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https://www.courtlistener.com/api/rest/v3/opinions/4397253/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-70,634-03
IN RE JOHNNIE DAVIS, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. 911910 IN THE 177th DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
Relator has filed a motion for leave to file a writ of mandamus pursuant to the original
jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus
in the 177th District Court of Harris County, that more than 35 days have elapsed, and that the
application has not yet been forwarded to this Court.
In these circumstances, additional facts are needed. Respondent, the District Clerk of Harris
County, is ordered to file a response, which may be made by submitting the record on such habeas
corpus application, submitting a copy of a timely filed order which designates issues to be
investigated (see McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992)), or stating that
2
Relator has not filed an application for a writ of habeas corpus in Harris County. Should the
response include an order designating issues, proof of the date the district attorney’s office was
served with the habeas application and that the 180-day time frame set out in TEX . R. APP . P.
73.4(b)(5) has not expired shall also be submitted with the response. This application for leave to
file a writ of mandamus shall be held in abeyance until Respondent has submitted the appropriate
response. Such response shall be submitted within 30 days of the date of this order.
Filed: May 15, 2019
Do not publish | 01-03-2023 | 05-16-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4132069/ | , .
The Attorney General of Texas
December 28, 1978
JOHN L. HILL
Attorney General
Honorable Oscar H. Mauzy Opinion No. H- 1313
State Senatorial District 23
Texas State Senate Re: Authority of a school
Austin, Texas district to assist teachers called
before a hearing committee of
the Professional Practices Com-
mission.
Dear Senator Mauzy:
You have requested our opinion regarding the authority of a school
district to assist teachers called before a Hearing Committee of the
Professional Practices Commission. The Commission is a board composed of
15 members appointed by the Governor and “selected from the several
professional groups.” Sections 13.203, 13.205, Texas Education Code. The
Commission is authorized, inter alia, to receive complaints against teachers,
administrators and other professionals for alleged violation of the ‘code of
ethics and standard practices”; to hold hearings thereon; and to present its
recommendations to the Commissioner of Education, who makes the
determination. You first ask whether a school district is required to deduct
paid leave for an employee called as a witness before the Commission.
Article 5, section 2d of the 1977-79 General Appropriations Act
provides, in pertinent part:
None of the moneys appropriated under this Act
shall be used for the payment of salaries to any
employee who accepts witness fees in contravention of
the following provisions:
Any state official or employee called to appear in
his official capacity in any judicial action or legisla-
tive investigation shall neither accept nor receive any
witness fees for such a governmental appearance;
p. 5167
Honorable Oscar H. Mauxy - Page 2 (R-1313)
Rut if the appearance as a witness is not in an official
capacity but is to testify from personal knowledge concerning
matters related to the inquiry, then such employee or official
shall be entitled to any customary witness fees;
And any state employee or official appearing as an expert
witness shall be entitled to accept compensation for his
appearance only when such appearance shall be made on his
own time; . . . .
General Appropriations Act, Acts 1975, 65th Leg., ch. 872, art. V, S2d, at 3142. These
provisions clearly imply that an employee who does not accept a witness fee may be paid
his regular salary during his appearance before a committee of the Commission, and that
even an employee who accepts a witness fee may be paid his regular salary so long as his
“appearance as a witness is not in an official capacity but is to testify from personal
knowledge concerning matters related to the inquiry.” Even though this provision of the
Appropriations Act may not apply to teachers, we believe it expresses the public policy
determined by the Legislature, and accordingly a school district would be able to act in a
manner which is consistent with this policy. Thus, within the limitations described, we do
not believe that a school district is required to deduct paid leave for an employee called
before the Commission or its subordinate body.
You also ask whether a school district may pay the attorney’s fees before the
Commission for an employee against whom a complaint is brought. In Attorney General
Opinion H-887 (19761, we held that a city council may pay the attorney’s fees for an
officer or employee who is sued in his individual capacity, provided it believes that the
city’s legitimate interests - and not merely the personal interests of the employee - are
at stake in the action. The propriety of such expenditure of public funds depends upon the
governing body’s good faith belief that vital public interests are at issue. Attorney
General Opinions H-544 (1975); H-70 (1973); Letter Advisory No. 24 (1973). Since you have
not presented us with a particular factual situation, we are unable to answer more
specifically.
Your final question is whether a school district may unilaterally release personnel
files of either party to either attorney in a hearing before the Commission. A school
district is not a party to such a hearing, and we are not aware of any specific statute
requiring the district to furnish information to the parties. The Open Records Act, article
6252-17a, V.T.C.S., does not generally prohibit the release of government records. Open
Records Decision No. 177 (1977). Any document should be reviewed to determine if it
would fall within the exception set out in section 3(a)(l) of the Act. If it does fall within
that exception it should not be released. Without having an opportunity to examine the
specific material we cannot say whether it falls within the exception.
P. 5168
Honorable Oscar H. Mauzy - Page 3 ( H- 13 13 )
SUMMARY
Within certain limitations, a school district is not required to
deduct paid leave for an employee called before a hearing
committee of the Professional Practices Commission. Whe-
ther a school district may pay the attorney’s fees before the
commission for an employee against whom a complaint is filed
depends upon whether the board of trustees believes in good
faith that the district’s legitimate interests are at stake.
Attorney General of Texas
Opinion Committee
p. 5169 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150809/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
JC POOL AND SPA, INC., : No. 714 MAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
ARIE OREN, :
:
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/4144817/ | -
Dr. H. G. Towle, President
Texas State Board of Examiners in Optometry
Snyder, Texas
Dear Sir:
Opinion No. O-1588
Re: Does the Board of Optometry have authority to limit
the amount or percentage that could be paid to a jewel-
ry store by an optometrist, (and related questions)
under Articles 4552-4566, inclusive, Vernon’s Civil
Statutes, 1925, as amended.
We are pleased to reply to your letter of October 17, 1939, wherein
you say:
“The State Board of Optometry would like to have a con-
struction of H.B. 410, passed by the Forty-sixth Legislature,
in regard to Subsections (b), (f), (g), (h) and (i) of Section 8,
Article 3462. We are especially interested in these subsec-
tions by reason of the fact that a few optometrists are working
in jewelry stores and are entering into contracts whereby a
certain percentage of their fees are split with the owner of the
jewelry store in lieu of rent.
“In view of the Subsections as set forth above, and also
Section 16 of H.B. 410, we would like to have your opinion as
to 4; * **
1. “Whether or not the board would have authority to limit
the amount or percentage that could be paid to the jewelry store
by the optometrist, and
2. “If we could do so, as to whether or not.the Board could
adopt a rule by which the percentage allowed from the optome-
trist’s practice would in no event exceed the usual and custom-
ary rental for the same or similar space in the adjacent property,
or in the same locality.
Dr. H. G. Towle, President, Page 2, O-1588
3. “Also, under Section 16 of H. B. 410, could the board
adopt rules and regulations covering practice by optometrists
in jewelry stores whereby the optometrist must pay his own
bills, advertising and all his equipment and merchandise.
4. “Under Section 16, could the board require that a sep-
arate contract for rent by required, and a separate one for
handling accounts, and that all material and equipment be
billed to the optometrist and paid by the optometrist.”
In our opinion the board would not have authority to limit the
amount or percentage that could be paid by the optometrist to the jewelry
store.
Article 4556, Vernon’s Civil Statutes, 1925, as amended, pro-
vides, in part:
“The board shall have power to make such rules and regu-
lations not inconsistent with this law as may be necessary for
the * * * regulation of the practice of optometry * *. *”
Thus, the board could make such regulations that’might be
necessary for the regulation of the practice of optometry, but such regu-
lations, as provided by the Legislature, must not be “inconsistent with
this law.”
We now call attention to Article 4566, Vernon’s Civil Statutes,
as amended, which reads:
“Provided that it shall not be construed as a violation of
this Act forany optometrist to lease space from an establish-
ment on a percentage or gross receipts basis or to sell, trans-
fer or assign accounts receivable.”
Since the Legislature has provided that such leasing, as is
mentioned above, is not a violation of the Optometry Act, in our opinion
any regulation tending to limit or fix the amount or percentage that could
be paid by the,optometrist to the jewelry store would be improper because
it would be “inconsistent with this law”, and contrary to the expressed in-
tent of the Legislature.
Dr. H. T. Towle, President, Page 3, O-1588
Due to the fact that we have answered your first question in the
negative, and since your second question depended on the first, your second
question must be answered likewise.
In our opinion your third an,d fourth questions must both be ans-
wered in the negative.
By virtue of the Fourteenth Amendment to the United States Con-
stitution and Section 19 of the Bill of Rights of our State Constitution, a per-
son is deemed to have a constitutional right to contract with reference to law-
ful matters, which includes the use of his property.
See 9 TEX. JUR., 8 90, p. 522;
16 C.J.S., fi 575, p. 1167;
TAYLOR v. LEONARD (Tex. Civ. App.) 281 S.W. 596.
The right to make contracts is declared to be both a liberty and a p.roperty
right and to be within the protection of the guaranties against the taking of
property without due process of law. An enactment which impairs this right
is held to be invalid.
9 TEX. JUR., § 90, p. 523.
16 C.J.S., 5 575, p. 1167;
HALL v. HIX, (Tex. Civ. App.) 297 S.W. 491.
“The right of an optometrist, duly licensed, to conduct his
business or practice optometry, is a property right protected
by the Constitution. DENT v. W. VA., 129 U.S. 114, 123,. 124, 9
Supt. Ct. 231, 32 L. Ed. 823; DOUGLAS v. NOBLE, 261 U.S.
165, 43 Sup. Ct. 303, 67 L. Ed. 590.”
HARRIS v. STATE BOARD OF OPTOMETRICAL EXAMINERS,
Sup. Ct. of Penn. 1926, 136 Atl. 237,
and, therefore, any regulation providing that an optometrist must “pay his
own bills, advertising and all his equipment and merchandise” or providing
“that a separates contract for rent be required, and a separate one for handl-
ing accounts, and that all material and equipment be billed to the optometrist
and paid by the optometrist” would be invalid as contravening the above men-
tioned provisions of the United States and Texas Constitution.
Dr. H. T. Towle, President, Page 4, O-1588
We are aware of the fact that this right to practice optometry is
not an inalienable right, but is subject to a proper exercise ,of the police
power. Our statutes relating to the practice of optometry were enacted by
the Legislature under this power; the purpose of said statutes and the in-
tent of the Legislature was to protect the public health.
33 TEX. JUR., 5 4, p. 294, e 5, p. 295, 5 7, p. 296.
HILLIARD v. STATE, 7 Tex. Crim. App., 69;
BAKER v. STATE, 91 Tex. Crim. Rep. 521, 240 S.W.
924, 22 A.L.R. 1163;
STATE v. GOLDMAN, 44 TEX. 104,
and the statutes having this aim are to be construed in harmony with such
purpose and policy. This is well expressed in the case of GOLDING v.
SCHUBACH OPTICAL CO., Sup. Ct. of Utah, 1937, 70 Pac. (2d) 871, where
the court says on page 874:
‘The state has spoken on the subject of optometry and
optometrists, not for the purPose of conferring any special
privileges upon optometrists, nor to put any special restric-
tions upon them, but to preserve and protect the public against
quacks and charlatans, who, however incompetent they might
be, would prey upon the desire and necessity of the people to
protect their eyesight. Chapter 11 of Title 79, R.S. Utah 1933
(the statute referring to optometry) was enacted by the Legis-
lature because that body felt that the protection of eye sight
was of public concern, and one not qualified should not be per-
mitted to examine eyes and diagnose and prescribe treatment,
or types of glasses, to cure the defects, or preserve the failing
sight. The act must therefore be construed in the light of the
purposes of its enactment; that is, as a measure to protect the
health and eyesight of the people, and when this purpose is ac-
complished, it is not within the province or power of the court
to extend it beyond such purposes; or to read into it something
not designed to protect the public interest and health, but to
grant monopolies, regulate private business or relationships,
grant special privileges, or curtail the normal human rights
and liberties.”
The Board of Optometry could make such regulations that would
not be inconsistent with the law, but under the above cited authorities, any
such regulation adopted must be for the purpose of protecting the public
health.
Dr. H. T. Towle, President, Page 5, O-1588
In the case of HARRIS v. STATE BOARD OF OPTOMETRICAL
EXAMINERS, supra, the court said on page 239:
“Therefore, the manner, scope, and extent of the prac-
tice are the subject of legislative inquiry and control but the
regulations must be reasonable. The Legislature, under the
police power, does not posse~ss the power to enact rules which
have no substantial relation to the end to be obtained,. It cannot
unreasonably prevent or limit the practitioner from acquiring
the business for which he was licensed. Legislature do not have
the power, under the guise of police regulation, to arbitrarily
invade the personal right and liberty of the individual. * * *
‘The manner or mode of exercising a lawful occupation
may be regulated only in the interest of public health or’ to
secure safety to the citizens. The Legislature cannot adopt,
as regulations, the ethics of the profession which may limit
the practice to be secured or the method of procuring it.”
Thus, any regulation passed by the Legislature, or by an admisis-
trative board, must be for the purpose of protecting the public health; the regu-
lations must be reasonably related to the end desired to be attained (the protec-
tion of the public health). Any rules which are not calculated to attain this end
are invalid, particularly when they abrogate any of the inherent rights guaran-
teed under the constitution.
See 16 C.J.S., 5 178, p. 548, § 188, p. 556, § 195, p. 562;
9 TEX. JUR., 8 78, p. 506;
STONE v. KENDALL (Tex. Civ. App.), 268 S.W. 759.
In our opinion, such regulations as you mention in your letter, cannot
be said to be regulations designed to protect the public health. In the case of
STATE v. BORAH, 76 Pac. (2d) 757 Sup. Ct. of Ark. 1938, the court said on p.
759:
“In determining, therefore, whether or not a regulation of
the practice o,f medicine in any of its branches is a reasonable
one, and thus within the power of the Legislature to enact, the
test must always be whether or not it is reasonably necessary
and appropriate for the protection of the public health.”
-- .-
Dr. H. T. Towle, President, Page 6, O-1588
It is our opinion that the regulations which are mentioned in your
letter, are not reasonably related to the purpose for which our law on optom-
etry was passed. They are not necessary and appropriate for the protection
of the public health. Such regulations would be a denial of the freedom of con-
tract and, in this, would contravene the Fourteenth Amendment of the United
States Constitution and Section 19 of Article 8 of the Texas Constitution. Under
the authorities cited, and the reasons herein stated, the answer to each of
your questions must be answered in the negative.
Yours very truly
ATTORNEYGENERALOFTEXAS
BY J&?-uhkw, 7-&4
Walter R. Koch
Ass.istant
APPROVED NOV 29, 1939
ATTORNEY GENERAL OF TEXAS
HS:ob | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150813/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 458 EAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
JOHN SIMMONS, :
:
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/4150816/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 438 EAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
LARRY MULLINS, :
:
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/4289335/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHARLIE J. COSBY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-3412
[June 28, 2018]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 56-2016-CF-000662-
A.
Carey Haughwout, Public Defender, and James W. McIntire, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A.
Folley, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
GERBER, C.J., GROSS and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4132085/ | The Attorney General of Texas
December 20, 1978
JOHN L. HILL
Attorney General
Honorable Henry Wade Opinion No. H- 12 9 7
Criminal District Attorney
Dallas County He: Constitutionality of article
Sixth Floor, Records Building 1041b, Code of Criminal Proce-
Dallas, Texas 75202 dure, relating to vacations for
jailers.
Dear Mr. Wade:
You have requested our opinion concerning the construction of article
104lb of the Code of Criminal Procedure which provides:
Vacations for jailers, jail guards and matrons
Every member of the sheriff’s department assigned
to duty as jailer, jail guard, or jail matron at any
county jail in any city of more than twenty-five
thousand (25,000) inhabitants shall be allowed fifteen
(15) days vacation in each year with pay, not more than
two (2) members to be on vacation at the same time;
provided that the provisions of this Section of this Act
shall not be applied to any such jailer, jail guard, or
jail matron in any city of more than twenty-five
thousand (25,000) inhabitants, unless such member
shall have been regularly employed as such jailer, jail
guard, or jail matron for a period of at least one year.
Each preceding Federal Census shall determine the
population.
The sheriff having supervision of the county jail
shall designate the days upon which each jailer, jail
guard, or jail matron shall be allowed to be on
vacation.
The sheriff having supervision of the county jail in
any such city who violates any provision of this Article
shall be fined not less than Ten Dollars ($10) nor more
than One Hundred Dollars ($100).
p. 51iZ
Honorable Henry Wade - Page 2 (H-1297 )
The basic purpose of this statute is to give a statutory vacation period to jail
guards, jailers and jail matrons who work in the county jail of a larger metropolitan
area. Your question involves the conflict which arises in larger counties where it is
impossible to provide each jailer, jail guard or jail matron with 15 days vacation and
to schedule the vacations so that no more than two are on vacation at any one
time. This situation occurs when there are at least 35 employees who are entitled
to vacation during the year. We believe the clear intent of the legislature was to
require that a sufficient number of jail personnel is always present to insure
adequate security. It is doubtful that the legislature contemplated that there
might be counties employing a jail staff which is so large that it is impossible to
provide 15 days vacation for each employee unless more than two are on vacation at
the same time. We believe that the statute must be interpreted to reflect the
legislative intent and that each jail guard, jailer or jail matron who has been
employed for at least one year is entitled to an annual vacation of 15 days even
though it may result in more than two employees being on vacation at the same
time. The sheriff should insure that the legislative intent is fulfilled by arranging
the vacations so that adequate security is always provided. See generally V.T.C.S.
art. 5115.1,S 9(a)(3).
You ask how the 15 day period is to be calculated. A Court of Civil Appeals
has construed a statute very similar to 1041b which provided that members of fire
departments in cities of more than 30,000 inhabitants were to be given 15 days
vacation. In the dispute over whether or not vacation time had been given, the
court reasoned that a day of vacation is a dav off from work which would otherwise
be a normal working day but for the vacation. Coffman v. City of Wichita Falls,
374 S.W.2d 798 (Tex. Civ. App. - Fort Worth 1964, writ ref’d). This definition
excludes legal holidays and other non working days from being included in the 15
day vacation period to be given jail guards. See also Attorney General Opinion V-
1072 (1950).
SUMMARY
Jail guards who have regularly been employed as such for
one year receive 15 days vacation from work. The
prohibition against more than two guards on vacation at the
same time is ineffective if impossible to comply with.
P. 5113
. -
Honorable Henry Wade - Page 3 (B-l2g7)
APPROVED:
C. ROBERT HEATH, Chawman
Opinion Committee
P. 5114 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295079/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4132102/ | The Attorney General of Texas
December 13, 1978
JOHN L. HILL
Attorney General
Honorable Wm. J. Renardino Opinion No. II- 12 8 0
Montgomery County Attorney
126 Courthouse Re: Whether a county has.
Conroe, Texas 77301 authority to make expenditures
for purpose of controlling
hydrilla.
Dear Mr. Benardino:
You have requested our opinion regarding the authority of Montgomery
County to make expenditures for the purpose of controlling hydrilla on Lake
Conroe.
Hydrilla, which has been described as a “noxious aquatic weed,”
presently infests approximately 6,000 acres of Lake Conroe, more than 25
percent of its surface, and is spreading rapidly. The Texas Parks and Wildlife
Department, which is by statute authorized to %ontract or use the services
of department personnel for the eradication of noxious vegetation from the
waters of this state,” has agreed to furnish the manpower and facilities to
treat the infestation. Parks and Wildlife Code, S 12.010. The Commissioners
Court of Montgomery County proposes to contribute a portion of the cost of
chemicals. You ask whether it is empowered to do so.
It Is, of course, well established that a county has only those powers
which have been specifically conferred upon it by the Constitution or by
statute, or which may be necessarily implied therefrom. Canales v. L
214 S.W.2d 451, 453 (Tex. 1946); Anderson v. Wood, 152 S.W.2d 1064
1941). Lake Conroe, although located in Montgomery County, 19’u
control of the San Jacinto River Authority. See Acts 1967, 60th Leg., ch. 547,
at 1212-17. Although no statute authorizesa county to control noxious
vegetation, article 44181, V.T.C.S., empowers the commissioners court of any
county
to appropriate and expend money from the general
revenues of its county for and in behalf of public
health and sanitation within its county.
It has been suggested that severe hydrilla infestations pose a haxard to boats,
water skiers and swimmers. If the commissioners court factually determines
p. SO58
Honorable Wm. J. Benardino - Page 2 (H-1280)
that the presence of hydrilla over a significant area within the boundaries of
Montgomery County constitutes a threat to “public health and sanitation,” we
believe it may contribute funds to its eradication. Resolution of the facts is, of
course, within the commissioners court’s jurisdiction and cannot be addressed in the
Attorney General’s opinion process.
SUMMARY
The Commissioners Court ‘of Montgomery County may
contribute funds to the control and eradication of hydrilla on
Lake Conroe if it determines that its presence within the
boundaries of the county constitutes a threat to public
health and sanitation within the meaning of article 44181,
V.T.C.S.
‘APPROVEDi
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 5059 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150820/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 777 MAL 2016
:
Respondent : Petition for Allowance of Appeal from
: the Order of the Superior Court
:
v. :
:
:
CARLOS GONZALEZ, :
:
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/4125072/ | STATE OF MICHIGAN
COURT OF APPEALS
GERALD L. WISNER and KAY E. WISNER, UNPUBLISHED
February 9, 2017
Plaintiffs-Appellants,
v No. 328867
Lenawee Circuit Court
SB INDIANA LLC, WBM LLC, QUANTUM LC No. 13-004674-CB
MANAGEMENT & INVESTMENTS LLC, and
GREGGORY HARDY,
Defendants-Appellees.
THEODORE J. DORR and THEODORE J. DORR
LLC,
Plaintiffs-Appellants,
v No. 333045
Lenawee Circuit Court
WBM LLC, QUANTUM MANAGEMENT & LC No. 12-004566-CB
INVESTMENT LLC, and GREGGORY HARDY,
Defendants-Appellees.
Before: WILDER, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
In Docket No. 328867, plaintiffs, Gerald L. Wisner and Kay E. Wisner (the Wisners),
appeal by right an order granting defendants, SB Indiana, LLC (SB Indiana), WBM LLC
(WBM), Quantum Management & Investments LLC (Quantum), and Greggory Hardy (Hardy),
an involuntary dismissal of the Wisners’ claims.
In Docket No. 333045, plaintiffs, Theodore J. Dorr and Theodore J. Dorr, LLC (Dorr),
appeal by right an order of no cause of action in favor of defendants, WBM, Quantum, and
Hardy.
-1-
The cases have been consolidated on the Court’s own motion.1 Finding no errors
warranting reversal in either case, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Both the Wisners and Dorr sold real property and realized substantial income as a result.
They sought tax deferment under a “1031 Exchange.” To avoid incurring tax liability on the sale
of property, a taxpayer may structure an exchange in accordance with the United States Tax
Code, 23 USC 1031. Such an exchange permits a property owner to take the sales proceeds from
appreciated property and invest the monies in new property to defer the recognition of the
taxable gain. Hardy was a real estate broker who had a history with both the Wisners and Dorr.
Hardy identified two companies – SB Indiana, which held commercial property in Indiana, and
WBM, which held commercial property in Ohio – as a means of accomplishing such an
exchange. The Wisners (now divorced) were members of both, owning a 31% interest in SB
Indiana and an 11% interest in WBM. Dorr was a member of WBM, owning a 28% stake, but
had no interest in SB Indiana. SB Indiana and WBM were managed by Quantum, a company
wholly owned by Hardy.
After a number of years, Quantum and Hardy found it necessary to issue capital calls to
the members of both companies. When the Wisners and Dorr refused to participate in the capital
calls, they were divested of their membership in accordance with the companies’ operating
agreements.
Dorr filed his complaint against WBM, Quantum and Hardy on October 18, 2012. The
Wisners filed their complaint against SB Indiana, WBM, Quantum and Hardy on February 15,
2013. The complaints alleged that Hardy and Quantum had loaned money to both WBM and SB
Indiana as far back as 2006, totaling over $300,000. These loans, which the Wisners and Dorr
claimed were made without notice to the members and without their approval, were ostensibly
made to avoid a capital call. The complaints alleged that “the fact that Hardy supposedly
executed the loans 4 to 5 years ago without executing a capital call at that time and, instead,
continued to issue profit payments to the investors during the same period is not rationale [sic]
and is a strong indication of fraud on behalf of the Defendants.” The complaints alleged that
when Hardy issued the capital call in June 2012, he refused to provide even the most cursory
information regarding the loans and did not provide a copy of the full operating agreements. The
complaints alleged that once Hardy did provide some accounting information, it was clear that a
“vast majority of entries failed to specify what or who the source of the supposed loan was and to
what or who the payments for the loan were made.” The complaints alleged that there was
significant comingling of funds and questionable transfers of assets. The Wisners and Dorr
believed Hardy was fraudulently utilizing funds for purposes outside the scope of their
investment by using funds from separate entities to cover expenses for each other, including
“suspicious” new entities. While Hardy was a sophisticated business person, the Wisners and
1
Gerald L Wisner v SB Indiana LLC, unpublished order of the Court of Appeals, entered January
9, 2017 (Docket No. 328867); Theodore J Dorr v WBM, LLC, unpublished order of the Court of
Appeals, entered January 9, 2017 (Docket No. 333045).
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Dorr claimed to be “simple farmers and had little knowledge or understanding of the nature of
the complex business transactions Hardy was orchestrating.” The complaints’ common counts
included: accounting, unjust enrichment, constructive trust and appointment of a receiver,
breach of fiduciary duty, quantum meruit, membership oppression under MCL 450.4515, and
judicial dissolution and winding up. The Wisners’ complaint included a count for membership
oppression.
The Wisners and Dorr sought to consolidate both cases. Defense counsel objected to a
consolidation, but acknowledged that he did not want to try the cases twice. He suggested that
there be a “joint hearing” where witnesses’ “testimony could count in both trials so that we are
not duplicating that testimony. So, it may be that you can fashion this in a different way other
than complete consolidation . . .” The trial court agreed. The Wisner case went first because it
had more witnesses in common and more defendants.
A. THE WISNER CASE
At trial, the Wisners alleged that Hardy never disclosed that he was loaning the
companies money and never sought any approval from the members. The Wisners claimed
Hardy provided very little information and that he breached his fiduciary duty to the businesses
as well as the members by engaging in a pattern of conduct designed to deceive them. They
contended that Hardy artificially made it look like the entities were profitable when they were
not. When things started to get better, he made a capital call, knowing that the investors would
not be able to meet the call.
At the close of the Wisners’ proofs, defense counsel moved for a “directed verdict,”
arguing that there was no question that Quantum, not Hardy, was the manager of the entities and
that there was no breach of fiduciary duty because the manager’s duty was to the entities, not the
individual members in the absence of a special relationship. Counsel further argued that there
was no shareholder oppression because Quantum acted in conformity with the operating
agreements, which permitted capital calls. Additionally, because of express contracts, the
Wisners’ claims for unjust enrichment and quantum meruit failed.
The trial court corrected defense counsel that his motion was not one for directed verdict
(as in the case of a jury trial) but was a motion for involuntary dismissal under MCR
2.504(B)(2). As such, the trial court was called upon to exercise its role as trier of fact, making
findings of fact and conclusions of law. The trial court indicated that it relied on the
management agreement. The trial court “also paid particular attention to the operating
agreements for these business entities,” including the provisions regarding capital contributions
and failures to contribute.
The trial court noted that § 450.4404 of Michigan’s Limited Liability Company Act,
MCL 450.4401 et seq., requires that the fiduciary duty owed is to the company and not its
individual members:
[A] manager’s fiduciary duties are owed to the company and not to individual
members. That’s important because in this case we do not have a situation where
all the members joined together to sue the manager. Instead we have just a couple
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of the members who sued not only the manager but also the individual companies
themselves. SB Indiana, WBM and Quantum Management Investment were all
sued in addition to Greggory Hardy.
The trial court determined that there was no real distinction between Hardy and Quantum and
that for all intents and purposes Hardy was the manager. But even if Hardy was the manager,
Hardy had no duty to the Wisners, individually. There was no evidence of a special relationship
between them and there was no evidence that Hardy was guilty of illegally commingling funds.
The trial court sympathized with the Wisners’ hesitancy to make the capital call but that
did not change the fact that the operating agreements and management agreements “do control in
this matter, and those agreements appear to have given Mr. Hardy the authority as manager to
make the capital call as he did. They also appear to have given Mr. Hardy the authority to make
the advances on behalf of the company as he did.” The trial court further noted that there was no
evidence that Hardy used the capital call as a way to force the Wisners out.
As for the Wisners’ claim of member oppression, the trial court noted that MCL
450.4404 had no application if the conduct at issue was authorized by an operating agreement:
“So to the extent that any of Mr. Hardy’s actions were authorized by the agreements, then he
cannot be found to be willfully unfairly or oppressing these members. Likewise the case law has
indicated that even a breach of those operating agreements would not be enough to find that he
was willfully unfair and oppressive in his conduct.”
The trial court summarized the Wisners’ arguments and still found that they were not
entitled to relief:
The plaintiffs have argued that Mr. Hardy was expanding his own
business; that he was an inexperienced manager with only two or three properties
back in 2005; that he wanted to make these investments appear to be doing well;
that he extended the loans to cover the expenses and failed to disclose those loans
specifically to the members; that all communications were from Hardy until the
loans were actually disclosed; that Hardy himself claimed to be the manager on
occasion; that the agreements were executed without the members [sic]
knowledge; and that the members thought Gregg Hardy was the manager. I don’t
disagree with any of those statements, but I don’t believe that any of those, in and
of themselves, would be sufficient to allow plaintiffs the relief that they seek in
this matter.
The trial court concluded that there was no purposeful deceit and that the Wisners would
have been on notice of the financial situation had they reviewed their documents. And while
Hardy’s failure to explain things to the members was troublesome, the trial court concluded that
it did not amount to illegal or oppressive conduct. The trial court further determined that there
was nothing in the operating agreements that prevented Hardy from issuing loans while
simultaneously providing the members with cash distributions. Nor did the trial court conclude
that Hardy was guilty of self-dealing or that he needed to seek approval for the loans under the
operating agreements: “The operating agreements did provide to allow him to make those
advances on behalf of the company. They also provided for interest in excess of what he was
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charging.” The trial court noted that “while the plaintiffs did sustain a significant loss by being
diluted out of their entire investment that does appear based on the evidence to have been
authorized by the agreements under the circumstances. While Mr. Hardy increased his
ownership in the process, and that does cause some concern for the Court, it does appear that it
was again appropriate and allowed for by the agreements.” The trial court ruled that both the
quantum meruit and unjust enrichment claims failed because there was an express contract.
The trial court granted defendants’ motion for involuntary dismissal.
B. THE DORR CASE
The Dorr complaint mirrored the complaint in the Wisner matter with the exception that
the Dorr complaint failed to allege a shareholder oppression claim under MCL 450.4515. The
trial court nevertheless allowed Dorr to amend the complaint because there “does not appear to
be any surprise or prejudice resulting from this Court allowing the addition of a membership
oppression claim” in light of the fact that defendants “were prepared to proceed to trial on the
membership oppression claim in this immediate matter.” Dorr’s failure to properly caption his
causes of action was not the result of undue delay, bad faith, dilatory motive and did not
prejudice defendants.
The trial court further noted that “the prior jurist in this matter effectively consolidated
the claims for discovery purposes and this Court, upon agreement between the parties, ruled that
all evidence and testimony introduced during the Wisner trial, which was to be conducted first,
would be deemed to be evidence and testimony allowed to be used in the immediate case, as the
issues were seen to be largely duplicative.” After allowing Dorr to amend his complaint, the trial
court went on to address defendants’ motion for “Involuntary Dismissal, Directed Verdict, and/or
Summary Disposition”:
Defendants are correct in their position that this Court made previous
rulings in the Wisner matter that will bar claims in this immediate matter. As
previously ruled upon by this Court, Plaintiffs’ claim for unjust enrichment is
precluded as the Operating Agreement has been considered an express contract
covering the disputed subject matter. . . .Likewise, the Operating Agreement also
bars Plaintiffs’ claim for quantum meruit, it having been found to be an express
contract governing the parties’ business with each other. . . .
However, this Court did previously rule that Plaintiffs were members
entitled to an accounting . . .and that Defendant Greggory Hardy was effectively
the manager of the LLC, having held himself out accordingly. Finally, although
this Court has ruled that Defendant Hardy held himself out as the manger [sic],
his fiduciary duty is solely to the company, WBM, LLC, and not the individual
members. . . . While these plaintiffs are bound by the adverse rulings in the
companion Wisner case, they too shall benefit from the prior rulings favorable to
them. Therefore, if Plaintiffs prevail in successfully establishing their member
oppression claims, they may be able to seek dissolution, or any other relief
afforded by MCL 450.4515(1).
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Therefore, the Dorr trial focused solely on his claim that Hardy engaged in oppressive conduct
when he stopped all communications with Dorr following the capital call.
After hearing evidence in the Dorr trial, the trial court dismissed Dorr’s only remaining
claim for membership oppression:
Plaintiff alleges that Defendant Hardy cut him off from further
communication and Defendant admits the same. However, it does not appear that
his rights as a member of the LLC provided by MCL 450.4102(q), including any
right to receive distributions of the LLC’s assets and any right to vote or
participate in management, were substantially interfered with by Defendant
Hardy’s conduct. While this Court previously expressed its concern with the
proposition that cutting off a member from communication could be done so in
good faith and was in the LLC’s best interest, the testimony established the
reasons such drastic action was taken. Although Defendant Hardy substantially
interfered with Plaintiff’s ability to communicate with him as the manager of the
LLC, Defendant Hardy did not engaged [sic] in conduct which was unfair or
oppressive. Plaintiff was not denied any of his rights as a member. He was still
entitled to vote, examine the books, call for a meeting or the membership, or
receive any dividends that were issued.
Plaintiff has not carried his burden of proof to establish a violation of
MCL 450.4515, failing to establish any “willfully unfair and oppressive conduct”
toward him as a member of this LLC. As this Court previously opined, expert
testimony on the standard of care owed to the LLC and its members would have
significantly assisted this Court in understanding the Plaintiff’s complaints
regarding the conduct of Defendant Hardy. None was provided. This Court
cannot make the logical leap that Defendant Hardy’s conduct substantially
interfered with Plaintiff’s interests as a member without evidence sufficient to
draw that inference and reach that conclusion. This is especially true since the
statute specifically excludes conduct or actions that are permitted by the articles
of the organization or an operating agreement. See MCL 450.4515(2). Plaintiff’s
claims relating to the validity of the operating agreement came too late, and were
previously excluded by the Court. Finally the argument that a 100% dilution of
Plaintiff’s membership interests as a result of his failing to make the capitol [sic]
call is in itself unfair and oppressive was not supported by any evidence. This
Court likewise cannot reach that conclusion without any proof to support it.
Both the Wisners and Dorr appeal as of right, raising identical issues on appeal.
II. ANALYSIS
As both the Wisners and Dorr agree, their appeals hinge upon the validity and
enforceability of the operating agreements. Their substantive claims included membership
oppression, unjust enrichment and quantum meruit.
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There was no shareholder oppression if Hardy’s actions were permitted under the
operating agreements. MCL 450.4515 provides, in relevant part:
(1) A member of a limited liability company may bring an action in the circuit
court of the county in which the limited liability company's principal place of
business or registered office is located to establish that acts of the managers or
members in control of the limited liability company are illegal or fraudulent or
constitute willfully unfair and oppressive conduct toward the limited liability
company or the member.
***
(2) As used in this section, “willfully unfair and oppressive conduct” means a
continuing course of conduct or a significant action or series of actions that
substantially interferes with the interests of the member as a member. Willfully
unfair and oppressive conduct may include the termination of employment or
limitations on employment benefits to the extent that the actions interfere with
distributions or other member interests disproportionately as to the affected
member. The term does not include conduct or actions that are permitted by the
articles of organization, an operating agreement, another agreement to which the
member is a party, or a consistently applied written company policy or procedure.
[Emphasis added.]
Nor could there have been unjust enrichment or quantum meruit if the parties’ were
governed by the operating agreements. “A claim of unjust enrichment requires the complaining
party to establish (1) the receipt of a benefit by the other party from the complaining party and
(2) an inequity resulting to the complaining party because of the retention of the benefit by the
other party.” Karaus v Bank of New York Mellon, 300 Mich. App. 9, 22–23; 831 NW2d 897
(2012). “[A] contract will not be implied under the doctrine of unjust enrichment where a
written agreement governs the parties' transaction.” King v Ford Motor Credit Co, 257 Mich
App 303, 327; 668 NW2d 357 (2003). Likewise, “[t]he theory underlying quantum meruit
recovery is that the law will imply a contract in order to prevent unjust enrichment when one
party inequitably receives and retains a benefit from another. However, a contract will be
implied only if there is no express contract covering the same subject matter.” Morris Pumps v
Centerline Piping, Inc, 273 Mich. App. 187, 194; 729 NW2d 898 (2006) (internal quotation marks
and citation omitted).
And, finally, there was no cause of action for an accounting or judicial winding up if
plaintiffs were no longer members, having been divested of their interests pursuant to the
operating agreement. Pursuant to MCL 450.4505(4), “a member ceases to be a member when
the member's entire membership interest is assigned.”
Yet, in spite of the fact that the enforceability of operating agreements – or lack thereof
— was paramount to each claim, neither the validity nor the enforceability of the operating
agreements was ever truly disputed at the trial court level. In fact, in both cases, it was the
plaintiffs who admitted the operating agreements into evidence and sought to use certain
provisions therein to show that Hardy had mismanaged the companies. “It is settled that error
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requiring reversal may only be predicated on the trial court’s actions and not upon alleged error
to which the aggrieved party contributed by plan or negligence.” Lewis v LeGrow, 258 Mich
App 175, 210; 670 NW2d 675 (2003).
At no time did the Wisners allege that the dilution was illegal because the operating
agreements were invalid. This new argument was apparently kept in their back pockets for
purposes of appeal. “A party is not allowed to assign as error on appeal something which his or
her own counsel deemed proper at trial since to do so would permit the party to harbor error as
an appellate parachute.” Dresselhouse v Chrysler Corp, 177 Mich. App. 470, 477; 442 NW2d
705 (1989).
As for the Dorr matter, it is clear that Dorr challenges the trial court’s decision refusing to
allow Dorr to further amend the complaint to include allegations that the operating agreement
was unenforceable. However, Dorr does not actually brief whether the trial court abused its
discretion in refusing to allow the amendment. Instead, Dorr frames the issue as a legal one.
Additionally, as it pertains to both cases, we reject plaintiffs’ attempt to categorize certain
statements as “findings of fact” by the trial court. Specifically, in granting a directed verdict in
the Wisner matter, the trial court noted:
The plaintiffs have argued that Mr. Hardy was expanding his own
business; that he was an inexperienced manager with only two or three properties
back in 2005; that he wanted to make these investments appear to be doing well;
that he extended the loans to cover the expenses and failed to disclose those loans
specifically to the members; that all communications were from Hardy until the
loans were actually disclosed; that Hardy himself claimed to be the manager on
occasion; that the agreements were executed without the members [sic]
knowledge; and that the members thought Gregg Hardy was the manager. I don’t
disagree with any of those statements, but I don’t believe that any of those, in and
of themselves, would be sufficient to allow plaintiffs the relief that they seek in
this matter.
The trial court’s statement “I don’t disagree with any of those statements” is a far cry from a
finding of fact on each of the enumerated allegations. Instead, the trial court was simply stating
that even if those allegations were accepted as true, plaintiffs had not met their burden of proof in
light of the fact that Hardy’s actions were permitted under the operating agreements.
With these thoughts in mind, we turn to each case.
