom” Uher - Page Three tNI+49 1
Such a construction does not mean, however, that the State of Texas is powerless to
assist either the Traditional Kickapoos or the intertribal organizations. It is well
established, after all, that Indians who live apart from their tribes are subject to the laws
of the state in which they reside. United States v. Waller, 243 U.S. 452 (19171;,E” parte
Ploumoy, 312 S.W.2d 488 (Tex. 1958). Such legislation shot&i be drafted, initially, to
obviate the contention that it provides state benefits to Indian tribes or organizations not
recognized by federal law or regulation and therefore, preempts the federal power to deal
exclusively with Indians. Second the legislation should attempt to avoid the allegation
that it discriminates in favor of Indian tribes or individuals, and thus runs afoul of the
constitutional guarantee of equal protection. In the absence of federal authorization for
the state to deal with these Indians, any program which provides them benefits should be
designed and administered so that the availability of benefits Is not limited to members of
particular racial or ethnic groups.
In view of our determination that section llA Is invalid, we need not answer your
other questions
SUMMARY
In the absence of federal authorization, the Texas legislature may
not provide special benefits for Traditional Kickapoo Indians and
members of intertribal councils.
%ytrxg
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
Fiwt Ass&ant Attorney General
TED L. HARTLEY
Executive Assistant AttorneyGeneral
Prepared by Susan Garrison
and Rick Gilpin
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
P- 151
. ,. .
Honorable William P. Hobby
Honorable D. R. Tom” Uher - Page Four (MW-49 1
Susan Garrison
Rick Gilpin
Eva Lcutzenhiser
William G Reid
Bruce Youngblood
P. 152 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132023/ | The Attorney General of Texas
August 2, 1979
dARK WHITE
Worney Gameral
iuorenucOu* auimq Honorable Kenneth H. Ashwccth Opinion No. Kw-38
‘0 se. 1254ll Texas College & University System
\.dstmTXRlll
.12~41s-z501 P. 0. Box 12788, College Station Re: Authority of a college to
Austin, Texas 787ll charge a lower amount of tuition
than provided by law.
‘01commeru.sui* am
Dear Commissioner Ashworth:
You have requested our opinion concerning tuition fees charged by a
public junior college. You have asked whether the board of trustees may set
a tuition rate for a classification of a student which is lower than the tuition
rate provided by law if the college does not claim a proportionate share
funding for the students so classified. With the exception provided in
section 130.085 of the Education Code which permits tuition exemption for
residents of the district where necessary to receive certain federal
assistance, the junior college district must charge each student the tuition
provided for other statesupported colleges if it wishes to receive state
appropriations. Educ. Code S 130.003(b)(4).
Section 130.003 provides in pertinent part:
s 130.003. State Appropriation for Public Junior
Colleges
(a) There shall be appropriated biennially from
money in the state treasury not otherwise
appropriated an amount sufficient to supplement
local funds for the proper support, maintenance,
operation, and improvement of those public junior
colleges of Texas that meet the standards prescribed
by this chapter. The sum shall be allocated on a basis
and in a manner provided in Subsection fb) of this
section.
fb) To be eligible for and to receive a proportionate
share of the appropriation, a public junior college
must:
. . . .
p. 110
Honorable Kenneth H. Ashworth - Page Two (MW-38)
(4) collect, from each full-time and part-lime student enrolled,
matriculation and other session fees in the amoqnts required and
provided by jaw for other state-upported institutions of higher
education, except, however, the governing board of a public jmior
college district may waive the difference in thn rate of tuition for
non-resident and resident students for a person, and his dependents,
.,fho owns property which is subject to ad valorem taxation by the
junior college district, that the amount charged nonresidents who
have not received a wniver of nonresident tuition need not be
greater than the amount o required by law on January 1, 1971, and
that notwithstanding the provisions of Subsection (b) cf Section
54.051 of this code, the minimum tuition charge for resident
students shall be $25.
(Emphasis added). We believe the language is clear that to be eligible, for state funds each
student must be charged the tuition fees chapter 54 of the Education Code
with the exception contained in sections and 130.085. Atlorney Gcueral
Opinion H-61.4 (1973).
SUMMARY
Public junior colleges may nbt charge a lower tuition for certain
classifications of students without relinquishing their entitlement
to state funds.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by David B. Brooks
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
C. Robert Heath, Chairman
Martha Allen
David B. Brocks
Susan Garrison
P. 1lL
. . .
_.-
Honorable Kenneth H. Ashworth - Page Three (MW-38)
Rick Gilpin‘
Barbara Marquardt
William G Reid
Bruce Youngblood
p. 112 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144813/ | 845
4 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorablw Jaama E. X11&y, Pqo 8
18d vehicle for the purpose 0r tmin8p0rtathm
or 08rria.p of pmpwrt fbr compenrratlon or
hire QP(YF8Uy pub110 d ghw8y ln the Btate ex-
oemz in aooordauoswith the prorlelanw of tblw
..l n
Bectloma 3, S end 6 of the Aot require such
'"motoroarriw2n" tc~8ecurw oertlfioatesoi pub110 oonvan-
iMC0 and MCO88it~ Or &+43l'Idt8hplpthw R8ilCBad &UUEd~-
81OflOl TUNE.
sweti0i.A
1 (8) or thw above hot thrine5 8 %ot.or
oarrlwr" in the following language:
w(g) The tcrrm*motort3arrier* mwm8 any
pormn, tlzxar oozpQrat~on,
oomply, oo-part-
LlWmhi~, SUOO&lltiOU
Or jOtIlt 6tOok a8aOOia-
tion,ena thcllrlwe8aeu,reewlvern or true-
teu app0lntet-l by any court r;ht&sc~sr, own-
ing, aentmlli~, mwu3gln~.,opematlng or
oaualngto beoperated anymtorpropslled
vohlole umd intransportir@ propwrtyior
oomgmnmtlon or hire omr any pub110 Ngh-
olodo and tN8 Aat shall not apply to motor
mh.68 opwratwd lxalaalvellywlthin the in-
corp0ratsQ limft8 or oltlws or towneJ.-
Thw proper detwnaiaationof your q~estlone depond8
upon the sdmnlng of tbw term *motor warrier" as de?lned in
Bbuae Blll3Io. 335, and, more apewltiafilly, thw Wxmtion
Or the I&J,i8;L&llV in insOrtiI&f th0 d18UtW, "WhWn, in the
aourseof 8a& tmmsportatloaa hlghwag&tmmt~or~~
faoorporatadoftles, towns, or Vil3.l%&5WS 18 trsvar8wd."
The priu18rypurpo8s in conetrtzfng8 rstatute1s
to asawrtah the intent&xx of the Le&lat~w+ Otiitiw
rords in 00mton u8w contalnsd In a etatuts will be glVe2l
thsiraaturalsnQ popularnteanlrrg: tmleu,aoontrarplntwn-
tion I.8 0163arlyapparent from the eontext or tml.mw there
is worm rmoeaalty in a partloulsr cuarwfor 8doptfIlg a &it-
r0rcmt tm8tr00 tion. The laqtirg $8 not to it8 ClbstZaUt
memlng, but aa to the sense in vihiohIt in naed~ hence,
in evwzy waae thw gartloularm depmde apo& and
mast be awtemlned by, the aonterf and subJwct matter, and
&oooreble J-8 r,.xlldey, Paage3
the evident lntentlon0r tha Lwglelatur*r.The history Or
legislet5.ongenerally, pertaini~ to the aubjwot mattwr,
may be oonelderedand resort muy be hrd to lagislatlv?
founxals au% rsoords to aaaW$Tlnxth;~8tury OS the bet
a8 M aid to oon8txnotion. 197, 3eot1on
105; p. 193, seotioxl104; p. 231, dwt3tiziP'
23; p. 230,
Se&ion 122, and w88w8 thwrwln altwd.
Aota OS 1929, Forty-firstLe&slatun,, Regular
session, page 698, Rouse Bill Xo. g!M Cbaptwr 514, de-
rinfd the term %otor 08rrlei aw dow8t
Yieotlon1. (a) The twna *motor oartier'
when Wed in thi8 Aat dMOte# 8SlypWl'8OU
rlxm, oorpoz-ation,oo-gertaerehlg,aclsooia-
tion, joint stock aeeooiatlon,reoeiver,true-
tow, or lwssww who opwrstwaor oausea to be
opwrntwd any motor propelled rwblale (not u8u-
ally op8ratwd on or ovwr ralle) over or along
the highreys or strwefo of this stete for tS
parpoee or oarrylng or frenwportlng propsrtf
Sor compensationor hire bwtwwen tvroOT mure
lnoorporatedoltlea, tarns or rillag~e.*
soon after the passagw of the 192Q -AattN.8 de-
partment rend~erwd an o~ioion in reaponaw to a quwmtion pro-
pounded by the R8llroad co9paLs8lon OT Tame tConforeuoe
Opinion 720.2776, Book $3, &qe 160, 6ete6 June 26 1929,
Repzt and OplnPons of t&w Attorney General, 1928-iQ3C,
pagw 2181, in xvhlahit ~88 ruledr
*Beotdon 1. (a) of the Act de&tiesa
98otor oarrler’ a8 bein@ 8 motor pmpell8d
rehlwls operatwd along the Nghmye or
etreets Tar thw purp;roee
of oarryW@ or trans-
porting property Sor aoapamatlon or hire
*betweentwo or more incorporatedcities
tome, or vlllagao t. Ke believe that thb
Act 18 olwar In r~equlrlag
that before a motor
rehlale oonstitutasa motor oarrier, the op-
eration must be b&wWn t= or msrw oltlea,
.tmvn8, or tlllaagee I whloh am inaorptxnta6,
and that the opwratlon bet- tam po%nts,
only one 0r wbioh iarlaaorporatwd,dose nab
QOD~(~wIthin thw flaPi of thw kat 80 WI t0 l-0-
qulrw sugwrrislon and rlagulation by lthsRalX-
Foad ~OkWitt8hIh
Honorable Jamew E. Kllday, Page 4
harry or transport property for tiireor oom-
pwnswtlon,end (2) must opentw betwewr!two
imnfclpal aorporatlone;othexwl6*,it la not
8 motor aarrlwr unbr tN8 hot if It 16ak8
either of these two aheraatwrlstlae.W
It will thu8 bw sewn that when t$e pr68ent etat-
uts was enactedw 8n amendment to the 1929 AOt, thb tew
*motor oarrier* herda restrioted meaning and applied o;ily
to operationsbwtwwen tvropointa, both of whlah werw au-
nlalpal clor.mmtfons.
This law apparentlyprored lteelr to ba deieotlve
in many rays (Seatlou2Zb, Bouwe Bill No. 333, Aofe Hal),
Mb 8 aomprwhwnalvea8NndmeatWao 3a8Wd in 1QSlmaldng
~~rngee, one of which wae the deflnitlonof a fmoter
. Howe Bill Ho. 335, Aata of 1831, Forty4wo0aU
fn~8b&tUlW.
As favorably rapart& vvithaawndmmta by the
I~OUSWCo!%&tew 0i El~$~uay8and k&Or Traffic Halah 17,
1931, Eousw Bill No. ?M aontaiawd thw follodng deflni-
tiOl3Of 8 *DOtOr 08ti%~t
*Seotlon 1. Cft)Thw tam3 'motor aarrlrr’
means any par8on, rill;, ~oorporatlon,oompany,
oo-partnwrwhlp,ae8oolatlonor joint stwk am
saalationand their leawees, reoeiosre'or
trwteee 8ppolntwd by any tourt ubetsowver,
awning, aantralllng,manesie, opmitlng or
OttUeiry!
to bw ope2vlted 84 motor propelled To-
hicle uawd in tranaportlngpropert for com-
pensation or hire ovwr any pub110 E i&mar in
this state; provided that the tern *motor osr-
rldr’ as uswd In tAl8 Aat ahall not include
end this Aot ahall not ap ly to notOr vahialee
ope,ratwd6xolWlrwlp with% tha lnoorporated
1lmlte of oltlw8 or toruns."
Tbla defltitlonwas very aonprebOnaiv% WI rap-
rwwwntwd a distinat 4wpflrturwrr00t thw imnmr Wt8tUth It
lno1udc6within thw owratlon ol' the Aot all tmn8portatiw
of graperty far hlrw by sotor rehloalwaovwr all gublla high-
waya in this Stats, outelde the aorporatw limits of oltlwa
or toarta without refwrwnaw to dlstanae or points or origin
and destfnstlon.
v%Tlou8 CiURWdMnt,SWiBrCOfi&TWa in t&W fi~Um ard
Senda, thw airwot OS whiwh a3tildb~Ye bwen tb Sx4#i@tae~=
Fionorable Samee L. Kllday, Page b
taln aommoditiossnd traneaat~006r0or Yen maxlm~ die-
tancee, but rallee or acloptlon.The r&orenur t0
V.raverse*IS rouna in an amendment orrerea In the E?ous*
and later la the senate, bnt r6116d Or edoption, wbloh
woul8 have Inserted In SeotIon 1 (f) ju6t before the pro-
~180 th6 r0ii0tiq langtmger
q%ers in the oour6e of suoh twn6porta-
tlon a highway is traoeroedbetw6en two or SW6
lncorporatsdtown6 or dtfo6.'
hmendxentswere made In tho Senate to other 6600
t.iOM Qr t&S Aot, th0 nOU6e r6fU6& t0 OOWIJr, and a tSV@O
ooaierenoe eomittee war appOinted. A6 t6pOrfsd flW% the
rroe oonferewe oaxmltteeand 86 rinfay ensoted th64Laatteer
Were In the oour6e or suoh tr6n.6 rtatlon a hI@ua
tw660 two or xu3relnoorgoratedoltr06, townci,or *I1
i6 trarerseb,"we26 Inal0u68 in 3eatlon 1 (4~)
aerinitig a 6t0-
tor oarrler.
X6 think It Is Masonabk! to a66uae that th6 free
aonfereaoeocamlttee tborongblydIscruseed the maanIng.ald
erreat of ohanges !aa&ein the a0t durl their dollhera-
tlon6 am3 -t&etthe stmbera 0r aaoh oh132 ttae were f6mIlIar
?I. the pur 06)~~ tmderlpllG;the am6n6~8nts madd in 0Qmmit-
Tho bif1 naa reported fzvm the ooxaittes with a6
ree&UatIon that It oa6s as mtitton, but 6 Qinorltf
&6tmo&i py86ril6d by &iBbeXYJ&Ok 6Od hp4!, SXld ~titO&
Thi6 6tetogQnt read in pati a6 rOilOW6:
*Vie,the andersignednumbers of Fiou6e Free
Cantorewe CormIttee,appointed to consider
Bows Bill6 lia.336 and BTo.366, have fai&d to
Sign th0 Mjbrity rop0rt On ?hUSe ml1 30. ?I=
for ths r0liowingr6a60n6: . . .
*AEJre,portsd en8 ro~o~~~en~Ietl
by the astjor-
Itg at this aonferenoeoomsittoe Rou6e Bill
Ipo.333 pr0vldo6 (motion 5) that wery 00zam0n
6arri6r shall obtain Floraths Bailroad aolasria-
sion a oertlflaateor ?ubllo Com~:oismaa aa6
aeqmeltp and a pemkit (section6) ii t2xe6p-
plloant desire6 to operate a6 a oantraot oar-
rler. Nalthnr o6rtl~Lonteor permalt,h0wwer.
Boaorable Yama E. Kil.t?ay,
Fwe 6
in the linlts 0r lworpoXatod oltleo an4 tcnm6.w
House Journal, Bbrtp666ond I&nlature, pm EO5!5.
The general purpose 0r the ohaago ~4660in soctlm
1 (g) ma6 olearly to r66trlot the d&inltlon In its 600
The langnag la qwr6tfontight beooiutnmde6 d66orI
of the hi&ways *hers regulationwould be ofSmd.lve,
the jostedlctlonof the Coxdedon would extend to the*?&
uhtlon 0r hauling ror hixe only oa or upon puhlfo hlebrrrpr,
altuatod or looatsd betw66n lnaorgeratedtown6 aud to *b-a-
Temo" 6uah a d66arib6d hIghway,u6an%ng to jouraey along
or upon it for any dlstanoe %dmcoow6r. On th6 other.hand,
the lenguags my be cocatrueda6 d66orIptlvo0r the rmioe,
l.e., the regulation or that ssniae owr any hl&~, whloh
6exvI0e extends b&moon or through tw0 or more it630rp0m0a
towna without rererence to the origin or altiarte dostllu-
tiOn Ot'th6 tl%lM&Wt6tiO~.
Eridsntly at lea& tso rparbarsof the Szse oonfer-
6aoe~ttee thou&t thelatterm6anSngrrrr iafend6d66
IndIoat6d by the %i.Wrlty 6t6t6fumt QWml abw6.
'$86hsu. nOw @nE tha A6t a6 a Wh0l.o(LoUI dd
In 6etoxmIaIngwhether *txa~er60wwcu iateldod to man tm-
for any di6tOWO
oli.!ig on a poblio ai&iu 6itU6t6d bdW#Wl
tn, or more IxcorpozWod tomu, or trwe &I botwaa throu&
OT beyoad two or wnre ia66 l&ml foatl on say Quhlb hlgh-
My. It 06anot nmm txw0.l T ng r0r cay dlstanee ffasay h%gh-
way else the lanp;usgs b66aa66 6i6atXiaglO66~
Seetlon 1 (h) derfnas 6 *anntmwt6ati6r* a6 5
Oth6Ethan 66 6 c-0
6erve, rO6tW aad regtalat6trazmgortatlonand to
the exkrrtIx%and all ruture uadue buxdens on the hrghwarr;
arlelng by reason o? the u66 Of th6 highram
and 6ba11 e-0 "oonsidmtlsn to t&6 -
tg gnyl6siormr6* oowrts or th6 6~6~61 counties and bo
ommmndatloas oi the Looak gw&rnm6n t 0r MY norti~i-
pallty through or between which nmtsr OaTrlen Olg~tO*~
851
Se&ion 5 re@res com~n oerrler *notor camlore* to 60-
atireoertifioatesor 2ublia oonvtilenceand neoe66Ityto
operate *over the oubllc hiprhwaysr
of t5is State.* Rumer-
0116other rules aad regulationsa~6 oontained in the A~ot
governin,:the aperationsof rotor oarrlets whloh we do not
oonoider neoeasarv to enumerate here. soctlon 22b. In de-
elarIq* the 1edeiLatlvepoliay, made, In part, a6 iollmmr
“The bUSInt6S Or Qp%7ktIIX& a6 6 Nor Oar-
rler 0r property for hire along the highwa~ 0r
this State 16 declared to be a buelnsea arreoted
with the ~ubllc lntereot. . .*
Upon a oaretul cofisidcratlon or the Act ae a
&ole w% hare cor.clud%C the).tb.eLegislatureInteaded to
re&.ate motor ro!ifolesrendering a oetialntype serrl00
dor:neC IA the Xct a6 nwtor oerrIer6*,the servloe refer-
red to boln(l:
that in nhfoh the earrler ln the oour6e of hi6
tramportatlon travel6 rron.one Incorporatedtom to.anoth-
er over any publIe,higbwap in this State. The purpose-8
not to remlet all motor vshlclea regardlessoi the nature
ot"thc 6exvIce, operating on certain highwayas Thus eon-
&rued, the kot cams -intoherIUOAya6 8 Whole.
Tke constn;ctIon we have given th% Act f6 amax-
entlp in acoord 31th thu unllors,departmentalconetnration
0r practltje in the enrora~nt or the Lot rr0m 1931 until
reoe!ztly,acoordiqj to our irimm%tIon.
hs pointed ‘out above, prior to the 1931 amend-
ment.,the temlnl or the transportationw66 required to be
munlai~al corsoratloue. h elgnlflaantohange ~66 made la
ags in E.ouaeBill X0. 333; howwer, It 16 only
*in the course of such t.ranaportatfonna
hIghway be traversed betwee twc or iimreIWOxpO~ted
tarns, thu6 sI@?lryI~ that lee6 than the lib314 route
WJuld be 8UffIdeEt to brlw, the op%r%tor XithiA the term
or the act. It .mxstbe presumed that t&e Legielaturehad
purporrein nlnc!In ohaa&ng the wording of the deflni-
e.o.oA
Tha ract th%t IAhighway betwaen two Incorporated
eftlfigIs traverse& in the oourse 0r a contIauou8trampor-
tation SGQ InaLuded In the route.Is the taatir whioh con-
stitutes ths operator ror hire a %3tor oarder*.
Ea6ed upoc the fore~olng aaalysls, It Ie our
apinl9,nthat:
!fheXailroad comIsslon or T%zas has author-
ity to isok a certiiiouteof ;rublIcconwnienoe and Weee-
852
H0norabl.c 3a-,cs L. Itildey,Pape 8
R The TIaIlroac!
C0mn.taslon of Terns does tot
have authogty to Isme a'ocrtlflaatcof publlo convenleme
and necessity Txm rw inoo~orated tuwn to an un.hmorporat-
4a town n-htrethtra art no towns betmwz.7 the tra since no
portionof ttc trans;?ortstion or mute is between or thmugh
two or 9or4 inO:aqod4a cities.
3. Thsr4 is 8 tlistlnatlon between the tuo opsr-
atlona deeoribed in your letter of rspuent. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144844/ | Hoii.George W. Cox, W. D.
state H<li Officer
Austin, Texas
Dear Sir: Opinion No. 0-1.562
Re: Whether $4.00 per day llmltatlon
on traveling expenses provided by
rider to departmental approprla-
tlon bill applies to trip by-State
Health Officer to Washington, D;C.,
at request of Federal offlclals,
expenses of such trip to be pald
out of funds allocated to the
State of Texas by the Children's
Bureau of the Federal Government.
This will acknowledge receipt of your letter of Octo-
ber 6; 1939;wherel.n you advise that you have been requested.
by Miss Katharine F:'Lenroot, Chief'of the Children's Bureau,
and by Surgeon General Thomas Parran'of the United States
Public Health Service, to come to~washington, D. C., for the
purpose.of studying plans, rules and regulations for the ad--
mlnFstratFon of health affairs and moneys allocated to Texas,
and that you have been advised by'Miss Lenroot that your ex-
penses ~111 be paid out of funds allocated to the State of
Texas by the Children's Bureau.
You desire the opinion of this department upon the
following question:
"Please advise me if expenses incurred on a
trip.to Washlcgton, onofficial business, ~111 be
limited to $4.00 per day, or will the expenses
incident thereto be limited to actual'expenses if
paid out of funds allocated to the Health Depart-
ment of the State of Texas by the United States
Public Health Service.or the ChlldrenVs Bureau."
Your question is not one which can be gZven a
categorical answer, upon the basis of the information contaln-
ed inyour letter. The answer to your question depenas upon
the facts as to whether or not, in allocating funds to the
State of Texas by the Children's Bureau, the Federal govern-
ment has made an unrestricted grant of such~funas ln,such man-
ner as to constitute the funds "State funds," subject to the
Hon. George W. Cox, M. D., page 2 o-1562
complete control of ~the Leglslatldn of the State of Textis.
If this be the sltuation,~the expenses incurred by you on
your trlp,to Washington,'6n official business, would.bi ~lmlt-
ed to $4.00 per d&y, in accordance with the rider appended-to
the departmental appropflatlon bill. On the other hi%na,if
the condition of th& grailtto the State of Texas by the
Children's Bureau was'that the expenditure of such Federal
funds should be subject to the control of the 'proper'Fed&al
authbPltle&, or the grant at the'tlme it was made'prescrlbed
the use that might be made of such funds in respect to
traveling expenses authorized to be paid therefrom, such ".
funds would be received and retained by the State of Texas"
impressed with the trust, and the exp&nilture~of 's;uch:~fUiiis
Would be controlled by the Federal regulations, rather than
by our State laws.
Yours very truly
ATTORNEYGENERAL OF TEXAS
By s/R. W. Fairchild
R. w. FaiPChlla
RWF:pbp:wc
APPROVED OCT ‘~23, 1939
s/Gerald C. Mann
ATTORNEYGENERAL OF TE?3S
Approved Opinion Committee By s/BWB Chalrman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125287/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
142
CA 16-00031
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, TROUTMAN, AND SCUDDER, JJ.
IN THE MATTER OF EASTBROOKE CONDOMINIUM
BY ITS BOARD OF MANAGERS ON BEHALF OF ALL
HOMEOWNERS AND BRIGHTON EASTBROOKE HOMEOWNERS,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
ELAINE AINSWORTH, ASSESSOR, AND BOARD OF
ASSESSMENT REVIEW OF TOWN OF BRIGHTON,
RESPONDENTS-RESPONDENTS.
FOR REVIEW OF A TAX ASSESSMENT UNDER ARTICLE 7
OF THE REAL PROPERTY TAX LAW
(PROCEEDING NO. 1.)
----------------------------------------------
IN THE MATTER OF EASTBROOKE CONDOMINIUM
BY ITS BOARD OF MANAGERS ON BEHALF OF ALL
UNIT OWNERS, PETITIONER-APPELLANT,
V
ELAINE AINSWORTH, ASSESSOR, AND BOARD OF
ASSESSMENT REVIEW OF TOWN OF BRIGHTON,
RESPONDENTS-RESPONDENTS.
FOR REVIEW OF A TAX ASSESSMENT UNDER ARTICLE 7
OF THE REAL PROPERTY TAX LAW
(PROCEEDING NO. 2.)
----------------------------------------------
IN THE MATTER OF EASTBROOKE CONDOMINIUM
BY ITS BOARD OF MANAGERS ON BEHALF OF ALL
UNIT OWNERS, PETITIONER-APPELLANT,
V
TOWN OF BRIGHTON BOARD OF ASSESSMENT REVIEW,
ASSESSOR OF TOWN OF BRIGHTON AND TOWN OF
BRIGHTON, RESPONDENTS-RESPONDENTS.
FOR REVIEW OF A TAX ASSESSMENT UNDER ARTICLE 7
OF THE REAL PROPERTY TAX LAW
(PROCEEDING NO. 3.)
(APPEAL NO. 1.)
JACOBSON LAW FIRM, P.C., PITTSFORD (ROBERT L. JACOBSON OF COUNSEL),
-2- 142
CA 16-00031
FOR PETITIONER-APPELLANT.
DAVIDSON FINK, LLP, ROCHESTER (THOMAS A. FINK OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.
Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (John J. Ark, J.), entered March 27, 2015. The
order and judgment, insofar as appealed from, limited the unit owners
who are entitled to tax refunds.
It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.
Memorandum: Eastbrooke Condominium by its Board of Managers, on
behalf of all Homeowners and Brighton Eastbrooke Homeowners, and on
behalf of all Unit Owners (petitioner) commenced these proceedings
pursuant to RPTL article 7 challenging the tax assessments for
multiple tax years on the subject condominium property. Pursuant to
Real Property Law § 339-y (4), the board of managers of a condominium
“may act as an agent of each unit owner who has given his written
authorization to seek administrative and judicial review of an
assessment.” Contrary to petitioner’s contention, Supreme Court
properly determined that unit owners are required to give an
authorization for each tax year for which the assessment is
challenged, and a unit owner’s authorization for one year did not give
the board of managers authorization to act as his or her agent for a
different year.
We reject petitioner’s further contention that respondents waived
any deficiency in the unit owner authorizations. Although an
objection that petitioner failed to comply with RPTL 706 (2) may be
waived if not asserted in a timely manner (see Matter of Miller v
Board of Assessors, 91 NY2d 82, 86; Matter of Ames Dept. Stores v
Assessor of Town of Concord, 102 AD2d 9, 13), here, petitioner
complied with that statute by attaching to the petitions the
authorization of petitioner’s board of managers allowing petitioner’s
attorney to act as its agent. There was therefore no reason for
respondents to object to the petitions as defective. The requirement
of Real Property Law § 339-y (4) that unit owners provide written
authorizations is a separate requirement, and objections made under
that statute are not subject to the waiver rule applicable to
objections made pursuant to RPTL 706 (2). In addition, petitioner’s
reliance on Matter of Skuse v Town of S. Bristol (99 AD2d 670, 670) in
support of its waiver argument is misplaced because, in that case, the
Town of South Bristol was seeking an outright dismissal of the
proceedings. Here, respondents’ motion in limine did not seek
dismissal of the petitions based on any defect, but the motion instead
sought an order determining that only unit owners who had signed an
authorization for a particular year had a right to receive a refund
for that year. We agree with respondents that they did not waive any
determination on that matter.
-3- 142
CA 16-00031
Entered: February 10, 2017 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4359266/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPLIED UNDERWRITERS, INC., a No. 17-16815
Nebraska corporation,
Plaintiff-Appellant, D.C. No.
2:15-cv-02445-
v. TLN-CKD
LARRY J. LICHTENEGGER; J. DALE
DEBBER; PROVIDENCE OPINION
PUBLICATIONS, LLC, a California
limited liability company,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted December 18, 2018
San Francisco, California
Filed January 15, 2019
Before: MILAN D. SMITH, JR. and JACQUELINE H.
NGUYEN, Circuit Judges, and JANE A. RESTANI, *
Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2 APPLIED UNDERWRITERS V. LICHTENEGGER
SUMMARY **
Lanham Act / Civil Procedure
The panel affirmed the district court’s dismissal of an
action brought by a financial services company under the
Lanham Act.
The panel held that the district court abused its discretion
when it sanctioned the plaintiff and dismissed the case
pursuant to Federal Rule of Civil Procedure 41(b) absent an
order requiring the plaintiff to file an amended complaint.
The panel nonetheless affirmed the district court’s earlier
dismissal for failure to state a claim under Rule 12(b)(6).
The panel concluded that defendants’ use of plaintiff’s
trademarks in the title of a webcast seminar and in
promotional materials was a nominative fair use because
plaintiff’s service was not readily identifiable without use of
the trademarks, defendants used only so much of the
trademarks as was reasonably necessary, and use of the
trademarks did not suggest sponsorship or endorsement.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
APPLIED UNDERWRITERS V. LICHTENEGGER 3
COUNSEL
Kimberly A. Jansen (argued), Hinshaw & Culbertson LLP,
Chicago, Illinois; Mark Suri, Peter Felsenfeld, Travis Wall,
and Spencer Y. Kook, Hinshaw & Culbertson LLP, Los
Angeles, California; for Plaintiff-Appellant.
Duffy Carolan (argued), Jassy Vick Carolan LLP, San
Francisco, California; Kevin L. Vick and Jean-Paul Jassy,
Jassy Vick Carolan LLP, Los Angeles, California; for
Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
We are confronted with an appeal of a procedurally
curious nature. Plaintiff-Appellant Applied Underwriters,
Inc. (Plaintiff) appealed the district court’s dismissal of its
claims for trademark infringement and unfair competition,
on the apparent belief that the court dismissed the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). When
we asked the district court to clarify its grounds for
dismissal, however, it explained that it actually dismissed
Plaintiff’s complaint as a sanction pursuant to Federal Rule
of Civil Procedure 41(b).
4 APPLIED UNDERWRITERS V. LICHTENEGGER
Although we conclude that the district court abused its
discretion when it sanctioned Plaintiff and dismissed the
case pursuant to Rule 41(b) absent an order requiring
Plaintiff to file an amended complaint, we nevertheless
affirm the district court’s earlier Rule 12(b)(6) dismissal
because the use of Plaintiff’s trademarks by Defendants-
Appellees Larry J. Lichtenegger, J. Dale Debber, and
Providence Publications, LLC (Defendants) constituted
nominative fair use.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
Plaintiff is “a financial services company that provides
payroll processing services and, through affiliated insurance
companies, offers programs through which workers’
compensation insurance is offered and provided to
employers throughout the United States.” It began to use the
“Applied Underwriters” mark in October 2001, and has
continuously used the mark since. Beginning in October
2002, it also began to use the “EquityComp” mark in
connection with its workers’ compensation insurance
services. The U.S. Patent and Trademark Office has issued
Plaintiff five relevant trademark registrations: for the
“Applied Underwriters” mark, the “EquityComp” mark, and
three stylized versions of these marks, two of which appear
to depict a St. Bernard:
APPLIED UNDERWRITERS V. LICHTENEGGER 5
6 APPLIED UNDERWRITERS V. LICHTENEGGER
In its complaint, Plaintiff asserted that these registrations are
currently in force and uncontestable, and that it
“aggressively advertises and promotes its marks and its
services,” having “spent millions of dollars advertising”
them.
Defendant Providence Publications, LLC publishes
various online news sources, including “Workers’ Comp
Executive” (WCE). WCE features news reports and offers
online seminars, some of which feature Defendants
Lichtenegger and Debber.
Plaintiff alleged that, beginning in November 2015,
Defendants began offering a seminar (both online and on
DVD) that “uses the APPLIED UNDERWRITERS and
EQUITYCOMP marks in the title of the webcast.” The marks
were also featured in various promotional materials,
including a widely distributed email advertisement.