A. THE WISNER CASE (DOCKET NO. 328867)
On appeal, the Wisners argue that the operating agreements were not binding on them
and that the trial court erred when it concluded that the operating agreements were valid. This
novel argument was never raised during their trial. In fact, the record is replete with instances in
which the Wisners referred to the operating agreements, with no indication that the agreements
lacked enforceability because the Wisners had not signed them. In fact, the Wisners are the ones
that had the operating agreements admitted into evidence at trial.
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During Hardy’s cross-examination, the Wisners’ attorney referred to the operating
agreements in an attempt to prove that Hardy had not complied with the terms therein. For
example, counsel questioned Hardy about a provision in the agreements providing that each
member’s interest was based on the proportion of their initial capital contribution. The Wisners
alleged that Hardy never, in fact, contributed to WBM or SB Indiana. Counsel used the
operating agreements to support the contention that Hardy never made an initial contribution to
obtain his membership. When defense counsel objected on relevancy grounds, plaintiff’s
counsel explained: “Your Honor, the reason I am pursuing this line of questioning is because I
am trying to question him about the operating agreement which specifically requires that each
member provide their capital contribution in exchange for the membership interest. It is required
by the operating agreement.” Further, plaintiff’s counsel argued: “As the manager he would
have a duty to abide by the very operating agreement that he is in charge of enforcing. So, if
he’s not enforcing the agreement as to himself, how could we expect that he can enforce the
agreement as to the other members?” The Wisners’ attorney believed that the operating
agreements were relevant because “I believe that the members have a derivative right as well to
enforcement of this agreement, so, they would have a right to make sure that the manager of the
entity was, in fact, enforcing this agreement. . . . And, if Mr. Hardy, acting as the manager did
not enforce this agreement to the other members, it would certainly go to breach of fiduciary
duty. It would go to membership oppression. It would go to possibly unjust enrichment. It
would go to all their claims that we are seeking.” In questioning Hardy about the framework of
investment under the operating agreements, the Wisners’ attorney was “trying to lay a foundation
as to the particular duty under this agreement.” Plaintiffs wanted to show that a manager under
the operating agreement was required to ensure that each member made their contribution.
Because Hardy was the sole owner of Quantum, which was the manager of both entities,
plaintiffs were trying to demonstrate that Quantum and Hardy were one and the same and
neglected their duty to manage the entities in compliance with the operating agreement. Hardy
conceded that Quantum, as manager, was “in charge of enforcing this entire agreement, the
operating agreement . . .”
The Wisners’ attorney also questioned Hardy at length about the provision of the
operating agreements governing cash distributions. Counsel tried to point out that Quantum
continued to pay distributions even though there were outstanding expenses, as evidenced by the
continuous loans. He asked Hardy: “Mr. Hardy, if there is being monies loaned to SB Indiana,
and, there is being interest charged for those monies loaned, wouldn’t it have been the correct
move, according to this operating agreement, to not issue distribution checks so it could then pay
the money back that is being charged interest on?”
The Wisners’ attorney even went so far as to have Hardy read a portion of the WBM
operating agreement into the record:
Q. We are on exhibit 25, paragraph three, page three, entitled “Failure to
Contribute.” Let me know when you’ve had a chance to review that.
A. Yeah, I’ve reviewed it.
Q. Um, do you recognize this paragraph?
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A. Yeah, it is what I used to enforce against your client.
Q. So, if we could start with the first paragraph, it states, “If any member
fails to make a capital contribution when required, the Company may, in addition
to pursuing any rights and remedies the Company --
A. “Any other rights and remedies”
Q. – may have” -- well, why don’t you read it, please.
A. I would be glad to read it. “If any Member fails to make a capital
contribution when required, the Company may, in addition to pursuing any other
rights and remedies the Company may have under this Act or applicable law, take
any enforcement action (including, the commencement and prosecution of court
proceedings) against the Member that the Managers consider appropriate.
Moreover, the remaining Members may elect to contribute the amount of such
required capital themselves, according to their respective Units. The members
who make such contributions shall be entitled to treat these amounts as an
extension of credit to such defaulting Member, payable upon demand, with
interest accruing on the extension at the rate of one (1%) percent per month until
paid. This extension of credit shall be secured by such defaulting Member’s
Interest in the Company. Each Member who defaults grants to each Member who
may later grant an extension of credit, a security interest in the defaulting
Member’s Interest in the Company. Alternatively, at the election of the
Managers, the Managers may make a one hundred (100%) percent reduction in
the Units of the defaulting Member and reallocate the Member’s former Units
among the contributing Members in proportion to their Units.”
Q. This provides the process then for enforcing capital contributions; is
that correct?
A. Yes, absolutely.
Q. And, it provides different remedies that may be taken; is that correct?
A. It has options.
The SB Indiana operating agreement had an identical mechanism for dealing with a member who
failed to contribute. The Wisners were trying to show that Hardy pursued the harshest remedy
available when seeking to dilute their shares.
The Wisners’ attorney even quarreled with Hardy regarding whether the management
agreement superseded the operating agreements. On cross-examination, defense counsel
followed up:
Q. So, the management agreement was signed at the time these operating
agreements were entered into in the first place, correct?
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A. That is correct.
Q. Now, these operating agreements, when they were first entered into,
the Wisner’s [sic] were not parties to these agreements; were they?
A. Not the operating agreement.
Q. Okay. So, by the time the Wisner’s [sic] come in, after enjoying the
benefits of tax free money by being a tenant in common and deferring their taxes
under 1031, the management agreement has been in place for a couple of years,
the operating agreements have been in place for a couple of years; isn’t that right?
A. That is correct.
Defense counsel then reviewed many provisions of the operating agreements.
Later, the Wisners’ attorney did not object when defense counsel and Hardy had the
following exchange during re-cross-examination:
Q. The operating agreement, as you understand it, gives you the right to
do what if they don’t make the capital call?
A. It gives the management the right to dilute out and allow that dilution
to go to the party or company or entity that pays that capital call.
Q. There are other options that you could have done, correct? One of
them you did do, you waited and negotiated with them for some period of time?
A. We did. We waited.
Q. The other option would have been to treat it as a loan at one percent
per month payable on demand; is that what it provides?
A. It provides for that option.
Q. What if they don’t pay when the loan is demanded?
A. Well, then I could have foreclosed on the entity with that loan.
Q. Or, sue the Wisner’s [sic] for the money?
A. I could have done that as well, get a judgement [sic] against them for
it.
Q. Why did you elect instead after a year of negotiation with the Wisner’s
[sic] and they electioned [sic] not to pay, to choose the avenue of simply diluting
out their interest rather than treating it as a loan and suing them?
-11-
A. Well, I mean from a practical matter, the process of creating a loan,
defaulting the loan, and then taking court action would certainly be problematic
and troublesome just to accomplish it. I mentioned one time in testimony here,
my job was supposed to be to run the company, spend my time leasing the spaces
and doing those kinds of things, creating another collection problem was not
going to be productive for the company.
Again, the Wisners’ attorney questioned Hardy about the authority to make loans and not
issue a capital call:
Q. Quantum is obligated to follow this management agreement, correct?
A. It is obligated to follow the management agreement, and, the operating
agreement. They relate to each other. You are trying to pick them apart as [if]
only one of them exists.
At one point during Hardy’s redirect-examination, defense counsel objected to a line of
questioning regarding the loss of particular tenants:
[Defense counsel]: Again, Your Honor, I object. He’s trying to blame
fault on a tenant leaving. It’s irrelevant. As the Court just ruled, he has to
demonstrate acts which were illegal, fraudulent or oppressive, meaning not
authorized by the documents. That is not any of those.
THE COURT: . . .any response?
[Plaintiffs’ counsel]: The response would be that in the documents
regarding the management agreement and operating agreement, he does have such
duties as to carry out his management duties in a reasonable manner and if we’re
able to show that he was doing so in an unreasonable manner that would be in
violation of the documents.
The trial court disagreed: “Well, in terms of the statute, in terms of what is actually and willfully
unfair or oppressive conduct, it’s pretty clear from the case law that simple negligence is not
going to be enough a breach of the operating agreement, is not going to be enough to be
oppressive.”
Plaintiff’s counsel then went on to question Hardy about the specific terms of the
operating agreement, including the provision that permitted a capital call to enable the company
to conduct its business as well as the provision that allowed the manager to dilute the members’
shares if the members did not contribute to the capital call.
During arguments on the involuntary dismissal, the Wisners’ attorney stated:
The documents certainly conflict as to who the manager was. Mr. Hardy
wants to point to the operating agreement, but the management agreement states a
different entity, states the actual entity itself will be the managing agent, while the
communications from Mr. Hardy all indicate that he’s the manager. Again, it’s
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only after the loans are disclosed now that suddenly the Quantum letterhead
appears and they start hiding behind Quantum as being manager.
Apparently Mr. Hardy had executed these operating agreements at some
point on his own without knowledge or disclosing these to the investors when
they became a part of this entity and telling them or explaining to them that
Quantum was going to be the manager of the entities. All along they were told
that Gregg Hardy was the manager.
Counsel then went on to point to provisions in the operating agreements that governed a
manager’s conduct, including: providing reports to investors, prohibiting self-dealing, and
requiring that cash distributions be made after the operating costs are deducted. Counsel argued
that Hardy violated all of these.
The foregoing demonstrates that the Wisners never challenged the enforceability of the
operating agreements in the trial court. We will not permit them to do so for the first time on
appeal.
B. THE DORR CASE (DOCKET NO. 333045)
While the Wisners were completely silent on the enforceability of the operating
agreements, Dorr’s attorney attempted to raise the issue at the beginning of trial. During
opening statements in the Dorr case, Dorr’s attorney set forth his theory of the case:
It is our position that the actions of the manager in diluting him out are not
authorized by statute, and, are not authorized by any agreements between the
parties. Further, it is our position that the manager either intentionally or
unintentionally misled the Plaintiff as to the status of loans that the manager had
purportedly advanced to the LLC and then how he was going to recover
repayment for those loans and that the capital call itself was inappropriate and
came out of the blue and was oppressive in and of itself. And, probably most
importantly, we are going to show that there was no operating agreement in this
case that applied to Mr. Dorr and therefore his requirements for contribution, if
any, were strictly governed by the statute and not by any so called operating
agreement. Hence, the call itself, the demand itself, and the subsequent expulsion
were all unauthorized, inappropriate, and, certainly constituted oppression causing
him damage and resulting in this action and the requests for relief that were
contained in our complaint.
Defense counsel objected to that theory, noting that “the statement that there is no
operating agreement that applied to Mr. Dorr and that only the statute would govern capital calls
is nowhere to be found in that complaint.” Defense counsel noted:
They introduced the operating agreements, and, they introduced them as exhibits
25 and 26. They are the operating agreements. They put them in as the binding
and functional documents that governed the Plaintiffs in this case. They are now
trying to change their complaint that they just amended this week, to allege that
he is not a party to the operating agreement and say that only the statute applies.
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There is nothing in the complaint that references that. This is an irrelevant line of
questioning based on what is in the pleadings, and, they should not be permitted
to go forward.
The trial court likewise observed that “there is nothing pled in the complaint that there is not a
valid operating agreement between the parties.” The trial court noted that the issue was never
raised in the Wisner matter and that defense counsel would be prejudiced by allowing such a
strategy to go forward. The trial court made the following observations:
If you would have had it a year ago, somebody should have looked at it and
realized that, from your office. This isn’t a case where he was pro per and he just
got lawyers hired in here today. Discovery was conducted. When you had the
opportunity to review the documents, you got through discovery, it should have
been brought up to the court’s attention, to the defense’s attention. You could
have filed, at that point and time, to amend your complaint. I would have granted
that, graciously. We could have had the issue fully explored. The frustrating part
is that you are bringing it up now and it seems to be a very important issue in this
matter. It would have been an important issue if it would have been raised in the
Wisner matter, which I know you don’t want to go back to, but, we spent days in
that case too. So, I am just really concerned about [defendants] being prejudiced
by these things coming up at the last second when these arguments should have
been developed, as you said, years ago.
***
Well, I appreciate the argument.[2] I think it is a good argument. I
appreciate your argument in terms of whether or not your client is bound by this
operating agreement, but, it is the first time that I have heard of it. I haven’t had a
chance to look at any of the case law on this, even look at the statute that you’ve
referenced as it relates to this issue, because it wasn’t brought up before today. I
don’t want to make a decision in this matter sitting here on the bench without
being fully appraised. At the same time, this matter has been delayed and delayed
and delayed. So, I am just really struggling with what is the fair thing to do here
for all the parties that are involved, frankly.
The trial court initially indicated that it wanted the parties to brief the issue and that it
would allow a continuing objection on the line of questioning regarding the operating agreement.
However, the trial court changed its position during the following exchange at which time
defense counsel was arguing that he should not have to brief the issue:
[Defense counsel]: Well, there is a written agreement and it is part of the
evidence. It was argued, endlessly, in the Wisner matter, which is a part of this
2
That a person cannot be charged to contribute to an LLC unless that person has agreed to do so
in writing.
-14-
record, never raised that Mr. Dorr never signed it in a pleading of any kind,
including the most recent amendment. Now, Judge, here is the point, when you
plead that it is oppression to dilute in the way that they say, and the operating
agreement forgives it, you know that the statute says if it is permitted by the
documents then it is not willful oppression as a matter of law. So, their argument
is, “well, we lost on that already, why don’t we change our attack and say he is
not a signatory to it, and, we knew that all along for the last two and a half/three
years even though the Wisner’s [sic] didn’t sign anything either, we didn’t argue
it there, but, let’s argue it now and let’s see if we can then say, well, it’s
oppressive under the statutory operating agreement.” Judge, it is way too late for
that. It is way too prejudicial. They should have done it a long time ago, and, I
don’t think there is any need to brief it. I think you can find that it is way too
prejudicial, and way too late right now.
THE COURT: Well, in thinking about it further and looking at my notes
and having the chance to digest the rest of this this afternoon, I agree with
[defense counsel]. I think I have enough to be able to make a decision whether or
not I am going to consider the 100 percent dilution, the – as being oppressive in
and of itself as argued by Plaintiff, whether or not Plaintiff is to be bound by the
language of the operating agreement that is in Plaintiff’s exhibit 25. I think that
there has been enough arguments made here today on the record.
In a later order denying defendants’ motion for involuntary dismissal, the trial court
acknowledged that “Plaintiff now argues that the Operating Agreement should only bind
Defendant Hardy alone and not anyone else since Hardy was the only signatory to the
agreement.” In a footnote, the trial court rejected this approach:
This allegation was not made in any pleading prior to trial, and was
objected to vehemently by the Defendants at trial. Defendants are correct in
directing the Court to MCR 2.118(C)(2) which governs the right to amend
pleadings at trial to conform to the proofs. The party seeking to amend has the
burden of establishing that the objecting party has not been prejudiced. That
burden has not been carried, and the objection that this particular issue was not
within the issues raised by the pleadings is sustained. This argument is not being
addressed further.
Without enumerating it as an issue on appeal or briefing it, Dorr takes issue with the trial
court’s conclusion that lack of enforceability of the operating agreements was never pled and the
trial court’s refusal to allow Dorr to pursue such a theory at trial. “Decisions concerning the
meaning and scope of pleading, and decisions granting or denying motions to amend pleadings,
are within the sound discretion of the trial court and reversal is only appropriate when the trial
court abuses that discretion.” Weymers v Khera, 454 Mich. 639, 654; 563 NW2d 647 (1997).
“An abuse of discretion occurs when the decision results in an outcome falling outside the
principled range of outcomes.” Radeljak v DaimlerChrysler Corp, 475 Mich. 598, 603; 719
NW2d 40 (2006).
-15-
The real issue on appeal touches upon the admissibility of evidence as it relates to
pleading requirements. Under MCR 2.118(C)(1), pleadings may be amended if an issue was
tried by express or implied consent of the parties. “In that case, amendment of the pleadings to
conform to the evidence and to raise those issues may be made on motion of a party at any time,
even after judgment.” MCR 2.118(C)(1). However, where, as here, the evidence is objected to,
further amendment is not allowed unless the evidence would not prejudice the objecting party.
MCR 2.118(C)(2) provides:
If evidence is objected to at trial on the ground that it is not within the
issues raised by the pleadings, amendment to conform to that proof shall not be
allowed unless the party seeking to amend satisfies the court that the amendment
and the admission of the evidence would not prejudice the objecting party in
maintaining his or her action or defense on the merits. The court may grant an
adjournment to enable the objecting party to meet the evidence.
The rule “establishes strict requirements for amending a pleading during trial. Unless the party
requesting amendment ‘satisfies the court that . . .amendment . . .would not prejudice the
objecting party,’ amendment ‘shall not be allowed.’ This rule contrasts sharply with the free
amendment allowed before trial.” Dacon v Transue, 441 Mich. 315, 333; 490 NW2d 369 (1992).
However, where a defendant receives notice “from whatever source” that a plaintiff intended to
assert a claim, there can be no prejudicial surprise. Id. at 334. But a “plaintiff may not rely on a
facially insufficient allegation, which necessitated the amendment, to alleviate prejudicial
surprise caused by the amendment.” Id. at 335.
There is no question that Dorr did not provide reasonable notice that his theory of the
case would contrast with the Wisners’ theory. Nor is there any real question that an amendment
would have caused prejudicial surprise. A claim that the operating agreement was unenforceable
is nowhere to be found in any of the pleadings. Such a new theory posed a significant surprise to
opposing counsel in light of the extensive litigation in the Wisner matter, which contained
absolutely no reference whatsoever to the enforceability of the agreements. The trial court did
not abuse its discretion given Dorr’s failure to meet his burden of demonstrating that an
amendment of the pleadings would not have prejudiced defendants.
It is clear that the enforceability of the operating agreement was never truly in dispute, as
it was not timely raised. Dorr, in fact, relied heavily on the operating agreement to bolster his
claim for membership oppression. We reject Dorr’s attempt to fashion the issue on appeal in a
manner that is in direct contrast to what was presented in the trial court.
Affirmed. As the prevailing party in both cases, defendants may tax costs. MCR 7.219.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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https://www.courtlistener.com/api/rest/v3/opinions/4144862/ | OFFICE OF THE ATI’ORNEY GENERAL OF TEXAS
AUSTIN
Eon. Tom C. King
State A@ltor and Elilolenoy l%xpert
Austin, Toxar
Dear Slrt
ienoy warrants against
ipets& revBnue6.
we 60knowi0age lt?tterof November 9
1939, asking for o Z(a) Ch. 444 Camerai
Appropriation Aot neral Lews, regular
so6elOn, p. 93918) io quastions hereln-
after set out.
a in the lnstltutisn-
0r the two risoal years ending
19'36,end August 31, 1939
hsmise appropriated r0r ei
inrtitutiom during ‘oaoh or the rald ri006l
ream, reispootival~.*
Hon. To41 C. King, page 2
Your quaatlona are 04 follcm4r
y(l) Arc suoh Institutions empowerad to
laaua 'dafloiency warrants' agalnct antlolpa-
tad revenues to suoh funds?
"(2) Ara the7 empowered to bind such an-
tlolpatad rayanuos on notes payable for the
purchase prioa of equipment and/or property
Insurance, whore the maturity dates of the
notes extend oyar a period of three yaar81W
The Laglslatura was wall within its prarogatlya In
making the further appropriation ot balances in addition to
the spaolfio approprlatlons stated in the act. The addltlonsl
appropriation is sufiioiently spoolflo within Itself to mast
the raquiraments or the Constitution. (Sea our opinion No.
C-1661 addressed to you). It will be soon from a reading of
Sac. 2(a) that all balances in the rospactlva institutions,
including balances In their rarolvlng funds at the time, end
the entire Income to said funds during each of the years
named, have bean appropriated. Those WbalanoosR and tha
'lrl0om0'obrlousl7~portaln to sntiolpatad raoalpta, for it
could not be aotlnltaly known ln adyanoa whether then would
be suoh balances or lnooma.
That an appropriation may rightly sot a pert anJ.
tiolpatad raoaipts is no longer an open question In this
state.
Forguson y. Johnson, 51 2. A'. (2) 372 Involved the
right of the Laglslatura to appropriate, or parhaps more
accurately stated the right of the Highway Cozmission to
contraot, upon tha basis of antlolpatad receipts in tha mat-
tar of oonstruotlng hlghwa78 to the extent of about $S,OOO,-
000 .oo. The plalntlfi*8 oontantion was that suoh antlolpa-
tad funds ware not Wands arailabloC within the statute of
oontraotual power of the Commis8ion. (Vernon's Annotated
Civil Statutes Arts. 66746 (6674q-4), 66740 (66749-53, end
66741). chi0r matioo u0ci0naon, writing ror the court sala:
'*Funds arallabla~ as marking the
bounds OS the Cozal.88lon~soontraotual
llsblllt~ oroatlng authority for *high-
way improvements* can, wa think, mean
but one thing, namaly, funds made avall-
Hon. Tom C. King, paga 3
able for that purpose by the Laglsla-
tura throu h appropriation. x * * Ii
this item 7axpeotanoy) oannot be con-
trectaa against until paid into the
treasury, it xould be naoasaary to ao-
cumulate an additional sum equal to the
entire avaflabla Yadaral ai fun4 bOlor8
that fund could be contracted afalnst.
* * * The department must oaaplata con-
struction contracted against this tuna
prior to the and of tha Federal flsoal
year (Juno 30, 19JJ) otherwise the ap-
propriation lapses. l l * Those appro-
prlatlona (of revenues derived from Fad-
oral taxation) are no more gratuities
then any other authorized Tadera appro-
priation, and -khanalloceted to a perti-
culer sLata are a6 1av6ilabla~ as any
other ‘fund* for ap?ro>rlata contrectual
purposes.*
The court hold tta antloipatad recal?ts to co the
proper eubjeot of a?proprlation and that they vieraupon sooh
appropriation wfunda arallabla* for use or the liighwayda-
partmant.
Now the word RZundw or “funds* has no fired meaning
applicabla alike to ovary situation, but its real meaning la
to be determined according to the familiar rule of statutory
construction in tha light of the oontext and the assooiatad
words:wlth which it 14 azploycd. In ths aoxmaotion hero used,
as indloetad in the Farguson-Johnson case, it is not limltad
to actual cash in hand but ia used in the more aosfiprahansiva
sense as oovsring not only moneys but sacurltles and proper-
ties of a nature to be or to baooma usable In connection %lth
the epproprlatlon. The *lnstltutlonal funds* and the balances
and inooma thereof ooatarcplatanot only money but the antlcl-
patad receipts ior the periods stated.
As to the issuance of ~datioianoy werrantsW, those
instruments do not create debts, they merely servo the oon-
vaniant purpose of avidanclng the liability of the fund for
payment ii and when the lnatlttitlonhas funds available for
cash payment. They are not spaoially authorized by law and
.tean nothing substantial. wDaficiency warrant” in this oon-
naotlon, Is ffiaralydepartma5tal language for "hot chock".
Hon. Tom C. IUng, psga 4
There is no reason why the existing llabllity, contingent
though it may be, msy not be thus atldanoed.
1. So that, you are sdrlsad this department is of
the opinion ymr first question should be answered in tha
ariLrmatlr0.
The Constitution provides that no appropriation of
money shall be made for a longer tern than two yaers. (Art.
VIII, 880. 6). This aaanot be violated or ignored, The
institution therefore has no right to oontraot upon the basis
oi suoh antlolpatad ravanuas bayon the parlod of the appro-
priation - two years. It may validly oontraot upon the
reasonably antlolpatad raianuas ior aaoh year raspaotlraly of
the blennfum, but no further. This oonoluslon is supported
by the reasoning in Fort Worth Calvary Club Ino. Y. Sheppard,
Comptroller, 85 S.W. (2) 960, and by the prinoiplea Of pub110
polloy in general.
2. From the above It follows that question number
2 should be SnBwered, “now.
Vary truly pours
ATTORNEY CRRRRAL OF TEXAS
doia Spoor
Assistant
OS-XR | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144865/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Boo. foe Xunsohik,Cowmlaeloner, page %
$ ar e~r ~
to
otl
re&atln& the ~roaotln( oonduaff~
or m&dalalag of fletlr ooabats, wrs8tLq matohea,
bOXin or 8porrlryooatertr82 lrhlbltloarfor monw
mmuneratlon, purse OT prlzo lqtllralentto bo reorltbd
by the partlolpurta or aontsrtaaats,ar wham a81d&d~-
*loo roe thorrte oa-theIrsfor 18 ahrr6d or reoqlred”
is oonterrod by ktlolr 614 of the Tars8 Penal Cod..
UndW this law ii&f0 ooiabata, trO@t1in45
mtahe8, box-
irq or rprrfa6 oonteda or exhibitlou em legalismI
In tbir state.
Sootloa8 oi Artlola 614 protl6~8for the appli-
oatlon ior a llooare by W&r pexsosPboforr 8nid par800
oan sot as 4 ae8tla.
tlnallr, in Soot100 11, "matters pto~iblted” or.
wwmerutea. vfe find no inhlbltloa ylainrt a rr~rtlln~
me;oz mJea a azl.7110en*ed mert1uq un4er the Ilot,
6ubirraflon (o), of C3eotlon11, whloh raadr
a ir 0iio w~
s0
: ~1 no
4 tlp p i~‘r
I;nOwlll& l~ o r g lr o r p a r tia to
oonduot l la
o r persalt a nye h a omr ta k tlstlr
o 00& r ematoh,
boring, sparring of nertlif& oontert or exbi-
bitloa lxoept it be as a burle8que.*
Aft4r a sweful oon8l&mtlon of a11 t&r tern,
prorirloar aad omdltlons of Article 614, l.a., the
Tax&a Boxing a 'SrestllnxLaw, we ham resohed the ooaolu-
sioo bltatIt 'wa8not the Int*ntloa ot the Lqialatux*
to iaolud@ within the oOTW8(ia of thi8 law an exhlbltlon
matched betrcen sari and beart and furthermore It was not
lta iatsntloa to p-oh&lit such aa w&lbltton.
Bon. Joe Xuasahik, C~sml~8loner, page 5
to obtain and tra58port. ihrlng the last orntury Itlq-
sraat r&-n ex%lbltrdtralmd bears from rllla~o to
tlllage thZ'OU@IOUtXUZOW. %ti8 ~aSs3tS iadm a bwl-
WOO oi OtiptU?fn6eUb0 iOr W?.fOhtma WR48 ti~q:h 6-d
wkst, and thuo arose ~WJI *aaa&~lea or bsar8V where
th bears were taught tdak#. TTaiabd bWU8 have llot
al-y8 ia thf8 OOU5w ba45 OMff5Od t0 OtiOUSu8, $008,
and ofdo s&fw~ Today tko trrlmd bear la aot an WI-
oommoa sight In both Europa and Amrlaa. 2%~ brom
bear (Urlus ArotU8) is thq ooaaoneat upsah la aagtir-
It7 aad OUL be trained to ld*no e’ to amale and to
%TeSth". 900 8 ~0~rlopatIla Brltan5lo8 tm.
A oareful review ot the 'PeXaSOt;~tUtUS both orL&
lnal and olril, rereala 50 express or lrplise prohlbl-
t:o l
n6akrt an exhIbItlou WlWtli56 aetsh bat-en l 5a5
sad a WTtStlfM boar.
3u& a matoh la of the nature of a moolvgloal ex-
Llbltio:,in our oplnicn, and If atagad in eonaaetloa
with a &zro~Oa of *6OtlilB(4MtaheS sbvuld be 6~8eOaOd
M oaou~*tlon tax utd8r Artiolo 7047 (85) (a). This taz
quastlaala not dirratly beforo us, but it lr dotumlna-
tlve vi th4 amta questlo aad wa a13u$ this (IpInion
upoa our own aot1on.
The solo LeEal burla? m?Aah remal to be aoaald-
ersd la ooweotloa with a grappling aontcat beCwee+naan
and BrUf.Zi 10 Whether Or 5Ot the OZ'Ut3lt~-tO-StdMlS 1Wa
of %X58 Wvuld br ooatrUenrd.
Artlolr 1@0, R?rised Of+11 %ctUt88, 1985, rend8
as fO11OWS t
l4a used in ttla 85bdlrision, the ror4, 'an:-
~81’ i5oludo8 erurr liti dwb arcrbre$ the
words *tmturof atid *erwlt)lr~i~0hta~ every aot,
ObfdIiOE Or 56glO@t WhWd?p TltUle~O385r)r Or uI)-
jU.stlrlablapnln or sfui5g l 18 oaused, ~uvilt-
ted or lllo ued ta aontinua we5 there a rea805-
la
lbla r8wdy or ralibi. Tltanot48 ‘oensr’ md
‘p6raal* inolude uor,~ratlona, M4 the k!AoWledJJO
and aatr ot yaats *ad eaployea of aorpratloar
ia regwd to anlmmls trana~ortwl owned, Used
by or in cuato of the oor;o~atioa shall be
"I ac~tiwIgr 85a acts of nuah oorpor-
Bon. foe EunrabU, tWmibsion0zLI. i3~0 4
AHlOlb Ma, RerlrbQ ClVll statuter, lW9, pro-
~168s r
lXt bball bo ualawfi:Jror an7 person to over-
drira, rllUully 01erloa4, Qrlve uhan ortirloaQo6,
overwwk, torture, tormont, deprive of n8oosrary
bubtananao, unbaoesbarll~ or aruelty bra& or
WablObb4 mtilate O? kill Uy b~imd or oar=
bby animbl ln br won bby vohlolo, br otbbrwlbb,
Ln l orwl or inhuman mamu, or oauso or gro-
barb the baab to bo don., or rho hbva thb oharge
or 0wto4y or my anhal u~~o~bw.rlly fall8 to
prorlbo lt dth proper rood, drink or artalE
lb*naonb 1t.r
&Hi018 1374 or %ho Penal Code, 1926, firs8 the
pantdtyrar 0mibity t0 m-8, 48 rox.h=8:
Wheezer of0riWife8, wlllplly ovorleads, drlreb
whoa orerkaQoQ, orurror~, torturu, torsmnte, Qo-
prlrer oi neoessary lub tc DM c u,
unnsoebbarllyO?
bruolly best*, or bedlsrb~ sutilbtbl or killa
any bbiral, or carrlob mj ul.mal ia or upon anr
~~blole,er othimvibo, ln a emol or Iahmano
uumer, or eawu er proauroetho baao to ba Qono,
or rho having t&o uhugo or ouatody of any animal
uunaoessarll7 ?b18 to ~oorldo it rlth prop?
food, drink, or oruolly abandons it, bball bo
tln&I not ezoo*diag twa hua6red Qollarr. ha wbQ
in thlb artiole tho rceQ *anlml* %aoludel lrery
lltibg Qunb oreatwro, bbQ thb uorbr *t0rturb* 084
~orabll~~ lnolrrderevery hot, omibbion O? n4&Nt
whwreby u~oooraar~ or unjuotifiablo pin or 8uf-
fulllg lb 4.8UbIQ, per3llttoQ w 8llOmJQ to ooatla-
uo rhen there lb a ruwrublo rcraw or rsllsi.*
Artio1or 4590 awl lzotine4 ClVil St~totM,
l@eb, arratoardl prod40 T &icr
for a CItatoBuwm of
Child and AxiimalProtaotlon, in the rollawing lawuago:
%x0 oo+uaor *hall appoint a sat. Burotku
of Qhild rnd AalrsrSProtaotloa w!~S.ohshall not
harr lobs than alw no* eoto thm twbnt~-OnO
flbahrb from the asmbarr ot tho dlcootomtto oi
thb Teoab Stat0 &tm4ao SOOloty. Fh0 OororOOZ
803. Joe KQD80l?lk, CodsDlonu, pge s
thb 3Uptiinttmdtmt Of Publib IlUtIWOth3& 44d
the Attorney Oeneral shall be OX-Of:‘ibiO mom-
bar8 ol the BozrQ of Direotoraof said .statr
Burem.
'It akall be the duty of jafQ bureau to're-
ou?o the b3foroemeat of thb law8 ror the re-
reatioa et WOPgb to ohllQrea MQ dumb antMl8
aa now or harwdtu QeflnoQ by law; to appoint
leoal and 3tate agtntr to aaeibt in thla wukj
to aaelb* the or~anltatloaof Qlstrlotand
OOU4t;r bOOiOtiO8, 444 t0 &iV4 thbS l’82r4S~t4-
tlon in tho StateEweuu~
to alQ euoh bOtitiO8
and a@ntb la th o l
nforoeaeatof the lswe for
the preventionot aroagr to ohlldrenand dumb
a&km11 as prescribedby l.arland to prOwt8
the growth or education and scatlassotrsror8blo
to thb protaatlon or ohlldrenaaQ dumb ad?ialb.a
Bat&-baitlq wab a b&tort very popular in EaglanQ
r0r 7c0 yO&?b, but it WLb bU~~~b8~ 011 lOOOUllt Of Or\ld-
tT la 1835. ktba? 8hOWS in %Mfa With cl4 BruLn in 4
bur~sbcub with ball8
costmbb, and bpengleb, hi &ioh he
danaed uid *sentthrough pa&o- pazformanoa, wara tha
rage ior otmturles,but t&o tralniog or the baC?b WaB
cmauctcd uith suah orwlty thet ft oauseQ rlgoroubaoa-
plsfzta cnQ rtnally la 1867 t&a ihmian Oorernmnt pm-
hlbited the basr shou8. WllQ AniM~b la and Out of
the Zoo., 1.W. Xartn,SmlthsoalanSQ16ntlfloSerie8,
Vol. 6, pge 99.
TbO aCtt151t~ t0 bhtIdb* 1SWb Of t’clb *tot8 We?0
eneetmi ta ,treveatenp traatmentor dumb sniwklb ukloh
oheraoterlzeQ berr-baltin#lnQ tho Russlasbear ~horrr.
The humsa raoe has pro@erreQ a long weyr since tho
QaYb O*%erry EaglenQand cisri8tRum&a 1~ lte attltuQ0
to-d dw bearta, aad th0 oolrrteof thib btete ~~14
trrataent
not tolorate a oruol or.fnhu~ran or anlmalb
in aq pub110 s%hfbltiW. im wfah to roint out, hcworer,
that Sk OlmIOlJbe Mid that the FtdiOipPtIOQ or a trala-
ld bsar Ln 4 8tWstliIb?
B&Oh sith a m ib p?hb iEd@
oridenoo of cruelty t3 th bear. The prebWpt?oe Of
crueltypclatr rcthor ta the haaan prtlalpnt, bd $6+%
t into a oese full of x&SF
4%4SW%$ZeEtk~~dQrP@t.
It 18 cur op!nlon that am exhibit103 wreatlini
aatah betweena mn, whetherhe la a duly llornosd
wrestler or nit, and a bear is legal In Tata* prfild-
0d It doe8 3ot violateArt:010188 of the aeri3dd civil
;;;?a;~; 1925, and Articlo1374 of the Fenal Cod8,
tbo eruslty-to-aal5alrstatutes,wkl that
au& ;ai;h is outnldoo? the furisdiotion and autSoC-
lty owlrrred ugon the Co,-ml.srlonarunder hrtlole414
of the Feel @de, Vernon** Annotated3tatutar, Lo.,
the Texas Boxing4 Xrerrtliag LaW.
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DS:ob | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132093/ | The Attorney General of Texas
December 18, 1978
JOHN L. HILL
Attorney General
Honorable Joe Wyatt, Jr. Opinion No. H - 12 8 9
Chairman
House Committee on Ways & Means Re: Whether the State of Texas
State Capitol is subject to the provision in the
Austin, Texas 787ll City of Austin’s Electric Rate
Ordinance which provides for a
five percent (5%) penalty on
electric bills paid late.
Dear Representative Wyatt:
You have requested our opinion regarding whether the State of Texas is
required to pay a five percent late charge on bills for electric utility service
supplied by the City of Austin.
Part 3 of the current rate ordinance for the City of Austin, adopted by
the City Council on January 19, 1978, provides:
Bills computed under this ordinance are due when
rendered. Each bill shall have set forth thereon a date
falling between twenty-seven and twenty-nine days
after the date of the bill. Bills paid after the specified
date shall have added thereto a penalty equal to five
percent (5%) of the bill. Provided, however, this
provision shall become effecttve on all bills rendered
after April 1, 1978.
It has been suggested that the state is prohibited from paying any portion of
the referenced ‘penalty” by a number of provisions of the Texas Constitution.
Under this view, payment of the ‘penalty” would represent “extra compensa-
tion,” contrary to article 3, sections 44 and 53, a “grant . . . of public moneys”
in violation of article 3, section 51, or an “appropriation for private or
individual purposes,” in contravention of article 16, section 6. Alternatively,
if the late charge is deemed a form of interest, the state would not be liable
for its payment absent an express contract or statute so providing. See
Walker v. State, 103 S.W.2d 404, 407 (Tex. Civ. App. - Waco 1937, no writ).
The constitutional argument is based upon the well-established principle
that the state may not expend public funds unless it receives benefit
P. 5085
Honorable Joe Wyatt, Jr. - Page 2 (H-1289)
therefrom or unless the expenditure serves a proper public purpose. Barrington V.
Cokinos, 338 S.W.2d 133, 140 (Tex. 19601; Byrd v. City of Dallas, 6 S.W.2d 738, 740
-28). Although no Texas court has ever determined the question, the courts
of a number of other jurisdictions have held that utility late charges constitute
“operating expenses” rather than penalty or interest. Jones v. Kansas Gas &
Electric Co., 565 P.2d 597, 604 (Kan. 1977); State ex rel. Guste v. City of New
Orleans, 309 So. 2d 290, 295 (La. 1975); State ex rel. Utilities Comm’n v. North
Carolina Consumers Council, Inc., 198 S.E.2d 98, 100 (N.C. App. 1973); see also
Delich v. Iowa Electric Light & Power Co., 9 P.U.R. (4th) 335, 339 (19751.
Each of these decisions relies upon the court’s opinion in Coffelt v. Arkansas
Power h Light Co., 451 S.W.2d 881 (Ark. 19701. In that case, a consumer class
action suit challenged the legality of a utility late charge on the ground that it
violated the statute prohibiting usury. The court declared:
The late charge, far from being an exaction of excessive
interest for the loan or forebearance of money, is in fact a
device by which consumers are automatically classified to
avoid discrimination. Its effect is to require delinquent
ratepayers to bear, as nearly as can be determined, the
exact collection costs that result from their tardiness in
paying their bills.
Any other result, the court said, would penalize “customers who pay their bills
promptly” by requiring them to share “the burden of collecting costs not of their
making.” 451 S.W.2d at 884.
We believe it is significant that the United States has long recognized the
right of a utility to impose a late charge on a federal agency if the company’s
applicable rate schedule provides for such payment. See 51 Comp. Gen. 251, 252
(1971). The Comptroller General of the United Statexas held that utility late
charges do not constitute penalty or interest, “since such charges merely recoup
direct costs incurred by [the? utility incident to late payments.” Comp. Gen., file
no. B-186494 (1976). See United 412 F.
Supp. 165 (E.D.N.C. 19m. If in fact a late charge “merely recoups direct costs,”
the state is not constitutionally prohibited from expending funds in payment
thereof, since the late charge represents payment for a portion of the service
provided to the state.
In view of the virtually unanimous authority from other jurisdictions, we
believe that utility late charges represent an ordinary cost of doing business, which
may be passed on to the State of Texas as a utility consumer, so long as the
applicable rate ordinance provides for such charges, and so long as there is a
reasonable relationship between the amount of the late charge and the costs it
purports to recoup. Absent a dispute as to the reasonableness of the amount
charged, the state ls not prohibited by the Constitution or by any statute from
paying the assessment. Accordingly, it is our opinion that a delinquent state
P. 5086
Honorable Joe Wyatt, Jr. - Rage 3 (H-128g)
agency is at present required to pay the five percent late charge on bills for
electric utility service supplied by the City of Austin.
SUMMARY
A five percent late charge on bills for electric utility
service is neither interest nor penalty, but merely a cost of
doing business assessed against a delinquent consumer, so
long as there is a reasonable relation between the amount of
the charge and the costs it purports to recoup. Absent a
contrary showing, the State of Texas is not prohibited,
either by the Texas Constitution or by any statute, from
paying the charge, and it is required to do so if the
applicable city rate schedule so provides.
Very truly yours,
/ /’ Attorney General of Texas
Opinion Committee
jsn
p. 5087 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4023760/ | STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
August 11, 2016
SHIRLEY SHREWSBURY, WIDOW OF RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
PHILLIP B. SHREWSBURY, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 15-0800 (BOR Appeal No. 2050297)
(Claim No. 830063632)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
KITCHEKAN FUEL CORPORATION,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner, Shirley Shrewsbury, widow of Philip B. Shrewsbury, by S.F. Raymond Smith,
her attorney, appeals the decision of the West Virginia Workers’ Compensation Board of
Review. West Virginia Office of Insurance Commissioner, by Anna L. Faulkner, its attorney,
filed a timely response.
This appeal arises from the Board of Review’s Final Order dated July 24, 2015, in which
the Board affirmed a March 4, 2015, Order of the Workers’ Compensation Office of Judges. In
its Order, the Office of Judges affirmed the claims administrator’s January 16, 2014, denial of
Mrs. Shrewsbury’s request for dependent’s benefits. The Court has carefully reviewed the
records, written arguments, and appendices contained in the briefs, and the case is mature for
consideration.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
1
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Mr. Shrewsbury’s claim for occupational pneumoconiosis was held compensable on
November 29, 1984. He filed a motion to reopen his claim on February 18, 1991, and was
awarded permanent total disability benefits on October 31, 1995. Evidence of a psychological
condition was presented during the reopening. However, the Office of Judges found the
permanent total disability was due to Mr. Shrewsbury’s occupational hearing loss, occupational
pneumoconiosis, and a knee injury. No part of the permanent total disability was due to a
psychological condition.
On October 10, 2013, Mr. Shrewsbury was seen at Princeton Community Hospital. The
discharge report shows he was discharged home with a referral for out-patient services after
being hospitalized for a psychotic episode. The reason for hospitalization, as well as the
discharge diagnoses, were listed as dementia and psychosis.
Mr. Shrewsbury committed suicide on November 20, 2013. The death certificate issued
on November 25, 2013, lists the cause of death as “shot self with handgun”. James Kaplan,
M.D., issued an autopsy report on December 16, 2013, in which he determined Mr. Shrewsbury
died as the result of a single self-inflicted handgun wound to his head.
Mr. Shrewsbury’s widow filed an application for dependent’s benefits on January 14,
2014. The claims administrator denied the application on January 16, 2014, due to the fact that
Mr. Shrewsbury died from a self-inflicted gunshot wound. In a letter to the claims administrator
dated May 10, 2014, Mrs. Shrewsbury described the pain her husband was in prior to his death.
In Mrs. Shrewsbury’s opinion, the suicide was due to his occupational injuries, including his
depression, and therefore, the suicide was work-related.
The Office of Judges affirmed the claims administrator’s denial of dependent’s benefits
on March 4, 2015. It found that, given the proximity in time between the decedent’s hospital stay
and his death, it was more likely than not that his dementia and psychosis played a major role in
his death. However, the medical evidence did not show that Mr. Shrewsbury’s dementia or
psychosis were due to his work injury.
The Office of Judges determined that the evidence submitted did not prove by a
preponderance of evidence that Mr. Shrewsbury would not have developed a mental disorder that
would have impaired his normal, rational judgment had he not had the work injury. There was no
evidence that he would not have committed suicide absent a mental disorder related to the injury.
The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order. After review, we agree with the reasoning of the Office of Judges
and the conclusions of the Board of Review. The evidence shows Mr. Shrewsbury committed
suicide. There is no evidence that Mr. Shrewsbury developed a mental disorder as a result of his
compensable injury or that his suicide was work-related.
2
For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.
Affirmed.
ISSUED: August 11, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
3 | 01-03-2023 | 08-12-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4023761/ | STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
August 11, 2016
SCOTTIE D. HEARN, RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Claimant Below, Petitioner OF WEST VIRGINIA
vs.) No. 15-0792 (BOR Appeal No. 2050024)
(Claim No. 990064321)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent,
and
LUSK DISPOSAL SERVICE, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner, Scottie D. Hearn, pro-se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. The West Virginia Office of Insurance Commissioner, by Noah
A. Barnes, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated May 19, 2015, in which
the Board affirmed an October 29, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s November 5, 2013, denial
of a request to authorize medical treatment for the nose. The Court has carefully reviewed the
records, written arguments, and appendices contained in the briefs, and the case is mature for
consideration.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
1
Scottie Hearn was injured on April 24, 1999, when a strap from a bungee on a tarp broke,
hitting him in the left eye. On May 17, 1999, the claims administrator held the claim
compensable for a left eye contusion, and on June 9, 1999, the claims administrator held the
claim compensable for left eye hyphema. The first time Mr. Hearn sought treatment for his nose
was on October 21, 2002, when he was evaluated by David Harris, M.D. Mr. Hearn provided a
history of being hit in the left eye and nose three years ago, losing vision in his left eye, and
having left-sided obstruction and facial pain since that time. Dr. Harris diagnosed post-injury
nasal obstruction and facial pain and recommended a CT scan of the nose and sinuses. On
November 4, 2002, Dr. Harris noted that the CT scan showed a deviated septum with a right
concha bullosa. Dr. Harris performed a septoplasty and endoscopic reduction of the right middle
turbinate on November 20, 2002.
Mr. Hearn continued to experience problems with his nose. Dr. Harris opined Mr. Hearn
needed a septorhinoplasty. This was not a surgery Dr. Harris performed. Therefore, he requested
authorization for a referral to A. James Paine, M.D. The claims administrator authorized the
referral. Dr. Paine evaluated Mr. Hearn and requested authorization to perform an open nasal
reconstruction. On April 16, 2003, Dr. Paine’s request for pre-authorization to perform the open
nasal reconstruction was denied by the claims administrator. The denial of the request for
authorization for surgery was protested. The Office of Judges affirmed the claims administrator’s
decision on October 28, 2003. It determined that the only compensable injury was to the left eye.
The Board of Review affirmed the Office of Judges’ decision on September 24, 2004. The Board
of Review’s decision was not appealed.
On November 5, 2004, the claims administrator entered an Order adding ocular
hypertension, unspecified iridocyclitis, congenital monoplegia, hyphema of the iris and ciliary
body, and contusion of the eyeball as secondary compensable conditions. On April 6, 2005, the
claims administrator corrected the November 5, 2004, Order to remove the diagnosis of
congenital monoplegia and add choroidal rupture to the claim.
Mr. Hearn did not seek additional treatment for his nose until October 1, 2013. On that
date, Dr. Paine opined Mr. Hearn had essentially the same nasal problem that he had before. He
recommended Mr. Hearn have septoplasty and turbinate surgery. The septoplasty and turbinate
surgery was performed by Dr. Paine on November 4, 2013. This included bilateral spreadografts,
a medial crural support graft, intramural cautery of inferior turbinates, and outfracture of inferior
turbinates. On November 5, 2013, the claims administrator entered an Order denying the request
for approval of the septoplasty and turbinate surgery due to the fact that the nose and nasal cavity
were not compensable components of the claim.
The Office of Judges affirmed the claims administrator’s denial of authorization of the
septoplasty and turbinate surgery on October 29, 2014. In affirming the claims administrator’s
decision, the Office of Judges found that there may be evidence that Mr. Hearn’s nose was
injured on April 24, 1999. However, the nose had not been held a compensable component of his
claim. It determined the only compensable conditions recognized were for the left eye. The
Office of Judges opined that in order for Mr. Hearn to receive authorized medical treatment for
2
his nose, he must first request that his nose be recognized as a compensable component of the
claim
After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. While there may be evidence that Mr. Hearn’s nose was injured on April
24, 1999, the nose has not been accepted as a compensable component of the claim. Because the
nose is not a compensable component of the claim, treatment for such was also properly denied.
For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.
Affirmed.
ISSUED: August 11, 2016
CONCURRED IN BY:
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
DISSENTING:
Chief Justice Menis E. Ketchum
Justice Ketchum dissenting:
This matter should have been remanded for a determination of whether any injury to the
claimant’s nose was a compensable component of the claim. The claimant should not be required
to file a separate request seeking a ruling that the nose is a compensable component of the claim.
Therefore, I dissent.
3 | 01-03-2023 | 08-12-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4125086/ | IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PROGRESSIVE EXPRESS NOT FINAL UNTIL TIME EXPIRES TO
INSURANCE COMPANY, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant/Cross-Appellee,
v. CASE NO. 1D15-4700
ANZUALDA BROTHERS, INC.,
a Florida Corporation, JESUS E.
MARINO CASTILLO,
individually and as an employee
of Anzualda Brothers,
Appellees/Cross-Appellees.
_____________________________/
Opinion filed February 10, 2017.
An appeal from the Circuit Court for Levy County.
Stanley H. Griffis, III, Judge.
Scott A. Cole, Cole Scott & Kissane, P.A., Miami; Joseph T. Kissane, Steven L.
Worley, Cole, Scott & Kissane, P.A., Jacksonville, for Appellant/Cross-Appellee.
Lincoln J. Connolly, Trials & Appeals, P.A., Miami, for Appellee/Cross-Appellant,
Anzualda Brothers, Inc.
WOLF, J.
Appellant, Progressive Express Insurance Company, challenges the trial
court’s entry of a declaratory judgment determining that there was insurance
coverage in favor of appellee Anzualda Brothers, Inc. by operation of estoppel.
Appellant argues it should not have to provide coverage for appellee’s accident,
which resulted in the fatality of one victim and the injury of another victim,
because the vehicle appellee had been driving was not a listed vehicle on the
insurance policy, and because appellee failed to prove all three elements of its
coverage by estoppel claim.
Appellee cross-appeals, alleging the trial court erred in its refusal to enforce
a settlement agreement and consent judgment that were agreed to by appellant and
entered in the separate, underlying tort case between appellee and the victims.
We agree with appellant that appellee failed to prove all three elements of its
coverage by estoppel claim. In an insurance coverage by estoppel claim, the
plaintiff must prove (1) the defendant company made a representation of material
fact; (2) the plaintiff reasonably relied on that representation of material fact; and
(3) the plaintiff was prejudiced by its reliance. Bishop v. Progressive Express Ins.
Co., 154 So. 3d 467, 468 (Fla. 1st DCA 2015). Because appellee failed to
sufficiently prove prejudice, we reverse, vacate the trial court’s final judgment in
favor of appellee, and remand for the trial court to enter final judgment in favor of
appellant.
2
Because we remand for the trial court to enter final judgment in favor of
appellant, appellee’s cross-appeal requesting damages from appellant in the
amount outlined in the settlement agreement is moot.
MAKAR and WINSOR, JJ., CONCUR.
3 | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150821/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 685 MAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
JASON M. FRETTI, :
:
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/4150823/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 707 MAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
JOHN CARO, :
:
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/4132768/ | THE ATTORNEY GENERAL
OF ‘TEXAS
AUSITIN, TKKAs 78711
!
May 20, 1975
The Honorable Chet Brooks Opinion No. H-611
chairman
Joint Committee on Prison Reform Re: Use of certain line item
Senate Chamber appropriations by the Texas
Aurtin. Texas 78711 Department of Corrections.
Dear Senator Brooks:
You have requested our opinion regarding the use of certain line
item appropriations by the Texas Department of Corrections.
Your firat question aeks what constraints a specific line item
appropriation for a specific construction project plsces on the Department
of Corrections, and whether expenditures on other construction projects
are permissible. A line item appropriation must be expended only for
the purpose designated therein, subject to any riders applicable to the
appropriationfor the particular agency and subject further to any relevant
general provisions in the Appropriations Act. Attorney General Letter
Advisory No. 2 (1973); Attorney General Opinions H-444(1974); M-999
(1971); O-4769 (1942). As to appropriations for specific construction
projects of the Department, the Act contains the following provisions
in Article III;Acts 1973, 63rd Leg., ch. 659, p. 1948.
The amounts indicated as ‘Building Appropriations’
hereinabove areappropriated subject to construction
and completion of said projects by the use of prison
labor insofar as possible.
. . * .
Any unexpended balances remaining in projects under
the respective items for Building Appropriations may,
p. 2705
The Honorable’ Chet Brooks page 2 (H-611)
with the approval of the Board of Corrections,
be transferred and used for the purposes of
completing construction of other projects enumerated
in the same item; provided, however, that copies of
such approvals and copies of requests for Comptroller’s
action on such transfers shall be filed with the Governor
and the Legislative Budget Board.
Thus, the unexpended balances remaining from appropriations,
authorized for specific construction projects may be used for completing
construction of other projects, provided that such projects are enumerated
in the same item: provided that the approval of the Board of Corrections
is obtained; and provided that copies of such approvals and copies of
requests for Comptroller’s action on the transfer of such funds are filed
with the Governor and with the Legislative Budget Board. Unless it has
complied with these requirements, the Department may not use the
unexpended balances appropriated for building construction for comple-
tion of any other project.
Your second question asks about the procedure for authorizing
construction of “other” projects as contemplated by the rider, and
whether a “report” approved by the Board of Corrections after a
construction project is substantially complete can adequately serve as
evidence of the “approval” the rider requires.
The rider does not require that the approval of the Board of
Corrections be evidenced by a particular writing, but that “copies of
such approvals ” be filed with the Governor and the Legislative Budget
Board. As couched in general appropriation acts prior to 1973, the
rider required that expenditures on “other” projects be approved by
the Governor rather than the Board of Corrections and that copies of
the Governor’s approval were to be filed with the Legislative Budget
Board; but in Attorney General Opinion M-1199 (1972), with reference
to that rider, it was said on page 5:
That portion of the rider requiring the Governor’s
approval is invalid: such approval cannot be required,
but that portion requiring filing of information with
Budget Board is valid. M-1141 and V-1254. The agency
Board must vote the transfer of funds. (Emphasis added).
p. 2706
The Honorable Chet Brooks page 3 (H-611)
The purpose of the ;‘filing” provision is to acquaint the Governor
and the Budget Board with the use to which the funds will be put. However,
we cannot say that a project was not properly authorized merely because
the evidence of “approval” filed was in some form other than a resolution
of the Board of Corrections to transfer the funds. Whether or not a
project was actually approved is a question of fact.
Your third question asks if an appropriation for “capital outlay”
can be expended on building construction. Section 10 of Article V of the
current general appropriation act specifies; Acts 1973, supra at p. 2202.
Funds appropriated . . . in items designated
for . . . capital outlay . . . shall be expended
only for items set out in the Comptroller’s
Manual of Accounts, Expenditure Classification,
effective November 1, 1965, as amended, and
numbered . . . 60 to 69 for ‘capital outlay. ’
Expenditure classification no. 68 from the Manual of Accounts
is “Building Purchased, Constructed or Remodeled” the purpose of
which is described by the manual:
. . . to record payment for materials and/or
contract labor for construction or remodeling
of state owned buildings. Does not include pay-
ments for repair or maintenance jobs.
We answer your third question in the affirmative.
Your last question inquires as to whether the funds appropriated
for “classified salaries” may be expended in any other manner. A rider
to the Department of Corrections appropriation in Article III provides:
From the line appropriation for Salaries of
Classified Positions the Department of Correc-
tions is authorized to purchase electronic security
devices for installations on compoind fences to
minimize security risks while reducing the number
of officers required to man outside pickets, pro-
vided that the purchase of those devices will not
necessitate any supplemental or additional appropria-
tion out of any funds of this State. Acts 1973, ~upra at 1950.
p. 2707
--.
*
The Honorable Chet Brooks page 4 (H-611)
Furthermore, a general rider in Article V of the Appropriations Act
states that; Acts 1973, supraat p. 2195:
Appropriations for ‘Salaries of Classified Positions’
may also be used to pay the salaries of positions
exempted from the Classification Plan by the Governor
under authority granted in Section 2 of the Position
Classification Act of 1961. Sec. l(t)
Thus, the General Appropriations Act provides that the funds appropriated
to the Department of Corrections for classified salaries may be expended
to pay the salaries of positions exempted from the Classification Plan
by the Governor, and, subject to the stated proviso, may be expended for
the purchase of electronic security devices for installation on compound
fences.
SUMMARY
A line item appi-opriation may be expended only
for the purpose designated therein, subject to any
riders applicable to the appropriation for the particular
agency and subject further to any relevant general
provisions in the Appropriations Act. Whether or not
an agency action complies with the requirements of an
Appropriations Act rider is sometimes a question of
fact. Whether an expenditure is proper as a “capital
outlay” is determined by the Comptroller’s Manual of
Accounts, and Appropriation Act riders authorize the
use4Dr certain other purposes of monies appropriated
to the Department of Corrections for “classified salaries. ”
Very truly yours,
/ /JOHN L. HILL
I/ Attorney General of Texas
p. 2708
The Honorahle Chet Brooks page 5 (H-611)
DAVID &f. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
lg
p. 2709 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143693/ | YEWIE EPMERAL
OF ?i?EXAS
Honorable Denver E. Perkins
County Attorney
Gonzales County
Gonzales, Texas Opinion No.O-2683
Re: Justices of the Peace -
Trial fees.
Dear Sir:
Your request for opinion has been received and
carefully considered by this department. We quote from your
request as follows:
"It has been the custom in our County for
many years for the Justice of the Peace, on a plea
of guilty, to enter a judgment of conviction
against the defendant, and, if the defendant has
no money, the Justice of the Peace quite often
permits him to go at large without bail or recog-
nizance and to accept periodical payments of ln-
stallments on the fine and costs. It aometimes
happens that the defendant dies or leaves the State
before the fine and costs are paid. It quite often
happens that neither the Justice of the Peace nor
the Constable make any further effort to collect
the fine and costs after judgment is entered, even
though the defendant still lives in the County,
However, the Justice of the Peace always presents
his bill on the first of the month to the Com-
missioners' Court for his fee of $2.50 in such
case, Our Auditor has advised the Commissioners'
Court that the Justice of the Peace is not due a
fee in such a case since it is not a case that
has been tried and finally disposed of by the
Justice of the Peace. Needless to say, our jus-
tices of the peace take a different view of the
matter. They have asked me to submit these facts
to you for an oplnlon as to whether or not they
are entitled to their fees before the fine and
costs are paid.
Honorable Denver E. Perkins, Page 2 (No.O-2683)
"Of course, where judgment is deferred,
no fees would be due until the judgment is at
least made and entered by the Justice of the
Peace on his docket against the defendant.
"The County Auditor takes the position
that these articles require the judgment to be
extended (i.e., fine paid or defendant jailed)
immediately upon its entry and that unless It
Is executed the case has not finally been dls-
posed of.
"Our County Judge In discussing the matter
with me takes the position that the Justices of
the Peace are not entitled to their fees In such
case unless they show that they have shown due
diligence In collecting the amount adjudged
against the defendant. His view is that, if the
defendant is dead or beyond the reach of the of-
ficers, the Justice Is due his fees; if the de-
fendant still lives in the County and the of-
ficers could execute the judgment, but fall to
do so, that the Justice Is not due his fee.
"I have taken the position that if a judgment
of conviction Is entered and not deferred that
it should be executed at once and that the defen-
dant should be committed to jail unless the fine
and costs are paid In full and that there is no
legal justification for allowing Installment
payments of fines and costs. However, It is my
position that If the Justice of the Peace Ignores
this provision of law and enters the judgment on
conviction or plea of guilty and no appeal is
taken from the judgment that the case has never-
theless been finally disposed of and that the
Justice of the Peace Is entitled to his fee, re-
gardless of whether or not he shows any diligence
to collect the fine and costs."
Article 1052, Vernon's Annotated Texas Code of Crim-
inal Procedure, reads as follows:
"Three Dollars shall be paid by the county to
the County Judge, or Judge of the Court at law,
- -
Honorable Denver E. Perkins, page 3 (No.O-2683)
and Two Dollars and fifty cents shall be paid by
the county to the Justice of the Peace, for each
criminal action tried and finally disposed of
before him, Provided, however, that in all coun-
ties havlng a population of 20,000 or less, the
Justice of the Peace shall receive a trial fee of
Three Dollars. Such Judge or Justice shall pre-
sent to the Commissioners' Court of his county
at a regular term thereof, a written account
specifying each criminal action in which he claims
such fee, certified by such Judge or Justice to
be correct, and filed with the County Clerk. The
Commissioners1 Court shall approve such account
for such amount as they find to be correct, and
order a draft to be issued upon the County Treasu-
rer in favor of such Judge or Justice for the
amount so approved. Provided the Commissioners'
Court shall not pay any account on trial fees
in any case tried and in which an acquittal is
had unless the State of Texas was represented In
the trial of said cause by the County Attorney,
or his assistant, Criminal District Attorney or
his assistant, and the certificate of said Attor-
ney is attached to said account certifying to the
fact that said cause was tried, and the State of
Texas was represented, and that in his judgment
there was sufficient evidence in said cause to
demand a trial of same."
Article 783, Vernon's Annotated Texas Code of Criminal
Procedure, reads as follows:
"When the defendant Is only fined the judg-
ment shall be that the State of Texas recover of
the defendant the amount of such fine and all
costs of the prosecution, and that the defendant,
if present, be committed to jail until such fine
and costs are paid; or if the defendant be not
present, that a caplas forthwith issue, command-
ing the sheriff to arrest the defendant and commit
him to jail until such fine and costs are paid;
also, that execution may Issue against the prop-
erty of such defendant for the amount of such
fine and costs."
Honorable Denver E. Perkins, Page 4, (N&0-2683)
Article 787, Vernon's Annotated Texas Code of
Criminal Procedure, reads as follows:
"When a judgment has been rendered against
a defendant for a pecuniary fine, If he is pre-
sent, he shall be imprisoned in jail until dis-
charged as provided by law. A certified copy of
such judgment shall be sufficient to authorize
such imprisonment."
Article 788, Vernon's Annotated Texas Code of Crim-
inal Procedure, reads as follows:
"When a pecuniary fine has been adjudged
against a defendant not present, a capias shall
forthwith be issued for his a~rrest. The sheriff
shall execute the same by placing the defendant
in jail."
Article 698, Vernon's Annotated Texas Code of Crlm-
inal Procedure, reads as follows:
"On each verdict of acquittal or conviction,
the proper judgment shall be entered immediately.
If acquitted the defendant shall be at once dls-
charged from all further liability upon the charge
for which he was tried; provided that, in mis-
demeanor cases where there is returned a verdict,
or a plea of guilty is entered and the punlsh-
ment assessed is by fine only, the Court may,
on written request of the defendant and for good
cause shown, defer judgment until some day fixed
by order of the Court; but in no event shall
the judgment be deferred for a longer period
of time than six (6) months. On expiration of
the time fixed by the order of the Court, the
Court or Judge thereof, shall enter judgment on
the verdict or plea and the same shall be exe-
cuted as provided by Chapter 4, Title 9, of the
Code of Criminal Procedure of the State of Texas,
Provided further, that the Court or Judge thereof,
in the exercise of sound discretion may permit the
defendant where judgment is deferred, to remain
at large on his own recognizance, or may require
him to enter into bond in a sum at least double
the amount of the assessed fine and costs, condl-
tioned that the defendant and sureties, Jointly
_ . -.
Honorable Denver E. Perkins, Page 5 (No. O-2683)
and severally, will pay such fine and costs
unless the defendant personally appears on the
day set in the order and discharges the judgment
in the manner provided by Chapte,r4, Title 9 of
the Code of Criminal Procedure of the State of
Texas; and for the enforcement of any judgment
entered, all writs, processes and remedies of the
Code of Criminal Procedure are made applicable
so far as necessary to carry out the provisions
of this Article.”
Opinion No. O-616 of this department holds that the
Justice of the Peace's right to compensation.from the county
for his trial fee under Article 1052, C.C.P., does not depend
upon the collection or enforcement of the judgment but rather
on the rendition of & final judgment in so far as the Juris-
diction of his court Is concerned.
Opinion No, O-1759 of this department, holds among
other things, that the Justice of the Peace is entitled to
his trial fee when the judgment he renders becomes final
in so far as his court and jurisdiction are concerned, For
example, If a defendant was tried and found guilty, filed
motion for new trial within the statutory time and the court
overruled the motion and the defendant filed an appeal bond
within the statutory time in order to appeal his case from
the justice to the county court, the Justice's judgment Is
final in so far as his court is concerned and he is en-
titled to his trial fee from the county, regardless of the
outcome of the case in the county court or the court of
criminal appeals.
Opinion No.O-1251 of this department holds that
where judgment is deferred under Article 698, Vernon's
Annotated Texas Code of Criminal Procedure, the justice
of the peace would not be entitled to his trial fee from
the county until the deferred judgment was entered and
until thereafter the statutory time had elapsed to make
it final In so far as the Jurisdiction of the justice was
concerned.
Opinion No. O-1868 of this department holds that
where one justice took a plea of guilty and entered judgment
and another justice issued commitment and placed the defendant
In jail, that the first justice was entitled to the trial fee.
It was also held in this opinion that it was immaterial as to
.- h
Honorable Denver E. Perkins, Page 6, (No. O-2683)
which justice collected all or a portion of the fine and costs.
We enclose herewith copies of Opinions Nos. O-616,
O-1251, O-1759 and O-1868, which contain full discussion of
these questions.
Under Article 698, the justice may defer judgment
in the manner outlined by the statute. However, he cannot
receive his trial fee from the county until the deferred judg-
ment Is entered and becomes final in so far as his jurisdlc-
tion Is concerned. If he enters judgment he has no authority
to extend credit to the defendant and permit him to go without
paying his fine and costs. When his judgment Is entered It Is
the duty of the arresting officer to collect the fine or
place the defe~ndantin jail, unless prevented by defendant's
appeal from said conviction in the manner outlined by law.
However, the justice of the peace is entitled to
his trial fee from the county when his judgment becomes final
in so far as his jurisdiction is concerned. We are also of
the opinion that the unauthorized and illegal acts of the
justice in extending credit to donvlcted defendants would not
defeat his legal claim against the county for his trial fees
legally earned.
It is the opinion of this department that your posl-
tlon in the matter is correct.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/ Wm.J. Fanning
Wm. J. Fanning
Assistant
WJF:AWzbt
APPROVED Sept.5,1940
Gerald C. 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/4145575/ | June 8, 1939
Honorable .L. R. Thompson
County Auditor
Taylor County
Abilene, Texas
Dear Sir: Opinion No. 0~839
Re: Can a married man living
in Baltimore, working
for the government at
Wash’ington claim
residence in Texas and
vote there?
This is to acknowledge receipt ‘of your letter of May 18th
requesting our opinion based on the following statembnt:
‘A man whose mother lives here and who lived here prior
to ,his majority is now employed by the government at
Washingt,on, D. C. He has since married at Baltimore and
res’ides ‘there and carries on his work for the government
at Washington.. He wishes to vote in Texas.
“There was given me no information as to whether he had
ever voted, and I am taking it for granted that he has
not.
“As it occurs to me, the question would be: Can a
married man living in Baltimore and working for the -
government at Washington claim a residence in Texas and
be allowed to vote there? ”
The Texas Constitution, Article 6, Section 2, provides in part
as follows:
“Every per ‘son subject to none of the foregoing disquali-
f icat ions, who shall have attained the age of 21 years and ‘:
who shall be a cit’ieen of the United States,and who shall
have resided in this State one year next preceding the
election and the last six months within the district or
county in which such person offers to vote, shall be
deemed a qualified elector....”
Honorable L. R. Thompson, June 8, 1939, Page 2, O-839
Article 2955, R.C.S. contains the exact wording as that set out
above in the Constitution.
Article 2958, R.C.S. deffnes the term “residence” as applicable
to voting requirements and provides in part:
“The cresidencel of a single man is where he
usually sleeps at night; that of a married man is
where his wife resides, or if he be permanently
separated from his wife, his residence is where he
sleeps at night; provided that the residence of one
who is an inmate or officer of a public asylum or
eleemosynary institute, or who is employed as a clerk
in one of the departments of the government at the
capitol of this State, or who is a student of a college
or university, unless such officer, clerk, inmate or
student has become a bona fide resident citizen in the
county where he is employed, or is such student, shall
be construed to be where his home was before he became
such inmate or officer in such eleemosynary institute
or asylum or was employed as such clerk or became such
student;....”
While it is true the courts say that residence is determined
largely as a question of intention of the voter (Marsden v. Troy,
189 S.W. 960; Huff v. Duffield, 251 S.W. 298; Devereaux v. Rowe, 293
S.W. 2O7), where the facts or the expressed or implied intention
show that a voter has left his former residence,and moved to a
new residence with the intention of, remaining there; he loses
his former residence for votin purposes. In the case of
Stratton v. Hall, 90 SW (2d) S&5, it is held that mere declara-
tions of the voter are not controlling if the actual facts justify
a contrary conclusion.
Each case must be construed in the light of its fact situation.
Unless there is some evidence other than reflected by your state-
ment, it is our opinion the person mentioned cannot be classed as
a resident of Texas for voting purposes;
Your question as stated is therefore answered in the negative,
based upon the authorities cited.
Yours very truly
ATTORNEYGENERALOF TEXAS
s/ Benjamin Woodall
BW:AM ,.. *
APPROVED: BY Ben jamin Woodal 1
Gerald C. Mann Assistant
ATTORNEYGENERALOF TEXAS
APPROVED: Opinion Committee, By HQB, Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144850/ | 675
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUBTIN
xmlrett w. Wlsoa, D.O.
Term 3t8te Boclrd of Mediaal $;rmdnerr
lll(rlll5 t&dlcat Arta BUildi!a@
3e5 Ant6nl0, Tsxer ,,"
/ ,/'j
Deer §ir:
E;vWQtt iv.W 18011,I?.o.,FagQ 2
a board of mdloal exQminer8 for ecoh of the
aSQYQr81, separate Qohoola of mediofne, wkioh
board8 Qxamino In the Qume fundamental eubjeots
and w!iloh @ant liOQO888 ior auoh rQQpQOtiV8
aobo4le of medicine all of whioh lloenaas ellarr
ldeatloal prlrllegea aa to aoope of praotioe.
Thla differ8 iram the *oompaaite* typa of board,
aa In TexnQ, where the Bonrd ia aompoaed of
prootitionare of all of the reoOgnleQd i30h0418
of medlolne and whioh grants lioensea, idQnti-
oal la 611 respote, to preotitlonera in all 4r
the reoognized Qotoola of praotloe.
Would it not be ln tlolatlon OS Art.1418
Slxtc-on (la), Seotion thirty one (31) of tha
TfxM Conatftutlon, provldlngr
-'The LQgiQlRtUrQ may pa68 18~8 prQ-
aarlblag the uualiflaationa or praotioe
of aedioine fn this State, and to punlah
peraotm for mal-praotioe, but no prefer-
lnoe shall e)oQrbe given by law to any
aohoola a? medlolne.',
and in rlolatian of ArtiolQ 4SO4, R.C.S.,(lWb),
es amended 1939 in llouaeBill #l+E1wbioh opens
with thld declaratloat
?gNothing in this Chapter shall be 80
oonatrued ns to dlaorlminate against
any pnrtloular aohool or system of medl-
oal practice, * * * ’
for the Tcxna Bwrd of YQdloal Exaslnorr to
grant a lfoenso by reolprooity to a lloanaer of
one of Quuohboard8 of auoh f0rQign at&to Qnd to
deny to a lfoonaee of another of auoh board8 of
thet SBPPQ stste a lioQ8180 by reOipr4Ui0y.Q
(3). 'An applicant fo r l 1loaneQ to pvao-
tie0 me6141n8 in Taxa preaenta a liQanQ* grant-
ad by another Stat? wbioh reeds *To Prscrtioa
Oateapethyf, wbioh applfoant haa 80owea auoh
lioenne by Qxaminetlon in fluMemental QubjeotQ,
as rewired by Teram law tar admlsaiQn by ex-
Evwett W. *Ilaon, D.O., kege 3
amination in Texae, and wliloha;plIoant 821joy-
ed in the fCrQign state, the 8anzeUnliuiItad
prfrilsge8 and eoope of praotioe as are lcjoyed
by praotlticcerrrin Teras.
*Should txt the Tcxaa Board of Medlocl Fix-
miners f4llow the opinion of the Attorney
Oeneral of Tax.85numbered O-1896, farrued3sptQn-
her 8th. 1939, end to grant, by reolproolty, auah
eppllaant 8 lioeme to praotioe medicine In Texas.*
Artlole 4501, a8 mended, Vernonfa Annotated
Civil Statutea, providee:
*All eppllceata tar lloenoo to praotioo
ned1ol.m in ttie State not otherwieo lioanaad
under tho pro~ielona of law mu88 auoooe8tully
pass 88 aaadcatioc by the Board of Yedloal Irim
enhers. The Board i0 authorized to 8dopt and
Snf4rOO ru.lQa Of prooedure not inOOMiSter& With
the 8tatutory requiremsnts. Applioantr t4 be
eliglblo for oxmlnatloc muat be oltl8ana of
the Unite4 3tetea end muat preaont 88ti8t8OtOry
evldonoo to the Bomd th8t they aro 8u?rothan
8wenty-one (i!l)years of age, Of iood aorel
4hara8tor, Who hare oompleted sixty (601 aems-
ter h4ur8 o~~opoursea o
nedimahdo dh oouraei w% ,"i?oz
able, et time & oompleting eama, to the Un'irer-
sity ot Texas for oredlt on a Baohelor of Acta
Degree OE a Baoholor of Soieaer Degree, end who
are graduate8 of bona iida reputable madioal
lohool8: e roputabla msdicel SOhOol shall a8In-
lain a eourae of icetruotlon of not lea8 th8a
four (4) term8 of eight (8) months aaoh# 8h811
give a oourae or icetruotioc In the rucdamental
subjeots named in ArtLola 4808 of the Ravlsob
Civil Statutes of Texae of lW!BI a8 muended by
thle Act3 end shall have the neoorraarytaaoh-
icg toroe, and p48eeaa and utillm leboratoriea,
lq u l.p ma and nt,
?aollIolea for proper lnatruo-
tI4n LO,811 of aaib gubjeota. ApplIoatlona tor
examination must be made In uriblng verified by
afiidavlt, and filed with the Seoret8ry of 8he
Board on forma proaorlbed by the Boar&, lo o o mp a n-
Everett W. Wllrron,D-0. page 4
led by a fee of Twenty-five Dollars ($85). ~11
spplloant8 &ail be given dim notioe or tb8
date and pleoo ot auah exsm:natlon. ?rovidad
The requimAent or sixty (SO) oompleted s8m8ter
hour8 Or OO11OSe mrk, other than in a aedioal sohaol,
which oourse8 wwad be aoosptabla, at tb or aapletlng
8am8, to the University Of Texas for oredit on a Baahrlor
0r Art8 Degrea or a Baohblor of Salenae D8grae, besam
a part or the above quoted statute In 19S9 by hot of th
Forty-elxth Lagielatura, HOUE~ Bill No. 148, SeOt10n S.
Ths provl80 to the smuidod statut8 exsmpk etu-
dent8 in medical sohoolr whose graduate8 wen 8iig1bl8
for the State Medioal Exsminatlon ptQor to th8 .tfeatlv8
date 0r the aamdsmlt. Opinion No. O-11397of thl8 depart-
smut to the Tex-8 State Bosrd of Medloal Exsmlner8. LJ88
hntonio, Texas, by Hon. Ardsll Wllllem8, Aosldsnt Attor-
ney thm8ral. IO is to be noted that thi8 opinion i8
restriated to t&s otatu8 0r studsnts enroLLs in mdloal
8OhOOl at the tims the statute 1~18 mended.
AS t0 th8 ChtU8 Of &MdUat88 t3f tha 8sJD8 lnsdisal
sch0018 who had received their dip10lML8prior to th8 uloption
8eBlO8t.W00110@1 hour8 X’8pUirO-
of th8 8irty (60) 0OZrIplet8
ment, we am oomxmte&6 with a question of 8tatutorr ln-
terpretatlon, and find it neoe8sary to apply the eetabli8hsd
Oanons dr 8tatUtOl'yoon8tructlon to the law beiore u8.
‘fhs 43l’OYiSO Or Axtlele 4501, BUPl’s, 18 not rrae
0r smbiguitr and is 8U808ptible 0r two aonstruation8.
The wards "all 8tudent8 regularly enrolled in
medical WhoOl8* might mean only thO8s etudents enrolled
in ~dioal8ohoola at the tism of the amendmant OZ the
law to lnoluds th8 sixty (60) seuumter hours of oollage
oourses requirement, or again it might IssarA
all stua8nts
t&o have been enrolled in suoh medioal whools whether
prior to the anend?wnt or at the tim8 Of its enaotm8nt.
Evrrett iii. WIleon, D.O. page S
The phrase "whose graduate8 are now permitted
to tr:kethe medical examination now presorlbed by law
In thI5 stvte- desarIbe8 and QUaiIfle8 'Lmedlaril.
sohools.~
It la to be noted thst the prOYI80 doe8 not limit Itseii
to students wnoww enrolled In me41061 8ohools.
Under a liberal oonetruotlon the provicrowill
not be given the erfeot 0r excluding graduate8 0r the
~dlchl s~boolr,deeorlbed from taking the examlnatlon
beoeuse they have not had sixty (60) hour8 oi oollego
work. If they have been regularly enrolled, and have
con;leted thnlr oourses, and reonlved a diploma, they
are end should be entitled to the same privilege of
taking the exm&mtion t8 the regtiariy enrolled student8
et the time of the anendment who have not oompleted their
medical sohool oourse. From the language of the Aot we
cannot dlsoern an intention of the Le&Islature to di8-
criminate between graduates and stUdeut0 Or medlosl 8Ohooh8
*whose grcduatos are now ::ermIttedto take the medloal
examiicatlonnon prescribed by law”. It 5ema to ua that
both classes of student8 - those who have been enrolled
but have gradueted and thO8e eurollsd at time Of amend-
ment to statute - rall within the permissive soope or
the law.
A cont:sry oonstruatlon tkreetens the oonstltu-
tlonality oi the law on the theory thet it would oonter
bpeclal privilege8 upon one group 0r graduate8 and amount
to an arbitrary and unfair dlacrImIn5tlon 8g8inst another
group Or gradu&es WhIOh WE8 CUititledt0 take the era&l-
atIon at the tins of graduation but tie were subsequently
bcrred by a rslluro to be exempted from a ooUr5a requuire-
,%nt made 8ubsequent to their graduation.
Two cardinal rules 0r oo;str~atIon are oontrolllng
in thi6
situation. First, the courts ~I.11always endeavor
to interpret a 5tatute so theta will be oonstItutlonat~:and
valid, end ~I.11 deallna to adopt a oonstruotion that wIL1
destroy or nuillry It, If by any reasonable oonstruotlon
the enaotment oan be sustainad.
Gk:%XB f. ROEIRSOH, 8 S.W. (24) 6SS;
a,oct&m Y. cxzm?oN INDR~'RT?DR~SCEGOL DI3T. 888 6.W.
1064;
CAT!EY Y, XS.VEli, 242 S.W. 447.
680
ZXerett W. Wilson, 0.0. page 6
secondly, ~lmn the language 0r a 8trrtute18 not oleer,
a04 the act I6 susceptible or different 00nStrUotlon8,
it will cot be construed so as to operate har8hly, un-
Justly, or GIsorlmlnatorIly. That oon8truotlon will be
c?doptedwkloh I8 bened On the a68UmptIon thtt the Leg-
Islr.tureintended to enaot a iair, just fmd reasonable
18W.
ORIZ!~TALZOTZL CO. Y. ORIPFTJii& 33 S.W. 6SE;
.JMXL KIqG Y. VOM WAN& ii6Tex. 469;
STI199 S.W. 80.