Defendants used these marks “without Applied
Underwriters’ authority or permission and in reckless
disregard of [its] federal trademark registrations and its
rights.” Plaintiff also claimed that Defendants “specifically
and intentionally target[ed] their marketing and advertising
. . . to independent brokers and the business organizations
that they serve who use Plaintiff’s services.” In its
complaint, Plaintiff averred that “[a]s a result of the
likelihood of confusion caused by Defendants’ unauthorized
use of” the marks, “Defendants are able to attract customers
who mistakenly believe that they will attend a program
sponsored or affiliated with Applied Underwriters,” leading
to dilution of the marks.
II. Procedural Background
Plaintiff filed a complaint asserting causes of action for
federal trademark infringement and dilution, false
APPLIED UNDERWRITERS V. LICHTENEGGER 7
designation of origin under the Lanham Act, and federal and
state unfair competition. The next day, Plaintiff filed a
motion for a temporary restraining order, which the district
court denied.
Defendants moved to dismiss under Rule 12(b)(6),
arguing that their use of Plaintiff’s marks was protected
under the First Amendment, constituted nominal fair use,
and satisfied the statutory defenses to trademark dilution.
Defendants also filed a request for judicial notice that the
district court granted in part and denied in part, taking
judicial notice only of the DVD of the seminar. Plaintiff in
turn filed an opposition to Defendants’ motion to dismiss,
accompanied by a declaration and additional evidence not
included in its complaint. 1
On July 6, 2017, the district court granted Defendants’
motion to dismiss, concluding that “Defendants’ use of the
Trademarks is nominative fair use.” At Plaintiff’s request,
the court granted leave to amend the complaint within
30 days. The district court docket confirms that Plaintiff
neither filed an amended complaint (timely or otherwise) nor
announced an intent not to do so. Consequently, on August
10, 2017, the district court issued a minute order that read:
“In light of Plaintiff’s failure to file an Amended Complaint
pursuant to the Court’s Order (ECF No. [31]), this case is
hereby DISMISSED. CASE CLOSED.” The clerk of court
1
Plaintiff did not seek judicial notice of this additional evidence and,
as Defendants note, “the District Court did not cite or rely on this
evidence in its ruling.” Because this evidence was not part of the
complaint or submitted for judicial notice, we will disregard it at this
stage. See Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994),
overruled on other grounds by Galbraith v. County of Santa Clara,
307 F.3d 1119 (9th Cir. 2002).
8 APPLIED UNDERWRITERS V. LICHTENEGGER
subsequently entered judgment “in accordance with the
Court’s Order filed on 8/10/2017.”
This appeal followed. In their briefs, Plaintiff and
Defendants disputed whether the district court dismissed
Plaintiff’s complaint pursuant to Rule 12(b)(6), in which
case we would review the sufficiency of the complaint de
novo, Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011), or
as a sanction under Rule 41(b), which we would review for
abuse of discretion, Yourish v. Cal. Amplifier, 191 F.3d 983,
986 (9th Cir. 1999). To remedy this confusion, we remanded
this case for the limited purpose of allowing
the district court to clarify whether the
complaint was dismissed as a sanction under
Federal Rule of Civil Procedure 41 or for
failure to state a claim under Rule 12(b)(6),
and, if the final dismissal was intended as a
sanction under Rule 41(b), to state the
reasoning behind the selection of that
sanction.
Before oral argument in this appeal, the district court
responded with a clarification order, in which it explained
that it dismissed Plaintiff’s complaint as a sanction pursuant
to Rule 41(b), and analyzed the five pertinent factors as
enumerated in Yourish. It concluded that “[t]hree of the five
factors strongly favored dismissal, and this Court dismissed
the case under Rule 41(b) as a sanction for failure to comply
with the Court’s order.”
STANDARD OF REVIEW AND JURISDICTION
“We review de novo a district court’s dismissal of a
complaint under [Rule] 12(b)(6) for failure to state a claim,”
Starr, 652 F.3d at 1205, and “[w]e review the district court’s
APPLIED UNDERWRITERS V. LICHTENEGGER 9
dismissal of a complaint pursuant to Rule 41(b) for abuse of
discretion,” Yourish, 191 F.3d at 986. We have jurisdiction
pursuant to 28 U.S.C. § 1291—regardless of the basis for the
district court’s dismissal of Plaintiff’s complaint, its entry of
judgment constituted a final decision of the court. Cf. De Tie
v. Orange County, 152 F.3d 1109, 1111 (9th Cir. 1998)
(“The dismissal of an action, even when it is without
prejudice, is a final order.”).
ANALYSIS
I. Rule 41(b)
Under Rule 41(b), “[i]f the plaintiff fails to prosecute or
to comply with . . . a court order”—such as by failing to file
an amended complaint after being ordered to do so—“a
defendant may move to dismiss the action or any claim
against it. Unless the dismissal order states otherwise, [such]
a dismissal . . . operates as an adjudication on the merits.”
Fed. R. Civ. P. 41(b). We have noted that “[w]hen a district
court dismisses an action because the plaintiff has not filed
an amended complaint after being given leave to do so and
has not notified the court of his intention not to file an
amended complaint, we may deem the dismissal to be for
failure to comply with a court order based on Federal Rule
of Civil Procedure 41(b).” Harris v. Mangum, 863 F.3d
1133, 1142 (9th Cir. 2017).
In the order clarifying its dismissal of Plaintiff’s
complaint, the district court analyzed the five factors that
must be considered before dismissing a case pursuant to
Rule 41(b): “(1) the public’s interest in expeditious
resolution of litigation; (2) the court’s need to manage its
docket; (3) the risk of prejudice to the defendants; (4) the
public policy favoring disposition of cases on their merits;
and (5) the availability of less drastic alternatives.” Yourish,
10 APPLIED UNDERWRITERS V. LICHTENEGGER
191 F.3d at 990 (quoting Hernandez v. City of El Monte,
138 F.3d 393, 399 (9th Cir. 1998)). 2 However, the district
court did not consider whether Rule 41(b) was even
applicable in this case, given that Plaintiff was granted
leave—not ordered—to amend its complaint. We hold that
the district court abused its discretion when it invoked Rule
41(b) under these circumstances.
We are not the first panel to address this question. See,
e.g., Yourish, 191 F.3d at 986 n.4 (“This approach is
somewhat problematic because a plaintiff’s failure to amend
a complaint is not easily described as disobeying a court
order because the plaintiff has the right simply to allow the
complaint to be dismissed.”). Decades ago, the Fifth Circuit
considered a similar factual scenario and concluded that
[h]ad the District Judge intended what he
wrote literally—that the action was being
dismissed because the March order had been
“disobeyed”—he would have been guilty of
an abuse of his Rule 41(b) discretion to
dismiss. Dismissal of a case for disobedience
of a court order is an exceedingly harsh
sanction which should be imposed only in
extreme cases, and then only after
exploration of lesser sanctions. Failure to
amend a complaint after it has been dismissed
with leave to amend is not such an extreme
2
“Although it is preferred, it is not required that the district court
make explicit findings in order to show that it has considered these
factors and we may review the record independently to determine if the
district court has abused its discretion.” Yourish, 191 F.3d at 990
(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).
Accordingly, the fact that the district court initially dismissed the
complaint without any explicit analysis of these five factors did not
constitute an abuse of discretion.
APPLIED UNDERWRITERS V. LICHTENEGGER 11
case of disobedience, if it is disobedience at
all.
Mann v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
488 F.2d 75, 76 (5th Cir. 1973) (per curiam) (citations
omitted). More recently, dissenting in Brown v. Rawson-
Neal Psychiatric Hospital, Judge Graber concluded that a
district court’s dismissal with prejudice under Rule 41(b)
“was an abuse of discretion for the simple reason that, under
our precedents, Plaintiff did not fail to comply with a court
order.” 840 F.3d 1146, 1150 (9th Cir. 2016) (Graber, J.,
dissenting). Judge Graber noted that our precedent makes
clear that “[w]hen a district court requires a plaintiff to file
an amended complaint, the court may dismiss the case under
Rule 41(b) if the plaintiff fails to follow the requirement.”
Id.; see also Edwards v. Marin Park, Inc., 356 F.3d 1058,
1065 (9th Cir. 2004) (“The failure of the plaintiff eventually
to respond to the court’s ultimatum—either by amending the
complaint or by indicating to the court that it will not do so—
is properly met with the sanction of a Rule 41(b) dismissal.”
(emphasis added)); Yourish, 191 F.3d at 986 n.2 (noting that
the district court order stated that an “[a]mended complaint
shall be filed within 60 days” (emphasis added)); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (stating that
the court “ordered” and “required” the filing of a second
amended complaint). However, in Brown, as in this case,
the district court did not require Plaintiff to
file an amended complaint, nor did the court
require in the alternative that Plaintiff file an
amended complaint or some other specified
document. The court’s order denying
Plaintiff’s motion for reconsideration merely
granted leave to amend, with permissive text
allowing Plaintiff to amend or not . . . .
12 APPLIED UNDERWRITERS V. LICHTENEGGER
Given the court’s failure to cite Rule 41(b),
the permissive wording of its orders, and
Plaintiff’s desire to obtain appellate review of
the Rule 12(b)(6) dismissal as discussed in
the motion for reconsideration, he
understandably hoped for a dismissal, which
he reasonably thought would be under Rule
12(b)(6). After all, the district court never
ordered Plaintiff to file an amended
complaint, as the courts had in Yourish or
Ferdik. Leave to amend was granted; failure
to amend did not constitute noncompliance
with a court order. Simply put, there was no
“ultimatum” within the meaning of our
precedents, and so the district court abused its
discretion in dismissing Plaintiff’s federal
claims under Rule 41(b).
840 F.3d at 1151 (Graber, J., dissenting). 3
We agree with Judge Graber’s reasoning. By its plain
text, a Rule 41(b) dismissal under these circumstances
requires “a court order” with which an offending plaintiff
failed to comply. Fed. R. Civ. P. 41(b). 4 Here, there was no
3
Notably, the Brown majority did not address this issue and instead
based its holding on the plaintiff’s failure to raise Rule 41(b) in his
opening brief. See 840 F.3d at 1148–49. Thus, we are not bound by that
case to treat a permissive invitation to amend as a court order requiring
amendment.
4
Rule 41(b) also permits dismissal when a plaintiff fails to prosecute
its case or comply with the Federal Rules of Civil Procedure. See Fed.
R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss the action
or any claim against it.”). However, these alternative bases for dismissal
are not at issue in this appeal because the district court specifically stated
that its dismissal was based on Plaintiff’s failure to follow its court order.
APPLIED UNDERWRITERS V. LICHTENEGGER 13
such order—the district court did not require that Plaintiff
file an amended complaint following the initial Rule
12(b)(6) dismissal. Instead, the court’s order concluded as
follows: “Plaintiff is GRANTED leave to amend within
thirty (30) days of this Order.” The district court did not
mandate the filing of an amended complaint, and it did not
indicate that failure to do so would result in dismissal of the
complaint pursuant to Rule 41(b). See Oliva v. Sullivan,
958 F.2d 272, 274 (9th Cir. 1992) (“The district judge has an
obligation to warn the plaintiff that dismissal is imminent.”).
The district court’s dismissal under Rule 41(b) required
noncompliance with a court order. A grant of leave to amend
is not an order to amend. Therefore, Rule 41(b) did not apply
here, and the district court’s dismissal on this ground
constituted an abuse of discretion.
II. How to Proceed?
Having concluded that the district court abused its
discretion when it dismissed Plaintiff’s complaint as a
sanction pursuant to Rule 41(b), we must now determine the
proper course of action moving forward.
One option is to remand. Upon remand, the district court
would presumably either again dismiss Plaintiff’s complaint
under Rule 12(b)(6), based on reasoning articulated in its
prior order, or again grant Plaintiff leave to amend—an
opportunity of which Plaintiff would not avail itself, given
its stated desire to appeal the district court’s original Rule
12(b)(6) dismissal. Remand would therefore require the
parties to engage in additional and redundant briefing, and
would add years to their litigation. Nothing substantive
would be gained, and “remand . . . would be an unnecessary
waste of judicial and litigant resources.” O’Reilly v. Bd. of
Appeals, 942 F.2d 281, 284 (4th Cir. 1991).
14 APPLIED UNDERWRITERS V. LICHTENEGGER
We conclude that remand would not serve the interest of
judicial economy, and fortunately, it is not required. As the
Supreme Court explained,
[I]n reviewing the decision of a lower court,
it must be affirmed if the result is correct
‘although the lower court relied upon a wrong
ground or gave a wrong reason.’ The reason
for this rule is obvious. It would be wasteful
to send a case back to a lower court to
reinstate a decision which it had already
made but which the appellate court
concluded should properly be based on
another ground within the power of the
appellate court to formulate.
SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (citation
omitted) (quoting Helvering v. Gowran, 302 U.S. 238, 245
(1937)); see also Alcaraz v. Block, 746 F.2d 593, 602 (9th
Cir. 1984) (“We will affirm the district court’s correct legal
results, even if reached for the wrong reasons.”). Here, we
have before us the correct result; as discussed below,
Defendants’ use of Plaintiff’s marks constituted nominative
fair use, and thus dismissal was required. We also have the
district court’s analysis in its Rule 12(b)(6) order, which still
stands and has not been altered or retracted. Therefore, we
conclude that dismissal of Plaintiff’s complaint was the
correct legal result, even if the district court reached it for
the wrong reason—as a sanction under Rule 41(b)—instead
of the correct reason—as a dismissal under Rule 12(b)(6).
Accordingly, we do not need to remand the action, and will
APPLIED UNDERWRITERS V. LICHTENEGGER 15
instead proceed with analysis of the district court’s dismissal
pursuant to Rule 12(b)(6). 5
III. Rule 12(b)(6)
Defendants maintain, as the district court concluded, that
their use of Plaintiff’s marks constituted nominative fair use.
We agree.
Pursuant to this defense, the “nominative use of a mark—
where the only word reasonably available to describe a
particular thing is pressed into service—lies outside the
strictures of trademark law: Because it does not implicate the
source-identification function that is the purpose of
trademark, it does not constitute unfair competition.” New
Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302,
308 (9th Cir. 1992). 6 New Kids held that
5
We note that this approach is consistent with the basic principles
of finality that undergird our appellate jurisdiction. The district court’s
Rule 12(b)(6) order dispensed with all of Plaintiff’s claims, and hence
was “a full adjudication of the issues.” Nat’l Distrib. Agency v.
Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997). If not for
the court’s grant of leave to amend—which, again, Plaintiff has made
clear it had no intention of undertaking—the dismissal would have
“clearly evidence[d] the judge’s intention that it be the court’s final act
in the matter.” Id. (quoting In re Slimick, 928 F.2d 304, 307 (9th Cir.
1990)). Accordingly, we are satisfied that the Rule 12(b)(6) order is
sufficiently final for our review, since Plaintiff’s refusal to amend
ensures that the decision was not “tentative, informal or incomplete,” and
is thus reviewable. Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097,
1101 (9th Cir. 1998) (quoting Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949)).
6
Accordingly, although Plaintiff’s complaint included various
causes of action—including trademark infringement and dilution and
federal and state unfair competition—the nominative fair use defense
applied to all of its claims. See Playboy Enters., Inc. v. Welles, 279 F.3d
16 APPLIED UNDERWRITERS V. LICHTENEGGER
a commercial user is entitled to a nominative
fair use defense provided he meets the
following three requirements: First, the
product or service in question must be one not
readily identifiable without use of the
trademark; second, only so much of the mark
or marks may be used as is reasonably
necessary to identify the product or service;
and third, the user must do nothing that
would, in conjunction with the mark, suggest
sponsorship or endorsement by the trademark
holder.
Id. (footnote omitted). If the nominative use of a mark
satisfies these three factors, then there is no infringement;
“[i]f the nominative use does not satisfy all the New Kids
factors, the district court may order defendants to modify
their use of the mark so that all three factors are satisfied.”
Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171,
1176 (9th Cir. 2010).
Although Plaintiff’s primary contention is that
Defendants’ use of its marks failed to satisfy the third New
Kids factor, it challenges the district court’s conclusions as
to all three. We will thus consider each factor in turn.
796, 806 (9th Cir. 2002) (“Uses that do not create an improper
association between a mark and a new product but merely identify the
trademark holder’s products should be excepted from the reach of the
anti-dilution statute.”); Cleary v. News Corp., 30 F.3d 1255, 1262–63
(9th Cir. 1994) (“This Circuit has consistently held that state common
law claims of unfair competition and actions pursuant to California
Business and Professions Code § 17200 are ‘substantially congruent’ to
claims made under the Lanham Act.” (quoting Acad. of Motion Picture
Arts & Scis. v. Creative House Promotions, Inc., 944 F.2d 1446, 1457
(9th Cir. 1991))).