Since Artlale 4601, mara, is susosptlble of a
rmsonable oonstn+otIon which *ould place grabuate8 en4
students or ffieeioal schools on an equal ba818, we rajeat
a construotlon :zhiohraise8 oon8tltutIonal doubts. It
students enrollad In medloal schools at the time the
Legislature 7laoed the sixty (60) nmester oollege hour8
requirement In hrtlole 4601, tsupr8, are excepted from
asetlngtho requirement by all the rule8 of log10 an4
prlr.oIplseof equity, students who had graduate4 prior
to the amendment and were in every way qualitled to take
era&nations at the tlnteor graduation should not be ad-
veraely ~rrectea end bsrrsd rr0m tsklug the examlnatlon
bxt;ytdy did not have sixty (60) semester college
.
In answer to your rimt question, it 18 our opln-
ion that under hrtlale 4801, as asmnded Vernon's Annotated
CiYil 6tstUte8, an applicant for admiselon for the state
msdloal ersmInetlon8 and ror a lloense who had aoqulred
hi8 ~eeloal s&o01 dIplors8QUdiiYiUg hIm to take the
state radical examinations prior to the amen&ent oi srtl-
Cb 4801 in 1989 to i501lldethe k%qUiZWient Of "8Ixty (60)
681
NVerett 'ii'.
K;:leon,D.C., ~XS+JS7
semester hcurn of non-medltml ooilo~e oo~raes,~ le not
aubjcot to this prorlsion ot the emended article and
has a right to take the exeminatfonn d&spite the feat
that he does not heve ta hle oredit eixty (60) senmster
hour5 of non-medical college oourb08.
Article 4500, es amended, Vernon*5 Annotated
Civil Statutes, provides for Veolprooal arrangement..*
aa tollow8:
The State --Bor;rdof Xedloal Exaralnsrsms
in ItXlXlon, lqon $Tyiiiz 'by en aFF1+ oaut
of 5 lee of iat9 Dollarrr ($501, gract lioenae
to preOtiO0 medicine to any reputable yhjsloian
who Is a 0ltll;enof the United Stetea, and a
graduate of e reputable medioal oollege, or who
haa Wallfled on examination for e eertlfloete
of media61 ~ualffloatlon for 8 oolnniselonIn
the biedicalCorps of the United ,StateeAm4 OT
Navy, ana to lloentiatsr of other States s Ter-
rltorle8 hiiSin re ulresneiXsTiFmTifiZiT co TG
tg~$rdiaZt$hiiZi?o~ose ertab+
h a State, -A$IGiition8 for lf-
oen~uiiii ‘iIie-$YXXEG of tkls Art1010 shall
be in writing and upon a form to be preooribed
by the State Board oi 1eQloal Examlne~8. Said
application shall be eoooqanied by a diploma,
or a photograph thereof awar4ed to the appli-
aant by a reputable me&al oollege, a&l, in the
caee OS an &nq or Naval affioer, a oertlfled
tramiaript or a oertitlaate , or lioense, or eom-
mission issued to the applloent by the Yedloal
Corps of the tlnitedStat.88Army OT Navy, or by
a lioenee, or a oertlfiea oopy of lloense ta
praotioe medlalne, lawrully Issued to the agpll-
cMt, upon eX&%Lination,by sore Other %ibte 01
Terrltorg of the United Stabs. Sal8 applioa$Wn
mall aloo be aooompanld by a~ affidavit ma40
by ariexeoutloe oftloer of the Ibe&ioalOarpa oi
the United Statso Amy or Nay, f&e President Or
Yeoretery of the Board of I&ebiaalExaminer8 whicrh
issued the said license or by a legally 0bna0i-
tuted medioal regl*tretfon 0friabr of the stat4
or gerrltory by *ioh the eertlfleate oc ll~eaee
nae granted, and tn whloh the applioatlon folr
mediaal registration l.nTerm is based, reoitlng
Everett ti. %%lson, D.O., f"sge0
that the aooonpanylng oertifloete or license
has not been canceled or revoked, exoept by
honorable discharge frorrthe Medical Corps of
the United ;itetee&my or Navy, end that the
stataslentof the o.ualiflo~tlonsmade in the eppll-
oetlon ior ssdioal lloenae In Texee la true and
oorreot. Ap~llaante for lioense under the pro-
visions of thls Artiole shall eubaorlbe to an
oath In writing berore an officer aut&orlzed by
law to administer ostho, whioh shell be e part
of aald ep~llcatlon, stotlng that the license,
08rtifiOat8, or authority under whloh the appll-
oent praotloed medlolne in the State or Territory
from whioh the lpplloant removed, was et the
time of euoh removal in iull roroe, and not 6u8-
pended or osnoeled. Sald epplloatlon 8hall also
etste tbat the appllcent la the ldentioal person
to whom the said certlilonte, lloenee, or aom-
misieion,and the said msdioel diploma were lasued,
and that no prooeedlng has been inetituQed
against the applloent ror the 0aEcelletion of
said oertffloet6, license, or aut&orlty to prao-
tloe medlolne in the 5tste or Territory by which
the same was issued; an8 thot no proseeutlon l8
pending against the applloant ln any State or
Federal eonrt for any offense whleh under the
law of Texas la a felony. A reputable phyelolan
within the maenin of this Artlola shall be one
who would be eligfble for sxadn~~tlon by the Board
of Ned5oel Bxamlners under the -,rovlslon#or Ar-
tlole 4506 of the Rerieed Civil statute* ot Tow
of l9~5, as emended by this Aot. A reputable
medloel oollege within the meadnng of this Art%-
ole shall be suoh ee la defined in Artlole 4501
of the Revieed Civil Statu~eo O? TeXetIOf 1988,
as amended by this Aot. It is prorlded, however,
that the Board may, under the prorlelona of thi8
Artiole, In ltn diaoretion, grant lloenae to any
reputable pbyalolan of another State, Trrrritory,
or District, who graduated prior to the year 1909
rrom a medloal oollege tilah at the time of hi8
graduation reculred OR; three 3 OOUTSO~ O? In-
etruotlon of net leas tK an six I6 I months eaoh
ior attainment of lte diploma, or the degree of!
Doctor or tiedloine,end whlah at the time of hia
graduetlon ma generally reeognlaed by the medioal
l
683
Evurett '8.iY:leor,,
D.0;. page 0
examlnlng board8 of the z3,at;ee of the Union (LB
IWSiAt6iAing entranoe reQUireaeA%S and oo~me#I
Of inatruCtiOA equal t0 those maintaiaed by the
than better olava of snedioalsohools of the
United Gtatss; and provided further that the
said applioant for llcenee to praotloe mdlolne
in this State ehail appe:?rbefore the Botrrdin
executive seseion and pass a retlefaotory oral
euMiAatiOA in r;reotioalsubjects a8 mar be me-
No. 148, 8 1.' - (Undersoo5lng ours).
Artiola 4694, 66 amended, Vernon's Annotate4 Civil
Statufer, relating to Woonetruotlon ot ttiislaw, read8
in pert:
*Z?othingfn this Chapter shall be 60 BOW
strued a8 to Uleorlminato a&nst any partiotitar
Sohool OT #y&em of medioal praotioe, nor to at-
feat or limit In my way the a~plloation or use
of the prinoiples, tenets, or teaohlnge of any
ohuroh in the ministration to the rlak or au?-
fering by prayer, without the use oi aAy dru& or
material remdy, provided tmnltury and quarantln8
law8 and regulation8 are oamplied with; and pro-
vided, rurther, that all these 80 rarinietering or
orfering to mlnieter ta the olak or atifaring
by prayer ahall refrain rrom maintaining oitioee,
exoegt for the purpose of ererois5.q the prin~i-
plea, tenets, or tsaohlngs of the ohuroh of whioh
they are bona fldo membor8. Y * * w
Artiolo 16, Seation 31 at the TeraE Constitution
providea, in part, 6e followat
"The Leglrrlaturemay paas 1awt1presorlbing
Everett pi.Bi,lson,D.O., page l0
tho qUI&iiiiOatiOAU of prastltionars 0r madlolne
In thlr Stata, and to punish persons for msl-
praotioe, but no preferenos shall ever be given
by law to any sohools of me610ino.w
Reviewing Artlole 4500, suprs, it provides that
ths Stats Board of Xedioal Sxsmlners *me7, In Its dir-
oretlori,* + Y grtmi iiornae to praotioe ~afcin0 + e *
ts llssntlatss of other State8 oc Tcrrltorlos having
r0r medloal ryllstratlon and praotlos lq uu
requlrtmst.ats
to those eutebllshed by the laws of this State".
Applloetlon mat be aooompmnid in the aass of
~lloantlates of other Siete8w by a 110~~68, or a otrtl-
flsd oopy 0r lioenee to preotloa meflioine, lawfully iasu-
ul to tho applfoant, upon exa%ilnatlanb7 some othe!#State
or Territory OS the United States.
Them em ed&itIonel requirements wioh need not
be dlsouesed hers. A primary oonditlan ia oontalnsd ln
the fiRa SeRteAOe Of &tiOh dboo, SUprat
*The 8ald Board shall not, unber the ~rovt-
sion of this Artiole, pant 8 lioen8o to praa-
ties medicins In this St&t* t0 ska~pliosnt who
does not hold a llosnse lssusd by M&her Stats,
Terrlttory,or Distrlst of the Unftsd States,
4dY 00 him the aams right to praotloe medi-
oino9 ~a the State, Territory, or Di8trlo% issu-
ln(g~611%lioense whish s liossss to praotloe
JladiOtn8 illthiB Stat6 &Ye8 to 6 PhpSiOiM Oi
ttds Ststb In Texae.*
The present sltu8tlon la on) tnrolrirq the q&i-
action of the rnolprooitp statute, Artlole 4500, aupre,
Ths lnnguags 0r this statute 18 olsar sub lxpliolt as to
tbs autkorlty ct the .3tateBoard of VredioalExsmfners
BVW the applications of lloentiater of other States or
Territories.
It is OUT opinion that u&%&r Artlole 4800, as
#mend@&, ~~AeA’a klnOtBted Cit%l 3atutb8, ths m&ifJa;l
reslproolty a&, the Texar 3t6te Boned of b%dicsl Eurain-
srs hue Ohs authority to US@ 16118lsatitfos in @slItiN
lloensee to preotloe faeelolxo.tiQ
UQ*zMatas of Q*sF
Bvantt W. Ullscm, D.O., Pega l.l
states and that it may legally rajsot the qpplloatlon
0r a lloamd praotitloaar 4r msdlolne in lu0ther stats,
ahether 5~3that em3 a *00r;300fte tip8 0r BOG SUO~
as oxlsts in Texas or nepacatr Bocardafor the differant
fields or madlc~~e lssuad tha lloenas of the out of
stats opplioanto w2mnemitr
the Taxas Beard or Modloal
ik~~lnors 18 satistlsdthat the raqulmmrnts undsr whloh
the lioentieta In tha sister stats obtelnad his lloonu
ua requlremants ror nmdloal ngiotretlon an4 praotioo
whloh do no tlqunl ttws astabllshsd bT the laws of this
state. &oh aotlon on the Dart or ths Board, pursuaut
to the term0 or kt101. umo, does not rlolata tie pratl-
aions 0r Artioie xn, Lzaotion30 or the Tsxas oon8tltutlon
in rompsot to *soho at medlolna" and Arblols NW, as
amendrd, in raspact to dlaorlmluatlon against any parti-
oular sohool or myate& of amdloal praotlos.
In &nswor to your third q~uastlon,this drpartmatit
hau held thot the prtiotloo of OstWpathJ 10 rlthln ths
phramo atho praotloa of mwIl~ina*~ Oplnloa iio.O-U98
to ths Texas Mats Board of Medloal Exemlners,by Hon.
Wllllam f. lpannlag,Aeaiatmt AttoreT densral.
Artlola 4810, R.C.8. of lSSII,prorldes~
wny penson 8hal.lbe regnrdad as Dra0tlOing
medioino wlthlnths m0anlng Of t&l8 lat
1. Who shall Dublloly DroIeea to be 8 pho-
810ian or surgeon and shall trsat, or orrw to
treat, any dleeane or dl8erder,itamtal or physl-
oal, or any phjrsloaldsfordty or i.uJury, by 6z3y
eymtem or method, or to eri'eot0ww1 tharsoft
8. Or who shall treat or 0rrer t0 treat any
dleeass or Plaordsr, runtal or physloal, Or any
phTsloa1 deformity or injury by any systma or
method, or +A effaot OUMS thsraoi and ohargcr
th4rsfor dlreotlp or lndlrsotly, m01iofor ot)ur
eO@lPensatlonr"
~rtlols 4500, aa ommdod, Vernon*8 Annotated Cl~ll
statutes, prwldss that the State Board may ln it8 dl~o~-
tlon grant a ilOans to praotio* mabloimr *Co lloentlatr8
of other states or Terrltorles having rrqulrenwxts fOX
686
Everett W. Wilson, D.O., page 12
medloal registration end praotloe equal to those eetab-
llshed by the laws or this State,' upon oompllence by
the lloentiates with certain requirements set out in the
statute.
In passing upon the application of a lloensee
0r a sister state, the state Board 0r ldedioel Exami.ueirs
must determine whether or not these requirements have
been met: first, that the prerequisite8 of medloal reg-
l&ration and praotioe of the sister state are in oon-
iormlty with the standards established by the law or
Texas; aeoond, that the extent oi the rl@t to Draotloe
medlalne whioh the lioense of the elster state ooufera
1s oo-equal with the prlvllegee and aoope o¶!praotloe
oonferred by the Texas license, lrrespeotive of the nature
of the license, Its wording or the type of Board whloh
iselms it.
Where an applioant for a lloeuae to praotloemedialne
in Texas presents a license granted by another state whloh
reads wto praotioe osteopathy*, the applloatlon 1s wlthln
the jurlsdiotion ot the State Board oflledlaal Examiners
and the Board has authority to consider the application
under the Medical Beoiproolty Statutes, Artiole 4500, as
amended, Vernon's Auuotated Civil Statutes. Where the
applloaut has secured his aleter state lloense by fulilll-
lng requirements for medioal registration end praotloe
equal to those established by the laws of this state, a8
provided in Article 4500, and has met the other reqtiredaents
of Artlole 4500 applicable to an out of state lloentiate
applying for a !l'xxas
license it la wlthln the dlsoretlon
of the State Board of Medical Exaxlners to grant aaid ap-
plicant a llaense to praotloe medloine in Texas.
Trusting that the above fully answers the lnqui+
lee oontalued in your three lettera; we are
Yours very truly
ATTCBEEYGEEEBALOFTEEkS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145072/ | -: .,,. .
Ron. clalla
wolf
CountyAudlt&r
Rowasdcounty
Big Spring,Texas,,
No. o-l338
oplilion
Re: Reganlleseof the lew le set out
in Art. 1645a,Imy any oounty,when
It ia deemedneaeeeergby the Ccm-
mlsslonere'court and dietriot
judge or judgea, appointen Auditor
and fix:Qlieerleryand, if the
comm1ealoners ' courtisodeeIre8,
may It direct euc@ Auditorto
act also PB PurchislugAgent?
Your requestfor an oplnlonon the above stated questti, to-
getherwith other queetloneincidentalthereto,ha8 been receivedby this
depprtment
.
Your leet$er
reads as follow:
"I will appreciateyour opinionon the fol.lowlng
queetione:
"Art. l@k% Vernon'sAnnotatedCivil Statute8
naya Impart: that all,~ountleshavinga population
of not less than twentyfour thmraaddone hundred
aud twentyfive (24,125)nor more than twetityfour
thousandone hundredana fifty (24,150)acaordlngto
the laatprecedlngF~deralCeneu8,and employinga
County AMi+, eald CountyAtiltor in tiltion to
the regulardutiesperfomed by him ae requiredby
law,,ahpllaa% a.~P+rohreingAgent for the county
when 80 directedby the Comaieslonem Court of such
county.
~: "'&bee
this mean that ip mah cemxty had a popu-
1pjlonof 24,12Lcor 26,151 thie law would not apply?
Ron. Claud Wolf, Page 2 (04338)
1645s~3 says in 8ubstanoethat auy county
nArt.
having less chau$15,000,000FifteenMilliondollars
tax aluatiou and a populationof not lesa than
20,100nor more thm 20,150may employan auditor
t&m& CcdmulselonereCourt if sold Court demd:.euch
atiitorasetices necessary.
*Does this mean that the populationwouldhave
to be literallybetweentheaetwo figureslnorderfor
this lew to apply,and that a aountywith a tax valua-
tion of lose than $15,OOO,OOCcau not avail thmnselOaa
of the earvicerof an auditorunless the populationIs
exactlyb&wean 20,100 sud 20,150?
"tit. 1646 mtya in su~tanaethatany countynot
enumeratedin the precedlugArticleshalldetarmins
that au auditor is a publicneoeesitycan throughthe
Cdsslonere Court aud DistrictJudge hve the ser-
vices of such auditor,providedt&et at my time titer
one year if in the opiniouof the DistrictJudge the
servloesare notaeceasary he may diecontinuesame.
'Qoee this mean that regardlessof the law (~61
eet
out in Art. 1645p any oouutymay when deemednecessary
by the CommissIonera Court and DiatrlctJudge or Jdgea,
mayappointen audltoroudfix his snlary,d that if
the Comisslouers Court BO desiresthey may direct such
auditorto act also aa PurchasingAgent?"
In anewer to your firet sad second questions,apart from
any oonslderation of tie constitutionelity of the etatutmamentioned
by you, we'respeotfull$ advise thet the countiesto which various
statutesapply, accordingto populationor to osseesedpropertyvalu;l-
tion, are fixed within certainbra&eta. As aaid in the case of Hall
va. Bell county, 1.38S.W. 180:
~"Itmay be,as urged tithe argument,that there
pee countiieaIn the class to which the law Is made appli-
cable, the~pepulotion of which very slightlyexceed that
of other countieswhich a?e without it; end that It aeenm
unreasonableto meke a diecrlmlnation upon se slight a
difference. To thla tht3answer is the line muat be
drawn m7ae where, f+ndthat a similprduty would probaMy
result if the olaeslflcstlon werb mde upon any other .'
b.%SlS.Exact equalityin such mattera,howeverdesirable,
ie practicallyunattaiuable."
We, therefore,reply to queetloneoue an8 two, a~ ~ontaiueb
in mour letter,iu the effimative. However,may WC point out that we
are not, in this opinion,pasaingupon the questionof the constitution-
ality of the ata'mtesmentfonedby you. AS reflectingthe views of this
Hon. cma wolf, Page 3 (o-1338)
departmnt on this question,pertainingto other similarstatutes,
we encloseher&with,for your infomatlon, a copy of en opinionto
Hou. Frauk Wrl&ht,County Auditor,Ronham,Texas, by Ron. WILLJ.
Fanning,AselstautAttorneyGeneral.
With referenceto your third question,above stated,we
would point out that Articles1646 and 1647, RevisedCivil Statutes
1925, ae emended,plvviðat thoae couutleswho are not ell@ble
la have a CountyAuditorbecauseof the lack of the necessarypopula-
thou, or the requiredtax valuation,might have the beuefltof the
servicesof a CountyAuditor,upon ccmpliszu:ewlththeprocedurethere-
In outlinedwherebysuch cm be done.
The salaryof such AudItor,however,le not fixed by the
comtissloners~ court and/orby the dletrictjudge or JU&XJ, imt Is
fixed by the plain provlslouaof Artiole 1645. In that article
is fouud a yard stick by which every mch CountyAuditor% eelary
may be detemlned, to-wit,$125.00 for each One Wllion Dollare,or
major portionthereofon the aeaessedvaluation,to be computedfrom
the last approvedtax roll. For your assi&auca, we are eucloeiugP
copy of the exhaustiveopinionof Ebn. Rmce W. Rrymt to Eou. A. W.
Emery, Couaty~Attorney, lacogdochea,Texas,under date of May 19,
1939,ae reflectingthe opinionof t&La admlnl6tration touchingthle
question.
You then ask if, under Artiolee1646 and 1647, suoh
appolutddCountyAuditorcaube dlreotedto act also lntheoapaclty
Of Plmhaslng Agent of the county.
The powereaud dutlea of a CountyAudWiurare variouelyde-
fined in Article 1651tw0ugh Article 1676, inclueive,Revised civil
Stat&es 1525~audmen&mute thereto. Nowhere lathe Amlitorauthorized
to act aa Pmchaslng Agent under the Texas statutes.
Itcaubepresumedthatthe office of PurchaeingAgent, and
the duties incidentthereto,ie a dietluctcapacity,not embrace&within
the generalstatuteapertainingto the officeof CountyAulltcm. The
LegiSlatum has &ealt separably with such ln Article 1645-1, m to
certaincouutlee,stlpulatlngthat "ip addition--to the regulardutlee
performedb --U ae required& law, ehsll act as PurchaelngAgent for
4 and hau provlde~I
the county, foZn eddltlonaleamy incidentto the
County Auditoractlmg aa such. Furthsmore, Article 1646 contalm this
provleloa~:
When the oommleaioners~ court of a county,not
mentionedaud anumeratedin the precedingarticleshall
detemlne that en Amlltor la a publicnecessityin the
dispatchof the county buelness,and shall enter an or-
der upou the minutes of said court fully settingout
the reaeoneml laecesaity of an Auditor,end shall cause
r&n. Cleud Wolf, Paere4 (O-1338)
eald~Audltor,to bk ctr&lf3ed.$othb d18trbuki
$u%geshaving
jurisdlotlonlu the county,eald judgeeshall, If euch
reaeon be coueideredgood aud sufficient,appointa county
Auditores providedIn the suocecdingarticle,who
-- ahell
guallfysnd performall the duties requiredof CountyAudi-
tore by the ge --
-- of thisState."
which "lews of this state",above referredto, do not includethe du-
tlea of a PurchaeingAgent.
Therefore,the duty of aotlng ae PurohaeingAgent not beiug
prescribedby law, lncldentto the office of CountyAuditor,mud no oddl-
Mona1 compensationbeing allowabletherefor,you are reapeotfullyadvised
that it is the opinionof this departmentthat a County Auditor,appointed
under Articles1646 and 1647, couldnot be'direotedto.eetaleo In the
capacityof Purchasing#gent for the county.
Truetlngthat the foregoingamwere your luquiry,we remain,
Yours very truly,
BY Wm.J.Fauuing /e
Wm. J. Fanolug
Aselstant
WJF:AW
APIBXED mP18, lg39
GeraldMann /a
A'M'ORNEYGENEBALOFTEXAS
APPROVED
OPRiIOIy
conwm
BY EWC
0h01nu0n | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132167/ | The Attorney General of Texas
July 25, 1978
JOHN L. HILL
Attorney General
Mr. Charles F. Blackburn Opinion No. Ii- 12 15
Executive Secretary
State Board of Barber Examiners Re: Limitation on business
5555 N. Lamar, H-111 activities of barber inspectors
Austin, Texas 78751 and on members of the Board of
Barber Examiners.
Dear Mr. Blackburn:
You ask two questions in reference to article 8407a, section 27a,
V.T.C.S. The first is whether section 27a prohibits barber inspectors and
other employees of the Board of Barber Examiners from owning a barber shop
or barber school. The second is whether section 27a limits members of the
Board of Barber Examiners in any of their business activities.
Section 27a(a), which is a penal statute, states:
No barber inspector or other employee of the State
Board of Barber Examiners may sell barber supplies or
engage in any other business which deals directly with
barbers, barber shops, or barber schools except that he
may engage in the business of barbering.
It is our opinion that section 27a does not prohibit ownership of a barber shop
or school. The caption to the bill of which section 27a is a part refers to that
section as one “relating to selling of barber supplies by certain persons and
proscribing a penalty for violation.” Acts 1967, 60th Leg., ch. 746, at 2018.
Also, when a general phrase such as “any other business” follows a more
specific phrase such as %ell[ingl barber supplies,” then the latter phrase is
not to be given its widest possible construction. 53 Tex. Jur.2d, Statutes 5
155. The language of the text and the caption indicates that the purpose of
the section is to prevent a situation where barber inspectors might be able to
coerce barbers into buying supplies from them. There is no indication that
the legislature was concerned with whether the inspectors owned a barber
shop or school. See V.T.C.S. art. 8407a, S 26 (four members of the Board of
Barber Examinersye required to be barber shop or barber school owners).
P. 4867
Mr. Charles F. Blackburn - Page 2 (R-12151
Nor do we believe that board members are restricted by the provisions of
section 27a. By the section’s express terms it only prohibits any “barber inspector
or other employee.. . .” The plain and unambiguous meaning of a statute must
generally prevail. Attorney General Opinion H-193 (1974); 53 Tex. Jur.2d, Statutes
s 135.
This opinion should not be construed to express any view on whether the
discussed conduct violates any provisions of the State Ethics Law, article 6252-9b,
V.T.C.S., or of chapter 36 of the Penal Code. See generally Attorney General
Opinions H-313 (19741; H-255 (1974).
SUMMARY
Article 8407a, section 27a, V.T.C.S., does not prohibit
barber inspectors or other employees of the State Board of
Barber Examiners from owning a barber shop or barber
school, nor does it restrict board members in their business
activities.
Attorney General of Texas
APPROVED: /
DAVID M. KENDALL, First Assistant
Opinion Committee
p. 4868 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132140/ | The Attorney General of Texas
September 13, 1978
JOHN L. HILL
Attorney General
Honorable Joe Resweb-er Opinion No. H- 1242
Harris County Attorney
Harris County Courthouse Re: Control of the preparation
Houston, Texas 77002 of county warrants.
Dear Mr. Resweber:
You ask:
Can the Harris County Commissioners Court assign the
preparation of Harris County Flood Control warrants,
prior .to auditing and final disposition, to either the
County Clerk or the Harris County Data Processing
Department?
Control of the preparation and processing of county warrants is vested
by statute in the County Auditor of Harris County. V.T.C.S. art. 1656a. In
counties having a population of 190,000 or more the auditor is to “prescribe
the system of accounting for the county and the forms to be used by the
District Clerk,~ the District Attorney and all county and precinct officers. . .
in the collection and disbursement of county revenues.” He is given power to
“adopt and enforce such regulations . . , as he may deem essential to the
speedy end proper collection and checking of, and accounting for, the
revenues and other funds and fees belonging to the county. . . .” -See Attorney
General Opinion C-218 (1964).
The Harris County Commissioners Court has no authority to assign the
preparation of Harris County warrants to any officer or department, since the
county auditor has responsibility for the preparation of the warrants. See
V.T.C.S. art. 1650. The rule is the same for the preparation of warrants for
the Harris County Flood Control District. Article 8280-120, section 8 makes
applicable to the district “all existing [sItate fllaws . . . applicable to . . . the
receipt and disbursement of, and accounting for, public funds in Harris
County.”
SUMMARY
The Commissioners Court of Harris County has no
authority to assign the preparation of Harris County or
p. 4944
Honorable Joe Resweber - Page 2 Cl-1242)
Harris County Flood Control Iktrict warrants to any officer
or department, since the co&y auditor has responsibility
for preparation of the warrank
Very truly yours,
Attorney General of Texas
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
p. 498 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150825/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 713 MAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
TIMOTHY DONNELL ANDERSON, :
:
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/4144623/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Bonorable klton T. Freeasn
County Attorney
Caine 8 county
Seminole, Texas
Dear sir:
?hie will aoknowle
iese3
y liable to such oounty
intangible rtiluatlon?
cf Sea. 6 of Senate Bll&,442 it is
ci aaseiwLr@ and oolleotlng said equallea-
siv4 therefer the sam ooqanoatlon as 18
and oolleatfng school taxes in doprmon
822
HO5. AltOn T. Freeman, Page 2
*The Tax Aeeeesor eball reoelve a oomlsaion of
one-halr of one per cent for assessing suoh tax, and
the Tax Colleotor a oommlsslon of one-half of one per
oent for oolleotlng the same.”
1. You say the Asseeaor has assessed the dlstrlot
rate of 40# on the $100.00 of the total valuation of the
property ln the dlstrlot (oounty) -#S,OOO,OOO.OO - and olalms
as his feea thrretor wo54-h41f of 054 per oent of total ralua-
tlon whloh Is #8,000,000. and hls fee figures out to be $400.00;~
but one-half of one per oent of $S,OOO,OOO.OOwould be $40 000.001
Obviously, the Asseaaor has not arrived at the amount of his f44s
in tbia way.
The proper way to arrive at the amount of suoh f448
is to oaloulate one-half of one per oont of the taxes aaaessed-
b4lng 406 on the $100.00 of the $S,OOO,OOO.OOTamon, amount-
ing to $32,OQO.O0 - whloh would give $160.00, as oontended for
by the board under your further statenasnt of the tintrorwuy.
The oompensation to the Asmssor aad llkewlss to the
Colleotor Is based upon the taxes aas4ssed and oollected, r4sp40-
tlvely, a&l not upon the valsn of the property agalnet whloh
suah taxes have been asseemd.
2. With resp4ot to your s4oond question, you ax%
advised that Art1016 9105 of the R. C. S. provides Par an a5ma.l
tax upon the Intangible propertlen of oorporatlons, suoh as 011
plpsllne companies,in favor of the State end of the oounty. The
tax therein authorized in favor of the oounty means the oounty
as such. There appears to be no authorlty for the impoeitloa
of the tax upon auoh lntanglbllee in favor of dlstrlots or sub-
dlrlslons or the oounty. In the pr4s4nt case the entire oounty
is embraoed in the oounty-tide epualleation dlstriot~, but,
nevertheless, It Is a dlstrlot and not a oounty within the m4an-
lng of this tax law.
T&8 question seems to be ruled by Bell County Y. Hines,
ale s. 1. 656, where it Is saldr
*we do not think that the oak4f;$tate v. Railway Co.,
209 S. X. 020, la an authorlty as to ~the.‘i&su4 lrmolred in
this ease. That was a suit to OOlleet tqeb for the UUO
and benefit of the Harris oounty ahlp ahannel navf%atlon
dletrlot, on the intangible asaets a@ rolling 8toOk Of
the railway company which had been appcrrtloned to Hprrls
county. The boundaries of the navigation ‘diatriot Wr4 the
HO& Alton T. Freeman, Page 3
Wsame ae the boundaries of Harris oounty, but It was
not Harris county. On the aontrary, It was a body cor-
porate, a separate legal entity, capable of suing and
being sued as such. In that ease the court held that,
while the Legislature might have authorized the dls-
trlot to Jevy a tax on the lntanglble assets and rolling
stook of the railway company, it had not done so, for
the mason that It had authorized the tax to be levied
upon property ‘wlthln said district’; and, while reoog-
nlzlng the power or the Legislature to fix the sltus
for taxation or all personal property, as It had not
fixed the sltus or rolling stook and intangible values
ror taxation for district purposes In any district, the
fa~lf~tlon oompany had no power to tax auoh property.
The ease Is followed with approval in Texas k
Paolilo Railway Company Y. State, 43 8. ?I. (2d) 628.
Trusting that this will answer your inquiry satle-
raotorlly, W are
Your6 very truly
ATTORREYGRRERALOF
BY a4
0014
ASS
0s:MR
COMMIITEL | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145579/ | ,
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AU5TlN /”
gaurr, c. MANN
A-.” .s-
/
i/
Hon. Jack ;riech
county kttoTmy
C8m2r0n county
B~~n;maville, Texae
Da8r sir1
for property taxes, ieauitqg pall tsrz’r*oa,ipte, ragiatrr-
1% raotor vohlalea an& iek~ln@ licranse plates therafor,
and reQe.iv5ng r%quoete for property tax statMi%XltS
vrhfcb he refers to the min offiae in f3rUm%vill%.
dceoraing to th% last Fatacfal o%n%u%, @meron QswP~y
had a population of 97,540 lnhabltaats, and th% citty
of Ffnrllng%n bad a population oi 52,184 Inhabitantis.
gon. Jcck ‘iiiocll, m&a $2.
The question has beon raisedby thc3
Comiosionors'
COUrt fiS t0 the FJ.&hOd
Of COZi~CnslItiO!l ahd ths
amount ti;at my be al.lowr,d the deputy in said branch
office. . .."
Artiolo 7256, i?avisod Civii Gtatutoa, as nzmdod Aata
1737, 45th rag., reads 0s roll~r:s:
Vaoh Ansossor and Colleotor of Texes shall
i-coop his office at the county mat of his couuty;
and it shall b,o the duty OI? every parson who failed
to attend and to pay his tazrjs at the tia;cs and places
in his precinct nezod'by tha Assessor and Collector
of Taxos, a5 provided in the, proceding Article, to
call at.tho ofPi.ce of the Aasassor and Collector oft
Taxes and pay the sazze before tho last day of Dccezbcr
: ', of the stme yeor for which tto asszssmant is zado;
provided, hcwqver, that in all countios..contain~ng
a oity or town, other than the county scat, which
has in excess of seven thousand (7,000) inhabitants
.accordirif, to the last Y'ederal Census, said Assessor
ertd Collector of %xos, with the coosent and approval
of the ComissJonors~ Court, day appoint a Depuj-
Asacssor and Colleotor of Texas In suoh to-.m OS
city, who shall have the ri6ht tb collect taxes froom
all persons who deciro to pay their tams to hix,
end to issue a valid receipt tharofor. Such Deputy
aball enter into such bond, payable to the County ~~
Judge of the County.as'the Assessor and Collector
of Taxes and Cor~~Lissioners* Court of tha county nay
require. ‘Sro:~ each person fron who;\1mid Deputy may
collect taxes and issue a receipt therofor, said ._
Daputy is. authorized to receive a foe of not oXW+
ing txonfy-five (25$) cents wl?on recitl!,t'issucd~
covers progouty twos, and ho shall receive no other
conlpensatiou for hi.o ocrvicoo; and further Drovidcd
he shall not retain ~!lora than One Thousand '&TOhundred
(~1,200.00) Dollcrs for any one calendar year, aud t!lo
balm-m, if any, shall bo doposited to the credit
or the ~m-m3., Yund of the county. The ~ssossor ana
Collector or 'i'oxco shall rczain liablo on his bonds
ror al). taxes ~oll.~ctcd by ouch Deputy and nothing
horein shall be construed as a liaitat~on On ti;ho
liabilfty of tho bonds or oithcr the ASs~cr,oS and
Collector of Taxes or such Deputy. i'rowidcd furtber'~
Eon. Jack ?3ech, Rige $23.
;
that in all counties h‘sving a popqlation of n&c
I than eovsnty thousand (70,000), according to the
I lnf3t proceding Federal Consua, and containing one
or lxore cities or towls, other than the county seat,
each of wh;lhichhas in exoeea of one thousand (1,000)
ink~bltsnte, according to the last Federal Census,
said &sensor and Collecto r of Tnrea with the consent
atid approval of the Co:~misaior,crst Court nay appoint
a Doput:! kmeasor and Collector of Texas in each such
city or tov!n, who s!?oll have ths ric:ht to collect taxes
frorrc all perso,ns who desire to pay taxes to hin and
to iSSU5 a Valid receipt thorofor; each auoh Deyaty
a!??111ontcr into such bond, payable to’ tho County
Judee of the county as the Assessor end Collector
of Taxes and Co:missionkre* Court of the collnty my
require. The selary of each such Deputy Ansessor
and Collector of Taxes sha1.l be fixed by the Co;de-
sionorat Court, and each nuch Deputy Rssossor and
Collector of Taxes ,ohall be subject to all the
tams and provisions of the l.nw ralating t’o Deputy
hsseeeors and Collec’tors of %x08, providing that.
the sul&rias fixed .by the Com~issioncrs~ court ‘for
such Deputies provldod for hcrcl.n, in such ,countiFs,
shall not exceed Two Xundred ($200.00) DoWars an-
nua1l.y fox each one thousand (1,000) population,
according to the last preceding Federal .Ccnsuo in
each of suc3 cities or ttimc, end further provided
thot the aalarg of either of uucl? Deputy lissesaor
and Collector 09Taxeo shall not exceed Ona ,Thou-
sand Two Hunfired ($1,200.00) Dollars par year, The
Aoseseor and Collector of Toxcs shall r&ain liable
on hishonda for all taxes collected by nuch DePuty,
and nothing, heroin shall be conotrqcd as a li3i,r.i,tation
on the liobil.ity of the bonds of either ChO Assessor
nnd Collector of Taxes or such J?eputy.‘~
hrtj.cle 1605, l&n4~ed civil statutes, as qaended Acts
1937, 45th Leg*, mods in part os.folJo~s:
iq all counties hsving a population Of
rcope ;i,;;l &vcnty-f our thousand ( 74,000) , accord-
ills to the la:jt Federal Census, nnd contaiuing One
or piore cities or toXls, otkr then tha county met,
which has in excess of one thowmd ( 1,000) Anhnb-
itants, according to the ~lnst 2+dcml Cenniis, said
TRY,!,psee~or and Collector Ath the consent and
+!,>*%a(
appi-oval of the CoTil.PLiOI.~.&~. Cowt zay tmititain
a brojlch o:ficc and ::!ay nppolnt 8 DcpUty %X cOllf!C~Or
flon. Jack Kiech, Puce #4,
in each such tom ox clty, who shall hnvo t!ie right
to collect taxed frown all pcrrons who desire to
pey their taxes to him, and to issue a valid receipt
thorcfor. Such Ceputy shell enter into such bond,
payable to tho County Judge of the County, as the
Tax Assessor ond Collector and Co~~inclonors~ Court
of the county tnay require. The period of tine such
branch dffioeo ohnll be nointoined, and the snlayy
of. such Dogukl Collactor and the psriod of tine he
shall hold such office ~hsll be fixed by the CO:K&S-
sloncrs’ Court and suoh Deputy Collector shall be
subject to all of the tams and provisions of t!;c
law rol.atinG to Deputy Tax CoLlectora. . . . xothillg
oontainod herein shall, be construed as mking it
mandatory upon the Aanessbr and Collector of Taxos
and the Coz?&wionera* Courts of such counties to
mintain such brnnoh offices and appoint such Depu-
ties,. but the establishment ‘of such, branch olffices
.Snd the appolntmnt old.1 wholly b6 within the &is-
;crotion of the Cgmissioners* Courts of suc!i counties.
.*. t,
Article 3902, Revised Civil Statutes, sets but the procedure
to be followed wber;cver any district, countg OF precinct ocficcr
shall require the services of deputies, assistacts or clerks
in the porformnco of his duties, and Section 4 of t!lis
Article reads ns followa:
*In oountics having a populetion of sixty.
thousand and one (iiO,OOl) and not clore than one
hundred thouemd (100,000) in!mbitants, first. as-
oi~stont or chief deputy not to exceed %Scnty-fOUr
Rundred [@400.00) Dollura por onwmj other nsnis-
tanta, dkputios OS clerks not to cx?eed WKmty-one
Eupdred ($2100.00) Dollars per annw each.*’
Article Y/T.%, j{ovisod divil Statutes, supra, provides
that in all couniioc containins a city or tol:in, other tlzi1 the
county seat, viXl.C!l haa in excess of seven thousand inhilbi tants
OCCOidiG~ to thn last )?edCCal CCIISUD,the kSSUSSOr OIld COl-
lo&or of Taxoa, with the consent and o>provcl of the Co:z~is-
donors’ Cowli, my appoint a Deputy Aascssor aad ColLector
of Texas ill such tom or city, who ohall have the rlEht to
COllect tn-,e,8 fro;n 011 porootls v!hO dcciro t0 pay t?A?iT tC?XoE
to hirl, and to ir,rjue a vs1j.d receipt thcrofor, aild that such
L’cputy js aul;fiorlxd to rocoiv~ u fee of not exceedins twnty-
r4.m..-
txi!!.,,...
xon.'Jack Xiech, page #5
five (25$) cants when receipt isswd covers property tzsas,
and that such Deputy shall receive no other coapcnsntion for
-his services, end 'that such Deputy shall not retain mcx then
_ Cm Thousand- Two Sundred ($l,ZOO.OO) Collars for any one
calendar year, ad the balance, if any, shnl.1 be deposited to
the credit of the Cenercl Tund of the county.
Thio+ortion of the statute aglies to 011 counties
containing a city.or tcwn, .cthsr than the county seat, which
has in cxccss of scvcn~ thousand (7,000) inhabitanto, whethw-
the population of the county .is mom or Less than seventy
thousnnd (70,000).
Article' 1605, Revised Civil Stetutos,'~upra, became
affective Earth 12, 1937, and Article 7259, supra, became
affective tlarch 33, 1937. Thercforo, t'ie are of the opinion
/ that hrticle 7256 supercedes Article 1CO5, at least insofar
as these Articles am applicable to the quest&cm under coosid- J'
era,tion. :
Article SQO2, supra, is a general. tztatuto regarding
Deputies, assistants, cr clexkc of any district, county, or
precinct officw, and.applice to all tioutities,.w.ithin tbc DO~U-
laticn brackets therein contained. .Article 7256, supra, is
a special statute, insofar'as it pertains to Deputy Astes&ors.
and Ccllcctors of taxes in ~11 counties qontainin5 a tow or
city other than the county scat, vihich has in excess of seven
thousand (7,000) inhabitants. It is an eliaentary rule of con-
struction that when a C;enernl and a spcolal statute apply,to
the seme thing, the eqxcial statute ~4.11 Drevail.
You arc respectfully advised that it is the opinion
of &.G Deportxcnt that the Depzlty Assessor and Collector of .'
taxes in the branch office xentionod In your ~inquiry xould be
aWhorimd.bo collect the taenty-five cent (25s) fee mtqtionod
in Article 7256, supra, ahd retain. the smo as his conpensntion
for services rendered as Deputy Ansc asor and Coileotor of taxes
in E city or tom other then the County seat havin,; a popula-
tion in excess of seven thousands (7,OOO) inhabitants, such
fees ox cmpensatiom not to exceed f1,200.00 per annuq.
Trustingthat the foregoing amwrs your inquiry,
v:e
reniain
BY
Ax-dell ~;illi~s.-
A)ssid%n$
..
, | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132144/ | The Attorney General of Texas
September 6, 1978
JOHN L. HILL;
&Q-/q5~
Attorney General
Honorable Ann Postma Musgrove Opinion No. II- 1238
County Attorney
Childress County Re: Salary increases under
Childress, Texas 79201 grievance procedure of article
3912k.
Dear Mrs. Musgrove:
You have asked if the grievance committee, established under article
4C24-AU..SUWtOO S912k,section 2, V.T.C.S., may consider and recommend a salary increase for
eFam.l%.7OOoS
o(-
all of the county’s officers, including those who made no request for a hearing
on a saky increase. You also ask if the grievance committee may
recommend a salary increase for the employees of county officials.
Section 2(a) of article 3912k sets out the procedure which’an elected
official must follow before the grievance committee may recommend an
increase in salary. See Attorney General Opinion H-314 (1974) (grievance
procedure raise may beeffective immediately). The official must request a
l.abodblx.7sw1 hearing before the grievance committee in writii stating the manner in
amna4233 whitih he feelsaggrieved. A hearing is held within thiity days after receipt of.
the request. It is our opinion that an official subject to the provisions of
section 2 of article 39l2k who does not follow this procedure will not be
entitled to consideration for a pay increase under the grievance procedure.
The grievance procedure established in section 2 of article 39l2k applies
only to elected officers and not employees. Pay increases for employees ars
ovemed by section 1 of article 3912k. See
- Attorney General Opiion Ii-ll
f1973).
SUMMARY
An elected county or precinct officer must make a
written request for a salary increase before the article
3912k grievance committee may recommend a raise.
County and precinct employees may not file a
p. 4936
Honorable Ann Postma Musgrove - Page 2 (H-1238)
grievance with the grievance committee, but they may be
given a salary increase by the commissioners court pursuant
to section 1 of article 3912k,V.T.C.8.
JOHNL. HILL
Attorney General of Texas
APPROVED:
k
DAVIDM. KENDALL, First Assistant ’
C. ROBERTHEATH,ChairmAn
Opinion Committee -
p. 4937 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289124/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3403
ORCHARD HILL BUILDING COMPANY, doing business as
GALLAGHER & HENRY,
Plaintiff‐Appellant,
v.
UNITED STATES ARMY CORPS OF ENGINEERS,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15‐cv‐06344 — John Robert Blakey, Judge.
____________________
ARGUED MAY 29, 2018 — DECIDED JUNE 27, 2018
____________________
Before BAUER, BARRETT, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. This case concerns just shy of 13 acres
of wetlands, which lie in a south‐suburban plot of land called
the Warmke parcel. Orchard Hill Building Company pur‐
chased the Warmke parcel in 1995 with plans for a large‐scale
residential development. Not wanting to run afoul of the
Clean Water Act, Orchard Hill requested a determination
2 No. 17‐3403
from the United States Army Corps of Engineers that the wet‐
lands (or the “Warmke wetlands”) were not jurisdictional
“waters of the United States.” The Corps decided that they
were, and Orchard Hill has spent the last 12 years challenging
that decision. We find that the Corps has not provided sub‐
stantial evidence of a significant nexus to navigable‐in‐fact
waters, and therefore vacate and remand with instructions
that the Corps reconsider its determination.
I. Background
A braid of regulatory, judicial, and administrative events
led to the Corps’ final claim of jurisdiction over the Warmke
wetlands. We start at the beginning.
Congress enacted the Clean Water Act in 1972 “to restore
and maintain the chemical, physical, and biological integrity
of the Nation’s waters.” 33 U.S.C. § 1251(a). One of the Act’s
primary means to that end is its general prohibition on pol‐
luting “navigable waters,” which it defines as “waters of the
United States.” Id. §§ 1311(a), 1362(7), (12). The Act imposes
significant criminal and civil penalties for such pollution, id.
§§ 1319(c), (d), and obtaining a permit to build on or near such
waters can be a lengthy and costly process. Yet the Act does
not define what constitutes “waters of the United States.” See,
e.g., United States v. Krilich, 209 F.3d 968, 970 (7th Cir. 2000).
That job falls to the Corps of Engineers and the Environ‐
mental Protection Agency—and it has proven “a contentious
and difficult task.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct.
617, 624 (2018); see also 33 C.F.R. § 328.3 (the Corps’ definition
of waters of the United States); 40 C.F.R. § 122.2 (the EPA’s
definition of waters of the United States). To take a recent ex‐
ample, the agencies’ attempt in 2015 to redefine the statutory
No. 17‐3403 3
phrase resulted in a new administration’s swift overhaul and
a slew of litigation. See generally Nat’l Ass’n of Mfrs., 138 S. Ct.
at 625–27; Executive Order 13778: Restoring the Rule of Law,
Federalism, and Economic Growth by Reviewing the “Waters
of the United States” Rule, 82 Fed. Reg. 12,497 (Feb. 28, 2017);
Definition of “Waters of the United States”—Addition of an
Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg.
5,200 (Feb. 6, 2018); James Conrad, Wetlands Jurisdiction, ENV.
SCI. DESKBOOK § 9:1 (2018). This case, however, concerns the
Corps’ definition of waters of the United States as it existed
before 2015. See Schaefer v. Walker Bros. Enters., 829 F.3d 551,
558 (7th Cir. 2016).
The Corps defined waters of the United States broadly to
include waters “subject to the ebb and flow of the tide,” “riv‐
ers” that could be used for interstate recreation or commerce,
“tributaries” of such waters, and—most importantly here—
“wetlands adjacent to” other waters of the United States, in‐
cluding tributaries. 33 C.F.R. §§ 328.3(a)(1)–(7) (1994).1 There
was (and is) an exemption, though, for “prior converted
cropland.” Id. § 328.3(8). The Corps considers “prior con‐
verted cropland” to mean wetlands “manipulated … and
cropped” before 1985 (when Congress enacted the “Swamp‐
buster” program, which denies benefits to farmers who use
wetlands for farming), but not abandoned of farming use for
five or more years.2 See Proposed Rule for the Clean Water
1 All future citations to 33 C.F.R. § 328.3 refer to the version in effect
before August 28, 2015.
2 Because we find that the Corps failed to justify its jurisdictional de‐
termination with substantial evidence in the record, we do not decide, as
Orchard Hill argues we should, whether the Corps’ interpretation of
“prior converted cropland” to exclude lands abandoned for five or more
4 No. 17‐3403
Act Regulator Programs of the Army Corps of Engineers and
the Environmental Protection Agency (Proposed Rule), 57
Fed. Reg. 26,894, 26,897–26,900 (June 16, 1992); Clean Water
Act Regulatory Programs (Final Rule), 58 Fed. Reg. 45,008,
45,031–45,034 (Aug. 25, 1993).
Despite, or perhaps because of, those definitions, “[i]t is
often difficult to determine whether a particular piece of
property contains waters of the United States.” U.S. Army
Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1812 (2016). But
concerned landowners need not risk fines or endure the
permit‐application process before deciding whether to build
on or alter their property. They can instead seek a
“jurisdictional determination” from the Corps as to whether
their property contains waters of the United States. 33 C.F.R.
§§ 320.1(a)(6), 325.9, 331.2.
Orchard Hill was such a landowner. In 1995, it completed
its purchase of the Warmke parcel, a 100‐acre former farm‐
land located in Tinley Park, Illinois. Orchard Hill then re‐
ceived permits to build a two‐phase residential development
on the parcel. The first phase started in 1996, and over the next
seven years, Orchard Hill constructed more than a hundred
homes. Construction altered the area’s water drainage, and
about 13 acres pooled with rainwater and grew wetland veg‐
etation. Before starting the second phase and building on
those acres—the Warmke wetlands—Orchard Hill sought a
jurisdictional determination from the Corps in 2006.
years (the “five‐year‐abandonment limitation”) is a legislative rule that vi‐
olates the Administrative Procedure Act’s (“APA”) notice‐and‐comment
requirements. 5 U.S.C. § 553.
No. 17‐3403 5
“The history of the Warmke [wetlands] jurisdictional de‐
termination can be described as lengthy, contentious and
complex,” as a Corps district engineer aptly put it.3 The
Warmke wetlands, like all of the Warmke parcel, are sur‐
rounded by residential development. The closest navigable
water (as that phrase is literally understood, meaning naviga‐
ble‐in‐fact) is the Little Calumet River, which is 11 miles away.
In between the Warmke wetlands and the Little Calumet
River are man‐made ditches, open‐water basins, sewer pipes,
and the Midlothian Creek—a tributary of the Little Calumet
River. The assigned district engineer determined the Warmke
wetlands were adjacent to that tributary, and thus waters of
the United States. See 33 C.F.R. §§ 283.3(a)(5), (7). That deter‐
mination rested on the fact that the Warmke wetlands
drained, by way of sewer pipes, to the Midlothian Creek. Or‐
chard Hill appealed that decision, pursuant to its regulatory
right. See id. §§ 331.6(a), 331.7(a), 331.3(a)(1).
While that appeal was pending, the Supreme Court issued
a landmark decision paring back the Corps’ jurisdictional
reach. Rapanos v. United States, 547 U.S. 715 (2006), involved
two consolidated appeals from decisions upholding jurisdic‐
tional determinations. Both cases posed the question: When
do wetlands that are not adjacent to waters that are navigable‐
in‐fact constitute waters of the United States? Rapanos did not
produce a majority opinion, and without one to definitively
answer the question, we have held that Justice Anthony Ken‐
nedy’s concurrence controls. United States v. Gerke Excavating,
3 District engineers perform first‐level jurisdictional reviews, and di‐
vision engineers review appeals of those determinations. See 33 C.F.R.
§§ 320.1(a)(2), 325.9, 331.3(a)(1). Where that distinction is not relevant, we
refer generally to the Corps.
6 No. 17‐3403
Inc., 464 F.3d 723, 724–25 (7th Cir. 2006) (per curiam); see also
N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999–1000
(9th Cir. 2007); United States v. Robison, 505 F.3d 1208, 1221
(11th Cir. 2007).4
Justice Kennedy decided that a wetland’s adjacency to a
tributary of a navigable‐in‐fact water is alone insufficient to
make the wetland a water of the United States. Instead, “the
Corps’ jurisdiction over [such] wetlands depends upon the
existence of a significant nexus between the wetlands in ques‐
tion and navigable waters in the traditional sense.” Rapanos,
547 U.S. at 779. He explained:
[W]etlands possess the requisite nexus, and thus come
within the statutory phrase “navigable waters,” if the wet‐
lands, either alone or in combination with similarly situated
lands in the region, significantly affect the chemical, physi‐
cal, and biological integrity of other covered waters more
readily understood as “navigable.” When, in contrast, wet‐
lands’ effects on water quality are speculative or insubstan‐
tial, they fall outside the zone fairly encompassed by the
statutory term “navigable waters.”
Id. at 780. The Corps, Justice Kennedy wrote, must make this
determination “on a case‐by‐case basis when it seeks to regu‐
late wetlands based on adjacency to nonnavigable tributar‐
ies.” Id. at 782.
4 Some of our sister courts have concluded that the Corps can establish
jurisdiction by using either the standard Justice Kennedy explained or the
standard described in Justice Antonin Scalia’s plurality opinion. See United
States v. Donovan, 661 F.3d 174, 176, 182 (3d Cir. 2011); United States v. Bai‐
ley, 571 F.3d 791, 798–99 (8th Cir. 2009); United States v. Johnson, 467 F.3d
56, 64–66 (1st Cir. 2006). Neither party asks us to revisit our decision in
Gerke, and we see no reason to do so.
No. 17‐3403 7
After Rapanos, the Corps, too, decided to follow Justice
Kennedy’s significant‐nexus test. In late 2008, it published in‐
ternal guidance titled Clean Water Act Jurisdiction Following
the U.S. Supreme Court’s Decision in Rapanos v. United States
& Carabell v. United States (the “Rapanos Guidance”). The Ra‐
panos Guidance interprets “similarly situated lands” in the
significant‐nexus test to mean all “wetlands adjacent to the
same tributary,” because “such wetlands are physically lo‐
cated in a like manner.” It instructs the Corps to determine
first if any such adjacent wetlands exist, and if so, to “consider
the flow and functions of the tributary together with the func‐
tions performed by all the wetlands adjacent to that tributary
in evaluating whether a significant nexus is present.”
In light of Rapanos, the Corps’ division engineer remanded
the 2006 jurisdictional determination of the Warmke wetlands
for further review. Between 2008 and 2010, the district engi‐
neer reviewed the wetlands’ soil composition, and in March
2010, he made a site visit. There, the district engineer observed
an “intermittent flow” of water from the Warmke wetlands to
the Midlothian Creek. The district engineer did not test or
sample the Warmke wetlands’ composition, but based on the
observed hydrological connection, he again concluded that
the Corps had jurisdiction over the wetlands. Orchard Hill
filed an appeal, which the Corps denied.
That might have been the end of the administrative road,
but for another federal‐court decision. In September 2010, a
district court set aside a Corps rule that excluded “non‐
agricultural” land from the prior‐converted‐cropland
exemption (a rule which the Corps devised after and apart
from its five‐year‐abandonment limitation), reasoning that it
was a legislative rule that had not gone through notice‐and‐
8 No. 17‐3403
comment under the APA. New Hope Power Co. v. U.S. Army
Corps of Eng’rs, 746 F. Supp. 2d 1272, 1276, 1281–84 (S.D. Fla.
2010). Relying on that decision, Orchard Hill asked the district
engineer to reconsider his jurisdictional determination and
decide whether the Warmke wetlands should fall within the
exemption. The district engineer agreed to revisit his decision,
but again determined the Corps had jurisdiction over the
Warmke wetlands. This determination noted that New Hope
had left in place the exemption’s five‐year‐abandonment
limitation, and that the Warmke wetlands had been vacant
and unused since the completed sale to Orchard Hill. See New
Hope, 746 F. Supp. 2d at 1282.
The reconsidered determination also elaborated on the
significant‐nexus analysis. Its report listed 165 wetlands pur‐
portedly “adjacent” to the Midlothian Creek, and thus “simi‐
larly situated” to the Warmke wetlands per the Rapanos Guid‐
ance. The report did not show or explain these wetlands’
proximity to the Midlothian Creek. Nor did the report reflect
that the Corps had conducted observation or testing of the 165
wetlands. The district engineer, nevertheless, concluded that
the wetlands collectively “decrease sedimentation, pollutants,
and flood waters downstream while offering beneficial nutri‐
ents and habitat” to the Midlothian Creek and Little Calumet
River. He thus found that the Warmke “wetland[s] alone or in
combination with the wetlands in the area significantly affect
the chemical, physical and biological integrity of the Little
Calumet River.”
A third appeal followed. The reviewing division engineer
agreed that Orchard Hill’s claim of the prior‐converted‐
cropland exemption had no merit given the Warmke wet‐
lands’ 15‐year abandonment. She found lacking, however, the
No. 17‐3403 9
district engineer’s significant‐nexus analysis. As she put it, the
Corps had “failed to provide the required explanation,” and
“failed to show its work justifying its summary conclusions.”
The division engineer remanded with instructions to comply
with the Rapanos Guidance, which requires the Corps to pro‐
vide grounds and explanations for its significant‐nexus con‐
clusions. The district engineer’s subsequent decision, accord‐
ing to the remand order, would be the Corps’ final approved
jurisdictional determination for the Warmke wetlands.
On remand, in July 2013, the district engineer supple‐
mented his findings with an 11‐page report. The supplement
asserted that the 165 wetlands considered were all a part of
the “Midlothian Creek watershed,” though it did not describe
that term or map that area. The supplement further explained
the significant flooding problems the Tinley Park area had
faced in recent years, and, relying on scientific literature and
studies, detailed how wetlands help reduce floodwaters. It
also described the effect of wetlands generally on reducing
pollutants in downstream waters, and the wildlife that inhab‐
ited the Warmke wetlands. The supplement’s conclusion ulti‐
mately mirrored the earlier determination: the Warmke wet‐
lands, alone or in combination with the area’s other wetlands,
have a significant nexus to the Little Calumet River.
With that final determination made, Orchard Hill turned
to federal court. It sought review of the Corps’ jurisdictional
determination as a “final agency action” under the APA. As
such, no discovery occurred, and the parties filed cross mo‐
tions for summary judgment based on the administrative rec‐
ord. In its decision, the district court examined the Corps’
findings—specifically those set forth in the 11‐page supple‐
ment—and deferred to the Corps’ conclusions regarding the
10 No. 17‐3403
physical, chemical, and biological impact of the Warmke wet‐
lands on the Little Calumet River. It also decided that the
Corps had appropriately applied the five‐year‐abandonment
limitation. The district court therefore granted the Corps’
summary‐judgment motion and denied Orchard Hill’s, enter‐
ing judgment in favor of the Corps. Orchard Hill appealed.
II. Standards of Review
We review de novo a district court’s decision to grant sum‐
mary judgment. Laborers’ Pension Fund v. W.R. Weis Co., 879
F.3d 760, 766 (7th Cir. 2018). We apply the same standard the
district court did in reviewing the Corps’ jurisdictional deter‐
mination—the APA. Stable Invs. P’ship v. Vilsack, 775 F.3d 910,
915 (7th Cir. 2015).
Under the APA, a court must set aside an agency determi‐
nation if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” or if it is “unsup‐
ported by substantial evidence.” 5 U.S.C. §§ 706(2)(A), (E); see
also Rapanos, 547 U.S. at 786 (Kennedy, J., concurring). Those
standards overlap. See, e.g., Witter v. Commodity Futures Trad‐
ing Comm’n, 832 F.3d 745, 749 (7th Cir. 2016). A determination
is arbitrary and capricious if it “runs counter to the evidence
before the agency, or is so implausible that it could not be as‐
cribed to a difference in view or the product of agency exper‐
tise.” Zero Zone, Inc. v. U.S. Depʹt of Energy, 832 F.3d 654, 668
(7th Cir. 2016) (quoting Nat’l Ass’n of Home Builders v. Defs. of
Wildlife, 551 U.S. 664, 658 (2007)). A determination is unsup‐
ported by substantial evidence when the record lacks evi‐
dence that “a reasonable mind might accept as adequate to
support the conclusion.” Id.; see also Addis v. Depʹt of Labor, 575
F.3d 688, 690 (7th Cir. 2009). Under either APA standard, the
scope of review is “narrow and a court must not substitute its
No. 17‐3403 11
judgment for that of the agency.” Abraham Lincoln Mem’l Hosp.
v. Sebelius, 698 F.3d 536, 547 (7th Cir. 2012); see also Dana Con‐
tainer, Inc. v. Sec’y of Labor, 847 F.3d 495, 499 (7th Cir. 2017).
That does not mean the review is “toothless,” though. Pi‐
oneer Trail Wind Farm, LLC v. Fed. Energy Regulatory Comm’n,
798 F.3d 603, 608 (7th Cir. 2015). The Supreme Court has in‐
structed that the “APA requires meaningful review.” Dickin‐
son v. Zurko, 527 U.S. 150, 162 (1999). More specifically, a “re‐
viewing court should not attempt itself to make up for … de‐
ficiencies” in an agency’s reasoning, nor “supply a reasoned
basis for the agency’s action that the agency itself has not
given.” Zero Zone, 832 F.3d at 668 (quoting Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983)). A court, in other words, should deferentially ex‐
amine an agency’s work, but not rubber‐stamp it.5 Dickinson,
527 U.S. at 162.
5 Orchard Hill does not protest the APA’s standard of review, but it
argues that the Corps’ determination requires a more demanding inquiry.
It invokes the constitutional concerns supposedly implicated by the
Corps’ claim of jurisdiction to intrastate waters, but compare Solid Waste
Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 173 (2001)
(SWANCC), with Rapanos, 547 U.S. at 782–83 (Kennedy, J., concurring), and
cites Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278 (4th Cir.
2011), which reviewed the Corps’ compliance with the significant‐nexus
test de novo, but see Hawkes, 136 S. Ct. at 1813 (an approved jurisdictional
determination based on a significant‐nexus conclusion is subject to the
APA). We will not address this argument, because Orchard Hill did not
present it to the district court. See, e.g., Lauth v. Covance, Inc., 863 F.3d 708,
718 (7th Cir. 2017) (“we can invoke waiver sua sponte”).
12 No. 17‐3403
III. Discussion
The significant‐nexus test requires that the Corps deter‐
mine on a case‐by‐case basis whether wetlands, “either alone
or in combination with similarly situated lands in the region,
significantly affect the chemical, physical, and biological in‐
tegrity of other covered waters more readily understood as
‘navigable.’” Rapanos, 547 U.S. at 780. On final remand, and
based largely on the 11‐page supplement, the Corps con‐
cluded that the Warmke wetlands met that standard—both
“alone and in combination with other wetlands in the area.”
That conclusion lacks substantial evidence in the record.
Take the effect of the Warmke wetlands “alone.” Accord‐
ing to the supplement, wetlands are “nature’s kidneys,” able
to filter out pollutants that would otherwise reach down‐
stream waters. Northeastern Illinois waters are known to suf‐
fer relatively high rates of nitrogen, and the Warmke wetlands
have a “discrete and confined intermittent flow” to the Mid‐
lothian Creek. From this connection, the Corps concluded that
the Warmke wetlands have the “ability” to pass pollutants
along. But such a “speculative” finding cannot support a sig‐
nificant nexus. Rapanos, 547 U.S. at 780; see also id. at 786 (“con‐
ditional language” like “potential ability” may “suggest an
undue degree of speculation, and a reviewing court must
identify substantial evidence”).
The supplement further pointed out that the almost‐13‐
acre Warmke wetlands are the fourth largest wetlands in the
area, making up 2.7 percent of the 462.9 total acres of the wet‐
lands in the Midlothian Creek watershed. According to the
supplement, if all the wetlands in the watershed were lost,
floodwaters in the area would rise by 13.5 percent. That
“rough estimate” also fails to support a significant nexus for
No. 17‐3403 13
the Warmke wetlands alone. Based on the Corps’ figures, loss
of the Warmke wetlands would result in a floodwater rise of
a fraction of a percent. If the Corps thinks that trivial number
significant, it needs to give some explanation as to why. See,
e.g., BP Energy Co. v. Fed. Energy Regulatory Commʹn, 828 F.3d
959, 965–66 (D.C. Cir. 2016); accord McDonnell Douglas Corp. v.
U.S. Depʹt of the Air Force, 375 F.3d 1182, 1191 (D.C. Cir. 2004)
(an agency that fails to “explain how its knowledge or experi‐
ence supports” its conclusions is not afforded deference un‐
der the APA).
The same goes for the supplement’s finding about the po‐
tential increase on downstream nitrogen. It reasoned that, if
all the watersheds’ wetlands were lost, 27 to 51 percent more
nitrogen would enter the Midlothian Creek, which would
then pollute the Little Calumet River in some un‐estimated
amount. Assuming there is nitrogen in the Warmke wetlands
(which the Corps did not test), they, again, make up just 2.7
percent of the watersheds’ total wetlands, and so would pre‐
sumably account for a small fraction of that increase to the
Midlothian Creek (to say nothing of the increase to the navi‐
gable‐in‐fact River). Such a bit impact seems “insubstantial,”
Rapanos, 547 U.S. at 780, and if the Corps thinks otherwise it
must provide its reasoning. The supplement further identi‐
fied certain wildlife that might lose their habitat if the
Warmke wetlands were developed. It did not, however, show
how that loss of habitat would significantly impact the 11‐
miles‐away Little Calumet River.
Notwithstanding the Corps’ claim that the Warmke wet‐
lands “alone” have a significant nexus to the Little Calumet
River, both the supplement and the Corps’ arguments on ap‐
peal focus on the net impact of the 165 total wetlands in the
14 No. 17‐3403
“Midlothian Creek watershed.” As noted, the Corps found
that loss of those wetlands would increase the area’s peak
floodwaters and result in nitrogen loading into the Midlo‐
thian Creek. But even if those findings mean something sig‐
nificant to the Little Calumet River, the Corps has not pro‐
vided substantial evidence for its finding that the 165 wet‐
lands are in fact “similarly situated” such that the Corps can
consider their impacts in its jurisdictional analysis in the first
place.
Justice Kennedy did not define “similarly situated”—a
broad and ambiguous term—but the Rapanos Guidance does.
It interprets “similarly situated” as “all wetlands adjacent to
the same tributary.” It in turn defines “adjacent” to mean
“bordering, contiguous, or neighboring,” and notes that wet‐
lands separated from other waters of the United States by, for
example, “man‐made dikes or barriers,” are still “adjacent
wetlands.” 33 C.F.R. § 328.3(c). The Corps argues that this in‐
terpretation is worth our deference, and we assume it is. See
Precon, 633 F.3d at 291. Nothing in the record, however, ade‐
quately supports the Corps’ claim that the 165 wetlands are
adjacent to the Midlothian Creek.
The Corps’ approved jurisdictional‐determination form
calls for a listing of all wetlands “adjacent to the tributary (if
any).” The Corps listed the 165 wetlands there. The only hint
of those lands’ proximity to the Midlothian Creek is a column
named “Directly abuts? Y/N,” under which just four of the
165 lands were affirmatively designated. The list purports to
draw its information from a map vaguely titled “National
Wetlands Inventory: Tinley Park, Illinois Quadrangle, 1981,”
which hardly suggests a focus on the Midlothian Creek. That
National Wetlands Inventory (“NWI”) map does not appear
No. 17‐3403 15
in the record, and the only NWI map that does shows no‐
where near 165 wetlands. The supplement, nevertheless,
claimed that NWI data “identifies 165 wetlands in the Midlo‐
thian Creek watershed.” That claim is unsupported by any‐
thing in the record, but even assuming it is correct, the Corps
has failed to provide any explanation as to how wetlands in
the same watershed are, ipso facto, adjacent to the same tribu‐
tary. Indeed, the so‐called Midlothian Creek watershed is
12,626 acres—almost 20 square miles—and that considerable
size belies any assumption that lands within the watershed
are necessarily, or even likely, adjacent to the Creek.
The Corps offers several responses to this shortcoming. It
contends first that Orchard Hill has waived any argument
about the failure to identify the other wetlands’ adjacency to
the Midlothian Creek by not raising that issue at the adminis‐
trative level. This contention is misguided. Orchard Hill did,
in fact, protest the Corps’ use of the 165‐wetlands list as insuf‐
ficient during its third appeal. Even had it not, “claims of
waiver may themselves be waived.” United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991). Orchard Hill argued to the
district court, as it does to us, that the Corps has not demon‐
strated that the 165 wetlands are “similarly situated” because
the “list does not describe the wetlands, or their distance to
the 13 acres, Midlothian Creek, or the Little Calumet River.”
In response, the Corps did not raise the waiver argument that
it now raises on appeal. It is therefore waived. See, e.g., United
States v. Crisp, 820 F.3d 910, 912–13 (7th Cir. 2016).
On the merits, the Corps argues that it need not show or
explain how each of the 165 wetlands is adjacent to the Mid‐
lothian Creek. But accepting this argument, especially on this
record, would invite jurisdictional overreach. The significant‐
16 No. 17‐3403
nexus test has limits: the Corps can consider the effects of
in‐question wetlands only with the effects of lands that are
similarly situated. Rapanos, 547 U.S. at 780. To do as the Corps
did on this record—to consider the estimated effects of a wide
swath of land that dwarfs the in‐question wetlands, without
first showing or explaining how that land is in fact similarly
situated—is to disregard the test’s limits. Whatever the de‐
gree to which the Corps must defend each and every wetland
it considers, its approach according to the record was plainly
deficient. Accord Sierra Club v. Fed. Energy Regulatory Comm’n,
867 F.3d 1357, 1374 (D.C. Cir. 2017).
The Corps nonetheless claims we owe its findings defer‐
ence, citing Precon for support. Courts, however, extend no
deference to agency decisions that lack record support or ex‐
planation, e.g., Epsilon Elecs., Inc. v. U.S. Dep’t of Treasury, Of‐
fice of Foreign Assets Control, 857 F.3d 913, 927 (D.C. Cir. 2017),
and Precon does not change that. In Precon, the Fourth Circuit
gave deference (specifically, Skidmore deference) to the Corps’
interpretation of “similarly situated” and to its related factual
findings. 633 F.3d at 290–92. We have assumed that the first
of those things is appropriate here. As to the second, in Precon,
unlike here, the Corps “provided reasoned grounds” for its
similarly‐situated findings. Id. at 292. The Corps specifically
explained that the considered wetlands were historically part
of the same drainage system, and others were adjacent to
downstream, merged tributaries. Id. at 292–93. Even then, the
Fourth Circuit gave the Corps’ similarly‐situated findings
deference with reservation. Id. at 293 (“We urge the Corps to
consider ways to assemble more concrete evidence of similar‐
ity before again aggregating such a broad swath of wet‐
lands”). By contrast, the Corps’ similarly‐situated finding
here, lacking as it does record support or explanation, is little
No. 17‐3403 17
more than administrative ipse dixit. See Bethlehem Steel Corp. v.
U.S. Envtl. Prot. Agency, 638 F.2d 994, 1005 (7th Cir. 1980).
The Corps also submits that it need not “justify its reli‐
ance” on the NWI data. This misunderstands the problem.
The APA requires some record evidence reasonably adequate
to support the finding that the 165 wetlands were similarly
situated or adjacent to the Midlothian Creek. See 5 U.S.C.
§ 706(2)(E). The Corps may not need to defend the use of NWI
data, but it does need to substantiate its say‐so about what the
NWI data shows and explain why it matters.
The fairest reading of the record is this: The district engi‐
neer reviewed an NWI document that identified 165 wetlands
in the Tinley Park area, and assumed that all those wetlands
were similarly situated. Maybe the assumption was defensi‐
ble, but the Corps “does not provide record support for that
assumption.” Susquehanna Int’l Grp., LLP v. Sec. and Exch.
Comm’n, 866 F.3d 442, 450 (D.C. Cir. 2017). While we review
the Corps’ determination narrowly, no amount of agency def‐
erence permits us to let slide critical findings bereft of record
support. See Motor Vehicle Mfrs. Assʹn, 463 U.S. at 43.
IV. Conclusion
This dispute has consumed almost as many years as the
Warmke wetlands have acres. In that time, the Corps has not
provided substantial evidence that the wetlands and those
similarly situated have a significant nexus to the Little Calu‐
met River. We therefore VACATE the district court’s grant of
summary judgment to the Corps and REMAND with instruc‐
tions to remand to the Corps for reconsideration of its juris‐
diction over the Warmke wetlands. | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4144868/ | “P‘HE Li’llTORNETf @%GNERAL
OF TEXAS
Honorable L. A. Woods
State buperintendent of
:Public Instruction
Austin,.Texas
Dear Siti: Opinion No. O-1538
b: May the waterworks plant of
.the City of Corpus Christ1
be taxed by the Calallen
Tndependent School District.
We are in receipt of your letter of October 2,-1939, which reads
in part as follows:
"The waterworks of the City of Corpus Christ1 are located in the
Calallen Independent S&o01 district. ..Canthis plant be
Fevaluated and assessed for sehool taxes? The Cit of Corpus
Christi assessed the Calallen Independent School i istrict for
taxes on a lot owned by that district which was located in the
Corpus Christi city limits."
Yourequest an opinion of this department as to whether or not
the Corpus Christi waterworks plant is subject to being taxed by
the Calallen Independent Sohool~Dlstrict. In answering your
question, the fact that the City of Corpus Fhristi hasassessed
for taxation a lot owned by the Calallen Independent School
District is irrelevant and irmnaterial~ Your question will bs
answered on the basis of the authority of said school district
to tax the property in question.
There are three sections of our Constitution whichare important
to note in discussing the problem presented here.
"Article VIII, Section 1. Taxation shall be equal and uniform.
All property in this State, whether owned by natural parsons or
corporations, other than municipal, shall be taxed in proportion
to its value, which shall be ascertained as may be provided by
law.9 6 8
"Article VIII, Section 2.i~cH1
but the Legislature may, by general
laws, exempt from taxation public property used for public
purposes 0 489
Hon. L. A. Woods, .page 2, O-1538
"Article XI, Section 9. The property of counties, cities and
towns, owned and held only for public purposes, such as public
buildings and the sites therefor. Fire engines and the furniture
thereof, and-all property used, or intended for extinguishing
fires, public grounds and.all other property devoted exclusively
to the use and benefit of the public shall be exempt from forced
sale and from taxation, provided; nothing herein shall prevent
the enforcement of the vendors lien, the mechanics or builders
line, or other liens now existing )t
In accordance with the authority vested in the Legislature by
Article VIII, Section 2, Article 7150 of the Revised Civil
Statutes.of 1925 was enacted. Article 7150 r~eadsin part as
follows:
"The following property shall be exempt from taxation, to-wit:
"4. Public property. --All property, whether real or personal,
belonging exolusively to-this State, or any political sub-
division thereof, 4HEQ"
It is evident from the above cited Constitutional provisions and
statute that-property of a municipal corporation such as Corpus
Christi, which'is used.-fora public purpose, is exempt from
taxation. Our only question here, then, is whether or not the
waterworks plantsoperated by the City of Corpus Christi is pro-
perty which is being used by said city for a public purpose. A
similar question has confronted the courts of this State on
several eccasions.
The city of Dallas owned some property which was located in
Denton County. This property was used as a reservoir by the oity
to furnish water to the citizens of said city. The State of Texas
tried to collect taxes from the city of Dallas'on said property.
The Fort Worth Court of Civil Appeals, in the case of City of
Dallas vs. State, 28 S.W. (2d) 937, cited Art. 8, Sec. 1, of the
Constitution of Texas and held the property to be tax exempt. The
court stated as follows:
"But we believe that under the authorities of this State, some of
which we have cited, the reservoir used for the public purposes
of furnishing water to the citizens of Dallas, although situated
in another aounty, is exempt from taxation."
Writ of error was refused by the Supreme Court'in this base.
In the case of Cit of Abilene va. State, 113, S.W. (2d) 631, the
Eastland Court of % ivil Appeals held that certain property owned
by the City of Abilene, which was bought by said city for the
purpose of 'ereotinga reservoir for impounding water for the use
Hon. L. A. Woods, page 3, O-1538
of the inhabitants of said city, was exempt from taxation.
The court quoted Article XI, Section 9, of our Constitution,
-and Article VIII, Section 2, of the Constitution, as well as
Article 7150, supra. In holding the property of this municipal.
corporation to be tax exempt, the court stated as follows:
"Counties, cities and towns are munic'ipalcorporations. Conat.
Art. 11. They are olitical subdivisions of the state. Id.
Corporation of San P elipe De Austin v. State of Texas, 111 Tex.
108, 229 S.W. 84.5. ~Property owned .and held by counties, cities,
and towns Is public property, subject to taxation or exemption,
according to the conditions or circumstances prescribed by the
Constitution and laws of the state. That the roperty in
question is public property was determined in 6 ity of Dallas v.
State, Tex. Civ; App. 28 S.W. (2d) ~937. The Legislature by
general law has provided that 'All property, whether r,ealor
personal, belonging exclusively to this State, or any poliOi~a1
subdivision thereof' shall be exempt from taxation. (Italics
ours.) R.S. 1925, art. 7150. The terms of.this statutory
exemption undoubtedly include the property in question." Writ
of error was dismissed by the Supreme Court in this.
In 1938 suit was brou ht by the San Antonio Independent School
District against the 8 ity of San Antonio to collect taxes from
said City on the property of its waterworks plant located in
said school district. The Beaumont Court of Civil.Appeals in
the case of San,Antonio Independent School~District vs. Water
works Board of Trustees, et al 120 S.W. (2d) '861,held .this
property to be tax exempt. The court cited.Article VIII,
Section 2, of the Texas Constitution, and Article 7lsO.of
Vernon's Annotated Civil Statutes. Writ of error was 'also
refused in this case~by the Supreme Court.
On August 17, 1931, Honorable F: 0. McKinsey, Assistant Attorney
General, wrote an opinion addressed to~Honorable Omar T.
Buyleson, County.Attorne Jones (county.,
which was adopted as
a conference opinion by X'
ttorney General'James V. Allred, and
which held, among other things, that the property of a~municiapl
corporation which was being used for a public purpose, was
exempt from taxation under Section 9 of Article XI of our
Constitution, Article VIII, Section 2 of the Constitution and
Article 7150 of the Revised Civil Statutes. ihere canbe no
question but that, on tMs point, the opinion referred to is
correct.
You are therefore advised that the waterworks plant of the City
of Corpus Christi, which is located in the ,IndependentSchool
Hon. L. A. Woods, page 4, O-1538
District of Calallen, is exempt from taxation by said
school district.
Yours very truly
ATTORNEY GENERAL OF TEXAS
s/ Billy Goldberg
BG:LW/cg
APPROVED DECEMBER 5, 1939
s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED OPINION COMMITTEE
By BWS, Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289138/ | Filed 5/30/18; Certified for Publication 6/27/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
DAVID LO et al.,
Plaintiffs and Appellants,
A151603
v.
DANIEL S. LEE et al., (San Francisco County
Super. Ct. No. CPF-16-514927)
Defendants and Respondents.
Plaintiff David Lo, individually and as the assignee of plaintiffs Danny F.M. Lo
and Alice M.C. Lo (collectively referred to as plaintiffs), appeals from an order of
dismissal entered in favor of defendant Tristan You after the trial court sustained You’s
demurrer without leave to amend. Plaintiff contends the trial court should have overruled
the demurrer because he stated a viable cause of action for fraudulent conveyance against
You for college tuition payments made on You’s behalf by his debtor father. On our de
novo review, we conclude the demurrer was properly sustained. We thus affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Commencing in December 2006, plaintiffs made several loans to defendant
Daniel S. Lee, who is You’s father.1 Lee defaulted on the loans.
“Because this matter comes to us on demurrer, we take the facts from plaintiff’s
1
complaint, the allegations of which are deemed true for the limited purpose of
determining whether plaintiff has stated a viable cause of action.” (Stevenson v. Superior
Court (1997) 16 Cal. 4th 880, 885.)