APPLIED UNDERWRITERS V. LICHTENEGGER 17
A. Whether Plaintiff’s Service Was Readily
Identifiable Without Use of the Trademarks
Plaintiff contends that “Defendants did not need to use
Plaintiff’s trademarks to identify their Program.” It
concedes that “the Program apparently addresses Plaintiff’s
workers’ compensation product in particular,” but
nonetheless argues that “Defendants could have come up
with another readily understood generic or descriptive
name.”
The email attached to the complaint demonstrates that
Defendants’ seminar exclusively critiqued Plaintiff’s
EquityComp service. The title of the seminar was “Applied
Underwriters’ EquityComp® Program Like it, Leave it, or
Let it be?” and its subtitle read, “Learn the best strategies for
selling, competing with, or helping a prospect out of
EquityComp® mid-term.” We have previously determined
that a descriptive alternative—such as Plaintiff’s proposed
“Risk Sharing Workers’ Comp Program” or “Captive
Workers’ Comp Arrangement Program”—need not be
employed where use of a mark is necessary to refer to a
specific brand or product. As we explained in Toyota Motor
Sales,
Toyota claims . . . the Tabaris could have
used a domain name that did not contain the
Lexus mark. It’s true they could have used
some other domain name like
autobroker.com or fastimports.com, or have
used the text of their website to explain their
business. But it’s enough to satisfy our test
for necessity that the Tabaris needed to
communicate that they specialize in Lexus
vehicles, and using the Lexus mark in their
domain names accomplished this goal.
18 APPLIED UNDERWRITERS V. LICHTENEGGER
610 F.3d at 1180; see also Playboy Enters., Inc. v. Welles,
279 F.3d 796, 802 (9th Cir. 2002) (“[T]here is no other way
that Ms. Welles can identify or describe herself and her
services without venturing into absurd descriptive phrases.
To describe herself as the ‘nude model selected by Mr.
Hefner’s magazine as its number-one prototypical woman
for the year 1981’ would be impractical as well as ineffectual
in identifying Terri Welles to the public.”). 7
Such is the case here. The seminar did not discuss
workers’ compensation programs generally, but rather
Plaintiff’s specific offering. Therefore, Defendants “needed
to communicate” that they critiqued the EquityComp
program, and so using the mark in the title and description
of the program “accomplished this goal.” Toyota Motor
Sales, 610 F.3d at 1180.
In its reply brief, Plaintiff makes the argument that, even
if the use of the “EquityComp” mark satisfied the first New
Kids factor, the use of the “Applied Underwriters” mark did
not. Plaintiff suggests that “[t]he addition of the ‘Applied
Underwriters’ mark does nothing to identify the content of
the seminar but instead serves solely to create the impression
7
Plaintiff suggests that “Defendants’ attempt to apply Welles to their
seminar is circular” because “[o]n one hand, defendants insist that they
could not possibly have described their seminar without using plaintiff’s
mark,” but on the other hand, “if a more generic descriptor could not be
used to describe the seminar because the subject of the seminar [was]
limited to EquityComp®, then the suggestion of sponsorship is
reinforced. After all, a reasonably prudent consumer could assume that
a seminar focused on a single product is sponsored or endorsed by the
entity selling that product.” However, this reasoning would essentially
vitiate the nominative fair use defense, because it suggests that any time
the first New Kids factor is satisfied—in other words, when use of a mark
is needed for identification purposes—then the third factor could never
be satisfied, because endorsement would always be presupposed in such
cases.
APPLIED UNDERWRITERS V. LICHTENEGGER 19
that Applied Underwriters is sponsoring or endorsing a
seminar about its own EquityComp® product.” It relies on
Playboy Enterprises, in which we determined that while use
of the trademarked phrase “Playboy Playmate of the Year
1981” was permissible because it was needed for
identification purposes, use of another potentially protected
phrase—“PMOY ‘81”—was not. 279 F.3d at 804. We
reasoned that “[t]he repeated depiction of ‘PMOY ‘81’ is not
necessary to describe Welles. ‘Playboy Playmate of the
Year 1981’ is quite adequate.” Id. Here, similarly, Plaintiff
suggests that the “EquityComp” mark identified the service
that Defendants analyzed in their seminar, and thus the
“Applied Underwriters” mark did not serve that function.
But this argument falls short. Defendants’ use of the
“Applied Underwriters” mark was not necessarily redundant
because it was used to identify the company that offered
EquityComp—a company that was itself critiqued in the
seminar. We therefore find this case distinguishable from
Playboy Enterprises, where use of the “PMOY ‘81” mark
served no additional identification purpose.
Accordingly, because both marks were needed to
identify the service (and company) that Defendants analyzed
in their seminar, the district court correctly determined that
the first New Kids factor was satisfied.
B. Whether Defendants Used Only So Much of the
Trademarks As Was Reasonably Necessary
Plaintiff argues that Defendants’ use of its marks failed
the second factor because the email attached to the complaint
featured several uses of both marks. That argument relies on
a misunderstanding of this factor. The second New Kids
factor does not implicate the number of uses of a mark, but
rather the nature of the uses. In clarifying it, we explained
that “a soft drink competitor would be entitled to compare
20 APPLIED UNDERWRITERS V. LICHTENEGGER
its product to Coca-Cola or Coke, but would not be entitled
to use Coca-Cola’s distinctive lettering.” New Kids,
971 F.2d at 308 n.7; see also Playboy Enters., 279 F.3d at
802 (“Welles’ banner advertisements and headlines satisfy
this element because they use only the trademarked words,
not the font or symbols associated with the trademarks.”);
Volkswagenwerk Aktiengesellschaft v. Church, 411 F.2d
350, 352 (9th Cir. 1969) (noting that defendant “did not use
Volkswagen’s distinctive lettering style or color scheme, nor
did he display the encircled ‘VW’ emblem”); cf. Toyota
Motor Sales, 610 F.3d at 1181 (“Toyota suggests that use of
the stylized Lexus mark and ‘Lexus L’ logo was more use of
the mark than necessary and suggested sponsorship or
endorsement by Toyota. This is true: The Tabaris could
adequately communicate their message without using the
visual trappings of the Lexus brand.”). Our case law
demonstrates that analysis of this factor should focus not on
the number of uses of Plaintiffs’ marks, but on whether
Defendants used more of each individual mark than was
necessary in terms of font and stylization.
Here, Defendants correctly note that the email “did not
use any part of Plaintiff’s service marks, the distinctive
lettering or design; rather they used only the term ‘Applied
Underwriters’ and ‘EquityComp’ in describing its webcast.”
The email did not contain, for example, the illustration of a
St. Bernard or the stylized lettering of Plaintiff’s registered
marks. It did not even employ the distinctive small-caps
rendering of the “APPLIED UNDERWRITERS” and
“EQUITYCOMP” marks. Defendants used only the words
themselves, which were, as discussed above, necessary to
identify Plaintiff’s product. Therefore, the second New Kids
factor was satisfied.
APPLIED UNDERWRITERS V. LICHTENEGGER 21
C. Whether Use of the Trademarks Suggested
Sponsorship or Endorsement
Plaintiff asserts that, “[s]imply put, Defendants’
advertising creates confusion.”
At the outset, it claims that “[t]he district court erred by
ignoring Plaintiff’s evidence of actual confusion in its Order,
which nowhere mentions the actual confusion.” However,
in its complaint, Plaintiff pleaded no such facts of actual
confusion. Instead, the complaint stated only that
“Defendants’ improper use of the APPLIED
UNDERWRITERS IP has caused, and will continue to
cause, damaging and actual confusion among the public.”
That conclusory statement constituted the only evidence of
confusion contained in the complaint, and at no other point
did Plaintiff plead facts suggesting that use of its marks led
consumers to assume that it sponsored or endorsed
Defendants’ seminar. 8
Plaintiff also notes that Defendants employed the ®
registration symbol in conjunction with their uses of the
“Applied Underwriters” and “EquityComp” marks, which it
claims “makes the use of the trademark look more official or
authorized, because one would expect that the trademark
owner or its authorized users would use the registration
symbol ®, not unauthorized users.” This is not a particularly
compelling argument. Although Defendants did use the ®
symbol, the email attached to the complaint clarified that
8
In its opposition to Defendants’ motion to dismiss, Plaintiff
referenced a “confused potential customer” who reached out to it.
However, that allegation was not included in the complaint, and so it
cannot be considered. See Arpin v. Santa Clara Valley Transp. Agency,
261 F.3d 912, 925 (9th Cir. 2001) (“[E]xtraneous evidence should not be
considered in ruling on a motion to dismiss.”).
22 APPLIED UNDERWRITERS V. LICHTENEGGER
“EquityComp is the registered trademark of Applied
Underwriters, Inc.” 9 Moreover, in the body of the email (and
on the DVD cover), the title of the seminar—which did
feature both the “Applied Underwriters” and “EquityComp”
marks—was in regular font beneath a stylized logo for
WCE:
This further suggested that it was WCE—not Plaintiff—that
sponsored the seminar, which discounts the possibility of
any confusion.
Furthermore, Defendants correctly argue that any
likelihood of confusion is implausible due to the content of
9
At least one district court has dismissed a trademark infringement
claim under similar circumstances. See Architectural Mailboxes, LLC v.
Epoch Design, LLC, No. 10cv974 DMS (CAB), 2011 WL 1630809, at
*3 (S.D. Cal. Apr. 28, 2011) (“[T]he exhibits attached to the Complaint
lead to the same conclusion, namely that Plaintiff has failed to allege
sufficient facts to demonstrate a likelihood of confusion. The excerpts
from Defendant’s website clearly identify Plaintiff as the manufacturer
of the Oasis Jr. mailbox. The website even goes so far as to state,
‘Oasis® is a registered trademark of Architectural Mailboxes.’” (citation
omitted)).
APPLIED UNDERWRITERS V. LICHTENEGGER 23
the email and the seminar itself. The text of the email
referred to EquityComp as a “sophisticated yet controversial
program,” and Lichtenegger was billed as a lawyer who “for
15 years has specialized in Investment and Commercial
Fraud recovery” and “represents a panoply of employers vs
Applied and is well versed in their math and how their
program works.” Debber, for his part, was credited as the
person “who broke the recent spate of stories about Applied
Underwriters’ EquityComp Program. Only that other mild
mannered reporter, Clark Kent, exceeds Dale’s commitment
to ‘Truth, Justice and the American Way.’” The seminar’s
subtitle advertised that users can “[l]earn the best strategies
for . . . helping a prospect out of EquityComp® mid-term,”
and a reasonable consumer in this context would surely
understand that Plaintiff would not be in the business of
helping customers out of its programs. 10
We have held that criticism of a product tends to negate
the possibility of confusion as to sponsorship and
endorsement. See New Kids, 971 F.2d at 308–09
(“[N]othing in the announcements suggests joint
sponsorship or endorsement by the New Kids. The USA
Today announcement implies quite the contrary by asking
whether the New Kids might be ‘a turn off.’”). 11 Here, it
10
Additionally, the list of questions that the seminar purportedly
answered included several that Plaintiff would be unlikely to field, such
as “If you have a client in the program who is unhappy, should you get
them out and if so, how to know when?” and “How to compete against
the program—at the start and mid-term.”
11
District courts have reached similar conclusions. See, e.g., 1800
GET THIN, LLC v. Hiltzik, No. CV11-00505 ODW (PJWx), 2011 WL
3206486, at *3 (C.D. Cal. July 25, 2011) (determining on motion to
dismiss that “Defendants have not done anything that would suggest
Plaintiff has sponsored or endorsed Defendants’ use of Plaintiff’s
claimed trademark because the articles and comments . . . do not portray
24 APPLIED UNDERWRITERS V. LICHTENEGGER
was clear from the text of the email that the seminar was a
critique of Plaintiff’s program, and it is simply not plausible
that it could have been construed as anything else.
It is true, as Plaintiff notes, that “[t]he existence of
consumer confusion is a fact-intensive analysis that does not
lend itself to a motion to dismiss.” See, e.g., Williams v.
Gerber Prods. Co., 552 F.3d 934, 938–39 (9th Cir. 2008).
Even so, based on the critical nature of the presentation, the
disclaimer included in the text, and the fact that Defendants
advertised the seminar under the WCE banner, we cannot
conclude that a “reasonably prudent consumer” in the
relevant marketplace, Toyota Motor Sales, 610 F.3d at 1176,
could have interpreted Defendants’ seminar as being
endorsed or sponsored by Plaintiff. The complaint contained
only scant, conclusory allegations of consumer confusion,
which, even when considered in the light most favorable to
Plaintiff, were belied by the allegedly infringing email
attached to the complaint, which demonstrated nominative
fair use. Although Plaintiff introduced additional evidence
that might change this conclusion in its opposition to
Defendants’ motion to dismiss, those additional facts cannot
be considered because they were not included in the
operative pleading. The third New Kids factor was therefore
satisfied.
Plaintiff in a positive light”); Patmont Motor Werks, Inc. v. Gateway
Marine, Inc., No. C 96-2703 TEH, 1997 WL 811770, at *4 (N.D. Cal.
Dec. 18, 1997) (“The third and final requirement is met because nothing
in Anthony DeBartolo’s website could possibly be construed to indicate
Patmont’s sponsorship or endorsement. Indeed, the Court would find
incredible any argument to the contrary given the website’s
disparagement of Go-Peds as unsafe and of Patmont management as
criminally anti-competitive.”).
APPLIED UNDERWRITERS V. LICHTENEGGER 25
D. Summation
Although it is a “rare situation in which granting a
motion to dismiss is appropriate” when a case involves
questions of consumer confusion, Williams, 552 F.3d at 939,
the district court properly concluded that Plaintiff failed to
state claims for which relief could be granted because, on the
face of the complaint, it was clear that Defendants’ alleged
infringement constituted nominative fair use.
CONCLUSION
We conclude that the district court abused its discretion
when it dismissed Plaintiff’s complaint as a sanction
pursuant to Rule 41(b) without actually ordering Plaintiff to
amend its complaint. However, we also conclude that
dismissal was nevertheless appropriate, because
Defendants’ use of Plaintiff’s marks constituted nominative
fair use. Accordingly, we AFFIRM the district court’s
dismissal of Plaintiff’s complaint. | 01-03-2023 | 01-16-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4351935/ | Third District Court of Appeal
State of Florida
Opinion filed December 19, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-100
Lower Tribunal No. 13-27684
________________
Giuliana Llanso,
Appellant,
vs.
Jose Gomez de Cordova,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.
Law Offices of Paul Morris, P.A., and Paul Morris, for appellant.
Marks & West, and Carolyn W. West; Valdespino & Associates, P.A., and
Jacqueline M. Valdespino, for appellee.
Before LAGOA, SCALES, and LINDSEY, JJ.
LAGOA, J.
Giuliana Llanso, the former wife (“Llanso”), appeals from the trial court’s
order granting Jose Gomez de Cordova’s, the former husband (“Cordova”), motion
to strike/dismiss Llanso’s motion to vacate the final judgment of dissolution of
marriage (the “Final Judgment”) as void. On appeal, Llanso argues that the Final
Judgment, as well as orders entered subsequent to the Final Judgment, are void
under Florida Rule of Civil Procedure 1.540(b)(4), as the Final Judgment was
entered while an interlocutory appeal in the case was pending before this Court.
We reverse the entry of Final Judgment and subsequent orders entered by the trial
court, as the trial court lacked jurisdiction to render a final order disposing of the
case while an appeal was pending before this Court.
I. STANDARD OF REVIEW
Generally, the standard of review for a trial court’s ruling on a party’s
motion for relief from judgment made pursuant to Florida Rule of Civil Procedure
1.540(b) is an abuse of discretion. Nationstar Mortg., LLC v. Diaz, 227 So. 3d
726, 729 (Fla. 3d DCA 2017). “However, ‘[a] decision whether or not to vacate a
void judgment is not within the ambit of a trial court’s discretion; if a judgment
previously entered is void, the trial court must vacate the judgment.’” Id.
(alteration in original) (quoting Wiggins v. Tigrent, Inc., 147 So. 3d 76, 81 (Fla. 2d
DCA 2014)). Therefore, we review de novo a trial court’s ruling on whether a
judgment is void. Id.
II. FACTUAL AND PROCEDURAL BACKGROUND
2
Of significance to this appeal, on August 14, 2015, Llanso appealed both the
trial court’s order denying her Motion for Interim Partial Distribution of Marital
Assets, or in the Lesser Alternative for Temporary Attorney’s Fees, Suit Money,
and Costs, and the trial court’s order granting Cordova’s Motion to Compel Sale of
Real Property. On November 13, 2015, while this interlocutory appeal was still
pending before this Court in case number 3D15-1894, the parties announced to the
trial court that they had reached a marital settlement agreement and read into the
record the detailed terms of that agreement. The parties further addressed the
appeal in case number 3D15-1894 before this Court, specifically advising the trial
court that:
[CORDOVA’S COUNSEL]: . . . There is currently a
pending appeal which will be -- I will advise the 3rd
DCA. My brief is due on the 16th. I will advise the 3rd
DCA that the parties have reached a settlement.