On July 15, 2013, an amended judgment was entered in favor of plaintiffs against
Lee for $1,143,576. No part of the judgment debt has been paid.
On October 11, 2016, plaintiffs filed a first amended complaint (FAC) seeking to
set aside allegedly fraudulent conveyances and seeking an accounting. The complaint
was filed against Lee and You.
According to the FAC, between June 10, 2013, and November 18, 2013, Lee paid
$104,850 to Northeastern University for You’s tuition and other expenses. Lee made
these payments knowing that he had incurred, or would thereafter incur, debts that would
be beyond his ability to pay as they became due. He allegedly did so with the intent to
“hinder, delay, or defraud” his creditors, including plaintiffs. In the FAC, plaintiffs
sought general damages against Lee and You in the sum of $104,850, along with an
accounting, plus attorney fees and costs.
On December 30, 2016, You filed a demurrer to the FAC. He contended Lee’s
transfers were not fraudulent because they did not lack consideration. He also argued
that You was not a beneficiary of the transfer, having received only the intangible
benefits of an education.
On January 17, 2017, plaintiffs filed their opposition to You’s demurrer.
On February 1, 2017, the trial court filed its order sustaining You’s demurrer to
the FAC without leave to amend. Noting that there is no authority on whether creditors
may attack college tuition payments as fraudulent transfers under the Uniform Voidable
Transactions Act (Civ. Code,2 § 3439 et seq.) (UVTA), the court adopted the reasoning of
a Massachusetts bankruptcy case (In re Palladino (Bankr. E.D.Mass. 2016) 556 B.R. 10,
16), stating that “ ‘[a] parent can reasonably assume that paying for a child to obtain an
undergraduate degree will enhance the financial well-being of the child which will in turn
confer an economic benefit on the parent.’ ”
2
All further statutory references are to the Civil Code except as otherwise
indicated.
2
With that, the court dismissed with prejudice the action as to You. This appeal
followed.
DISCUSSION
I. Standard of Review
The standard by which we review an order sustaining a demurrer without leave to
amend is well established. We review the order de novo, exercising our independent
judgment on whether the complaint states a cause of action as a matter of law. (Moore v.
Regents of University of California (1990) 51 Cal. 3d 120, 125.) In determining whether
the complaint, liberally construed, states facts entitling the plaintiff to any relief, we
assume the truth of all material properly pleaded facts, without affording any credit to
contentions, deductions, or legal conclusions. (Blank v. Kirwan (1985) 39 Cal. 3d 311,
318; Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 768–769.)
While the decision to sustain or overrule a demurrer is a legal ruling subject to de novo
review, the granting of leave to amend involves an exercise of the trial court’s discretion.
(Hernandez v. City of Pomona (1996) 49 Cal. App. 4th 1492, 1497.) We thus review the
denial of leave to amend for abuse of discretion. (Hayter Trucking, Inc. v. Shell Western
E&P, Inc. (1993) 18 Cal. App. 4th 1, 13; Everett v. State Farm General Ins. Co. (2008)
162 Cal. App. 4th 649, 655.)
II. The UVTA
The UVTA, formerly known as the Uniform Fraudulent Transfer Act (see Stats.
2015, ch. 44, § 2, p. 1456 (Sen. Bill No. 161 (2015–2016 Reg. Sess.)), “permits
defrauded creditors to reach property in the hands of a transferee.” (Mejia v. Reed (2003)
31 Cal. 4th 657, 663.) “A fraudulent conveyance is a transfer by the debtor of property to
a third person undertaken with the intent to prevent a creditor from reaching that interest
to satisfy its claim.” (Yaesu Electronics Corp. v. Tamura (1994) 28 Cal. App. 4th 8, 13.)
The transferee “holds only an apparent title [to the transferred property], a mere cloak
under which is hidden the hideous skeleton of deceit, the real owner being the scheming
3
and shifty judgment debtor . . . .” (Cortez v. Vogt (1997) 52 Cal. App. 4th 917, 936.) The
purpose of the voidable transactions statute is “ ‘to prevent debtors from placing property
which legitimately should be available for the satisfaction of demands of creditors
beyond their reach . . . .’ ” (Chichester v. Mason (1941) 43 Cal. App. 2d 577, 584.)
A creditor seeking to set aside a transfer as fraudulent under section 3439.04 may
satisfy either subdivision (a)(1) by showing actual intent, or subdivision (a)(2) by
showing constructive fraud. (Monastra v. Konica Business Machines, U.S.A., Inc. (1996)
43 Cal. App. 4th 1628, 1635 (Monastra); Annod Corp. v. Hamilton & Samuels (2002)
100 Cal. App. 4th 1286, 1294; see Reddy v. Gonzalez (1992) 8 Cal. App. 4th 118, 122–123.)
Under the UVTA, “a transfer of assets made by a debtor is fraudulent as to a creditor,
whether the creditor’s claim arose before or after the transfer, if the debtor made the
transfer (1) with an actual intent to hinder, delay or defraud any creditor, or (2) without
receiving reasonably equivalent value in return, and either (a) was engaged in or about to
engage in a business or transaction for which the debtor’s assets were unreasonably
small, or (b) intended to, or reasonably believed, or reasonably should have believed, that
he or she would incur debts beyond his or her ability to pay as they became due.”
(Monastra, at p. 1635, italics added, citing to § 3439.04.)
The UVTA allows a judgment to be entered against (1) the first transferee of the
fraudulently transferred asset, (2) the transfer beneficiary, and (3) any subsequent
transferee other than a good faith transferee. (§ 3439.08, subds. (b)(1) & (b)(2).)
Section 3439.08, subdivision (b)(1) provides that “to the extent a transfer is voidable, ‘the
creditor may recover judgment’ for the lesser of the value of the asset or the amount
needed to satisfy the creditor’s claim, and the ‘judgment may be entered’ against the
person for whose benefit the transfer was made. [Citation.] Ordinarily, when a statute
provides a court ‘may’ do something, the statute is permissive, not mandatory, and grants
the court a discretionary authority. [Citations.] In exercising discretion to provide relief
from fraudulent transfers, courts are directed by the [UVTA] to consider ‘the principles
4
of law and equity,’ which ‘supplement its provisions.’ [Citations.] Hence, a court may
refuse to enter a money judgment against a person for whose benefit a fraudulent transfer
was made if an applicable legal or equitable principle bars entry of such a judgment.”
(Renda v. Nevarez (2014) 223 Cal. App. 4th 1231, 1237, some italics added.)
III. Tristan You Is Not a Transfer Beneficiary
The trial court concluded that tuition payments made to a university by an
insolvent debtor parent on behalf of his or her adult child are not voidable as fraudulent
conveyances, reasoning that the parent receives an “economic benefit” in exchange for
the tuition payments because an education helps secure the child’s independent economic
well-being. In other words, because the parent receives a “reasonably equivalent value”
in exchange for the transfer, constructive fraud cannot be shown.3 Thus, the court did not
reach the issue of whether such payments may be recovered from the child as monetary
damages under the UVTA. Assuming for purposes of argument that such payments may
be voidable, we conclude they may not be recovered from the debtor’s child under the
circumstances as alleged in the FAC.
Significantly, the FAC does not allege that You directly received any part of the
funds that Lee transferred to Northeastern. Instead, plaintiff admits he seeks recovery
against You on the basis that You was “the beneficiary of [Lee’s] largess.” As indicated
above, under section 3439.08, subdivision (b)(1)(A), judgment for a fraudulent transfer
may be entered against “[t]he first transferee of the asset or the person for whose benefit
the transfer was made.” (Italics added.)
Our research has not disclosed any California cases defining “the person for whose
benefit the transfer was made” within the meaning of this provision. However, the
legislative history is clear that section 3439.08, subdivision (b) “is derived from
[11 U.S.C.S.] Section 550(a) of the Bankruptcy Code.” (Legis. Com. com. 2, 12A Pt. 2
3
Plaintiff does not argue that Lee acted with actual intent to defraud his creditors.
5
West’s Ann. Code (2016 ed.) foll. § 3439.08, p. 377.) Therefore, cases construing the
Bankruptcy Code counterparts of the UVTA are persuasive authority due to the similarity
of the laws in this area. (See AFI Holding, Inc. v. Mackenzie (9th Cir. 2008) 525 F.3d
700, 703 [“Where state statutes are similar to the Bankruptcy Code, cases analyzing the
Bankruptcy Code provisions are persuasive authority.”]; In re United Energy Corp.
(9th Cir 1991) 944 F.2d 589, 594–595.) Under 11 U.S.C.S. section 550,
subdivision (a)(1), a party may recover an avoidable transfer from “the initial transferee
of such transfer or the entity for whose benefit such transfer was made.” (Italics added.)
The italicized language essentially mirrors section 3439.08, subdivision (b)(1)(A)’s
reference to “the person for whose benefit the transfer was made.” (Italics added.)
Federal courts have observed that “[t]he paradigm example of a transfer
beneficiary is a guarantor. When the guaranteed debt is paid, the guarantor has not
received the money, but it did receive a benefit—release from its guarantee.” (Official
Comm. of Unsecured Creditors v. Fountainhead Grp., Inc. (In re Bridgeview Aerosol,
LLC) (Bankr. N.D.Ill 2015) 538 B.R. 477, 512.) Yet this model is not exclusive. (In re
Meredith (4th. Cir. 2008) 527 F.3d 372, 375–376.) The court’s obligation is to look
behind the form of the transaction and which entity actually benefited from the transfer.
(Matter of Compton Corp. (5th. Cir 1987) 831 F.2d 586, 595.)
Plaintiff contends that to find You is a transfer beneficiary, we “need look no
further than the definition of the ‘beneficiary’ in a dictionary.” He directs us to the
following definition from the Merriam-Webster Online Dictionary: “a person or thing
that receives help or an advantage from something: one that benefits from something
[e.g.,] the main beneficiaries of these economic reforms” (https:www.merriam-
webster.com/dictionary/beneficiary, as of May 30, 2018). However, as a tool of statutory
analysis, this definition leaves several questions unanswered: Must the transferor intend
to confer a benefit on the transferee? What type of benefit must be received? How
directly must the benefit be related to the avoided transfer?
6
Contrary to plaintiff’s suggestion, the fact that a person received any kind of
“benefit,” no matter how intangible or indirect, from a fraudulent transaction does not
necessarily subject that person to liability. There are limits to the legal assessment of the
type of “benefit” that will subject a beneficiary to liability for the debtor’s alleged
fraudulent transfer. The benefit received must be “direct, ascertainable and quantifiable”
and must bear a “ ‘necessary correspondence to the value of the property transferred.’ ”
(In re Intern. Management Assoc. (11th Cir. 2005) 399 F.3d 1288, 1293.) “ ‘[T]ransfer
beneficiary status depends on three aspects of the “benefit”: (1) it must actually have
been received by the beneficiary; (2) it must be quantifiable; and (3) it must be accessible
to the beneficiary.’ ” (In re Brooke Corp. (Bankr. D. Kan. 2013) 488 B.R. 459, 468 (In
re Brooke).) This three-part test is used in federal courts to determine whether a party
should be subjected to liability as the ultimate beneficiary of an alleged fraudulent
transfer. (Baldi v. Lynch (In re McCook Metals, L.L.C.) (Bankr. N.D.Ill 2005) 319 B.R.
570, 590–594 (McCook Metals)); see Bonded Financial Services v. European Amer.
Bank (7th. Cir 1988) 838 F.2d 890, 896 (Bonded Financial Services); Sher v. SAF Fin.
Inc. (D.Md. 2011) 2011 U.S. Dist. Lexis 116967, *8.) The benefit that is actually
received must flow from the initial transfer which is avoided, instead of being a
secondary result of the alleged transfer. (Bonded Financial Services, at p. 896.) The
nature of the legal benefit is predicated on the “disgorgement-based understanding of
recovery of fraudulent transfers from those benefitting from the transfer. . . . [T]he
benefit actually received must flow from the initial transfer which is avoided.” (In re
Brooke, at p. 469.) The three-part test must be satisfied for recovery of a transferred
property under 11 U.S.C. section 550(a)(1) from the ultimate beneficiary. (McCook
Metals, LLC., at p. 590.)4
4
Turning to the facts before it, the bankruptcy court in McCook Metals held that
the debtor’s transfer to another entity of the debtor’s contractual right to acquire a
smelter, in an attempt to protect this asset from the reach of its creditors, was a fraudulent
7
In addressing the first element, the McCook Metals court clarified that “an actual
benefit rather than a merely intended one must be received in order for the beneficiary to
be liable under [11 U.S.C.S. section 550(a)(1)].” (McCook Metals, supra, 319 Bankr. at
p. 591.) The reason for this requirement is that “fraudulent transfer recovery is a form of
disgorgement,” which cannot be maintained against parties who do not actually benefit
from the transfer. (Ibid.) But even if You’s education qualifies as an “actual benefit,” a
point we do not decide, the two remaining requirements set forth in McCook Metals are
not satisfied by the allegations in the FAC.
As to the second prong, courts have stated that in order for a benefit to be
“quantifiable,” “[a] merely theoretical benefit is not sufficient, since it would not be
subject to disgorgement.” (McCook Metals, supra, 319 Bankr. at p. 591.) Clearly, there
is no way to quantify the intellectual and other benefits You received from the
educational opportunity afforded him by Lee’s transfer. Even plaintiff concedes “a
creditor cannot levy on the student’s college education.” Any such benefits are entirely
intangible and theoretical, and could never be disgorged by him as they cannot be valued
solely in terms of dollars and cents.
Additionally, the benefit You received is not, and never was, “accessible” to him.
Lee’s funds were transmitted directly to Northeastern, and there are no allegations
suggesting that the funds were ever controlled by You. In addressing this prong, the
McCook Metals court noted that “[e]ven if a quantifiable benefit is actually received, it
could not fairly be disgorged if the beneficiary never had access to it.” (McCook Metals,
supra, 319 B.R. at p. 592.) Here, You had no control over the funds that Lee transferred
transfer. As to recovery, it applied the foregoing three criteria and held that Lynch, a
man who controlled both the debtor and the transferee, was liable as the entity for whose
benefit the transfer was made. The court reasoned that Lynch received an actual benefit
(his share of the value of the assets on the date of transfer); that the benefit was
quantifiable (since testimony established a value of $11.1 million for the smelter); and
that the value was accessible (through Lynch’s control of the transferee). (McCook
Metals, supra, 319 B.R. at pp. 591–592.)
8
to the school, and the FAC does not allege that he had access to these funds at any point
in time.
We conclude plaintiffs have not adequately alleged a valid transferee beneficiary
theory against You. Therefore, we need not decide whether the debtor, in the first
instance, received a reasonably equivalent value for his tuition payments to Northeastern
University, an issue we might have had to resolve if plaintiffs desired to recover the
tuition paid by Lee directly from the college. (See, generally, In re Adamo (Bankr.
E.D.N.Y. 2018) 582 B.R. 267, 273–274 & cases cited); In re Palladino (Bankr.
E.D.Mass. 2016) 556 B.R. 10, 15–16; McKenzie, The Tuition “Claw Back”
Phenomenon: Reasonably Equivalent Value and Parental Tuition Payments (2016)
Colum. Bus. L.Rev., 924.)5
DISPOSITION
The order is affirmed.
5
Plaintiff asserts that “the measure of damages is not the value of the education
[You] received but the value of the asset transferred. Mr. Lee transferred money, not an
education.” Plaintiff’s assertion naturally raises the question why Northeastern
University was not named as a defendant in the FAC, as the school was the entity that
actually received Lee’s money. When asked at oral argument why the school was not
named as a defendant, appellate counsel replied the university was located outside
California.
9
_________________________
Dondero, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Banke, J.
A151603 Lo et al. v. Lee et al.
10
Filed 6/27/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
DAVID LO et al., A151603
Plaintiffs and Appellants,
(San Francisco County
v. Super. Ct. No. CPF-16-514927)
DANIEL S. LEE et al.,
ORDER CERTIFYING OPINION
Defendants and Respondents. FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter, filed on May 30, 2018, was not certified
for publication in the Official Reports. After the court’s review of a request under
California Rules of Court, rule 8.1120, and good cause established under California Rules
of Court, rule 8.1105, it is hereby ordered that the opinion should be published in the
Official Reports.
Dated: _______________________________
Dondero, J.
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. A. James Robertson II
Counsel:
Law Office of Lawrence D. Miller, Lawrence D. Miller for Plaintiff and Appellant
David Lo.
Law Offices of Raymond M. Alexander, Jr., Raymond M. Alexander, Jr., for
Defendant and Respondent Tristan You.
A151603 Lo et al. v. Lee et al.
2 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4132169/ | The Attorney General of Texas
July 20, 1978
JOHN L. HILL
Attorney General
Honorable William R. Pemberton Opinion No. H- 1212
County Attorney, Bee County
Beeville, Texas Re: County auditor’s respon-
sibility for auditing CETA funds.
Dear Mr. Pemberton:
You inform us that Bee County participates in certain programs
established and funded under the Comprehensive Employment and Training
Act (CETA), 29 U.S.C. SS 801 - 992. You ask whether the commissioners
court may delegate its CETA programs and funds to the Bee Community
Action Agency, permitting payroll disbursements to be made by that Agency.
You also inquire about the responsibilities of the County Auditor with respect
to CETA programs and funds delegated or subcontracted to the Bee
Community Action Agency.
The Bee Community Action Agency was organized by the commissioners
court as the community action agency for the county pursuant to the
Economic Opportunity Act of 1984, 42 U.S.C. SS 2701 - 29963 see 42 U.S.C. S
2790(a). It is a nonprofit agency which receives funds chrectly from the
Community Services Administration to finance certain poverty programs. 42
U.S.C. SS 2790, 2795. -See Attorney General Opinions M-714, M-605 (1970).
The county is a member of the Coastal Bend Consortium, which acts as
a CETA prime sponsor. See Attorney General Opinion H-891 (1976). The
agreement establishing th=onsortium provides that the city of Corpus
Christi will administer the programs and funds, but that ‘nothing herein shall
relieve the metibers of the Consortium of their ultimate responsibility for
the use of funds.” The agreement also provides that
each party/member of this Consortium who con-
tracts with the Consortium will be primarily
responsible to the Consortium for any monies it
receives by virtue of any contract entered into by
said party/member. . . .
P. 4858
.. . .. .
Honorable William R. Pemberton - Page 2 (H-1212)
Bee County has in fact entered into a contract with the Consortium to receive
CETA funds and the funds received thereunder are paid into the county treasury
and disbursed by the county. The contract transferring CETA funds from the
Coastal Bend Consortium to Bee County expressly states that the accounting
system for the funds will be maintained by the county auditor.
The CETA funds which Bee County receives must be used for purposes
authorized by federal law and set out in the Comprehensive Manpower Plan
developed by the prime sponsor. 29 U.S.C. SS 815, 984(e); 29 C.P.R. S 95.31(1976).
Texas law further limits Bee County to participation in those CETA programs
directed at assisting indigent persons. V.T.C.S. art. 2351, S lit see Attorney General
Opinion H-891 (1978). The commissioners court may contrac-with other persons
and entities to perform services that the county is authorized to perform.
Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961); Attorney General
Opinions H-912, H-901, H-892 (1976); H-680 (1975); H-127, H-80 (1973); M-843 (1971).
Federal law expressly indicates that the services and facilities of community action
agencies may be used to carry out the purposes of CETA. 29 U.S.C. SS 815(aM3XB),
984(e). We believe the commissioners court may contract with the Bee County
Community Action Agency to provide services that will carry out the purposes of
the CETA grant.
However, the contracts with the prime sponsor do not permit the commis-
sioners court to relinquish its responsibility to use CETA funds for authorized
purposes only. Nor does Texas law permit the court to delegate its responsibility
for county functions when it enlists the services of others in performing them. See
Whelan v. State, 282 S.W.2d 378 (Tex. 1955); Attorney General Opinion H-80 (197x
Thus, any agreement by which the commissioners court enlists the services and
facilities of the Community Action Agency should provide sufficient safeguards to
ensure that the CETA funds will be spent for authorized purposes only. If
sufficient safeguards are provided, we believe the court may pay the Agency in a
lump sum for its services and allow the Agency to make payroll disbursements to
individuals. We cannot comment on the adequacy of any particular agreement,
since none has been presented us.
The contract itself makes the county auditor responsible for accounting for
CETA funds. It requires the county to comply with federal circulars relating to the
maintenance of records, books, and accounts. The county auditor should follow the
federal requirements in the event they differ from usual county procedures. See
Attorney General Opinion M-887 (1971); compare Attorney General Opinion H-;fi?
(1976). The contract also provides that CETA funds be deposited in a special bank
account and designates the county auditor as the person authorized to withdraw
funds from it. Thus, while the CETA contract specifies certain accounting
procedures for the funds, it does not relieve the county auditor of responsibility for
them. On the contrary, it expressly identifies him as the person who will maintain
P. 4859
,-’
Honorable William R. Pemberton - Page 3 (R-1212)
the accounting system and see that federal reporting and record keeping standards
are met.
SUMMARY
Bee County may spend CETA funds to contract with the Bee
County Community Action Agency for services that will
carry out the purposes of the Comprehensive Employment
Training Act and the local Comprehensive Manpower Plan.
The county is responsible for using the funds for authorized
purposes only. The county auditor is responsible for
accounting for CETA funds and should follow the procedures
specified in the contract.
Attorney General of Texas
APPROVED:
NDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 4860 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144879/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
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a nd p o r -
~tisltm wbloh nay bs earned an4 aollaoted by
3istrlot Attorneys afieotsd by this Act ahall
5% paid into tbs County Treasury of the Cauntiss
in whlGb auc&reoa we asrnsd ror the aooowkt
Or th e pFOp3r SUBd. l * l ’
33cUon b 0s +irtloLe 35le6, rernon@s Civil Stat-
utes, provide8 thatr
“It shu b th0 3Uty Of all OrfiOOr8 to
oharge aad collect in tbe mnner autbo~lml by
law all fees and codssloas vhlioh am pcsrmlt-
tad b law to be aaassaed and colloctod fz?r all
off:0 f al ser~iob pwrozmed by thtsn. * * **
In view cif the for6golnq atotutea~ you a-9 rrspaot-
fully rrarb5ed that it la tha ogln,on 0r tkir departmnt that
a dlatrl+zt attorney omnot personally ret&t the feea paid
r0r hm¶llng lunucp OdCl%ilrThe so0 that has been paid to you
as ~latrlot Attornsy la the 00.59gontlonad in,pour inN.ry
should be refunded and deplted la the count treasury Or
the 00w.p paybg the SMO. rr the 000t 0r t L3 lunaoypxo-
oe6dl.q is paid b or out of the astate of the’d~rm?iaat, t&e
attorney~a reea I to uld be oolleotsd tu part o? the ooat and
&JX&;d in the county tmaaury of tba oounty whera the oaae
Rowever, b&on the county pe$a auoh soata, it would
bo an iaie gesture to pay the attorney's foe and than have
tba attorney to rfmmd 4nd depoelt the r06 in the county treaa-
WY*
- .
Honorable Mqqrtelle kSoaal6, Page 4
Trusting that the toregoing fully anmver.9 your
inquiry, we remain
Your8 very tmly
ATTORNEY
OENERAL
OF TICXAS
Ax4011 wlllia~~
Aseiatant
AW:LM | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4155478/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
222
KA 15-00909
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MICHAEL A. KING, JR., DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), dated April 24, 2015. The order determined that
defendant is a level two risk pursuant to the Sex Offender
Registration Act.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: We reject defendant’s contention that County Court
erred in determining that he is a level two risk pursuant to the Sex
Offender Registration Act (Correction Law § 168 et seq.). Even
assuming, arguendo, that defendant preserved for our review his
contention that the court should have granted him a downward departure
to a level one risk, we conclude that his contention is without merit.
Defendant failed to allege a mitigating circumstance that is, as a
matter of law, of a kind or to a degree not adequately taken into
account by the risk assessment guidelines and, to the extent that
defendant adequately identified a mitigating circumstance, he failed
to prove its existence by a preponderance of the evidence (see People
v Gillotti, 23 NY3d 841, 861; People v Voymas, 122 AD3d 1336, 1337, lv
denied 25 NY3d 913; see also People v Filkins, 128 AD3d 1231, 1231-
1232, lv denied 26 NY3d 904).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 03-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4155481/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
287
TP 16-01409
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ.
IN THE MATTER OF STANLEY L. HOWARD, PETITIONER,
V ORDER
ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF
COUNSEL), FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF
COUNSEL), FOR RESPONDENT.
Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Wyoming County [Michael M.
Mohun, A.J.], entered August 16, 2016) to review a determination of
respondent. The determination found after a tier III hearing that
petitioner had violated various inmate rules.
It is hereby ORDERED that said proceeding is unanimously
dismissed without costs as moot (see Matter of Free v Coombe, 234 AD2d
996).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 03-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4178367/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
I.D. No. 1612016740
v. : Kent County
TREQUON T. SETH,
Defendant.
Submitted: June 7, 2017
Decided: June 16, 2017
ORDER
Upon Defendant’s Motion to Suppress.
Dem`ea'.
Sean A. Motoyoshi, Esquire, Department of Justice, Dover, Delaware; attorney for
the State of Delaware.
Ronald G. Poliquin, Esquire of Brown Shiels & Beauregard, LLC, Dover, Delaware;
attorney for Defendant.
WITHAM, R.J.
State v. Trequon T. Seth
I.D. No. 161201674()
June l6, 2017
Before the Court are a Motion to Suppress and the State’s Response in
opposition. Following a hearing, the parties submitted supplemental legal
memoranda. Mr. Seth seeks suppression of all evidence obtained against him
following a stop, detention, and subsequent search by Harrington Police.l For the
reasons that follow, his motion to suppress is DENIED.
FACTS
According to testimony at the hearing, Mr. Seth Was pulled over on December
27, 2016, While driving south on U.S. Route 13 near Delaware Route l4 in
Harrington, Delaware. Sergeant Baker of the Ham`ngton Police Department pulled
Mr. Seth over because the tag lights on the car he Was driving Were not Working.
When Sergeant Baker approached Mr. Seth’s car, he could smell the odor of
marijuana from outside the driver’s Window.
Sergeant Baker told Mr. Seth that he could smell the odor of marijuana, to
Which Mr. Seth replied that he had smoked some earlier. The officer asked Mr. Seth
if there Was anything else in the car and if he could search it. Sergeant Baker initially
testified that Mr. Seth consented, but upon review of the motor vehicle recording
(MVR) he could not identify or recall an oral or nonverbal expression of consent.
Mr. Seth testified that he did not give consent for the search.
Upon searching the vehicle, Sergeant Baker discovered a backpack in the
middle of the back seat Which contained a digital scale, a handgun, and ammunition.
l Mr. Seth’s motion also mentions at the outset that his arrest Was also unlawful, but he does
not support that contention With facts or legal argument
2
State v. Trequon T. Seth
I.D. No. 1612016740
June 16, 2017
There were no drugs inside of the backpack.
After completing the search, Sergeant Baker arrested Mr. Seth on the present
charge of Carrying a Concealed Deadly Weapon. Mr. Seth filed a motion to suppress
evidence obtained during the stop.
THE PARTIES’ CONTENTIONS
Mr. Seth argues that the stop of his vehicle was unsupported by reasonable and
articulable suspicion because his license plate lights were working. He contends that
the continued detention of the vehicle was impermissible because there was no
reasonable and articulable suspicion that a crime has been committed In his original
motion, he did not address the officer’s allegation that the officer smelled marijuana
and that Mr. Seth admitted to having smoked recently. He also did not address the
officer’s allegation that he consented to a search of his vehicle.
Given the opportunity to supplement his arguments, Mr. Seth now argues that
there was no consent to the search and that, because the officer subjectively based his
search on consent and not a DUI investigation, the search was improper.
The State argued initially that Mr. Seth consented to the search and that the
extended detention was permissible because the officer had a reasonable suspicion
of possession of marijuana while in a motor vehicle, based on the smell of marijuana
and Mr. Seth’s admission It contended that Mr. Seth’s arrest was supported by the
evidence discovered during the search of the vehicle.
In responding to Mr. Seth’s supplemented arguments, the State apparently
argues that the search was incident to arrest based upon the smell of marijuana and
State v. Trequon T. Seth
I.D. No. 1612016740
June 16, 2017
Mr. Seth’s admission to smoking hours earlier. lt urges the Court to reject Mr. Seth’s
argument that the officer’s subjective intention in searching the vehicle is relevant.
STANDARD OF `REVIEW
When a defendant moves to suppress evidence collected in a warrantless
search, the State bears the burden of proving by a preponderance of the evidence “that
the challenged police conduct comported with the rights guaranteed [to the defendant]
by the United States Constitution, the Delaware Constitution and Delaware statutory
law a)2
DISCUSSION
The Court rejects Mr. Seth’s arguments that the license plate lights were
working, because the officer’s testimony and the videotape evidence clearly shows
that they were not. The Court finds that the license plate lights on the car Mr. Seth
was operating were not illuminated at the time of the stop.
The Court likewise rejects the State’s contention, apparently abandoned in its
supplemental brief`, that the search was consensual. Even if the State had not
abandoned its contention, it presented no evidence that Mr. Seth provided any
expression of consent, oral or otherwise. In fact, there appears on the MRV a
considerable amount of friendly banter between the officer and unknown parties.
Odd indeed.
There was a reasonable and articulable suspicion to support Mr. Seth’s
continued detention after the initial stop. Indeed, the odor alone was sufficient to
2 State v. Kang, 2001 WL 1729126, at *3 (Del. Super. Nov. 30, 2001).
4
State v. Trequon T. Seth
I.D. No. 1612016740
June 16, 2017
provide probable cause (let alone a reasonable and articulable suspicion) for the
search of the car. And the search was supported by both the officer’s observation of
the odor of marijuana and by Mr. Seth’S own admission to having smoked marijuana
a few hours earlier.3
“When an officer detects an odor of contraband coming from a vehicle, [the]
officer has probable cause to believe that the vehicle contains evidence of criminal
activity, and a warrantless search is proper.”4 And “[t]he odor of ‘marijuana alone,
if articulable and particularized, may establish . . . probable cause for officers to
believe that contraband is present in the area from which the scent emanates.”’5
The officer smelled marijuana coming from the vehicle. That Smell alone was
sufficient to create a reasonable and articulable suspicion of criminal activity, which
justified the continued detention. The smell of marijuana also created probable cause
for a search, especially combined with Mr. Seth’s admission that he had smoked
marijuana recently. Since the officer had probable cause to believe that there was
contraband in the car, he was permitted to initiate a warrantless search.
Despite the permissible ground for the search, Mr. Seth invites the Court to
3 The State relies upon Arizona v. Gant, 556 U.S. 332 (2009), in its supplemental
memorandum. Gant, however, is a case about a search incident to arrest. Ia'. at 340-41. Here, the
uncontroverted testimony is that the arrest occurred after the search, so Gant is not applicable to the
facts here.
4 State v. Dewitt, 2017 WL 2209888, at *2 (Del. Super. Ct. May 18, 2017) (citing Chisholm
v. State, 988 A.2d 937 (Table), 2010 WL 24241, at *2 (Del. Feb. 4, 2010); Hall v. State, 981 A.2d
1106, 1114 (Del. 2009); Jenkins v. State, 970 A.2d 154, 158_59 (Del. 2009)).
5 Id. (quoting Fowler v. S¢aze, 148 A.3d 1170 (Tabie), 2016 wL 5853434, at *1 n.5 (De1.
sept 29, 2016)).
State v. Trequon T. Seth
I.D. NO. 1612016740
June 16, 2017
probe the officer’s subjective intent. But this Court has rejected such invitations on
multiple occasions,6 and does so again today. The United States Supreme Court has
stated with clarity that “[s]ubjective intentions play no role in ordinary, probable-
cause Fourth Amendment analysis.”7
CONCLUSION
The motion to suppress is DENIED because the initial stop and continued
detention were supported by reasonable and articulable suspicion and the search was
supported by probable cause. The smell of marijuana and an admission to having
smoked it hours earlier amount to probable cause for a search conducted according
to the motor vehicle exception to the warrant requirement
/¢//MA ”3
Hon. William L. Witham, Jr.
Resident Judge
WLW/dmh
oc: Prothonotary
xc: Sean A. Motoyoshi, Esquire
Ronald G. Poliquin, Esquire
6 See, e.g., State v. Stevens, 2017 WL 2480803, at *2 & n.5 (Del. Super. Ct. June 8, 2017)
(rejecting a similar argument and collecting cases).
7 Whren v. United States, 517 U.S. 806, 813 (1996).
6 | 01-03-2023 | 06-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132178/ | The Attorney General of Texas
July 5, 1978
JOHN L. HILL
Attorney General
Honorable Reagan V. Brown Opinion No. H- 12 02
Commissioner
Texas Department of Agriculture Re: Whether the Texas
P. 0. Box 12847 Department of Agriculture may
Austin, Texas 78711 issue a nursery inspection certi-
ficate based on inspection of
premises when no nursery stock
is present.
Dear Commissioner Brown:
You inquire about your duty to inspect nurseries under articles 119-135.1,
V.T.C.S. You ask whether you may issue a nursery inspection certificate
based on the inspection of premises at a time when no nursery stock is
present.
Article 126a states in part:
The Commissioner of Agriculture shall cause to be
made at least once each year an examination of each
nursery or other place where nursery stock is exposed
for sale. If such stock so examined is apparently free
in all respects from any contagious or infectious
disease or dangerously injurious insect pests, the
Commissioner shall issue to the owner or proprietor of
such stock a certificate reciting that such stock so
examined was at the time of such examination
apparently free from any such disease or pest.
“Nursery” is defined to mean “any grounds or premises on which nursery stock
is grown, or exposed for sale.” V.T.C.S. art. 135.1. Article 126 describes the
inspection process as follows:
The Commissioner shall inspect or cause to be
inspected at least once each year each and every place
offering items of nursery products or stock . . . to
p. 4826
Honorable Reagan V. Brown - Page 2 (H-1202)
ascertain whether or not said item or premises are infected
withy disease or insect pests injurious to human, animal or
plant life.
Article 119 also requires the inspection of all nurseries and other places offering
items~ of plant life for sale. These provisions expressly require the inspection of
nursery stock. They define the premises to be inspected as a place where nursery
stock is grown or offered for sale. We believe the legislature has clearly expressed
its intent that the inspection take place when nursery stock is present. The
Commission may not issue the inspection certificate described in article 126a based
on an inspection of premises alone. See Teacher Retirement System v. Duckworth,
260 S.W.2d 632 (Tex. Civ. App. - FoxWorth 1953), opinion adopted, 264 S.W.2d 98
(Tex. 1954); see also V.T.C.S. art. 126b.
You state that in some cases it is impractical to inspect nursery stock prior
to issuing the certificate. However, any inconvenience that results from the
statute as written must be remedied by legislation. See Cullinan v. McColgan, 183
P.2d 115 (Cal. App. 194’7);Layman v. State Unemployment Compensation Comm., ll7
P.2d 974 (Ore. 1941).
SUMMARY
The Texas Department of Agriculture may not issue a
nursery inspection certificate based on the inspection of
premises when no nursery stock is present.
DAVID M. KENDALL, First Assistant
Opinion Committee
p. 4827 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144889/ | 490
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
kpartment 02 A&oulture
&u&In, T-e8
OpiBtOSi fi0. o-
Rmr Doa a elt
it- r-it 0u8ta
l 6ib r u8a a Be,*
lw
mnti0n0a I-, ma
oatioar0r l pa&or-
ee an4 poet a bond,
ful pertormame
produeeriur4/6r
he trasweota oltrue bodneaa?
. 88 w Ih the 8bote mentionadlaw,
(6) or 80etion (11, 8 a0finition
trozulpor8iry6geltt. It 18 wp~t
that the law a80llsunder pmmmur, ai Denalt~ that
au tm~portbg qmta tr~nrporting 0itmS rr0m
th0 gron, to the aakiaghoune 8h0a tiou3.a
have 0
'8 iaonclrloatton oard, en&
lh0da be OS 8uBh aax aad
Dspsrtment 0r Agriculture, page i3
that the oard 18 to be applied rOr by the dealsr
by Whom the tXWWCJXwUJ sgeat 18 UpiOpVd.
"If you wmver %a the negative oa the prsri-
ous question, the oustarmpaoksr requlns trans-
porting sgents to tranwort the irult to the
paoklng shed, yet sush paoker not bnlng a Seder
ua6er the prwisloas Of the Aot eOUld not rVqUe8t
the lesuaaoe uaaer pr0~lslons 0r the law rot l
trsnsportdng agont ldeatlrloetlon osrd.
*Is this the rl@t assumption? xi not, pleaec
MS-~ rully.
"Question 190.Sr Y your saswsr is that s
paoker is not requirra to prosure a lioease under
the Aot, but usn rsqusst thrt this DspertmslltIs-
sue transportlag agent identIiloetloa oarUs to
his transporting agents, Ii the traasportlng agent,
as has been round in aumerous oases, dlrrrts to
his ma or othsr*s use a portlon at the oltrus
iwit betwssa the grate and the shed to nblsb the
rmlt 18 to be aellferea, *ho is mmponslble for
suoh Tlolatlon, tho traMportIng sgu% or the
dealer, or both? The e&en% is ths transporter
of the dealer, or Ia this Instsaoe, the sustom
paoker. Thererore, lr Che ous%om paoker does no8
00ny1 under pmriniom at the Aat, -ia this law
have say baarIng oa him even though he is deaLlng
in oitrus mit rorthe purpoaa 0r paaklng same
ror barter? who *aa be rssponslbls roof tho
agent's rioletlon ii 8uOh vm.~sportlng agent haa
been employetlby the custom paoksr? Who 1s the
dealer in thls lnstsaoe Ii the custom paokm Is
not?*
In opinionHo. o-ZbOa, aadreenoa to Hon. Tom L.
Hertley, Criminal Distrlot Attoraoy, Mlnbur&, Tsxss,
this depament has ssrefully sndlpasd the doflnltlons
of ths words wpaokeP, adealera, sub *hemSlo* es used In
&eatlou 1 or Art~ole 118b, Vsraoa*s Annotated Civil Stot-
utes, i.e., the Tern8 Bonding and Lioeaslng Aat.
While the deoislon reaohed in that opinion 18,
as stated therein, applloeble onIT to the tacrtuslsltu-
atloa uac?eroonslaeratlon, ws see no reason ior shssglag
492
Departmeat 0r Agrloulturs, page 3
or ffiodltylng
our oontatruatlonof deflaltloas whloh are
sxpllolt sad anemblyous in reapsot to tbelr word-.
Ssotloa 1 (1) 0r Art1010 U8b. suprs, doriaes a
*paulcer* 88 r0ii0w8:
*Aaypereon who prspares antl/orpaaks oltrus
trult or its produots for barter, ssls, exahaage
or 0hlpment.-
A "dealerr aooordlag to Ssotlon 1 (0) 0r the Ad,
10:
"Any persoa who handles fruit, es the word
*handle' is derlnsd la (d) of this seotloa * * l *
saotioa 1 (d) aerinos ths word “had&“, a0 toi-
lows:
*Yeaa@ buying or Oiierlag to buy, sslling or
ordering t0 crell,or 6hipping for the puqose ot
sslllng, Whether as owner, agent or otherwise,
uiy oltrus fruit within ths stats or Texas, aad
persoas buying and/or shipping oltrus rrultlbr
oaanlag and/or proeeselng~ hanUsr8, as the term
IS derlaed.w(Uaderroorlng 01~8~ wo think it
should be *ax@).
The presenoe 0r the two respective derlaitions 0r
wpaokerw 0ad wat4alor*in the aeriidng seatlon 0r the Aot
ladloates sa latention oa the part of the Leglslatuke to
alstingul8h the two olasuliloatlons.
On the other hand, it is obvious that a apaoksra
.m?lghtsl.80be a Tkbalsra, sad rloe versa.
however, as derinedfn ssotloa (f) 0r
A Dpt301cera,
~rt;;~ls;18b, supra, is not aeosssuily snd sutoamtloslly
*, 85 the latter is aerinea in Oeation 1 (a) 0r
th: hot.