Therefore, the appeal that is taken will now be moot.
....
[LLANSO’S COUNSEL]: It was a -- formally, we advise
them it was settled. Therefore, it is moot.
On December 4, 2015, the trial court entered the Final Judgment, which
incorporated and attached the November 13, 2015, marital settlement agreement.
The parties, however, did not notify this Court prior to the trial court’s entry of the
final judgment on December 4, 2015, that the appeal was moot and should be
dismissed. Instead, on December 9, 2015, five days after the entry of Final
3
Judgment, Llanso filed a notice of voluntary dismissal of the interlocutory appeal,
which this Court granted on the same date.
Subsequent to the entry of the Final Judgment, Llanso performed pursuant to
the terms of the marital settlement agreement by selling the former marital home.
The marital settlement agreement also provided that each party was responsible for
his or her own attorney’s fees and accountant fees. In addition, the trial court
entered several subsequent orders stemming from the marital settlement agreement
and the Final Judgment that involved liens against Llanso by two law firms
formerly representing Llanso and Llanso’s former financial accounting firm. On
November 20, 2017, Llanso moved to vacate the Final Judgment pursuant to
Florida Rule of Civil Procedure 1.540(b)(4), contending that the Final Judgment
was void and a nullity because, pursuant to Florida Rule of Appellate Procedure
9.130(f), the trial court lacked subject matter jurisdiction to enter the Final
Judgment during the pendency of a non-final appeal. Llanso further contended that
any orders entered after the entry of the Final Judgment were void as well and had
no legal force or effect. Cordova moved to strike/dismiss the motion to vacate and
following a hearing, the trial court granted Cordova’s motion. This timely appeal
ensued.
III. ANALYSIS
4
Florida Rule of Appellate Procedure 9.130(f)1 prohibits a trial court “from
entering an order disposing of a case during the pendency of an interlocutory
appeal.” Publix Supermarkets, Inc. v. Conte, 169 So. 3d 1265, 1266 (Fla. 4th DCA
2015. Indeed, “an order entered without jurisdiction is a nullity, and cannot be
considered harmless error.” Dragomirecky v. Town of Ponce Inlet, 891 So. 2d
633, 634 (Fla. 5th DCA 2005); see also Napoleonic Soc. of Am., Inc. v. Snibbe,
696 So. 2d 1243, 1243 (Fla. 2d DCA 1997) (finding that final judgment entered
during pendency of appellate review of a non-final order was a nullity); Capetta v.
Fields, 683 So. 2d 543, 544 (Fla 3d DCA 1996). Because the trial court entered a
final judgment disposing of this case before this Court dismissed the interlocutory
appeal, the trial court lacked jurisdiction to enter the Final Judgment and the
subsequent orders stemming from the Final Judgment, and reversal is warranted.
We are, however, sympathetic to the trial court’s frustration with trial
counsel. “When a pending appeal becomes moot by reason of a settlement, rule
9.350(a) requires counsel to notify the appellate court immediately by filing a
signed stipulation for dismissal of the appeal.” Merkle v. Guardianship of Jacoby,
1 Rule 9.130(f) provides:
In the absence of a stay, during the pendency of a review
of a non-final order, the lower tribunal may proceed with
all matters, including trial or final hearing, except that the
lower tribunal may not render a final order disposing of
the cause pending such review absent leave of the court.
5
912 So. 2d 595, 600 (Fla. 2d DCA 2005). There is no explanation in the record as
to why neither counsel for Llanso nor for Cordova immediately notified this Court
of the settlement. The record is also devoid of any explanation as to why neither
counsel advised the trial court that the appeal had not yet been dismissed prior to
the entry of final judgment.
As our sister court has explained:
This may all sound like legal gobbledegook to some
since, upon remand, the trial court can be expected to re-
enter a similar final judgment. We concede that may be
true, but jurisdiction is not a question a court can take or
leave, and a judgment entered without jurisdiction is
void.
Garcia-Lawson v. Lawson, 82 So. 3d 137, 137 (Fla. 4th DCA 2012) (quoting
Esposito v. Horning, 416 So. 2d 896, 898 (Fla 4th DCA 1982)).2
Accordingly, we reverse the Final Judgment and subsequent orders and
remand for further proceedings. Our reversal, however, is without prejudice to the
trial court’s re-entry of a similar final judgment and subsequent orders as the
interlocutory appeal has been dismissed. See Connor Realty, Inc. v. Ocean Terrace
N. Condo. Ass’n, 572 So. 2d 4, 4 (Fla. 4th DCA 1990) (reversing the trial court
for entering final judgment while an appeal from a non-final order was pending
and remanding for further proceedings including reinstatement of final judgment
2 Indeed, at oral argument, counsel for Llanso conceded that nothing would prevent
the trial court from re-entering a similar final judgment.
6
on a date subsequent to dismissal of appeal); Hirschhorn v. Superior Realty of Fla.,
Inc., 450 So. 2d 510, 511 (Fla. 4th DCA 1984) (same).
Reversed and remanded for further proceedings.
7 | 01-03-2023 | 12-19-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4351937/ | Third District Court of Appeal
State of Florida
Opinion filed December 19, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-1404
Lower Tribunal No. 16-15562
________________
G.M.R., the mother,
Appellant,
vs.
Department of Children and Families, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Rosa C.
Figarola, Judge.
Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for appellant.
Law Office of Rocco J. Carbone, III, PLLC, and Rocco J. Carbone, III (St.
Augustine); Thomasina Moore, and Laura J. Lee (Tallahassee), for appellee
Guardian ad Litem Program.
Before SALTER, FERNANDEZ, and LINDSEY, JJ.
PER CURIAM.
The trial court entered a final judgment terminating G.M.R’s parental rights
as to her two children, K.M. and L.D.1 However, G.M.R. challenges only the
termination of her parental rights as to K.M. in the instant appeal. For the reasons
set forth below, we affirm in part and reverse in part and remand to the trial court
to enter a corrected final judgment.
The Department of Children and Families (“DCF”) filed a petition for
termination of parental rights as to L.D. on October 12, 2017. K.M.’s father
(“K.M. Father”), similarly filed a petition for termination of G.M.R.’s parental
rights as to K.M. in December 2017. K.M. Father asserted the following grounds
in support of his petition: (i) continued abuse/neglect/abandonment for failure to
comply substantially with a case plan pursuant to section 39.806(1)(e)(1), Florida
Statutes (2017); (ii) irrespective of services pursuant to section 39.806(1)(c); (iii)
egregious conduct pursuant to section 39.806(1)(f); and (iv) involuntary
termination of parental rights to another child pursuant to section 39.806(1)(i).
The trial court considered the termination petitions filed by DCF and K.M. Father
during a three-day adjudicative hearing in April 2018.
In the final judgment, the trial court indicated that it was terminating
G.M.R.’s parental rights as to K.M. under section 39.806(1)(c) and section
39.806(1)(e)(1). On appeal, G.M.R. contends—and DCF concedes—that the trial
court erred by terminating G.M.R.’s parental rights based on section
1 The final judgment also terminated the parental rights of L.D.’s father as to L.D.
The tumultuous relationship between L.D.’s father and G.M.R. was an important
factor throughout the termination proceedings.
2
39.806(1)(e)(1) because K.M. was never adjudicated dependent.2 Indeed, in order
to establish any basis for termination of parental rights under section
39.806(1)(e)(1) or (2), it must first be shown that the child has been adjudicated
dependent and a case plan has been filed with the court. See § 39.806(1)(e).
Here, the record establishes that L.D. was adjudicated dependent, but it does
not demonstrate that K.M. was also adjudicated dependent. Thus, the trial court
erred in basing the termination of G.M.R.’s parental rights on section
39.806(1)(e)(1). See T.H. v. State, Dep’t of Children & Families, 226 So. 3d 915,
918 (Fla. 4th DCA 2017) (reversing portion of trial court’s final judgment
terminating parental rights under section 39.806(1)(e)(1) because “there was no
adjudication of dependency and no case plan had been filed with the court.”).
There is, however, competent, substantial evidence to sustain the trial
court’s termination of G.M.R’s parental rights to K.M. under section 39.806(1)(c).
See In re W.B., 915 So. 2d 761, 762 (Fla. 2d DCA 2005) (reversing portion of trial
court’s order terminating parental rights under section 39.806(1)(e)(1) where the
child had never been declared dependent, but affirming the termination of the
parents’ parental rights because there was competent, substantial evidence under
2K.M. was not part of the underlying dependency action because K.M. Father was
granted sole custody of K.M. prior to the commencement of the underlying
dependency action pursuant to Family Case Number 13-29341 FC 04.
3
section 39.806(1)(c) to sustain the trial court’s decision); see also K.W. v. State,
Dep’t of Children & Family Servs., 36 So. 3d 810, 811 (Fla. 1st DCA 2010).
Accordingly, we reverse only the portion of the order terminating G.M.R.’s
parental rights under section 39.806(1)(e)(1) and remand for entry of an amended
termination final judgment removing all references to section 39.806(1)(e)(1).
Affirmed in part, reversed in part, and remanded with instructions.
4 | 01-03-2023 | 12-19-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4351938/ | Third District Court of Appeal
State of Florida
Opinion filed December 19, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-1575
Lower Tribunal No. 18-54
________________
Florida Wellness & Rehabilitation Center, Inc. a/a/o Maria Gomez,
Petitioner,
vs.
Mark J. Feldman, P.A.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Oscar Rodriguez-Fonts, Nushin G. Sayfie, and Alan Fine, Judges.
Landau & Associates, P.A., and Todd Landau (Hallandale Beach), for
petitioner.
Mark J. Feldman, P.A., and Mark J. Feldman, for respondent.
Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
ROTHENBERG, C.J.
The petitioner, Florida Wellness & Rehabilitation Center a/a/o Maria Gomez
(“Florida Wellness”), seeks second-tier certiorari review of an order entered by the
Appellate Division of the Miami-Dade Circuit Court (“the circuit court”)
dismissing Florida Wellness’s appeal of a final order entered by the Miami-Dade
County Court (“the county court”). We grant the petition and quash the order of
dismissal.
I. Facts and Procedural History
Florida Wellness retained Mark J. Feldman, P.A. (“Feldman”) to represent it
in a dispute seeking to recover PIP benefits. Prior to the resolution of the PIP
action filed in the county court, Florida Wellness discharged Feldman, and
thereafter, Feldman filed a notice of charging lien and retaining lien.
Following Florida Wellness’s resolution of the PIP action for $15,000,
Feldman filed an amended motion seeking to impose and/or to enforce the lien
(“motion to enforce the lien”). Thereafter, the county court conducted two
hearings relating to Feldman’s motion to enforce the lien.
Following the first hearing, at which a court reporter was present, the county
court entered a detailed order granting Feldman’s motion to enforce the lien. In its
order, the county court found that Feldman had perfected its charging lien and is
entitled to an award of reasonable attorney’s fees and costs, jointly and severally
against Florida Wellness and the PIP carrier.
Although the county court acknowledged that the circuit court, sitting in its
2
appellate capacity, had previously issued an opinion holding that a discharged
attorney is limited by the settlement proceeds for satisfaction of the charging lien,
the county court found that the case referenced in the prior opinion was factually
and legally distinguishable from the instant case because, as stipulated by all
counsel at the hearing, “none of the parties or their counsel of record ever
contacted or included Mark J. Feldman, Esq. for the purpose of discussing the
reasonable attorney fees and costs to be paid to Mark J. Feldman, P.A., prior to
concluding the settlement in this matter.” The order further provides: “The Court
recognizes that parties may settle the compensatory amounts related to their
lawsuit without including the discharged attorney who has filed a charging lien.
However, parties and their attorneys who do not properly negotiate the charging
lien with the discharged attorney do so at their own peril.” (citation omitted).
Thus, the county court held that Feldman’s recovery of reasonable attorney’s fees
and costs for the charging lien was not limited by the settlement proceeds.
Thereafter, the county court conducted a second hearing to address the
award of reasonable attorney’s fees and costs to Feldman.1 Following the hearing,
the county court entered a final order awarding attorney’s fees and costs to
1 There was a court reporter present at the second hearing. The transcript of that
hearing was filed after the circuit court granted Feldman’s motion to dismiss the
appeal, but prior to the circuit court’s denial of Florida Wellness’s motion for
rehearing. The transcript of the hearing reflects that the court reporter was not
present for the entire hearing, but the transcript includes the testimony of two
witnesses, including the testimony of Mark J. Feldman.
3
Feldman that exceeded the settlement amount of $15,000.
On February 19, 2018, Florida Wellness appealed to the circuit court the
final order entered by the county court and paid the filing fee and the initial deposit
for the preparation of the appellate record. On April 6, 2018, the clerk of the
circuit and county court (“the Clerk’s office”) sent an “Invoice” in the amount of
$216 to Florida Wellness’s counsel for the preparation of the completed record,
which provided: “FAILURE TO PAY THIS FEE BY APRIL 23, 2018 SHALL
RESULT IN THE DISMISSAL OF THE CASE.”2 Florida Wellness’s counsel
did not pay the invoice by the April 23rd deadline imposed by the Clerk’s office
and there was no further communication or order sent to Florida Wellness’s
counsel regarding the invoice.
On April 30, 2018, Florida Wellness’s counsel contacted Feldman’s counsel
to inform him that he would be filing a motion for extension of time to file the
initial brief that was due that day. Feldman’s counsel indicated that he would
object to the motion for extension of time and also informed Florida Wellness’s
counsel of the outstanding invoice issued by the Clerk’s office.3
Florida Wellness filed its motion for extension of time, noting Feldman’s
2 In reality, the invoice should have indicated that the failure to timely pay the
invoice may result in the dismissal of the case.
3 Florida Wellness’s counsel claims he did not learn about the invoice sent by the
Clerk’s office prior to contacting Feldman’s counsel due to a “backlog in the mail
department.”
4
counsel’s objection. In response, Feldman filed an objection to Florida Wellness’s
motion, asserting, in part, that Florida Wellness had not filed the transcripts of the
hearings that led to the entry of the final order, and without the transcripts, the
appeal could not proceed, and therefore, Florida’s Wellness’s request for an
extension of time to file the initial brief was “ill-founded.”
A few minutes after Florida Wellness filed its motion for extension of time,
Feldman filed a motion to dismiss the appeal based on two grounds: (1) Florida
Wellness’s failure to pay the $216 invoice issued by the Clerk’s office, and (2)
Florida Wellness’s failure to provide an adequate record for appellate review, and
specifically, the transcripts of the hearings.
On May 1, 2018, Florida Wellness mailed a check to the Clerk’s office for
the payment of the outstanding $216 invoice. On that same day, the circuit court
granted Florida Wellness’s motion, extending the due date for the filing of the
initial brief to June 29, 2018.
On May 17, 2018, despite Florida Wellness’s payment of the invoice, the
circuit court entered an unelaborated order granting Feldman’s motion to dismiss.
The circuit court denied Florida Wellness’s verified motion for rehearing, and this
second-tier petition for writ of certiorari followed.
II. Analysis
“On a petition for writ of certiorari filed from a decision of the circuit court
5
rendered in its appellate capacity, this court must determine whether the ‘circuit
court afforded procedural due process and whether it applied the correct law.’”
Affirmative Ins. Co. v. Gomez, 14 So. 3d 1244, 1246 (Fla. 4th DCA 2009)
(quoting Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000)). Second-tier
certiorari is “reserved for cases in which there has been a violation of a clearly-
established principle of law resulting in a miscarriage of justice.” United Auto.
Ins. Co. v. Cty. Line Chiropractic Ctr., 8 So. 3d 1258, 1259 (Fla. 4th DCA 2009).
In its motion to dismiss, Feldman argued that the dismissal of the appeal was
warranted based on two grounds: (1) Florida Wellness’s failure to pay the $216
invoice issued by the Clerk’s office; and (2) Florida Wellness’s failure to ensure
that a complete record, including the transcripts of the hearings, was prepared and
transmitted. Because the circuit court’s dismissal order was unelaborated, we
address both arguments.
In addressing Florida Wellness’s petition, we are guided by the following
well-settled principles. First, Florida’s public policy favors deciding controversies
on their merits. See Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So. 3d
395, 397 (Fla. 3d DCA 2009); Gillespie v. City of Destin, 946 So. 2d 1195, 1199
(Fla. 1st DCA 2006). Second, dismissal is an extreme sanction that is reserved for
only the most flagrant violations of procedural rules. See Nicaragua Trader, 19 So.