We fall to preoelve that the words:
* * * + prepans sad/or paoks oitrus rrult
or its produots rorb*rter, mile, exhhaage or
ehiplaeat."
493
Dapartnaat or frgriouiture,page 4
meap the scup thing es the words:
w a * * buylAg or orrerlagto buy, selll~ or
0rrerhg to mail, or @hlp?lng ror the purpaaa or
selling, whether as owner, ageat or otharwlaa,
any oltrus rrult within the Gtste or Texas, snd
personr buying ens/or ehlppl~g oitrus rmt ror
oannlng and/or prooaael~ 2 hanale~rs,as tha
term 18 derl2ad.a (Undersoorlna ours).
It 1s not to be pmmamed that the Laglslature,in
deilnlngthese wmds separately, had in mind a dlstl?lotlon
wlthmt a dlflsranae.
Under 8eotlw 4 or Ar%lsio ll8b. supam, deoliu
with wllosasa rea aooorripsnylng
applioatlonw, the follau-
lng roes ara presorlbear
"(1) For lloensa as s g6salor*or @hsaaler* of
oltru0 rmit, th8~sum of Tweatydl*e Dallars ($85).
"(2) Ybr lloense as a ~o0ml6rlon merahantg
end/or 'oontraot dealer’, as the term is in this
Aet.derlnea,mmprire Doll8rs ((bea).
"(5) Yor lloenea as a 'rinlmuu 06sh aesiar'
tlm ma or Ylre I)olbm ($5).
"44) YW a lloanseas a 'b-6 agent*,ths
SUE 0r an0 ~0iim (ai).
*(5) For a lloanaa as a ~traosportl~g qant*,
the sum or 0~0 mllar ($l)."
ibawa pointed out in oplaioaNo. O-1508,no tee 18
prasarlbed in the Aat for a paohar aatlng la suoh aapaolty
alma whether iAtentlonaiiy or thrau&h everbight. &AM-
uently, 0~1~ where the upaokerw, as aerincld in Saotlaa 1
9 I), is a statutory w6ealerw or ahaAdlerw, s wOonsiiealoA
marohaAtw and/or *oontraat de&leP, a wm.i~inumoash dealerw,
a %uyln(3 agent*, or a wtransportlng agent*, does he have
to prooure a i.lom~~ and pay a rea therefor under the Texan
Boadlng aad LlO0AslAg AOt.
Where a wpaoker” does nothing but prepare aatl/or
494
Department of &rioultluw, pa&l 6
paok oitrua rnlt 0r it4 produota, 4f4n though 84ia rmit
or itr proaota are t0 be bartsna, aa, e-hang44 0~
shippeaby othera,he is not requiredby the A& to pro-
cure a lloense. or oourso,ir ~XIaddltlonto prepare
and p4cklng, he hen4148 the fmlt wlthln th4 statutory
me~lng of the word wh4na14", h4 i8 a "awlor" and nuet
procure a dealor's lloonaa and post a band.
In anawor to y0ur rir8t question It 18 our opln-
Ion that a oltrua fruit paokor. operating in th4 4Tex4a
citrur Zone", whose only sots in ngerd to the rait a.re
the p1~p4rir.gand P4Oklng Or 4m WS it8 P&W@ta, 8~~3
rho neither buy8 or offers to buy, nor asllo or ormr~ to
~011, or OhIPc for the purp0ae Or nllin&, whether as own-
er, a&ant or othorwhe, SUY 0itnts rdt within thy 8tRt0
0r Texar, nor buys fin&/or ahlpa oltrw sm?it r0r oeulnlng
and/orpr00444i~~, in a000raanae with the a8riniti0n or
"h4nalS" giY4r.lln Ssotion1 (a) 0r ArtlC3.4 lleb, V4rnOR'S
.Arsotatsa Civil Statutw, i8 not required to make appli-
cation ror a aelil4r*a 1io4n40, pay deoloti~aliosnw r40
ana post a dealor's bwd, in eooor6auo4 with ~&;n.n.&[e)
aa (b), Vernon*0 Ann0tet4a Cl~il Statut48.
i8 SUbjOOt OiIlp t0 tbOS4 pf~iSf0n.S Or AtiiOlS lm, VW
IlOU'S Annotated Girl1 Stntut48, whioh OOUOe~ pOOk*rI.
Article 118b aoea not oontaln 4ny pimvlrlon iol a *paokor-
aaahr*e m34nao~. Ifowheroin the law i4 a llcenoe or
fhl8 de8OrlptlOn dealgasted. An r0r th4 term *oulltom paokor*,
it i8 not used ,in Artioio ll0b to our hmwbdge, ma it it
has a looal m44dng In thcaoltrus ~0110~ whioh dl6tlngtri8hO8
It rm the ~~3rdwpacker*, as deilned in the Aot, maid Zooet
uaa&e oannot be taken Into oonsideratlon for the purpore8
or this opinion.
Seation 1 (6) a4rlne8 a atr4nopartln4s
atient*as
mi0mt
%ny peruon euthcrlsad br any de4ler to sot
g00,:8ia sealer in the trenaimrtlw or oitrua
.-
SeOtiOU is pFOVid48~
* * * * upon applloatlonto the coarniaelOn4r
br any lioeaao6 dealer, a roaaenablenumberOf
*buyIn& a&sat" Sld wB5Sp0rbing Smd= ia0ntirioS-
495
D4p4rtPient or A@iOtittD8, page 6
tlon oerda my be fsmsd and aoorsdlted to suoh
a4814r, under auoh rul.SSand regulations a8 84id
ConunlaSionermay prSSorlbe, snd said hnmieaioner
IS hsnby mu ower~d to ohargo a ree not to me&
One Dollar (011 for eaoh oerd So ISsuea + * + *
ti anI?IWOrt0 Y0U.r 84Oond qUOatdOn, it i8 Our Opin-
ion thet whore a paoker 18 only prsperlng and paeking fha
rrult in acoordance with thS aSrlnltlon under smilon 1
(1) Of Artio1.e lNb, Vsrnon'8 A::nOtiited Civil sttatUt@&,
and is not hauling the rruit rram th orohard to the
ahed ao 48 t0 Ilsosa4lt~t4the paoker'a obtaining a atrang-
porting agent* lioenfieor ia0ntiri045tion onrd thrOu& the
prinolpal, thou the paokrr aould not request the iaauanoe
0r a tran8portlng agent.8 ldentlrloatlon acird,slnoe ho
is not a daller, but the traumportln(regent*# laentlrioa-
tlon oerd mbt be obtained by the dealer=prinSlpal.
Y the PaokSr is alec a dSSlSr* then ho may obtrin
a reaaonablo number or Wtran8portlng agent* laentlrlo4tlOn
oar48 in aooordano4 with tha terms or seotion le 0r ArtI-
014 llab, Vernon's Annotated Civil StatuteS.
Slnoe WS have hold that a paokSr may not obtain
*tran8portl5g agent* ta6ntitfoation oarQ8 uuloaS hi quel-
iii08 a8 a dealer una0r the aeiniti0n8 or *dealor* and
“ha&lo; &ot:on 1 i (4 ) and (0) Or JMiOi8 lUb, ITor-
nones Annotated Cl& Statutes, the promise upon which
your third quostlon rests ID d48troyed,aad the necaaafty
ror our oonsla4rixq~it -0v4a.
In c~nolu~lon, we wlah to lmpha8ize two raOt8:
rimi, that ~0 have n0t4a the reiteratoa obaervotlon ln
the letter or reque8t that a aoustom paoker" in th4 *oit-
N8 XOM” 5.8a *d41b16EER. We am not pawirq upon thi8
question, alnos Artiole ll.Bb, aupra, does not drilno
*oustom paoker". Ii a *ouStom paoker* IS a dealor, it 18
beoauae lo addition 'toprsparing and gacking oitru8 fruit,
eu0h a ps0ksr alsc "handier* rmit in aacoraanao wlth the
atetutory ad.nlt~on or wuuIl.~*, Gaotlon 1 (a), ~.Artiol*
ll8b, Vernon*& Annotated Clvll Statutes.
firtb4aor4, the qu48tl0n or whether or not a
‘peoker-. as defined by the Texa6 Bonding and Lioon*ing
Lew, nho is not rlio a asalar, should be rewlrod tS
obtain tb B- liaena~ as a *deahirw IS a StSttiWfor
496
D4partment 0r kgrioultur4, peg4 V
legialetive 44terninatlon. The wl8dou or effioaoy or a
pertiouler law la not th4 aonoorn ot the courts or thr
Attornay General*8 Departmnt. It la, perhaps, dealrablo
to require the samc~lloense oi a wpaokera $er ~8 a4 la ~'b-
quirea 0r a ~aealsr~, but the leulyeg4 0r the A4xea Bond-
ing and Lloenslng Lew oannot possibly be oonatrued to make
such a roqulrement. A wpaokerw nurrt %andlew fruit, as
provia in Artiole 118b, aupra, seotlon 1 (a) In order to
n40448ltet4 his ~mouroi34nt 0r 4 44414r~s lloenae fina hi4
posting or a bond as oallad for in Seotlon 4 of Artiolo
llab, eupra.
Truetlng thet w4 hare ruliy enswere your inquiries,
we are
Youra very truly
ATTOHIZY MXi?RAL OF TEXAS
BY
lX;ob Aealatant | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144895/ | 473
OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Honorable lf. L. Edwarda
cmulty Atforn47
viotorla County
viiotoria
, Tore8
By your Iotter OS !3 39, you rrqurrt Of
thin DeperSaent an 0 7 oi arrtaln amateur
rodeo 4xhlbLtion8, a 8 in your oouatf, to
the 044upatlon tax 1 on8 b7 Seation 31,
Arti 7047, Vernon** Snaanpoh a8 the
proper anrw4x to yo eOt a4m4r in whleh
thlr rod.0 lrhlblti 4 fu117 rrolp 70~ i4tt4r
tn thir oonneationr
ror 84r4rai
r8 r404iY4 110
r for their p4riom4nc4a,other than
IO other words, thsse rodwm are
t Of th4 pSrfMT44r8. U8U411y, (t
18 o,harerdthe publlo, rengirQ froa
it4 04litS, vhloh aOn i8 U84& fOT
rrorltrd by en7 indirldu41, nor.i8 the rod40 put on iOr
the personal profit of an7 individual. It 18 sinller 80
a free-for-all barbsoue for -alal p\trW348* vb4r4 th4
publio OOntTibUt68 80 -Oh to defray th0 4Xp4ll8S8,
*Please adrlse un for the benefit of the 'laxCol-
leotor, of this County, if these rodeo8 em sub cot to a
oaoupstioa tax undar S;setion31, Artlole 7047, h840
ClVll :itatut48.
*I have bean uaable to iiad my Oa468, dlreotly la
p&It, but ba8in~ XI7OpinlOa OU ~7 pOT8WNi).kXiOWl4ag4Of
thooe oxhlbltloas, sad the cuatoa in tble oouaty, f kte
heretofore omlly edvlssd the Tax Colleotor that these
rodeo8 wore not subject to 8n Oauupation tex, bmrlng
la mla4 'thetnon4 of tbeas perfozmezs are~protes8loael8,
an4 ell perform without pay, aa the same being more or
ldsa in the nature OS so0181 ~athsrfags.*
The tar 14~7 Ganderooanl4eratloa here, Seotioa 31, nrtlole
7047, Vernon*8 ¬ated Cl~ll Statute8, proviae8,as follow8:
.- Proa svery~rculaoexhibition
'HtPl~OE hherela broaabo
bg8tlng, rou&$ riding, eQuastr&an, aorobetio feeWand
roping eonte8t8 are parforms or exblblted for~uhloh
anL'a4ml88iontee 18 aherged or m0elve4, a tax or Tan
Dollar8 ($10.00) for each day ozpart thereof 8Ueh rodeo
i8 held or exhibited. .This 8heU not apply to rodeos
orineeby prlvata la4lrl4uale ana used on17 for training
purpose8; o? in coaaeotlon with agrloulture faire an4
exhlbltlola."
Se have been Uaable;afi 700 atats you were. to iind aa7 '.
euthoritle8 ln Toi or other ~or~sdio.tionn, tmariag dbwotly apon
the qocstlon preeeated, aad we are aaoordlngly relegated to the bare
text ot the astatute for the oorreat aa8wer to your quertioa.
It appesrs rmm your raotuel statement, herainabore eat
out * t&at e Sa v4ml88loa tee 18 oharged the publio, rUrgin& from
ten Gents to twenty-fire eeate, uhloh fee or gate charge is U84d for
defraying the expeasee tnoldent to holdi= the rodeo. At ilr8t flew,
an4 ooaeiderlag only the strlot let+terot the taxla& 8tetUta above
quoted, It would seenithat this ltb a ~4 8io ac h a r g e
would ma4er the
468orlbed Tad00 oxblbltlon 8ub)eOt t0 the tax. Wader this appTO&IOb
to tbe qieatloa, the loot that, 88 polatsd out by you, #iiS ad&%SsiOn
charge doe8 not go to earloh any individual but r&her 18 wed for
providing prism an4 paylng sxpeaser laofdrnt totthe exhibition,
would not take thl8 pertiouler exhlbltloa out of the operation ot the
statute& bewsuoe,oald atetute 4008 not provide that an adrmia8iOafee
.muat be ahPTge4 or raesired for pSTiIoift&ng purp+NIeobut m&e8
the E4T4 charging or TeOei'ringO? en adni88fOn fee a OondttbI Ot
texabilityL
Bon. Ic.L. Edwards, Fags 3
&wsrer, weedo not believe suoh a oonclu8loa, besed
upon the naked lettar of the statute, would be in eooor4eaoe
yith eatebliehed eaaon8 of statutory ooa8tructlon or effor4
the re8ult aonteaplated by the Legislature. The que8tioa pre-
84Rted 18 purely on4 Of statutory wnlstruation, emI la ape
PrOaching it, ~4 should bs guide4 by the peramount rule that
yi,bt;;tentof the lawmakers ahould be asaertalns4 aad 4ff44-
. This Nle eppli88 to etstUte8 generally, but hare w4
heoe e teX mesure, end we must be governe4, additionally, by
a rU14 Of particular epplioation to the effect thet tex 8tet-
Ut48 are to be oon8trued in favor of the toxpeysr en4 egeimt
the State or other taxing authority.
Guided an4 assisted by these ~le8, we oea only reaoh
the aonolueloa that the Legislature did not, by the enactmeat
Of Section 31, Article 7047, Vernon'8 Aanoteted Civil Stetutee,
intend to levy en oooupatlon tar upon a rodeo conducted a8 out-
llned.ln your letter, but intended rather to ler~ suoh tax upon
rodeo exhibitions cOnducta with e ylew to prorlt, or a8 the
bUeia488 or OOCu9atioa of the ov?3er8or sponeors of euch exhlb-
Iit1on.
This ooaolueioa is Impelled by ea exemiaetfoa of Art-
1010 7047, Vsraonvs Annotated 01~11 Stetutbs, In its entirety.
Thi8 artiole embraoee come forty or mOre SUbdiri8iOR8, saoh con-
aaraiag a certain oooupetion or buetiess d48igned to be brought
within the hot. Section 31, under oonsI4eretIon here, is one
of these and should not, in ooaetrulag same, be llfte4 out of the
tax etatuts of whloh it Is a pert, but should be ooarIdrre4 in con-
aectlon with the beginning of Article 70&7, Veraon~8 Annotated
Civil 8tatutes, which reads as follows:
-here ahall be levied oa aad oolleotsd fl?Oxievery
person, firm, 003ppenyor esaooIatIon of persOa8, pUr8U-
lag any of tk oconpatloas aem44 la the follOwlaR sum-
bered subdlrl8loa8 0r thle~artiole, an annual ooeupa-
tlon tax, which 8hell be paid annually la advance 4x-
Oept where herein otherwise provided, on every such Oc-
cupation or separate establishment as f01lows:~ (Uadar-
scoring ours)
mu8 ~4 844 that Art1014 7067, VeTROa'fJAnnotate4
civil Statutes, letlee a tex upoa~oertaln name4 oooupatloa8.
Our courts have defined Woooupatloa,n a6 the term ie use4 b
statutes relating to occupatloael taxes, to nf~,(111
yocetion,
celling or trade; the buelaem la which oue eWaSe8 to make
e living or obtain wealth, profit being an eellsatieleleaeat.
27 Tax. Sur. p. 896 (Licensee 540. 50); State t. Austin Club,
89 Tax. 20, 33 6. w. 113, 30 L, R. A. 500; Stanford VII. Stata,
16 TAX. App. 331; She4 Y. State, 70 CTim. R8P. 10, 155 8. v*
~524;LOW v. State, 31.Crti. Rep. 1.69,20 8. W- 9781 WQlhe@
V. Stats, 23.~6~. Ap9. 499; 5 8. 1. 136.
ma. @. L. mawmb , Page 4
It would do violence not only to the authorities but to
common sense to say that e rodao, aonduotcd by 1ooal amateurs for
the ammal edltloatlon and amuaemtmt of friends and neighbors, and
with no consideration mvlag to the perfomers eroapt love of the
sport, a raw apills, and a posnlble prim, is an Woooupatloa,a nub-
jeot to taxation within the splrlt and meaning of Artiole 7047, Var-
0~8'8 &BOtatea c1Vil %atUtes. You Jmre oorrcotly adrirea your tax
collcotor that the dosorlbed rodeo la not subjeat to this tax.
Tour8 very truly
ATTOBXXYGH;ERALOP TXhS
. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144904/ | OFFICE OF THE A-ITORNEY GENERAL OF TEXAS
AUSTIN
liononblo H. L. Wa8hbura
County Auditor
EarA cautlty
85ll8toll,
Taxa
mar sir:
the 46th Leglala-
oounty In thh state hariug a populationof not:
leas than two hundred oinetythoumnd (390,000)
not more than three humIre fifty-fire thousand
(35S,OOO)aooordlng to the last preoodlag Federal
Oem!ws, and all tuture Federal Camma.*
seotion 3 0r the Aot deoiama an emtrgenay and
erteot rr0lrand stt*r Its
provided that the not should t(llpII
passage.
442
Honorable H. L. Washbtlsn,Faga 2
We are informed by your letter and by tha Comp-
troller*6 office that Harrlr County had a populationor
three hundred fifty-ninethousand three hundred twmtp
eight (359,328)inhabitant.8 according to the 1930 Federal
census.
n‘e conetrue the above mentioned statute to apply
to all those oountlee having a populationof not less than
two hundred ninety thousand (290,000)or more than three
hundred fifty-fivethoueand (3SS,OOO)aoaordlng to the la8t
preoodlng Federal Census and all future FederalCanmu, and
Harrla county does not oomo within the de8lgnated popula-
tion bracket. Therefore, you are reapeOtrullyadvleed that
it Is the opinion of thLs departmnt that Senate Bill Bo.
401, Acts ot the 40th Legislature,does not apply to Harrfs
Colulty.
Trusting that the foregoing fully answers your
l.nqulw, we remain
Yours very truly
ATTOlWEY GW%W OF TEXAS
Ardell William6
Aasl8tant
ATTORNEY GENERAL OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145587/ | Corald C. Mann
*
A-u.NxY OmNrnPA..
RonorabloA. lV.Lows=y
Coun+qAttorney
Naoogdoohes,Texas
Dear Sir: OpfaioaHo. C-624,
R.8 Ecmis the salary of the oounty
audltor,~appblntod andor.Artlolo1646,
R. C. 6.. fi&o6 or dotormlnodt
Your roquostfor'anoplnioaoa.the abovs rtitod +&lon, tog&b&r
with othor questionsincidentalthoroto, has beoa rooolmd by this offlw.
It appoarsthat HaoogdoohosCounty does not havh oithsr th+po-
sdribed'populatlon 07 asssssodtax valuationirequiredby Article 1646, R.
C.8. to autborlcatha l ppolatzentof a oouufJr~auditorundorthatArtlo10,
but a ‘oqfp suditorhas boon appcdatedfor the oounCyunder $he~provlslons
d hrtloloo1646 and 1647. The distrlotjudgewho-app&ntod the auditor
fixed hio~salaryat r,mlnimumof one hundred%wenty-f1~~'(#%26;CC) dbllari
permanth; fully ocmpllodwith all the ~ovlsionr of Ai% 1647;and th&
+triot olerk'porformo&hir dufy'aspesaribod by iaid-Art%alo.Xau~or,
tha 'Conmissloaors' Court refusedtoreoord in Iti mlnutiitho~6eitifiod
Oopy of thtindnutonroooitedfrom tho distriotclerk;.land refusedtoeator
an ardor dlrootiag'tho paymat of tho auditor'6'ralrty,'isoonnaandodto do
by tho same Artiolo,but to t&e ooatrargonterod~~ordsr iastruoting~th~
oomty alark to lsfuo no Wt to tho'audltorln paymoittbfhlr monthly
salary. 'Inpiow of thle eituatlon,you nant to know whetherthe audltoi-Is
salary ir fixed bythe dlrtrlotjudge or by the Wmnlssionerr'Court. O&or
quotione subnltto6will bo subsequentlyconeidorodand answeredherolna
The question&.a%¶ has been hsretoforooonPIPld&ed by'thiadrp&rt-'
mont npoa at least four obo8slolls.Cn'July24,'1921;Ron. 0015;C.'.Stiptikljs,
tibor oftho House of Roprosontativos, nas adivsedthatOtheG.lary of Ouab
a oouutyauditorwas determinedby the.provlsiona of et. 1646. On August
17, 1956, Mr. R.C. Tompkins,CountyAuditor of Kaoogdoohbs,Caunty, -1
advlsodthat the Commissionera' Court of said aountywas the proper author-.
lw to fix his salary,ti thrt the amountwas for tho Court'sdotermine
tion. Thon, on D&amber 21, 1926, Hon. Roy R. Priest,DTstriot Attorney,
Rankla,W&P advlsod to tho oamo effect. The last oxpnrsion bytho dopart-
meat on the subjootwhiohwe have been able to find 1s containedin a lattw
dated December22, 1938, addressedto Hon. Lox. B.Smith,DistrictJudge,
Groesbaok,wherein ho IP advisodthat the salaryof tho Ccwnw Auditor of
FreestoneCounty shouldbo fixed by tho Cona&ssion*rs' Court of said oounty,
Tho bsis for that anolusion was&at the %xmuiosloners'Court lo an agent
Hon. A. I% Lowery,page 2 (C-1326)
of the county and controlsthe levies affootingrovaauasof a o~unty.~
Tho opinionsrenderedto Mr. Tompkins&d Hr. Priest state no reasons
for the conclusionsthorolareaohed. All of the above msntionodopinions.
were writtenby Assistant Attorwys General,wore not oonforonoeopinions,
cad were not approvodby an Attornv Goaoral. The firat opinionwas writ-
tan duringthe administration of Hon. Jas. V. Allrod,tho others duringthe
time that Hon. W. HcCraw was Attorauy General. L%IOof th.soopinionsholds
that the salary& the am&y Auditor of your oounw nmst be fixed Iy the
Commlsslonsro~ Court of said oow at au& an Mount 46 it might determine,
while the opinionfirst 4bova roforrodto speolfioally holds that tho sal-
ary of an auditorappointedunder tbo authorityof Article1646 mst %a
governedand doterminedby'themeasuringmothod 8of up in Art1010 1645. Both
opiaionroannotbe oorreot.
Let us examinethose staktbs along lrfffi
Art. 1647,&d 8.0 if wo
o8nnotarrivoat a acrreotan8wor to tho questlonlnvolmd.
as
The pertimnt prts of Artloles1645 and 1646 road, roepeotively,
follows:
*In m count;v
having a populationof thirty-fleathousandinhabitants,oc
over,aooordingto tha prooodingFodoralomsus, or havlngatuvalQati&n
of flftooamlllloa~dollusor over, lo,oordlng to thr last approad tax rolls,
tharo shall be Mennlally.appolntedan audltor'ofaooounts&id finaxioos,
the title of said offleerto b oountyauditor,Who &all hold his offiae
for trroyoam, and who shall reoeiw as amponration for-hi8smvSoer 6nS
huu6redd'andtwenty-flvodollarsfor eaoh milliondollars,or major portion
tharoof,of thoaosossod v8lurtion,%o armual 8414ry to k ooniprfid f&an
tb last approvedt@x rolls, sald~annualPalw'fra oount$tide‘shall not
oxooedthlrwslx hundreddollars,to be paid monthly out of'thti &tiqral
fundn of tha oountiupon an order of&a oommia8lmers~ court. . . .t
"Woatho cc%maisnionors' oourt of a oounty,not mentionedad daumorittiiip
thr preoodingart.3010 shall detirminothat an iudltarIs k publlO~~ooidSlfy
lntha diaptoh of the oountitisinaosand shrll into*'ahdrdor.:ti@ti ~ti
ndnutes'ofsaid oourt fully settingout thereasoak hid~aeaesaity of’rPr‘
auditor;.rad shall~oausoiaid'S+drrto ~'ooirtffl'id to thi drstii&tSjizdgo#
hating juriodiotloaLn the boimw; 'rid judgbS‘Sh&ll, Wsuoh~r'Mkori%K
ooasldend good aad sinffiolont, appointi cknty aidltdr,ie prtidti lai
the suocoedingartiol~,who shall quall~~and perf&ti~all~tho'dutibr .'
ioqulredof county auditorsby the laws of fhir 2tat-e; providedmid judw
shall havu the power to dlscoatlano the offloe of suoh countyauditorat
any W after tho expirationof cuxoyoar wlmn it is oloarlyshown that suoh
auditorir not a publio neoessityand his servicesaro not oommonaurato nith
hls salaryrooolvod. . . l"
Article 1647 reads as follows:
Yho distriotjudgoahati% jurisdiotioaIn the oountyshall appointthe
oountyludltor at a speolrlmootinghold for that purpose,a majorityruling:
Hon. A. W. Lowory,page 3 (O-826)
provided,that if a majorityof such judgosshall fail to agree upon i&e
solootionof some psrson as 4udltor,then either of said judgos shall oar-
tidy suahfast totho Goarnor, who shallthereupon4ppolntsoma other
districtjudge to sot and vota with tho aforesaidju+os in tho sole&ion
of suoh auditor. The a&ion shall thea be rooordedin the minutes of the
districtoourt of the oounty4nd tie 0101% thereofshall ootify the eeme
to the colmnis6lonero'oourt,
which shall oauee tho sane to be recordedin
its miautes togothorwith an order directingthe paymoatof the auditor's
salary. . . ."
Tha offioe of the ooun@ auditorwas createdin 1905 by Chrp; 161,
Reg. See. 29th Legisl4turac 800. 1 of that Aat, as mendad in 1907,wns
oarriodinto tho RovisodStatutesof1911ar Art.l46O,whichArtiolow&s
wndod la 1915. The originalAct and all amendmontrup to and LnoludSng
gho ~an&neat of 1916 were based oa oltherthe populationof the wunty or
acaneolty locatedtherain.'Tho salaryof the auditorIn tho orlgltilAot,
& all am&ndm~to thereto;was fixed 4t #2400&Q, no more, no 108a. In
1917, Chap. 184, Reg. SOS., l&o 35th LegislaturePOr thi first time pro-
vided fortho appalnbnontof 4 counw auditorbased on~populationor tax.
valuations. Tho valuationwas fixed at fifteenmllllon dollars,'orover,
tho oame as am providedfor in Art. 1645. Ia the smno Act; Art. 1460a,
now&t. 1646,~wasoreatodand ArCl460, after Ming omqndedIn 1925 to
inomaso tho suxbm salary,la now, exoludlnglater "braokot"amendmenta,
t. 1646. It mry hero be liotedthat the dot of 1917 limitedtha aalarJt'
2o a county auditorto #100X@ for 4421 mlllfon,o? major portionthereof,
of fax valurtion,not to l~oeod #2400&O per 4mmh
Art. 146Oa (Art. 1646) did not oreah the officeof countyauditor
l& only pmded that those oount&oawho were not lllgibleto have 8
ooun* auditorbeoausoof lack of the nea*ssarypopilatlon,or the requlrad
taxablevaluation,might have the benefitof tha sarvioosof a aauntg
auditorif 453 whwa the Conaaiasionere~Court ~etfermined
a publioneawri*
existedfor s-, and providedtho'proo&xre f& the'appolntm&tof an
auditorby the P- appointingagona$(o1d.k-t.1461, now&t. 1467) empow-
wed to appointan auditorunder Art. 1460.
Art, 146Oa was no'&+ moro nor loss than an exoqtion to th* gen-
oral qualificatlonr prescribe for countiesto be eligibleto have 4 ocean-
ty auditorby Art. 1460. Thin exooptloacould have with propri*CJr been
added to saidArticle as a proviso,for In truth and In faot, that is
what it is, and nothingmoroe Sec. 1 of the Act of 1917 amendsArt. 1460:
600. 2 adds Art. 1460a,and Sec. 3 amendsArt. 1461 by providingthe
additionalproooduro,perhapsmade neobssaryby Art. 1460s.
If Sec. 2 addingArt. 146Oa,had been written a.04 pruvbo to 600.
1 of the Act of 1917, amendingArt. 1460, the questionnow under considor-
ation would never have arisen becauseit would have bean apparentthat the
salaryof a countyauditorappointedin a aountyambraaedwithintb proviso
would be measuredby the same yardstickthat salariesof countyauditors
Hon. A.& hwory, page 4 (C-626)
nho am within the g*naralprwi~10n~ of Art. 1460, of which It would
haw boon a part,were measured,which was "one hundrod dollarsfor saoh
mlllloadollars,or major portiontheroof,of the assossodvaluation."
It is apparentthatmovured by thin yardstiok,ao countyauditor's
salarywould ever amount to the smxbum salaryof $2400.00,to which thor*
auditorsof countioshavingmore the.n$lS,OCO,OCXMOtaxablrvaluationwore
limited.
It is tho wrifer'sopinionthat the Etatut. 4x-4 so plaia and'unam-
biguousthat thereis a0 oaoasionto resort to rulos of aonstruation, tit
If nrah rosart muot be had, thea w* must rmaombsrthat a otatut*must be
oon*truodto make It eff*otiw, that is, enforooalilo and operatiw, If It
Is fairly susooptibloof such lnterpretation~ eaoh prt must b ocmslderod
In ocanoctionwithevery other part, in order to produco a harmoniouswhol*
u&to roaoh lh* true l*g%slativaIntoi&,the real parposoof oomstruotion.
A statutemust be given a aonstruofioathatavoids misohitius conioquono-
*si or m&a f;timposslblo-of lnforoawnt, or to dofoat or'aullify,or that~
will render0it fruitlars,futile,purposelo**or uaol**s. Itnustba pr&
*umod that th* ~glslatwU did not intendto do ~afooliShor usolohsthing.
Nhat.dll bo the oonsoquono*sshouldw* attemptto oon*tru*the
rtatuteas authorlsingColmetsoionorr 1 Courts to fix tho~saluy of ooun~
auditorsappointedundorArt.'16461~Sathe first plaoo,wo uy oonfronf*d
rriththe establishedpolloy of the 8tata fired w ropeato6leglslatdw lots
fixing th* *alariosof oouu~,audltorsgonorally. The bgi*lrturtitidontly
thought,itwouldbe unwis* to‘permlta pmaissloners~Court ti firtho'atil-
arj?of ax'offloerirlrosoduty It was to chock their officialaotP and to koop
them in duo bounds. The duti*simposodbg 6tatutauponooun~ luditorii
patentlyaffsotaa ccmPni*slon*r*~ omrt in many ways,'lnthr lxaralsoof It*
authority0-r countiaffUra. The Legixlatur*wU fiilly.Garoof th*'*v$l~
to be ranodlod&*a. It oroatodth* offioo of oounty auditor. That body knew
that a bountyauditorshouldnot b influ*ao*dby ouch oourto~or'tho mombors
thereof,wh*n It providedfor ME appointmentby dlstriotjudges,+nd mad*
MS salary oortuin,or fixed a yardstickwhorebylt oould be made oertain
without the int*rvontion of tho court* The bgislaturo aid not Mt to put
a oountyauditorla a positionwh*ro h* could b intimidatedor influenoed
lythe oourt,by peaittlng the oourtto rair* or loworhis salaryat will,
or dlrohargohim.
Ik ar* n*xt aonfroatodwith thin fundamentalpropositionof law, to-
wit: _ _,.
,..~. ,~
?m tie absenceof *xpre*sConstltutlonal pr~sion, the camp*naationof
offio*ramust b+ fixed by the bgislature or by sane governingbody whiah
han ken expresslyauthorizedto do so." Wharton Co. v. Ahldag, 84 Tax. 12,
19 S.Vf.291; State V. &ore, 57 Tax. 307; First Baptist Churahv. City of
PoCt Worth (Corn.
App.) 26 8.X (2d) 198; 34 Texx.Jur. 506, 607.
_ . r
Hon. A. 5% Lomry, page 5 (O-626)
Ths affias of the countyauditoris a creatureof the Logirlature,
hence there is no constitutional prw~sion f3xing the salariesof such
offioers.'Tharofore,womust look to the statuta to SOS how suoh salarfes
are fixed, and if not flxed ly statute,we must th&n look for l rtatute
8xpnrsly authorizingsme governingbdy to do 80. Ii thorn bno such
statuk, it neoesnuily follanrs that no salaryoan km paid to 8uch county
offioers. See authoritiescited above. .Inthat bvonti,w e noald oomict
the tigislaturoof having done a futile,useleas,ineffective,unenforoe-
able an4 fruitlessthing -- enactedan impotentstatuto.
We haw been unableto find any ttatuteenpOweringa oolnnclssioners~
court,a districtJudge,or any governingbody to fixthe salary of a aouuty
whether he %S appointedunder Art.'1646or Art. 1646. Thorn are no
,rtiitor,
su&'rt&utos for the very Simplereama tit tharo i8 no neaersityfor
88x10.The bgislature has fixed the Salaryof oounw auditor8bytho plain
provi8ionS(d Jrrt.164s. In that Ai%cle i8 found a'yardstiakby whioh every
countyauditor'8nalazymay be dafinitslydelmmined, aoopt tho8o tioioim
8Cb.KtO8Ue fiXad bg~INlWZ'OUSbraOk& 8ZIOn&llSnt8
thSret0,and by OthSr track-
it statuteswithwhioh we are not here conaernod,%8oau8stliaydo not apply
to I!hoogdoohes
County.
In this cozmootion,w8 call your attSntion'tothofact that in saoh
and awry bracketamndmbatadded to tiiO18 1646, an4 in ArtioloS164% to
Artiolo 1645g, inolusiw, Vernon'sAnnotato4Statutes,a oalargis spmifia-
ally fixed for th0 oOUU~J~
aUditOrOf the OOUnig or OOunfiO8ttiwhioh8tid
truoket8nm&t1emtaapply.
YOU haV0 adti8.4US that th. aSSS86.4PrlUatiOnOf bobgdOdm8 COunty,
as 8hm by tbo last approvedaS808SWnt roll8 Of pai4 county,i8 lpproxi-
mat.4 twelvemilliondollars. It is a simplemattar of oompuationto detir-
m&n8 that the oountyauditar's8alaryis PiPteenhundreddollarsper amum.
The other quSstion88ubnlttodam 4opSn4ontupontho anm8r to your
main qU88tiCQ3,
which 1, haYS just m8wemod, tim C‘=&.8SiOX,Sr8'C0Ul-tshould
ocmp4 wlith the plainmandatOXyprOviSiOn Of &% 1647,,reOOI'd 50 it8 Inin-
utes the oertifiodcopy of the minutes of the dintriotcourt appointingfhS
auditor,an4 sntsr a~or4er 4irSotingthe paymentof the auditor'ssalary
rah month aS it aoorueS*
The law prasumee all publiooffloam will pmfona their offioialdu-
ties. Therefore,wa nwt proman that the Ccmmisaioners~ Court of your
oountJrwill performits duty in this in8tanoe. In faot, that bo4y ha8 no
disoretion or other alternativSthan to follow ae plain mandatoryprovi-
sions of tit50181647. For thiS mason, wo 40 not adPi whatherthe
countyolark shouldprow84 to i8suS to th8 countyauditorhis salary
oheck each month as his salary amruSs until the ComissionsrS1 Court pSr-
form8 it8 perfunotorgduty of recordingin its minute8 the oortifiadcopy
of the ndzwta8 of thS distr ot courtand entar an order dirmting tb
Hon. A. V. Lowmy, pago 6 (C-826)
paymentoftha countuauditor'ssalary,bscau86w6 feel that this will bs
done 8s soon as th8 oourth8s bean offioiallyadvisedwhat its duty 18 in
th8 prmiseo.
The foregoingr-marksambased upon the prssumptionthat the person
appointedto tie office of county auditorha6 takarrb&h the constitutional
and the specialoath of off108 requiredof him by Art. 1649, 6x14has filed
with the Comniosicnsrs* Court th8 bond provid6dfor in said Article. m
this oonnection,wse ar6 furtheradvisedthat the auditozyreoemtlyappointed
su008848himsslfin offio8. If he has not t6kon the oaths,~8xooukd8nd
filed the bond,ho may yet do so, for u&d8r Sm. 17, Art. 16 of our Consti-
tution,he is mquirod to performth8 duti88 of hi8 offioeuntil ha quali-
fi88. Purthannore,the provisionfound in Art. 1648, requiringth8 bond to b8
filed within trSnty46~8 lftor hi8 l ppointmnt ha8 be611oonotnmd a6 dir&-
tory in simil6rSt6tWt86. McFarlum ot al ta.Eow811,County Judge, (WV.
App.) 43 S.W. 315, error rofU6o4. In 8ithsr svent,the auditoris mititled
to hi8 comp6nsation80 longao he 88rv86the oountyin that 06pacity.
The opinion8her8toforewritton by assistmts 6nd hmiiaabom r8f8r
re4 to, whsmin viano oontraryto this opLnionar8 8xpns66d, ar8 her6w
speoifio8llyW.rrulrd.
Trwting that the foregoingsnawu8 your Inquiq, w.8are
V.lytrulyyour6
ATTORM3Y GERERALOF TEiAS
By /s/ Bruoo W.1.
Exy8nt
Bruoe3?.Biy8nt
As8istult
mMrcegw
AFPRWSD: Apprw8d
/8/Garald C. tin opinionConmitt
ATTowlBp GENERALOF TEXAS byGRL
Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145590/ | OFFICE OFTHEATTORNEY GENERAL OFTEXAS
AUSTIN
Honorable Alfred N. Steinle
County Attorney
Ateacoaa County
Jourdnnton, Texae
Deer Sir:
06, attorneys* iser
th6 84x10and
01: not pmit adrad .fr0m par-
re-lnvestnrentof the oa8h la 'the
s8h001 ma or the wqtnty sh0uia bboma
the Permanent hrnd or the hw!llable
TO amwer your fir6t i+WtlOn we deeatit neoembary
that we review the oon6tltutionbl provlelon anb laws unUer
whiah the countiqs or thle State hete been apportioned land
for school purposes. By virtue of-an Ad approved January
28, 1839, oertain leaguea cr land were granted to W&Y~.X&~~OWJ
oounties of the State rt3r purposes of eaumion.
Honoreble A$fred .R. Steinle, page #S
was enlarged upon by the Act of Jenuary 16, 1850. At en
election on August 14, 1883, Section 6, Article 7, was
adopted end became s !art of our present Constitution.