3d at 397; Lindsey v. King, 894 So. 2d 1058, 1059 (Fla. 1st DCA 2005).
6
A. Failure to Timely Pay the $216 Invoice Issued by the Clerk’s Office
In the instant case, Florida Wellness’s failure to timely pay the invoice
issued by the Clerk’s office for the preparation of the appellate record did not
warrant the imposition of the most severe sanction—dismissal—thereby depriving
Florida Wellness of having the controversy decided on its merits. See I Creatives,
Inc. v. Premier Printing Sols., Inc., 163 So. 3d 606, 608 (Fla. 3d DCA 2015)
(granting petition for writ of certiorari and quashing dismissal order, finding that
“[m]ere noncompliance with a pre-failure communication by the clerk of the court
does not ipso facto reach the level of disrespect” warranting the sanction of
dismissal).
Florida Wellness did not intentionally and flagrantly disregard an order
issued by the circuit court. Rather, it negligently failed to timely pay the invoice
issued by the Clerk’s office. Following Florida Wellness’s failure to timely pay the
invoice, it did not receive any further notification or communication from the
circuit court stating that the appeal would be dismissed. Further, upon learning of
the invoice, Florida Wellness immediately mailed a check to the Clerk’s office. In
addition, prior to the circuit court’s dismissal the appeal, Florida Wellness paid
the $216 invoice. Under the circumstances, if the circuit court dismissed the
appeal based on Florida Wellness’s failure to timely pay the invoice, we conclude
that there has been a violation of a clearly-established principle of law resulting in
7
a miscarriage of justice.
B. Failure to Include the Transcripts in the Appellate Record
Under the circumstances of this case, Florida Wellness’s failure to file the
transcripts of the hearing did not warrant the imposition of the most extreme
sanction—dismissal. Although the sanction of dismissal is permitted for violating
a procedural rule, as “[d]ismissal is an extreme sanction . . . , it is reserved for the
most flagrant violations of the appellate rules.” Gomez, 14 So. 3d at 1246 (quoting
Irvin v. Williams, 736 So. 2d 705, 706 (Fla. 1st DCA 1999). Prior to dismissing
Florida Wellness’s appeal, the circuit court did not issue an order directing Florida
Wellness to file the omitted parts of the record, namely the transcripts of the two
hearings, or threaten Florida Wellness with dismissal if the transcripts were not
filed. “Florida Rule of Appellate Procedure 9.200(f)(2) . . . requires an appellate
court to allow the appellant an opportunity to supplement an incomplete record
before deciding the case based on the insufficiency of the record.” Starks v.
Starks, 423 So. 2d 452, 453 (Fla. 1st DCA 1982). Here, no such opportunity was
given.
Further, in opposing Florida Wellness’s motion for extension of time to file
the initial brief, Feldman argued, among other things, that Florida Wellness had not
filed the transcripts of the hearings, and therefore, Florida Wellness’s request for
an extension of time was “ill-founded.” The circuit court granted Florida
8
Wellness’s motion for extension of time, thereby rejecting Feldman’s argument.
Despite knowing that the transcripts had not been filed, the circuit court did not
issue an order instructing Florida Wellness to file the transcripts or warn Florida
Wellness that the failure to do so would result in the dismissal of its appeal.
Accordingly, under the circumstances of this case, assuming that the circuit court
dismissed the appeal based on Florida Wellness’s failure to transmit the transcripts,4
we conclude there has been a violation of a clearly-established principle of law
resulting in a miscarriage of justice.
III. Conclusion
Based on the above analysis, we grant the petition for writ of certiorari,
quash the dismissal order, and remand for further proceedings.
Petition granted; order quashed; remanded for further proceedings.
ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED
WITHIN FIVE DAYS THEREAFTER.
4 Based on the circuit court’s granting of Florida Wellness’s motion for extension
of time to file the initial brief, thereby rejecting Feldman’s argument that the
motion was “ill-founded” because the transcripts had not been filed, it appears that
the dismissal of the appeal was most likely based on Florida Wellness’s failure to
pay the $216 invoice, not the lack of the transcripts. Further, although the lack of a
transcript is usually fatal to an appellant, see Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150 (Fla. 1979), an appellate court may still review and
reverse an order on appeal if the error appears on the face of the order. As Florida
Wellness had not yet filed its initial brief, it is not clear whether it would have
argued that the transcripts were not necessary to resolve the appellate issues.
9
10 | 01-03-2023 | 12-19-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4150814/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 446 EAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
THEODORE RIDGEWAY, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 7th day of March, 2017, the Petition for Allowance of Appeal is
DENIED. | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125070/ | STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re P. E. K. SHANNON, Minor. February 9, 2017
No. 333702
Montcalm Circuit Court
Family Division
LC No. 2015-000706-NA
Before: MURPHY, P.J., and METER and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent father appeals as of right the trial court order terminating his parental rights
to one minor child under MCL 712A.19(b)(3)(g). We affirm.
On appeal, father argues that we must address the merits of the lower court’s decision to
terminate father’s parental rights under MCL 712A.19(b)(3)(g), and that termination of father’s
parental rights was not in the child’s best interests. “To terminate parental rights, a trial court
must find by clear and convincing evidence that at least one statutory ground under MCL
712A.19b(3) has been established.” In re Moss, 301 Mich. App. 76, 80; 836 NW2d 182 (2013).
This Court “review[s] for clear error a trial court’s finding of whether a statutory ground for
termination has been proven by clear and convincing evidence.” Id. “A trial court’s decision is
clearly erroneous ‘[i]f although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been made.’ ” In re
Olive/Metts Minors, 297 Mich. App. 35, 41; 823 NW2d 144 (2012), quoting In re Miller, 433
Mich. 331, 337; 445 NW2d 161 (1989) (alteration in original). “Appellate courts are obliged to
defer to a trial court’s factual findings at termination proceedings if those findings do not
constitute clear error.” In re Rood, 483 Mich. 73, 90; 763 NW2d 587 (2009). Deference should
be given to the “trial court’s special opportunity to judge the credibility of the witnesses.” In re
HRC, 286 Mich. App. 444, 459; 781 NW2d 105 (2009).
Initially, we note that father’s argument relating to the statutory grounds is not properly
before this Court because father did “not argue that the statutory grounds for termination were
not proved.” In re JS & SM, 231 Mich. App. 92, 98; 585 NW2d 326 (1998), overruled in part on
other grounds by In re Trejo, 462 Mich. 341, 353; 612 NW2d 407 (2000). Therefore, this issue is
abandoned. Id. Further, the issue is not properly presented to this Court because father’s
statement of his question presented only raises the best-interest issue. See Harper Woods
Retirees Ass’n v Harper Woods, 312 Mich. App. 500, 515; 879 NW2d 897 (2015) (declining to
address an issue and stating, “Issues not specifically raised in an appellant’s statement of
-1-
questions presented are not properly presented to this Court.”). Nonetheless, we have considered
the issue.
Termination under MCL 712A.19b(3)(g) is proper when “[t]he parent, without regard to
intent, fails to provide proper care or custody for the child and there is no reasonable expectation
that the parent will be able to provide proper care and custody within a reasonable time
considering the child’s age.” “A parent’s failure to participate in and benefit from a service plan
is evidence that the parent will not be able to provide a child proper care and custody.” In re
White, 303 Mich. App. 701, 710; 846 NW2d 61 (2014). Here, the record evidence supports the
trial court’s finding that father failed to provide proper care or custody for the child. Before this
case began, father had limited to no involvement in the child’s life. After this case began, father
failed to take advantage of the opportunity to become involved in the child’s life by failing to
meaningfully participate in his case service plan. Specifically, father failed to attend 21 out of 30
scheduled parenting times, failed to take a parenting class, and failed to notify the Department of
Health and Human Services (DHHS) when he acquired appropriate housing. With respect to
parenting classes, father testified that he believed counseling sessions he attended were
considered parenting classes. However, part of father’s case service plan required father to
verify completion of a parenting class with the DHHS. Father attended seven out of eight of his
counseling sessions, and testified that he never received successful discharge papers. Therefore,
even if father believed that these sessions were parenting classes, he still failed to fulfill this
aspect of his case service plan.
Further, father bore the responsibility to participate in the services that were offered. See
In re Frey, 297 Mich. App. 242, 248; 824 NW2d 569 (2012) (“While [the DHHS] has a
responsibility to expend reasonable efforts to provide services to secure reunification, there
exists a commensurate responsibility on the part of [the parent] to participate in the services that
are offered.”). The child’s caseworker testified that she provided father with a recommendation
to a local parenting class that was compatible with his insurance issues, yet father never
participated in the class. The child’s caseworker also testified that she offered to drive the child
to a location closer to father to facilitate parenting time more convenient to father, but father did
not accept the child’s caseworker’s offer. Further, father was required to obtain suitable housing
for the child. Apparently, father acquired suitable housing prior to the termination hearing, but
failed to notify the DHHS on this development. As such, the DHHS was unable to verify
father’s housing or determine whether it was, in fact, suitable. Because father failed to
participate in the services that were offered, he failed to benefit from those aspects of his case
service plan.
Lastly, there is no evidence that father would be able to provide care and custody within a
reasonable time because, even when father had the opportunity to participate and benefit from
his case service plan, he continually refused to do so. See MCL 712A.19b(3)(g). In regard to
parenting time, father was unable to attend a number of sessions between September 2015 and
December 2015 due to transportation issues. However, uncontested evidence showed that father
acquired a reliable vehicle sometime in November, yet father only attended one scheduled
parenting time between December and February, at which time his parenting time was
suspended. Further, father was ordered to attend a parenting class in August 2015. At the time
of the termination hearing in June 2016, father had not attended a single class. Even if father
believed his counseling sessions were parenting classes, father testified that he found out before
-2-
the termination hearing that he had not completed his counseling sessions or taken a parenting
class. Father did not attempt to complete his counseling or attend a parenting class at any time
prior to the termination hearing. Therefore, the record supports the conclusion that the
conditions that led to termination continued to exist and that there was not a reasonable
likelihood that father would be able to comply with his case service plan within a reasonable
time. Accordingly, we are not left with a definite and firm conviction that a mistake has been
made, nor that the trial court clearly erred in finding that there was sufficient evidence to
establish this statutory ground.
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can terminate parental rights.” In re
Olive/Metts, 297 Mich. App. at 40. Appellate courts “review for clear error . . . the court’s
decision regarding the child’s best interests.” In re Trejo, 462 Mich. 341, 356-357; 612 NW2d
407 (2000). “[T]he focus at the best-interest stage [is] always [ ] on the child, not the parent.” In
re Moss, 301 Mich. App. at 87. The trial court should weigh all the evidence available to it in
determining the child’s best interests, In re Trejo, 462 Mich. at 353, and may consider such
factors as “the child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality, and the advantages of a foster home over the parent’s home.”
In re Olive/Metts, 297 Mich. App. at 41-42 (citations omitted). Other considerations include “the
parent’s compliance with his or her case service plan, the parent’s visitation history with the
child, the children’s well-being while in care, and the possibility of adoption.” In re White, 303
Mich. App. at 714.
Here, the trial court found that termination was in the child’s best interests in large part
due to father’s noncompliance with his case service plan. The trial court particularly emphasized
father’s missed parenting time. The trial court noted that father’s lack of communication when
he missed parenting time had a significant impact on the child emotionally and that the child was
in relative placement with his great-grandparents and indicated that this placement offered the
structure, permanence, and stability that the child needed.
The record establishes that father lacked the parenting ability necessary to care for the
child. Father only attended 9 out of 30 scheduled visits with the child. On several occasions,
father did not inform the DHHS that he would not be able to attend. On these occasions, the
child went to the DHHS hoping to see his father, but was repeatedly forced to leave without an
explanation as to why father failed to attend the scheduled visit. These experiences caused
significant emotional trauma for the child, to the point that the child was enrolled in at-home
therapy for two one-hour sessions each week. Further, as part of father’s service plan, he was
ordered to complete a parenting class and provide the DHHS with verification of its completion,
but he failed to do so. Based on this evidence, the record supports that he was unwilling or
unable to provide the necessary care for the child. Further, this evidence establishes that father
failed to comply with his case service plan.
Additionally, the record establishes that the child’s placement with his great-grandparents
provided the child with structure, permanence, and stability. The child lived with his great-
grandparents for most of his life. The child’s great-grandparents proved capable of caring for the
child during the entire case, and the child was developing appropriately in their care. Further,
the child’s great-grandparents were considering the possibility of adopting the child. In contrast,
-3-
father largely failed to comply with his case service plan, demonstrating a lack of interest in the
child. Therefore, the trial court properly found that the child’s current placement offered
structure, permanence, and stability that father failed to demonstrate he could provide.
Accordingly, the trial court did not clearly err by finding that termination of father’s parental
rights was in the child’s best interests.
On appeal, father’s best-interest argument asserts that the trial court erred by finding that
father did not comply with numerous aspects of his case service plan. First, father asserts that
the trial court erred by not taking into account testimony that father acquired suitable housing for
the child prior to the termination hearing. However, contrary to father’s assertion, the trial court
specifically recognized the testimony that father acquired suitable housing. The trial court noted
its confusion as to why father did not contact the DHHS to inform them that he had acquired
suitable housing prior to the termination hearing. The trial court found that father’s lack of
initiative to contact the DHHS showed a lack of interest in the child. Moreover, father’s failure
to notify the DHHS of his housing in itself supported the trial court’s conclusion that father was
unwilling to participate in his case service plan.
Father also asserts that the trial court erred by finding that father failed to attend a
parenting class. Specifically, father argues that since he believed that his counseling sessions
were parenting classes, the trial court should not have found him to not be in compliance with
this aspect of his plan. Despite this argument being somewhat factually nonsensical, father’s
case service plan specifically directed father to provide the DHHS with verification of his
completion of a parenting class. Father only attended seven out of eight counseling sessions, and
never received discharge papers or any verification that counseling was complete. As such, even
had the trial court considered father’s attendance at his counseling sessions as attendance at a
parenting class, father still failed to complete his counseling sessions, and therefore failed to
comply with this aspect of his case service plan.
Lastly, father argues that his failure to attend numerous parenting sessions was due to his
financial difficulties related to obtaining reliable transportation and, therefore, should not be used
against him. However, uncontested testimony at trial established that father had reliable
transportation beginning in November of 2015. Yet from September 11, 2015, until father’s
visitation rights were suspended on February 9, 2016, father only attended one scheduled
parenting session. Therefore, father’s argument is erroneous.
We affirm.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Amy Ronayne Krause
-4- | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125071/ | STATE OF MICHIGAN
COURT OF APPEALS
WORLD LEADERSHIP PROGRAM UNPUBLISHED
INSTITUTE, February 9, 2017
Plaintiff-Appellant,
v No. 330516
Washtenaw Circuit Court
NANCY BURNS, DAVID HOWELL, LC No. 15-000655-CK
SHERMAN JACKSON, and MARK TESSLER,
Defendants-Appellees.
Before: RONAYNE KRAUSE, P.J., and O’CONNELL and METER, JJ.
PER CURIAM.
Plaintiff, World Leadership Program Institute (the Institute) appeals as of right the trial
court’s order granting summary disposition under MCR 2.116(C)(5) and (8) on complaints of
breach of contract, fraud, misrepresentation, unjust enrichment, and promissory estoppel against
defendants, Nancy Burns, David Howell, Sherman Jackson, and Mark Tessler. The trial court
also awarded sanctions against the Institute. We affirm.
I. BACKGROUND
The Institute’s complaint arose from a dispute involving expenses that the Institute’s
founder, Margaret Cone, incurred after the University of Michigan canceled an international
learning program. The incidents took place from March 2008 to May 2010. In November 2008,
Cone established the East West Learning Initiative, Inc. (EWLII) to oversee the administrative
activities of the international learning program, but Cone did not establish the Institute until
October 2010. In filing for summary disposition, defendants argued that the Institute lacked
standing to bring the claims because the Institute did not exist at the time the alleged wrongdoing
took place.
In response to defendants’ motion, the Institute argued that it was a “nonprofit
corporation that existed prior to and during the activities in question as a Michigan non-profit
corporation . . . .” The Institute repeatedly interchanged its references to EWLII (founded in
November 2008) and the Institute (founded in October 2010), as though they were a single
entity. Defendants responded that the Institute was attempting to mislead the court, noting
among other things that EWLII was a for-profit entity and that the Institute was not associated
with EWLII in its articles of incorporation, or vice versa.
-1-
In granting summary disposition, the trial court noted that the Institute did not exist until
October 2010, after the events in the complaint, and that there was no evidence that the Institute
and EWLII were related entities. The trial court additionally ordered sanctions under MCR
2.114, finding that the Institute “deliberately and blatantly misrepresented its status to the parties
and to the Court.” The Institute now appeals.
II. STANDARDS OF REVIEW
“This Court reviews for an abuse of discretion a trial court’s denial of a motion to amend
a complaint.” Tierney v Univ of Mich Regents, 257 Mich. App. 681, 687-688; 669 NW2d 575
(2003). We also review for an abuse of discretion the trial court’s decision on a motion for
reconsideration. Woods v SLB Prop Mgt, LLC, 277 Mich. App. 622, 629; 750 NW2d 228 (2008).
The trial court abuses its discretion when its outcome falls outside the reasonable and principled
range of outcomes. Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 NW2d 809 (2006).
We review for clear error a trial court’s finding that an action is frivolous. Kitchen v
Kitchen, 465 Mich. 654, 661; 641 NW2d 245 (2002). “A decision is clearly erroneous where,
although there is evidence to support it, the reviewing court is left with a definite and firm
conviction that a mistake has been made.” Id. at 661-662.
III. AMENDMENT TO THE COMPLAINT
The Institute argues that the trial court should have granted its motion to amend its
complaint because filing suit as the improper party was a mistake, not an intentional
misrepresentation. We disagree.
The Institute did not preserve this issue because it did not request to amend its complaint
until their motion for reconsideration. “Where an issue is first presented in a motion for
reconsideration, it is not properly preserved.” Vushaj v Farm Bureau Gen Ins Co of Mich, 284
Mich. App. 513, 519; 773 NW2d 758 (2009). We will therefore review this issue for plain error
affecting the Institute’s substantial rights. See King v Oakland Co Prosecutor, 303 Mich. App.
222, 239; 842 NW2d 403 (2013).
Leave to amend a pleading “shall be freely given when justice so requires.” MCR
2.118(A)(2). However, the trial court may deny a motion on the basis of “(1) undue delay, (2)
bad faith or dilatory motive on the part of the movant, (3) repeated failure to cure deficiencies by
amendments previously allowed, (4) undue prejudice to the opposing party by virtue of
allowance of the amendment, or (5) futility of the amendment.” Lane v KinderCare Learning
Ctrs, Inc, 231 Mich. App. 689, 697; 588 NW2d 715 (1998).
In this case, after defending against defendants’ motion for summary disposition on the
basis that the Institute was a proper party in interest, the Institute raised a new legal argument in
its motion for reconsideration—that the trial court should allow it to amend its complaint. This
occurred after the trial court found that the Institute “deliberately and blatantly misrepresented its
status to the parties and to the Court.”
The record supports the trial court’s finding. After defendants moved for summary
disposition, rather than acknowledging the error of suing as a plaintiff who did not exist at the
-2-
time of the facts that formed the basis of the complaint and moving to amend the complaint, the
Institute doubled-down by asserting that the Institute existed as EWLII at the time of the facts
leading to the claim and, without any evidence to support its claim, asserted that EWLII and the
Institute were the same, successor, or related entities. We conclude that the trial court did not
plainly err by refusing the Institute’s request on reconsideration to amend its complaint.1
IV. SANCTIONS FOR FRIVOLOUS CLAIM
The Institute argues that the trial court improperly imposed sanctions because its error
was a simple misunderstanding. We disagree.
The trial court may impose sanctions under MCR 2.114 for an action that is frivolous
under MCL 600.2591. MCR 2.114(F); MCR 2.625(A)(2). A court may find that a party’s action
is frivolous under MCR 2.625(A)(2) when the party (1) initiated the suit for purposes of
harassment, (2) had a legal position devoid of arguable legal merit, or (3) lacked a reasonable
basis to believe that the facts underlying its legal position were true. MCL 600.2591(3)(a).
In this case, the Institute had no reasonable basis to believe that it was the aggrieved party
in this lawsuit. It did not exist until after the actions leading to the suit occurred. Nevertheless,
the Institute both asserted that it was the proper party and that it was a successor entity without
any evidence to support its positions. Because Cone founded and represented both entities, the
Institute knew or should have known which entities existed at which times during this dispute.
Whether characterized as a deliberate attempt to mislead the court, or as a mistake, it is clear
from this record that the Institute pursued its claim after insufficient research into the proper
party to pursue the claim. The resulting claims lacked legal merit. We are not definitely and
firmly convinced that the trial court made a mistake when it sanctioned the Institute under MCR
2.114.
We affirm. As the prevailing parties, defendants may tax costs. MCR 7.219.
/s/ Amy Ronayne Krause
/s/ Peter D. O’Connell
/s/ Patrick M. Meter
1
Even if bad faith was not a valid reason for declining leave to amend the complaint, the fact
that the Institute waited until after the trial court granted summary disposition to request
amendment provided another reason to refuse the amendment. See Amburgey v Sauder, 238
Mich. App. 228, 247-248; 605 NW2d 84 (1999).
-3- | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144831/ | OFFICE OF 7HE A‘ITORNEY GENERAL OF TEXAS
AUSllN
law. Bun Mae Murphy, uember;
State Board or oom3toi0gy
Austin, T6saB.
Dear Mad& .
OplQlon 'Hd, .'o-1875
art Ig a .pelTSOll ellg .
.. BoerfPa eramlrlkat
:prlor: to 4she:pao
lh3que$liyourbpiriloll6f seq- i
ether the fo3.lowI.n+uIerlinbX
e,.''nop-r~a8ident.haLrbresYero-
s.and.graduates of -Iidensed
y only epply:?or~exmSnatfon under
the.Aot.upoil~thepayInent'ot'-thearAmia%~on
have aerved.&e re-
an& lloense fse anU'sh6.3.l
quired time a.8a student ;or have -b?en.enpged
:.
Mrs. Ella Mae Murphy, Member, page 2
*We request this inasmuch as some States
have no regulativestat. law for hairdressing
and oof&tolOgy, and inview of this faot
would a pereon from one or these States be
eligiblefor our examinationwithout having
first oompleteda thousand hour oourae in not
leas than air months7e
Seotlons 14 and 16 of Artiole 734b Of the Penal
Oodr readtae follows,z
Seo. 14. Van-resident heil'dresaera or ooa-
metologietsend graduatea.oflioensed sohoolrr
may only apply for exadnat~on under the Aot
upon the payment of the oxaminatlon and lioense
fee and shall have served the required time ae
a student or have been engaged in the praotioe
or hairdressingand oo13metologp for two (2)
yeera in a State having requirements eoual to
the requirementsas provided in this Aot.S
Seo. 16. e(a) If au applloaut for esamina-
tion passes suah examination to the satlsfaatian
of the Board and in aooordanoe with the rules
promulgatedby said Board, the Board shall issue
a certirioateto that effeot, signed by the
President and Seoretarpand attested with its
seal. Suoh oertifio.=te shall be evidence that
the person to whom it is Issued is entitled to
follow the Praotioes,oooupatlon, or oooupatlons
stipulatedtherein, as greleoribedin this Aot.
Suoh certifioateahall..beoonspiouou6lly dia-
played in his or her plaoe of buslneee or em-
ployment, providedhowever, that where the
applioantis a aauate of some sohool of beauty
ou1tu!a duly 1 nsed and reoognizeb, then
suoh applioant ter passing an examination aa
provided ior I 2.oW.on 9 ohallbe given a
oertlrloate.
ldre.Ella Mae Kurphy, b'ember,paRe 3
*(b) Any person who pr?.or to
the passage
of thla Aot was rtudylngany of tho olaasi-
fled OOOUUpatlO~shall be oredlted with the
time of etudy, provided however, that appli-
OatiOn for such Ore&it Is Siled with the
Saoretary of the Boara within ninety (90)
baya after the taking eSfeot oi this Act.*
Seotlon ? referred to In Artlole 734b, reada
u to11owt3r
fThe Board shall hold rqgzlar meet-
:Ing?%%he ereminationof applloenta In the
oapital of the State, on the aeoond Tueeday
In January and July of each year, and at &oh
other times and plaoea as the Board mar deem
neoessery, and euoh examination shall be oon-
duoted under the rules proYlde4 by said Board
and shall Inoluao praotioaldemonatratlon and
written and oral teeta In reierenoe to the
praotloea for whhioh a lioense Is applied for
and such related subjeota as the Board may
determineneoeseary ior the proper end sttl-
oient performanoe of suoh praotioes, and 8uoh
erasiinationshall iachude sanitation end
hpeiene',the use ot oosmetios, the applioatloa
of eleotrioalan6 meohanloal equipment ana
applianoes,anatomy -4 dermatology, and au0h
other kindredeubjeots aa may be neoessary
and preeoribedby the Board to deter&no one.6
Bitness ana qualitloationsa8 a hairdresser
or ooemetologIa%.R
We think the above auoted seotions of artiole
9342~of the Penal Code are oleer and unambiguous and
requireno Interpretationor oonatruotion. Therefore,
your queetlonaNOS. One end Three tareaaevmred in the
negative.
After oarefully oonsiaeringyour aeoond auestlon,
we are OS the opinion that Seation 14 oi Art. 734b Of
the Pena cod0 doe0 not oontravene any seotlon ot tho
State or P6aer61 Conatltutione.
Nember.,
Mm. Ella&faeidurphy, page 4
hustlng that the foregoing answer8 your in-
qulrle#,we rem6in | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144841/ | OFFICEOFTHEA’ITORNEY GENERALOFTEXAS
AUSTIN
Hon. Buliro 8Qud
Cwntf At tornq
Fr*euono collnty
Fairiiold,Tetrr
Dear BIti:
und to aak.e wres
urfiainal
procesr
r8 leEallyret
We are in reoe
hdre lartul mthor-
4 a l p ea o e
o fiio er
oonstablo'rpreolaot,
in without hulng
8 oonrtable haw the lm&~
t eorponrationfrea ptitaw.
trollingand anroroiagtb*
an the Coamls6lonerr
Court lo&-
lr a tf
rhuifftr llary at ~wbatever
tx,n* lnd oolleotBin ?**a'?"
Eon. Renfro Speed,page 8
t0llow* 1
gJustloe Prsoinot Nuubir Three In Frsr-
rtonr County Ia l mual oration but hr iire
beer twoma looatrb in the preoinot. Tha
preolnotloin8 l oounty In whloh beer la n&
lrgallred, therrrore there are aany p8opla
of all klndr that irruuent there bsrr t8tern8.
Coaaepuently, theae beer tavcrxw are In need
of eooaetantpatrollIngby pea08 ofrioera.
The 8heritf48 drpartaent ha8 too &IA&U roree
to perioxm tha other butler at tbo oftlee aa4
to petrol th88o beer taroror at all aeede4
tlXLB0. The oonBtablo or 8db pr8oInot numbeu
three dose not ptrol the80 tarrrneend ha8
been lmo a tlntl.rUy inaotifo ae oon8kbla,
Aooordlngl~, theae f1.n beer tusrar haro om-
plowed 8 aO!iBtSblOof another4nb 4lfferant
preoinotIn Freertonrijounty to attend the80
beer terornr and there aatorao~law and order,
and them tavern8p&y thl8 maplofedlol?strble
a weekly oomp8nBatlorr. Tslr onetable fron
anotherpreolnotlployed by the beer tarernr
maker lrra8tr oi ofSeder against the law,
ill.88 rcmplalntra&n89 them and oolleotr &ia
ooste In ease@ of oonrlotlon8, all In the 8am
manner SB lf ho ware in hl8 ewn preeinot.
eIt has baur proparrod that in thr arc&t
It IB held that a oonrtablodo@8 not hare au-
thorityt0 patrol mb l5r0r08 the low In a
preoinot other thaa hi8 om, than l deputy 8her-
Iii be lpFoIatd for the purporr of patrollln&
r&Id beer taverna awl that the Coami88~oaer8
court set this deputy 8herIfF8 88law 8b
~Qrhatster frer he lun8 ob mlleot8~~ fro+
stone County ha8 a QOQulntiOn Or OTQ t-n
thouBan peoplemib **lade8 are paib to 2I
lounty 0rrioialr elldtholr drgutIer.*
Artlelo8wB. R.C.&, lotd, provlderr
The qualifiedtoter8OS aaeh justlee
p r eo lno
at fr8oh gsnoral @leeUan lhall *loot
Eon. RenfrotIpsed,
page 8
a ronatmbloSor mob preolnot for a term of
tU0 puBea
ktiBl0 6685, &&8., l*eb, ~OBO~ibBS th.
6utIeB o? a ronatable Ia urnem 88 ?ollonr
.Raoh oonBtable shall lxeoute lndrharn
8OOOrdi~ t0 1BW 8n prOOOBB, WUrMtB 8Ud
preoeptr to him dlrooted and dalIroroQ by
any lawPa ofiloer, attend upon til jurtloe
oourtr he14 in him preoinotud perform all
much other 4utIeB am 5ay be rewire4 OS him
bt law,”
Art101* 4889, &C.B., 19&S, related to hlr~ur-
iBdiOtiOll*~
=hex'yoonatablrq lXeOutBUy ~rOOeB8
oltilor OrWMl, thrOughOUt hi8 eOui&y ad
r~Beuhero 68 w be PrOTided iOr ill the m@
of OrImInU booeburo, or other law.”
Turning to the “ma. of CrIBIml proeeaure”,
m find a d~?inItIon of Veaoe Ot?Iaerra la ArtId.
86, Vunont8 Amot8tod CrLoinU Btatute@:
‘The iollouiry'aro‘peboo OtfIaerB*: BM
~huIti @nd hi8 dOpUti88, oonstablo,the
~rurh811 or polioearn of an inoorporated tmn
or oltr, the 0ii10*ra, non-~OSiiSBiOnrd or-
tIasr8 an& private8 o? the St8te Rantser for00
and any other private p u B On
8peoial~ ppoin&- l
04 to lxooutr erinlaalpr00e88.a (Under8oorI~
ourr).
ml010
57, cod0 or ~rittiml pr00rdt~ ~0.
TidBB "It Is the duty Of erav psaae 0triger to
that
prcesne the peaor rithin &fig fur!
roaring OurBr -
Art101* Ul8, cob* of G?lmiaalProauluro,and=
Title 5, “UTeBt, Oodbrwt and ball* ~OridU:
*A psaoe o?fIo*r or uy other porroo ry,
Eon. Rmifro Speed, page 4
withoutwarzaat, arrest an offender when t&o
Ot?O5B SiB lo mmittea
1 5hi8 QP SB B 5Oe
Or With in
hi8 Tie*, ii the 0ffe50. iB 054 olaased4 8 l
felony,or am an tOf?Ba~o against the pub110
po.08’“.
Artlolaf!!!?lr8lete8to a 'V4rraatof arrest* 8nU
~TOTidSB thst Buoh a uBXr8nt:
*IBBUS~ by any oountf or dirtrIOtolerk,
or by any asgilrtrak(etcrept oount? OO.-~P~~BB~O~-
ere or ood88Ioaer8 oourt, marore or reoordsr8
Of an InOOrjtOrated Oitr Or tOmI), Shall Oxtend
to any part of the 8tstejand 8ny peaoe ofiloer
to nhom Said rarrsntiB direoted, or Into who84
hand8 the eeme ham been trsneferred,BhaU be
;uzhm;ga to exeoutethe acme In any oounty In
.a
It he8 bmaa held in E.EI?SOXT. STATE,49 S.W. @a)
465 that Art1010tf!sluthorlzl~ the 8h4rl??to BUTT wa1c
.+aat outalde him 4ount.J doer not lxt6nd hIr lutborltyto
arrestwithouta warrant outsidethe oountf, and that a
8h4riffad a0putfmklng an lrrert nnd 804r0hlngan auto-
mOb1.b outsidethe oouatf wIthouta warrant 8t65a In the
name relation t0 Boaroham griTat oitineaB.
In opinion80. O-la400r ttilraeportmentto the
Eon. H.A. iiOdgC8, countyAuditoro? w1111Bmr0nCOunty,
Qeorj@OWn, by Hon. UOyd hBt~L& ~BiBt’Ult Attorney
Ocneraf., It rem held thtt a OOnBtabk ha8 the authorIt
to lxeoutea warrant of arrest not on17 In etsq preolnot
within him oounty,but a6 well in 8n7 oounty In the'etate,
and I~~*ntltledto the fee@ and mileageSIrOTiaBd by law
thenror.
Thlr departmentham thus ~a4Brb 4??irmatiT4ly upon
th8 authority of a oonstableto lxeoute a nrr8nt of ar-
mBt OUtBide hi8 QlWlnOt. The QUSBtiO5 18 BOW V&Other
or not he her the lUthOPIty to mab an lrrset outside him
preolngtbut withinthe oountfwithout 4 warrent.
hrtlolo6889, eupra authoritem a oomttcblr to ox+
~2 any prooeae,olril or,OrImlnalt~u@Wt hi8 OOuntJ,
.
ArtiolB 56 of thr crimiti OOdO liBt8 b OOnBtabh
am a %eaoe otrIo4P and Art1010818 lmPOWtrrB a Pea00 Of-
mitt44 ill hi8 ~rcBNO0. It iB tN8 that RrtiOl. 37, NW.,
ltetttB that it lo the duty O? sT4X’y p4.00 dffiO4r
to preservetho poaoo wlthln his &rlsdlotlon, but thls
oannotbs inteqmted w ~rohlblting8 sonstsblrrakisg
an arrestwlthouta warrant outsidehis precinct but
ulthlnhim sounty ubsnths offsnssis oomlttod bsfors
his 4yos* bti018 116or th8 cdithta ~060, NQP~, OUI
bo oonstruedas iapllsdlfoonferriagupon s oonstablo
ths suthorltjrto make an srrestwithin him OII~oountq
whoa thsrs 18 Is@ jsstif'iostion tar suoh arrost.
The most dlroot suthorlt~sustalalngour posl-
tlon that wo harm beon sbls to find 18 IMBUFUff. DURLIA&
66 S.W. 118, 11%wbloh the roasmnlnng Or ths 8uphms Court
la answer to oertiilsapwstlons OS the lornr court 18
spplloablsto tho preaont situatlon~ b thla oaso it
was hsla that 8 llty mushall rsy make lr40t0 in tb
oowty. wo quota iron?the 4oolslonss rollas:
-Slnoetho jurisdlotlon of tho tarshsllis
amsun& br that of tho shsrliiis tho.pretsa-
tton sna su~prssslono r lrims and rrrsstor of-
r0ndus agalwt the laws OS tho stata, it must
bs ooextonsltoulthths lidits of tho oounty.
The purposeoi tha loglslatum to oxtend ths
jurlsUlstlon of tho marshsllbsyoml tho limits
of ths town, and msko it ooortsaslvswith that
of the sherifflntho mattor of arrests,is
further ltldsno~dby tho faot that a ruarrant
Of arrest'may bo ait0oteato hlm, and suoh
warrant he ray sxoouta anpimn ln the oounty,
whorsasall 01~11 pmsess, unlsss othenlss
spsolsll~pr0rid0aby lslr,must bs dh0t0a to
tho *ahorifror sny sonstabls*.~
wo han boon sbls to find two priMou8 oplnioss
ot tho Attorwy thnusl~s Dopartmont under prior adain-
istrationsrelatilyl ta this qusmtlonalthoughsuthorttlss
lm not 0it0a.
On Mar 81, lQS1, Eon. hormtt F. Johnron, AB-
slstaatAttorney~aorsl, ln an oplnlori to Eon. 8.0.
Bmnett, County Attorney, DUWS, Tata8, statsdt
Vho puestlon o? 8 ooastablo*ssuthorlt~
to aaks urosts without8 rarrsnt 1s well oov-
0-a in vour brim?, snd 2 ooaeur dth ymt in
tho oonolusloathet tb ooastablohas the rl&ht
to make arrests throughout tho oouaty, the ssas
mmtho sherl??.*
Eon. 8.1. Oray, AsSlstsntAttorns~ tJ~aeral,
on
Ootobor 15, lQS8,wrote Shrri??Tom Abel, LubbookCoun-
ty, Lubbock,?ems, to thm ltfoott
u + * l JOU sro nspsotfully 8ari80a that
this &OpUtJUWt ha8 h4F4tOiOrS ZWtd4md Opin-
ions uhleh la stfeot oar- with lt tho right o?
8 aoastablo to make sn arrest out of his pro-
olnet. You are oorrsot ia your statiagthst l&a
shsll&~o the right to servo *nf o1rS.Lpaper
or execute a warrant in tho roux&r. Xt follows
that ltthls be true that ho shsll llkswlso
hare mar@ authority to MI&O an UMst ia say
part oi the lounty.w
We rlsh to’oall attentionto tho ?olm pq
#graphfrmm ~eras Psaos Ot?lOSr'SYan~al” by BlUWhot,
nif~0nb~~ aa Am0iat
*ho oonstablo, llko thq shd.?f, 1s UI o?-
tloer noognhb by ths ststutsso? Toras, snd
is 00n08mra only with tho sdmlnlstratlon or tho
law es 8 minlstsrlaloftteer. The terrltorlsl
jorlsUlotloe o? the oonstebla srtends, llks that
of the sherltf,tc,the wholo Mwnt~, Although
ho la 8~10oal QWOO ofrloer, snb ho 1s also on-
tltlodto malt4arrests with S warmnt bayon&
tz? llmltsa? his SouatT,tuot as 18 tho sher-
.*
In oamwu to it 18 our
ur rlrst q?ISstloa,
opinionthat a ooastab@ ray lsw?ullym&s sn arrest la
8 pI%dnof OS the OOwty OthW than his own WithOUt 8
Hon. Bmrrm spssa, page T
warrant when ho would othrzwlssbo suthorlud by law ts
make tha arrest under tho CriolMl Cod0 of Proodun;
and thet ulill4it is his primaryduty uadsr Art101087,
code 0s crlmlnalProoeburr,Yernoa~s hnotat4d criminal
Stshtes, to prmser?g tho pot100 wlthla his proofnot,
still his jurls6lotloais soortsnslro.&th the llmlts
0s tho oount~.
rraplla+mobg cm opinionon tho su-
wo r sr r a la
thorltyoi a oonstablo %o patrol and polloo ar l p o a o o
oftloar the tbrrltory of another sonstablo~spreolaot*
beoausoof the generalsnb all-ombraolng soaps o? tho
rords wpatrolsad.pollooa~ Ws dosm it sdrlsablsto rulo
oalf upon tho suthorlt7of tho ooasteblsto do owtmln
a 0tmt0
l0t8.
Tour seooadquostlonarks uhotheror no% a ooa-
stebleher the logel right to 8caeptoompoasatioofropl
geltatssour~bs for pstrolllagsad lar4rolngths lmv.
in 0pftd0tt x0. 0-m a0partmetit
0f this t0 ~0th
~dgar~P?oll,Couatf Attoraot,OuadslupsCoaatr,6sgula,
Texes,br Hon. Ardoll Wllllems,Assistant AttOrwf Oaa-
oral, it WEB hold that I a0ptf sherlrrwho pros4no4
the poser at a publlo oolrbretloasnd dsaco would bo
80tkrg ulthlaths 800~ 0t hi8 0rri0ialduty 8n4 rotid
not be latltlo6to reo4lrr lztra oompoasatlon from tho
oouat7or imm third porums, a dlfroroat,or a greater
or leos oompoasetlonfor hi8 Orfield 60~~1048than
that rhioh hsd bean ~resorlbod by 1.h~~
Zt 1s our opinionthat a oonsteblronly has tho
logal right to soaopt oonpsnsatloapresorlbadfor him by
ler sa& thet ha may not lsgallyaoaopt 0 lasatloafrom
grltatoso~~os tor pat.roIllpg pnd p4rfoa hls ad88
0s lnforolag the law.
Turning to your third quo$lda, tho maxbun 8n-
~UU~~~OW~OM to a0putr ofrloors*re air0 rid br
68 T&x. JOB. Meg Art10106006, Yuaoa*s Anno-
tated Civil StatUt(ll. ~'
-is utlolo -a 8~~17 to a0putt 8horlrfs~
Xt provLdo8 that the Ooaud88lwUS' 00Utt shall fir Uu
Hcm Xonfro 8psob,PagO 6
oompeasatloa to be paid thOm*
'1. In oountloshadng 8 populatl0n0s
two&y-flto thourand (I!b,OOO) or lrms lnhablt-
ants, tlrat assi8tcnt or ohlef a0 uty not to
lroeed llght4sn hundred ($1690.00s dollars per
snnum;other assistants,deputiesor olerks
not to 0~044b rirt44n hundrd ((ia00.00) a0i-
lars pu annua oaoh.'
xn oouatios ahuo oounty orrious arm oompoa-
sated os a salarybasis under Gsotloa5, ArtlolsSol&,
Vunoa*s Annotct4dclrii t3tatut48,r448 and aommisslonr
oollaoted for 0rri0ialmenfoe ahsllbe a0p08itObla th0
O?rloer*s8alaa-y Fun&
6eotlon 6 of Art1010SSl80 prod&oat
*IO all oaoos tin tho oodssloaors~
OOU& shall harm aotonalwd that Oountf off;-
oers or proofnot o??loers in such oountf shall
be oompeasatedfor their S4rvior8 by the pmp
aolthertho a t& oor
mea otfsn annual la la r y,
Tana nor any oounty shall be ohargea with or
psy to sny o? th0 orrlo0rsso ampoasatod, sny
roe or oomlsslon for the performonooof any
or sll o? the dutlosof tholr o??lOorbut suoh
offloors shall rooelva said salary ln llou of
sll other S448, oo5ml6sloas or oomp0asatloa
wi&hatpr ypuLd otherwlsobo luth o r isotob n-
Xt rollowsthat 8 *ssl~ ootit ray not oom-
a, ths others
pOamto oao or its o??loer@on a SO8 bar I:
on a 8alq bad8.
ft 18 eitr~oplnioa that la lountles&hors sslsr-
l4
1 08 paid t0 au OOUItty Or?iOftLb 82~6 thSh dOPUtfO8,
ths ooamilsslonOrs~oourt is prohibiteduador Art1010
69U0, Vernon**AaaotateaClril statut4s, frQm fixing
tho 0oaponPatloa a? 8 sp4olal a0puty shorirf~s salaq
a t wh a ter er h s lUM 4 nd oolloots la r0085
72
Xna. amafm sp00a, pw m
Truatlng that wo haro fully snswenh your
three lnqulrles,wa M
rours very truly
ATTOBNBT OXIEBAL OF BXA8
I :-\c Qs-44
9 Dlok Stout
Asrlstsnt
APPROVED
OPlNlON
COMMrrrcE
0
4g? | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150808/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
MICHAEL J. MELNICK, : No. 692 MAL 2016
:
Petitioner :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
THE PENNSYLVANIA STATE :
UNIVERSITY, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 7th day of March, 2017, the Petition for Allowance of Appeal is
DENIED.
Justice Mundy did not participate in the consideration or decision of this matter. | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125073/ | STATE OF MICHIGAN
COURT OF APPEALS
SHORELINE EAST CONDOMINIUM UNPUBLISHED
ASSOCIATION, February 9, 2017
Plaintiff-Counter-Defendant-
Appellee,
v No. 329403
Wayne Circuit Court
GREGORY EDWARD GRAY and CHERYL LC No. 14-002147-CH
GRAY,
Defendants-Counter-Plaintiffs-
Appellants.
Before: SERVITTO, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.
PER CURIAM.
Defendants were the owners of a condominium unit in Shoreline East Condominiums, of
which plaintiff is the condominium association. Plaintiff commenced this action because
defendants failed to pay their condominium assessments, resulting in a compounded arrearage in
excess of $30,579.85. Defendants tacitly concede that they did not make the payments, but
rather contend that they are not obligated to make those payments due to mismanagement by
plaintiff. Defendants’ purported counterclaim is substantively just an argument to the same
effect. The trial court granted plaintiffs a judgment of judicial foreclosure, a money award, and
the dismissal of the counter-complaint. Defendants appeal, and we affirm.
We recognize that defendants are appearing before us in propria persona, and we choose
to exercise our discretion to give their matters consideration despite the inadequacies of their
briefing. See Mack v City of Detroit, 467 Mich. 186, 206-209; 649 NW2d 47 (2002). The
defendants’ brief consists of a series of citations to authority and conclusory statements that
indicate they should prevail without any explanation or argument as to why the authority is
relevant to the facts of this case. We choose to exercise our discretion in this appeal even though
otherwise the issues would be considered abandoned. See Mitcham v City of Detroit, 355 Mich.
182, 203; 94 NW2d 388 (1959). Woods v SLB Property Mgt, LLC, 277 Mich. App. 622, 626-627;
750 NW2d 228 (2008); Joerger v Gordon Food Service, Inc, 224 Mich. App. 167, 175; 568
NW2d 365 (1997).
-1-
Ostensibly, defendants argue that the trial court violated their constitutional rights to a
trial by jury and to due process of law by granting summary disposition in favor of plaintiff on
the complaint and the counter-complaint. This is completely contrary to long-standing and well-
settled law. “A speedy method of obtaining a judgment . . . , where no valid defense is
interposed, has been employed in this state for almost a hundred years.” People’s Wayne County
Bank v Wolverine Box Co, 250 Mich. 273, 276; 230 N.W. 170 (1930). Defendants’ argument, to
the extent they make one, is a tired and well-worn one; it has been conclusively and exhaustively
established that a summary judgment law under which a jury—in other words, the trier of fact—
is only assigned to try disputed facts if any facts are actually in dispute deprives litigants of no
rights whatsoever. Id. at 276-284. The Seventh Amendment “preserves the right to a jury trial”
only if the claims “cannot be settled or determined as a matter of law.” Great Lakes Gas
Transmission Ltd Partnership v Markel, 226 Mich. App. 127, 133; 573 NW2d 61 (1997) (internal
quotation omitted). It has been equally established that summary disposition of a case lacking in
a dispute of relevant facts does not deprive litigants of their due process rights under the
Fourteenth Amendment. People’s Wayne County Bank, 250 Mich. at 276-284.
Here, the relevant facts are completely undisputed: defendants challenged only whether
they were obligated to pay the assessment fees, not the fact that they did not pay them.
Defendants’ argument was premised on plaintiff’s alleged failure to provide proper maintenance
of their condominium unit, but plaintiff likewise did not seriously dispute the maintenance
problems defendants’ unit suffered. Rather, plaintiff correctly that “[a] co-owner may not assert
in an answer, or set off to a complaint brought by the association for non-payment of
assessments the fact that the association of co-owners or its agents have not provided the services
or management to a co-owner(s).” MCL 559.239. Defendants’ argument necessarily fails as a
matter of law, and no relevant facts are in dispute.1 Furthermore, plaintiff’s suit for judicial
foreclosure is equitable in nature, and cases in equity have no general right to a trial by jury.
Superior Prod Co v Merucci Bros Inc, 107 Mich. App. 153, 161; 309 NW2d 188 (1981). The trial
court therefore properly granted dismissal of defendants’ counter-complaint without a trial.
To the extent defendants may be asserting that they were denied an opportunity to be
heard, the record is replete with indications that defendants knowingly and intentionally made
themselves difficult or impossible to be contacted, even by their own attorney, and can hardly
assign error to their own conduct. See Lewis v LeGrow, 258 Mich. App. 175, 210; 670 NW2d 675
(2003). In any event, it is clear that the trial court and counsel made every effort to ensure that
defendants were aware of all developments in the case; defendants clearly had the opportunity to
be heard and present their case, so they were afforded ample procedural due process. A person
claiming a deprivation of substantive due process must show that the action was so arbitrary as to
1
To the extent defendants contend that plaintiffs mismanaged their records or communications
with defendants, we note that the record clearly shows a pattern of defendants providing
seriously misleadingly incomplete documentary evidence. For example, their claimed “accord
and satisfaction” was obviously nothing of the sort. When the evidence thereof is viewed as a
whole, defendants clearly have their own opinions as to how to characterize it, but the facts
themselves reveal no material dispute.
-2-
shock the conscience. Mettler Walloon LLC v Melrose Twp, 281 Mich. App. 184, 200-201; 761
NW2d 293 (2008). A thorough review of the record, which we have conducted despite
defendants’ complete lack of any entitlement for us to do so, demonstrates nothing arbitrary
about the trial court’s final order.
Finally, defendants attempt to argue they were denied equal protection under the
Fourteenth Amendment. “The equality of rights protected by our state constitution is the same as
that protected and preserved by the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.” Struble v Detroit Auto Inter-Insurance Exch, 86 Mich. App. 245,
252; 272 NW2d 617 (1978). “Equal protection of the law requires that all persons subject to
particular legislation be treated alike under like circumstances and conditions.” Id. Meritless
claims are routinely disposed of in a summary manner. Otherwise, defendants failed to present
any facts or arguments that they were treated differently than someone similar situated, or indeed
what “similarly situated” even means to them in this context, so this argument is also abandoned.
Yee v Shiawassee Co Bd of Comm’rs, 251 Mich. App. 379, 406; 651 NW2d 756 (2002).
Defendants were not deprived of any rights, and summary disposition in favor of plaintiff
was unambiguously correct. We therefore affirm. Plaintiff, being the prevailing party, may tax
costs. MCR 7.219(A).
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens
/s/ Amy Ronayne Krause
-3- | 01-03-2023 | 02-10-2017 |
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