This provision reads, in pert:
"All land heretofore or heraaiter granted
to the several counties of this State for edu-
cetional purposes are of right the property of
said counties, res?ectlvely, to which they were
granted end title thereto la vested in said
oountlee ena no adverse poasea8lon or Mmltation
ahall ever be available a'gainstthe tltle,of any
ooutlty* l * Eac~coQnty may Sell or aiSpOSt# or
Ii8 lend in whole or In part 1i1a manner to be
provided by the COlIEUi88iOnerS':
oorirtOS the
ohlllty. Said laid and the procee& thereof when
cold 8hal.lbe held byisaid countle8~a~one a8 a
true% for .thebenefit o$ pub110 school&therein;
said proceeds tombe .inYe!stedin bonds of$h8
u&tea StCIte8, the 8tat&@f ‘f8ZWOr Caadti88
h 8aia Stite, or In SUch if&her 8eOUriti88~ and
under atch re8trlatlqn8~as ~i+y be pre8Oribed Iiy
law; aaU.the counties ehall bk.res mlble for
all investments; the lntemst- .$
*ozIic.r~
ereon an
revenue, eroqit the princ+l,':Honorable Xl?red N. Steinle, psge#3
2827 CP the Revised Civil Statutes or 1925. We think there
Is no westion but thet the interest collected on the ~a-
dor's lien note retained by Atescoaa County beoame a part of
the Xw:lleble Fund.nnd, as such fund, it passed from the
jurisdiction of tie Commissioners* Court of the county and
subsequent ex-pendlturestherefron can be made solely upon
the outhorlzation of the County Board of Trustees and the
County Superintendent acting as their agent. See the oa8e
of Oge et al vs. Froboese et al, 66 S. W. 6138, (rehearing
denied). In our opinion this preoludes the CO!mi88ioner8*
Court or the ccunty from ra8orting to the Avallabl8Tund
Sol:the payment of ooste, expenses, attorneye' iserrand
taxes which may have accrued agalnclt~theland heretofore
granted to the county for educational purposes.
Article e951,Sectlon 0, of the Revieed Clvl& Stat-
utes of 1925, read8 as fOllw8:
BohoolS."
We, theretore, think that it beoame.the duty-o? tbo
~IsIIIIb8iOn~8'Court to bring suit to reaover the land ln
queatlon, and thatany expense incurred a8 a re8ult +r*?
8hould be borne by the oounty. In SUppOrt Of thi8 cOnClll8iOu
we cite from the case o? Toml$naon Ys.~Ropkin8,Coopty$-report-
ed in Volum& 57 of the Texa8 Reports, at page‘.ElR,wherein
the courtspeaking through Associata.Justice Bohner said:
*The whole policy of the sereral acts, both of the Republlo
and or the State of Texas, ltigranting land'for the eatab-
lishment~o? a general system o? educatfon Wa8 to make the
land thus granted an available net ?und for this purpoee;
ana it was not Intended that any part or it should be divert-
ed to any other purpose, not even to the expense of lccating
and surveying it.* These lends were granted to the VEiriOU8
counties in trust ?or the benefit of the schools of such
counties, and the counties have been made responsible ?br
the sefeguerdfng of such tunas aa may hsve been derived rrcm
the sale of the land granted to it.
Honorable Alfred K. Steinle, page ,&
"All agricultural or grazing school lend
mentioned in Section 6 of this article owned
by any county shall be subject to taxation ex-
cept for State purposes to the same extent es
land privately owned.*'
Therefore, we think that if the lands of ktascosa County ly-
ing Within LaSalle County are 8lassi?l,edas either agriou-
tural or grazing land, then it must follow that Ataaoorra
Caunty la liable for the taxea'due LaSslle County, Pn the
ease 0s~Childress County YS. 8tate"et al, reported in 92 s. w.
(2d) 1011, the Supreme Court said: *Where agrloultural school.
land was sold by counties to individual8 who failed to comply
with contraots of sale, whereup0n title to lands vverted to
oounty; such land wuia not be burdened with ,taxeedue the
State during time land wa8 pri*atelp owned,* a$ the.same
wQrt, speakingiurther, said4 ?A wuxtty which did noere-
aOqtire title ~tosgrlcUlttlra180hool land situated in anoth8b
oounty until February, 1933, .r&acqulrsdland m@jeot to
tares due ench other aaunty ?or the years 1951 8x@ 1992, anl
the county re-aoquirlng laad hed:.optiono? pfiylngtaxee to
proteat Its Interest or let land be .a01d @r.such taxe8 * *".
In other word8, the courthela that a judgment r0r tare8 aoly
ad lawfully 1eYled agfiia8t88hOOl land could not be.en?oroed
against the carnty to whom euOh~landa&.d been gra8ted, but
this, in our opinion,.doee not relleYe‘~the..respoQaible
oounty
&? liability to the Penmnent Sohool l%nd o?‘it8 county.
summing up these
opinion, the expense8
of the land belonging to the
county must be pald~from the
that the taxes duly and law?ully Isvied agblnst such~lsnd by
&&lle County may be paid out of the revenue derived from the
u, but that in the event there is no such revenue tmsuch
taxes shall be paid from the @eneral.tid. See A,tlcie Ylnoa,
Revised Civil Statutes of 1925.
To answer your second question pre refer you to the
last sentence of Section 6, Article 7, o? the Conetitutfon,
which provides: i
Honorable Alfred N. Stelnle, page #5
"Interest thereon and other revenue, except
the principal, shall be available funds."
We think the expression "other revenue" Is intended
to cover any revenue earned by the Permanent School Fund as
a result of the investment of the proceeds o? the sale of
lend granted by law to that county for educational purposes.
Then it necessarily ?ollaws that our conclusion is that any
profit earned by this fund should beoome a part of the Avail-
able Fund.
very truly pUr8
i?TORWEYGENKRALOFTEXM
JyL-4 &---+-
Clarenoe B. Crow
A88i8tMt
.APPRovJm:
OPIWIOR COlIltamm
BY B.W.B., Chsirmsn | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4400087/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-15130
17-15131
Plaintiff-Appellee,
D.C. No. 4:15-cr-00118-CW-1
v. D.C. No. 4:08-cr-00405-CW-1
ANTONIO ROYAL, AKA Tone Royal,
AKA Antonio Royale, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
In these consolidated appeals, Antonio Royal appeals from the district
court’s judgment denying his 28 U.S.C. § 2255 motion. We have jurisdiction
under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Reves, 774 F.3d
562, 564 (9th Cir. 2014), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Royal contends that, in light of the Supreme Court’s holding in Johnson v.
United States, 135 S. Ct. 2551 (2015), his conviction for assault with a firearm, in
violation of California Penal Code § 245(a)(2) (2005), is not a crime of violence.
In Appeal No. 17-15130, he argues that, therefore, he is not a “violent felon” for
purposes of 18 U.S.C. § 931(a)(1) and that the district court improperly determined
his base offense level under U.S.S.G. § 2K2.1(a)(2). In Appeal No. 17-15131, he
argues that the district court erred in its calculation of the Guidelines range. All of
Royal’s arguments are foreclosed by United States v. Vasquez-Gonzalez, 901 F.3d
1060, 1065-68 (9th Cir. 2018), which held that a conviction under section 245(a) is
a categorical crime of violence under 18 U.S.C. § 16(a). See Vasquez-Gonzalez,
901 F.3d at 1068; see also United States v. Werle, 877 F.3d 879, 883-84 (9th Cir.
2017) (stating that the language of section 16(a) “largely mirrors” the language of
U.S.S.G. § 4B1.2(a)(1)).
In light of this disposition, we do not reach the parties’ remaining
arguments.
AFFIRMED.
2 17-15130 & 17-15131 | 01-03-2023 | 05-23-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4132198/ | The Attorney General of Texas
June 12, 1978
JOHN L. HILL
Attorney General
Honorable Chris Victor Semos Opinion No. H- 1182
Chairman
House Committee on Business Re: Conflicts between article
& Industry 2368a and city charters.
State Capitol
Austin, Texas 787ll
Dear Representative Semos:
You ask whether home rule cities are subject to the provisions of article
5160, V.T.C.S., relating to contractor’s surety bonds for public works. Article
5160 provides in part:
A. Any person . . . entering into a formal contract
in excess of $25,000 with . . . any municipality of this
State, department, board or agency thereof . . . shall
be required before commencing such work to execute
to the aforementioned governmental authority or
authorities, as the case may be, the statutory bonds as
hereinafter prescribed, but no governmental authority
may require a bond if the contract does not exceed
the sum of $25,000.
(Emphasis added). The underlined language was added in 1977. -See Acts 1977,
65th Leg., ch. 809, at 2027.
The article 5160 provisions on construction bonds are incorporated by
reference into article 2368a, which deals with contracts entered into by cities
and counties. This statute defines “city” to include:
all cities and towns incorporated under General or
Special Laws, and all cities operating under charter
adopted under the provisions of Article 11, Section 5, of
the Constitution of Texas, unless especially excepted
under the terms of this Act.
See. 1. Section 2 provides in part:
P. 4767
Honorable Chris Victor Semos - Page 2 (H-1182 1
if the contract is for the construction of public works, then
the successful bidder shall be required to give a good and
sufficient bond in the full amount of the contract price, for
the faithful performance of such contract, executed by some
surety company authorized to ado business in this state in
accordance with the provisions of Article 5160, Revised
Statutes of 1925, and the amendments thereto.
It is well established that one statute may incorporate another by reference.
Trimmier v. Carlton, 296 SW. 1070 (Tex. 1927); Western Casualty & Surety
Company v. Young, 339 S.W.2d 277 (Tex. Civ. App. - Beaumont 1960, writ ref’d).
Subsequent amendments to the incorporated statute may also be included in the
adopting act, if the language of the adopting act shows a clear legislative intent to
include them. In Trimmier v. Carlton, 296 S.W. 1070 (Tex. 1927), the Supreme Court
determined that the adoption by reference of a statute “and amendments thereto”
included future amendments. -Compare St. Paul Mercury Insurance Company v.
Billiot. 342 S.W.2d 161 (Tex. Civ. ADD. - Beaumont 1960. writ ref’d) (incorooration
ofcle of “Revised Civil Statute$‘of Texas, 1925, as amended” dfd~not evidence
legislative intent to include future changes). In our opinion, the 1977 amendment to
article 5160 prohibiting bonds for projects under $25,000 in value has been
incorporated into article 2368a, section 2.
Article 2368a, section 2, also contains the following provision:
Provisions in reference to . . . the furnishing of surety
bonds by contractors and the manner of letting of contracts,
as contained in the charter of a city, if in conflict with the
provisions of this Act, shall be followed in such city
notwithstanding any other provisions of this Act.
Home rule cities must follow their charter provisions on the furnishing of surety
bonds, in the event they conflict with article 2368a. In our opinion, the article 5160
provision prohibiting construction bonds on projects under $25,000 has become a
provision of ,article 2368a. Consequently, home rule cities are directed by article
2368a to follow their own charter provisions in the event that they conflict with
article 5160.
SUMMARY
Article 2368a incorporates by reference the provisions of
article 5160 and amendments thereto. Home rule cities shall
follow their own charter provisions on construction bonds in
the event that they conflict with the provisions of article
5160 as incorporated by 2368a.
p. 4768
Honorable Chris Victor Semos - Page 3 (H-1182)
Very truly yours,
Attorney General of Texas
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
jsn
P. 4769 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132203/ | . !
The Attorney General of Texas
June 7, 1978
JOHN L. HILL
Attorney General
Mr. Harvey Davis Opinion No. H- 1177
Executive Director
Texas Department of Water Resources Re: Jurisdiction of Texas Water
1700 N. Congress Avenue Commission regarding approval
Austin, Texas of plans for the construction of
drainage facilities in Harris
County Flood Control District.
Dear Mr. Davis:
You ask whether plans for a drainage project which have been approved
by the Harris County Flood Control District must also be approved by the
Texas Water Commission pursuant to section 16.238 of the Water Code. The
drainage projects you inquire about are to be constructed by entities other
than the Harris County Flood Control District.
Section 16.238 of the Water Code provides in part:
(a) No person, corporation, or levee improvement
district may construct, attempt to construct, cause to
be constructed, maintain, or cause to be maintained
any levee or other such improvement on, along, or near
any stream of this state that is subject to floods,
freshets, or overflows so as to control, regulate, or
otherwise change the floodwater of the stream without
first obtaining approval of the plans by the com-
mission.
In Attorney General Opinion H-328 (1974) we considered whether this
provision applied to the construction of lateral drainage facilities. We stated
as follows:
Only those levees or improvements need be approved
which are constructed, or maintained on, along or near
one of the described streams ‘so as to control,
regulate, or otherwise change the flood water of the
P. 4754
Mr. Harvey Davis - Page 2 (H-1177)
stream.’ Whether . . . this requirement extends to the
construction or improvement of . . . lateral drainage
facilities depends on the facts in a given situation, and
resolution of this question should at least initially be made
by the [Water Development] Board subject to judicial
review. Security State Bank of San Juan v. State, 169 S.W.2d
554 (Tex. Civ. App. - Austin 1943, err. ref’d., w.o.m.)
Attorney General Opinion H-328 (1974). We concluded that the plans for lateral
drainage facilities should be submitted to the Board for its determination of the
relevant fact questions.
In Attorney General Opinion H-328 we also determined that the Harris
County Flood Control District was subject to the requirements of section 16.238.
The Legislature subsequently enacted the following amendment to the statute
creating the Harris County Flood Control District:
3A. Projects proposed to be constructed by the Harris
County Flood Control District, other than levees and
structures related to levees, shall be under the control of
the Commissioners Court acting as the governing board for
the District. The findings of the Commissioners Court as to
the plan of work, the necessity, the location, and the type of
improvement of a project covered by this section shall he
final and not subject to review.
Acts 1975, 64th Leg., ch. 593, at 1877. We considered this amendment in Attorney
General Opinion H-915 (1976) and determined that the Harris County Flood Control
District was no longer required to submit its plans for projects other than levees
and structures relating to levees to the Water Development Board.
We believe the language of section 3A is clear. It applies only to projects “to
be constructed by the Harris County Flood Control District” and not to projects to
be constructed in Harris County by other persons or corporations. We do not
believe the District’s approval of another entity’s drainage project converts it into
a project “to be constructed by the . . . District” or otherwise exempts it from the
requirements of section 16.238. The plans for such a project must also be submitted
to the Department of Water Resources for an initial determination as to whether
the construction will “control, regulate, or otherwise change the floodwater of the
stream” and thus be subject to section 16.238.
SUMMARY
A drainage project to be constructed by an entity other than
the Harris County Flood Control District is not exempted
P. 4755
Mr. Harvey Davis - Page3 (H-1177)
from section 16.238 of the Water Code merely because the
plans have been approved by the District.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jsn
p. 4756 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145036/ | OFFICE OF THE AlTORNEY GENERAL OF IEXA8
AUSTIN
Rcnorable Jemo8 A. Ouest
County Attorney
amp couBty
Fittrburg, es4kesr
30 6ro in feocip
aat0 and puoto ~POBI your
Y, it has booomo Impore-
payment in aash for rator
008, iiatsaa of aoooptfng a8 horoto-
u0a agalmt th0 ocr~eral mna of tho
II rla of the inability of the
this obllptlon logally, threui#
a ~alntaiwa tborobJ, tho County
* Court pP880a an odor at It8 regular
Of thin yOW, PW$UfriB(s pmOBt in 048h
Out Or th0 @oIlOral ftlad, for watOr and 8Oworom 8Or-
ThO8, ana also, 8alary of the Wurtheu80 J8rdbor.
of fSO.00 $WP menth, netwitlmtendl.n& that than 18
an OUt8tiknah.g a8fi0lt agaln8t tho 8aid &moral ma.
'Wov, tho aotlon of tho Od881onOM' Court,
uider tbo eari of tho wrltbs, woo borrod PM? the
747
FionorableJames A. Guest, pae,e&
ocnviotions of that body that It Is lawful to
pay the eotucl operating oxpensee of the aounty,
in oo8h, rm5 the proper fma, regardless of any
dafioite, or reglatertrdsorip that might be out-
atending, especially, in oonsideratlon of the
preSsing neoessity to meet thi8 emergenoy;how-
ever, the County Tron6uror doe8 not rO8poad to the
order of the COmd8SioBere’ Court, and In oon8e-
quanoe thereof, I, aa County Attorney, advirred
the Treasurer that, under the provisions of
Article 1709, It was ag oplaion that he would be
aoting within the law In oomplying with tho orders
duly passed by the CommisslonersgCourt in this
ease. My advice wes submitted to the Treasurer
in writing, but having railed to retain a copy 0r
same, I am unable to &ive you the bcneilt of the
wmdlng of my opinion in it6 entirety but It We8
substantially as outlined above In this paragraph.
liyadvice to the Treasurer, 18 also disregardOd,
as In the case or the order of the CommlesIoner8*
Court.
"It oocurs to me that the throat and detePmIna-
tion of the City to aiaoontinue the water ana 8-r
8ervioe8 to the County Courthouao, oonetltutoe an
omergenoy whloh duly jastitiee the aourao we bavo
taken, since hundreda of pcraona, including jurio8
and prisoner8 in Jail, all oourts and regular dounty
offioiale, together tith people from a dlstsnuo,
patronize tke orrices of the Courthouse daily.
Tour edvfoe on the following questions will be
fully appreciated:
"No.1. under Article 1709, 1s it the duty of
the County Trestsurorto aomply with the ardor
passed by the Cosaairsfoners~Court, as herein
above outlined?
w0.e. If the oraer of the CoDZkissiOnOP8'Court
as above outllned, should be fully complied with
by the County Traasarer, and such order Should
be routi to bs inwia, roula the Treasurer bo
llabls on his bond, or in any mtmner whatSoeVw?
748
Honorable James k..Cueat, page #3
"NO. 3. fr an order is pamed by the Comis-
siocera' Court, in ,qoodfaith, and 8am4 be-
coxes affeotlva, and later such order is found
to be invulla, ii fUna or the oounty havo been
expended thereundar, and no fraud is shown, rho
is liable and,what the penalty?
*NO. 4. Ia a County Commlaelon6rs*Court in any
mmner subservient to the directions of the
County TreaSur4r, in authorizing the dlsbur8e-
rent or county runas ror operetlhg pwposo 0r
the county?
"MO. 5. In the abaenoe of fraud or flagrant via-
lstion of State law8, 1s a County Tw8uror jueitl-
fied in dieregarding ordOr8 duly paasod by a
Comml4elon4rS~ CoSt'ln good faith, for the pur-
pooaeof promoting th4 welfare oi the oounty.
wherein such orbs8 requlrs the aervloee and oo-
oyeratlon of the County TrOaaur8r?w
We feel that the rlrat important question im0lv0a
here is _ the power of
the COllml2S81OnOr8'
Court to sat aolaa
a portion of the rev4nu4 of the oounty as a fund for the pay-
mont in oaah for wetef, ssrerage and janitor ssrvloea for the
County Courthouse, to be paid in prOfer4noe over othecrreglr-
tared indebtedcase 4f the oounty.
16 the ease of Honard VS. Henderson County, 116 9. W.
479, Chier Sust!.ceBond said:
"The county treaaurer,,by atatuto. 18 the 4us-
todlan of county funds; and the statute, Artiolo
s., direate that: 'Eech oounty treaeurar
1025, I-L.
shall keep a well-bound book in which he ehall
re@ster all alaims against his county in the
ordaf of presentation, and~lf more than one 18
presented at the same tine be shall register then
in the order OS thafr date. H4 shall pay no suoh
claim or any part ther0or, nor shall the Oarno,or
any part tharaof, be raaalvod by any officer in
749
Honorable &uses A. Guest, page #4
psyuxnt of any Indebtedness to the county, until
It hns been duly regfstered in nacordame with
the rrcvlsions of this title. 131 cleims in eech
class shall be p6L-3in the order in which they
ore registered!: bnd, Article 1713, that: 'The
county treesurer shall not pay any zimey out of
the county treasury eroept In pursuance of a
certiflaate.or rarrsnt from some oftlaer euth-
orlzed by low tv issus the s6nie* * **.
"The langmge of the stetute8 Is plain, the
authority $a exclusive and prese&s no ground
for construatlon. The aounty treasurer is not
authorized to pay claims o&nat the aounty,
exaept on warrants drawn by sonxeofflaer auth-
orized by law to lsfsue@ame; snd the coxmlseion-
era' court Is without power to bLna the aounty
by contract or otharwlse to pay alaims in cash,
without providing some means for such payments,
thereby giving preiereace in payment over other
registered indebtednear of the oounty."
The coae of Wlllcinsea~8. Frenklln county, et al.,
94 5. W. (2d) 1190, holCs.lo substnnoe that Article 1625
clearly provides the order in which clnlstsdrawn agaIn&
the Oounty Treasurek are to be paid, and amnmt@ to an
appropriation o? the funds of the County Treesury.to the
payment of all. alalma legally drawmagsinst the eeveral
olassss of fundsln the order of their reglstratlor.
Therefore, under this deofeion, the order of the
Commlaeioners* Court of Camp County requiring paysent in
oa8h out of the General Fund for water, sewerage and janitor
services, is oiolntlve of Article 1625, Revised Clvll atat-
utea, and is therefore void.
In view br the above ruling, we reel that it is un-
necessary to enswar further the questions submitted by you. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144916/ | Honorable Geo. H. Shep ard
Comptroller of Public ii
ccounts
Austin, Texas
Dear Sir: Opinion No. O-1492
Be: Time allowed for filing with
Comptroller of Public Accounts
of motor fuel t_ax refund claims,
under Section 13 (d), Article
7065 (a), Vernon's Annotated
Civil,Statutes; as amended by
Senate.Bill 17
Session, 46th ~;g?~4~t~,'e~'%
particular reference to the
inclusion or exclusion of the
day of purchase and the day of
filing, and Sundays and holidays.
By your letter of September 22, 1939, you submit for the opinion
of this department the following question and supporting factual
statement:
"This department has occasion to draw a very definite date in
connection with establishing a time of filing of Motor Fuel
Tax Refund Claims. A claimant will mail his c,laim on Saturday
when the limitation date, according to the following excerpt
of the Statutes, occurs on Sunday. Such claimant will then
take the position that having placed.the claim in the mails ,that
he should be protected even though this office was not open for
business and the reception of mail on Sunday.
"The same question arises when claims are mailed on a date
prior to a legal holiday.
"To give a specific case I will submit the following:
Purchase was made, accordingto the Invoice of Exemption, on
March 17th, 1939, and the Affidavitof Claim to which such
Invoice of Exempti,on was attached showsby the ;;er; to
have been received in the Austln postoffioe at !i . -9
September 17th, 1939. September 17th being a Sunday, The
Comptroller's Offloe was closed, and the claim could not have
been received in the Comptroller18 office until Monday,
September 18th.
Honorable Geo. Ii. Sheppard, page 2, O-1492
"Is claimant allowed six (6) months exclusive of date of
purchase in which to file his claim with the Comptroller,
and also six (6) months exclusive of the date received ln
this department?"
Section 13 (d), Article 7065 (a), Vernon's Annotated Civil
States, as amended by Senate Bill 179, Acts, Regular +ession,
46th Legislature, concerning the constructionof which this
opinion turns, provides as follows:
"Section 13 (d). When a claimant purchases or acquires for
use motor fuel upon which a refund of the tax may be due,
he shall within six (6) months from the date of purchase
of motor fuels upon which a refund is claimed, and not
thereafter, file with the Comptroller an affidavit, on such
forms as may be prescribed by th8COmptrOIl8r. Said
affidavit shall include a statement as to the source or
place of purchase or acquisition of such motor fuel used for
purposes other. than in propelling motor vehicles over the
highways of this State; that the information stated in the
attached duplicate copy of the invoice of exemption is true
and correct, and the manner in which said motor fuel was
used, and that no part of said motor fuel was used in pro-
pelling motor VehicI8s over the highways of this State. Said
affidavit shall be accompanied by the duplicate copy of the
invoice of exemption above referred to, and the Comptroller
may require other affidavits ,ln such form and time as he
may deem advisable, and if he finds that such claims are
just, and that the taxes cla~imed have actually been paid,
then he shall within sixty (60) days issue warrant or
warrants for the amounts due claimant, but no warrant shall
be paid by the State Treasurer after twelve (12) months from
the date thereof, claimant shall forfeit his right to the
refund.
"No refund shall be made where motor fuel is used later
than six (6) months from the date of purchase, or
appropriation, and no refund shall ever be made Where it
appears from the invoice, or from the affidavits, or other
evidence submitted, that the sale or purohase was mad8 more
than six (6) months prior to the date of filing of the
application for refund. The date of filing shall be the day
such claim is actually received in the Comptroller's Office."
Inasmuch as the foregoing statute, in providing that a motor
fuel tax refund claim shall be filed with the'comptroller
"within six months from the date of purchase of motor fuels
upon which the refund Is claimed," makes a "month" the unit
for computing the time indicated,. it becomes first necessary
Honorable Geo~ H, Sheppard, page 3, O-&92
to determine just what period of time is embraced within
the term "month". The modern authorities recognize but
two types of months, lunar and calendar, but with the first
we have no concern here, because the Legislature, by Article
23, Subdivision 15, Vernon's Annotated Civil Statutes, has
specifically defined "month" to mean a calendar month.
The calendar month, sometimes called "civil" or "solar"
month, means a month as is designated,in the caiendar,-without
regard to the number of days it may contain, in contradiatinc-
tion to a lunar month, composed of 28 days; the calendar month
bears the name and contains the length of days fixed by
the Gregorian calendar, varying from 28 days to 31 days.
:2WC.;Tqp. 968, 41 Tex. Juris. 343, &Kinney v. State, 66
. . .
We pass now to a more specific COnaideration.of your inquiry,
that is to say, whether or not the date of purchase of the
motor fuel upon which a refund 1s cHimed, and the da&e of
filing such claim with the Comptroller should be, either one
,or both, included or excluded in the computation of the six-
months limitation fixed by the foregoing statute, considering
month in the calendar sense above discussed. #In approaching
7YFZFqquestion, we first point out the settled general rule
that fractions of a day,are not considered in the computation
of time, and the day on which an act is done must be entirely
BXclUded or included. 41 Tex; Juris. 34.5, and cases cited;
62 Corpus Juris. 978-979.
Moreover, in computing a designated period of time for the
purpose of ascertaining'the first or last day on which an act
may or must be done the general unquestioned rule is either
to inc&ude the first day and exclude the last,,or to exclude
the first and include the last, but not to include or exclude
both terminal days unless-clearly indicated by the statute or
contract under oonsideration.~ 62 Corpus Juris. 983. kl Tex.
Juris. 345, and cases cited.
Nothing appearing in the civil statutes under consideration
here to remove it from the operation of the foregoing general
rule, We next point to the rule corollary thereto,. adopted in
most jurisdictions, including Texas, to the effect that in
computing time "from" or "after" a specified day or event,
the first day should-be excluded and the last day, that is,
the day on which the act is to be-done, is included.~ 62
corpus Juris. 984, 41 Tex. Jtiris. 346, and cased cited.
We find no language in 'the statute involved here, nor in any
of the decisions cited to the text of the above stated rule,
which would remove such statute from the operation of this
Honorable Gee. H. Sheppard, page 4, O-1492
rule. We again direct to your attention the language of
the controlling statute hereinabove quoted, directing that
within six months from the date of purchase of motor fU8l
upon which a rerun= claimed, such claim must be filed
with the Comptroller of Public Accounts. The, specified day
or event, within the language of the above.stated rule, is the
date or day on which the motor fuel in question was purchased,
and under such rule, such,day ordate is to be excluded in
computing the six-months period. The other terminal date
D?ixed by th8 statute is the day or date on which such daim
should be filed with the Comptroller, and under the stated
rule, such day or date is to be included in computing the
six-months period allowed by atetut for filing such motor
fuel tax refund claims.
This rule of excluding the first day and including the last
has been, by the Texas ~courts, applied to somewhat analogous
situations.' ,For instance, ft was applied in computing the
term of a lease which was t6 run "from"~ a oertaln day for a
certain number of years, Hakelwood V. Bogan, 67 S.W. 80; in
computing the time within which objections may be filed to a
commissioner's report, assessing'qfunagoe~for the oondemnation
of land wafter the same has been filed with,the county judge,"
Hardy v. City of Throckmorton, 70 S.W. (2d) 775; and in
computing the:.time within which a w;it of error may be taken
"from the rendition of the jud Appeal and Error - Civil
Cases, Vol. 3, Texas furls: 2r-9.
But another question is presented when the last day of the
period, included in the computation under the abOV8 stated
rule, falls on a Sunday or holiday, and you give a specific
instance in your letter where t&his has occurred. Again we
find nothing in the statutes or decisions to remove the
instant case from,.the operation of the general rule which,
as stated by ~_unneroils
authorities in Texas, is that when
the last day for the performance of an act falls on Sunday
or on a holiday, the day is excluded in the computation of
time, and performance may,be postponed until the following
secular or business day.. 62 Corpus Juris. 1000, 41 Tex.
Juris. 350, and cases cited. Sundag 1s dies non juridious
in regard to official acts and proc;?edingS, and it was not
within the contemplation of the Le~:slature, in requiring
certain papers and records to be-filed Within a certain time,
that the.affected state department should remain Open ,on
this purpose, when the last dayof filing falls
Sundays Yoi;-.
upon SUCL. day.
As illustrative of this, th8 Supreme COUrt of Texas in
li-1.0,
Fessenden v. Terrell, 98 S*'Jlr. in constructing an act
Honorable Geo. H. Sheppard, page 5/O-1492
directing the Commissioner of the General Land Office to
open bids for the purchase of school lands on the day
following the date when the land comes on the market, held
that the word "day" does not mean thenext calendar day, but
the next day on which the Land Office is'required to be open;
and where the nextcalendar day was a legal holida it was
proper to make the opening on the day following, $'he court
said:
“It seem,s to us that no one would seriously contend that the
Legislature intended to require these officers to perform a
duty so contrary to the s irit of our laws. Article 2939 of
our Revised Statutes of 1E 95 declares the 21at of April to
be one of the legal holidays 'on which all the public offices
of the 'state may.be closed," and it has been the practice
of the state departments to~close upon every such day. In
the matter of opening the bids for the purchase of school
lands there is no urgency for immediate action, and the~refore
we do not think the purpose of the Legislature was to change
the general rule, and to require the commissioner of the
general land office to open his office on Sundays or legal
holidays merely for the performance of this duty."
We are fortified in this conclusion b the last sentence in
the second paragraph of section 13 (d7 of the Act, which
provides:
"The date of filing shall be the day such claim is actually
received in the Comptroller's Office."
By so providing the Legislature took cognizance of the general
rule above stated regarding Sundays and holidays, and the
uniformly~observed practice of state departments to remain
closed on such days.
But your question and our opinion thereon are limited to a
situation when the last day for the performance of the act
of filing the claim with the Comptroller falls on Sunday
or a holiday. In holding such day to be excluded in the
computation of time, under these circumstances, we do not
hold that Sundays and holidays intervening during the six-
months period between the purchase of the .motor fuel in
question and the filing of a refund claim, are to be excluded.
Per contra, the general rule is that, unless the time allowed
for doing the act is very short, or unless Sundays or holidays
are expressly excepted, such intervening Sundays or holidays
will be included in computing tile time within which an act is
;;zy.re;C;; be performed. 41 Tax. Juris. 342, 62 Corpus
. .
Honorable Get. H. Sheppard, page 6, O-1492
Trustkg the foyegoing fully answers your question, we are,
Yours very truly
ATTORNEY GENERAL OF TEXAS
s/ Pit M. Neff, Jti.
BY
Pat M. Neff, Jr.
Assist ant
APPROVED NOVEMBER 6, 1939
s/ W. p. Moore
FIRST ASSISTANTiATTORNEY GENERAL
PMN:LW/cg
APPROVED OPINION COMMITTEE
By BWB, Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144921/ | OFFICE OF THE ATTORNEY GENERAL OFTEXAS
AUSTIN
EoaorableX. E. Yamy
couaty Auditar
Tarrant cou!a~
7ort Woeth, Texan
DearSir:
Your raguestfor 0
hre heroinrt6ted h6s beear
Tour letterread*
"Our DlrtrlOtCl@
situatfoa:
Torrantcountyul8trlot
0 6ad dO8k8truohrust
truutorred to TarnurtCouaty withoutrequlr~
hdequ6te 8eourlt~for oosta at the tlgb it is
ill04 rith bin.”
Hon. W. E. Yanoy, Page 2
"Art. ZO6a. me plalntirrmay be ruled to
give uourlty for coat8 at any tlu berore flaal
juaguat, upon motion oi the aof8nbantOT ang
offloer of the oourt interested In the costsno-
oruiag la ruch ruit and ii uuah rule be an-
tored agala& tke pialatkf and he ran to oom-
ply thereulth on or beforethe flr6tday or the
nut termof the oourt,thr spitshallbo dia.
lal8Ud."
S~OtfOtI 19 Of krtl010 39120,VOrnon*6CivilSfatute6,
readsin parta8 followr
"Frod~lonn of this motion shallapplyto
and ooatrolin rash oountyin fbe State at Texas
havinga population in oxoou of oxto hundredand
ninety(190,000) thousandlnhabltants, aooordlfq
to the lastpreoed&g Federaloensua.
0 l ....
"(p) It shallbo tie ofiilolal dutyof enoh
olerkot the dlatriotand oounty oourteend of
all JustLees OS the 800 to require at the oom-
menoamentof any olrr 1 malt adequate6eourity for
ooats;provided a pauperfa oathstaybe illedand
ooatuted as prtidod b law. Ho dlstrlot county
or preolnotorfloershazl underthe perialths now
pron-o~6e$b law waiveany few or oostrbut it
tie duty of all offiosreto (LSI)OB~and
oollleot all teer and oom.Urlom whlohthey am
permitted or dimeted by law to asses6and Oo$ot
for seniee8 perronaod by them. hbre a
oer reoelveaa salarypayablefromthe B3 cry &I
oreatedfor 8uoh 0frioer all feel, aodn6lon6,
and otheroompematlonreceived by him l.nhi6 of-
tlolalcapacityahallbe by him depSlte& and paid
monthly,or oftenet,intothe salaryfund oreated
for 8uchorrloer,and auohraulttmce shallbe ao-
omp.ahied by hlr oiiiolalreport thereof, aa pro-
Tldod ror in thl8Seotlon.m
Eon. w. f. YarrOY, rw@ 3
It le our oplnlonthat8ubeeotlon (p) of ~HAcle
SQlZo,8upn muetbe 0o~truad In harmnr with Artlolea
8067 and d, VernonrrCivilStatutee,so thatthe alark
mat filead dooketthe8uft, butattbs lar# tlaemuet
malothe plahtm for ooat8. The above quoted provlelone
of nrtloloS9lZodoornot et&e thatthe olorkrhallrqulre
leur lty for ooete beroro the oomumoem3nt of the eult -but
at fhe ooamenobrmnt or the ltit. Ihe malt is oonmenoebby
the iillsq aad dooketl.ug of the petition.
Truatla5taatthe r0mg0* rllllyanawersyour In-
quiry,we remain
ATTORNEY GENERAL OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144931/ | THEATTORNEY GENERAL
OF -l-ExAs
Honorable 0. Kennedy
County Attorney, Bee County
Beeville, Texas
Dear Sir: Opinion No. O-1477
Re: Can C6mmissioners Court levy a tax
rate without full membership being,,-
present, and could the Court legal-
ly meet outsUe of the county?
We acknowledge receipt of your request for an opinion,
wherein you ask two questions relative to the levying of county
taxes by the Commissioners Court of Bee~County.
These questFons ,are:
1. Can the Commissioners Court levy a tax without
full membership being present?
2. Can the Court meet outside of Bee County?
Article 2354, Vernon's Annotated Civil ~Statutes,pro-
vides that no county tax shall be levied except at a regular
m of the court, and when a members thereof are present.
It is oiiropinion that this provision is mandatory and
that a levy of a county tax without all members of the court
belng'present is void. Free 6t al~vs. Scarborough, 8 S.V.
490, and Broocks et al vs. State, 41 S.W. (2d) 714.
Article I, Section 13 of the Constitution of Texas
provides that all courts shall be open. It is our opinion
that when the people of Texas adopted the.Constitution,theg
were demanding that the courts remain open at all times In
order that the public might be heard on all questions affect-
ing their property. It therefore became the dutg of the
Legislature to pass Article 2348, Vernon's Annotated Civil
Statutes, in order that the public would know when and where
the C&missioners Court'would meet. Article 2348, Vernon's
Annotated Civil Statutes, provides when the regular term of
the Commissioners Court shall meet, and that the meeting shall
be at the courthouse.
Hon. 0. Kennedy, page 2 o-1477
We have been unable to find any decisions from this
jurisdiction directly in point. but in the case of Tarrant
County et al vs. Smith et al, 81 S.W. (2d) 537, Justice Lat-
tlmore said:
"They (the commissioners) meet as a court
and transact business in open session. Such re-
quirement is not formal. It is substantial, both
that the members may have the benefit of the know-
ledge and opinions of the others, as well as that
the public may know when and where its affairs are
being transacted."
The State of Nebraska has a statute very similar to
ours as regards the meeting of county commissi.oners,and in
the case of Merrick County vs. Batty, 4 N.W. 959, the court
held that the county commissioners must transact county busi-
ness at the county seat ana that they are without authority
to transact business at any other place; that if~theg transact
any county business ateany place other than the county seat,
their actions thereon are void.
It is, therefore, our opinion that the County Commis-
sioners of Bee County cannot levy a county tax'without all of
the members of the Court being present, and that the County
Commissioners Court cannot convene outslde of Bee County for
the purpose of levying such a tax.
Trusting that the foregoing fully answers your inquiry,
we are
Yours very truly
ATTORNEYGENERAL OF TEXAS
By s/Richard H. Cocko
Richard H. Cobke
Assistant
RRC:pbp:wc
APPROVED SEP 30, 1939
s/Gerald C. Mann
ATTORNEYGENERAL OF TEXAS
Approved Opinion Committee By s/BwB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144936/ | OFFICE OF THE AITORNEY GENERAL OF TEXAS
AUSTIN
a- 0. I*AWI(
mTommw--
Honorable IL H. dritfln
County Attorney
Young county
Graham, ‘Pox.66
Dear Blrr
opinion Ro. O-l&U
Rat Docl~an in8uiri0i
lrr40tth4 ~4udi
a oop~llott
oonrolid
we 4r4 in rroelpt 0r
1939, in which you rtate t
in Young County 4oonsollda
80lidat4a Bohool Mstrlot
4pp0lnt4a 4e ll40t4d but
time the board 0r tru
trlot ha8 been oompo8
whether a failure to
Rerlred Clrll 8ta-
tut40 0r um, it of sohool taxes
ror the abore me 8ohool dlatrlot.
vi1 Statute4 of 1985, pro-
n laoh Or 8uoh dlstrlOt8. Ths oounty
not104 0r the date 0r 8uoh dleotlon8
r the order in some newapaprr publlahed
In the OOunty for tw4nty (iSI)days prior to the date
On rhloh 8uoh elsotlonr are ordered or by posting a
notloe ot euoh eleotion in la o hOr the dl8triOt8 or by
both aoh publloatlon and posted notlor. Th4 OOBURl8-
8iOn4r8' OOUrt 8hall at it8 n4Xt m44tlng oanYa86 the
return8 or suoh 414otlon and ii the rot48 oaat In eaoh
HOG. E. H. Grirrin, Page e.
and all distrlcte 8hoR a majority In laoh dlrtrlct
voting 84parately In raror 0r ruoh oonsolldatlon the
00": ty-1 d4Ol.ar4the 8ohoo1 bi8triot.sOonrolidat-
ed.
At the time the rohool dl8triots were ooneolldated, the
statute oorltalnedthe 8-4 prOVisiOn although with Slightly dir-
rerent wordlog. Artiole Ml7 l/C, Complete Texas Statutes, 1920.
Artlole 8808, Revised Civil Statutes of 19135,provides
that "The oounty board of rohoo1 trustees it it8 next meeting
arter suoh oon8olldatlon 0r rchool districts Is deolared, rhall
appoint a board cb 84V4n tru8tees far the ooneolideted distriOt.*
Provlalon Is al80 rmde ror the t4llll8 0r 0rflOe 0r raid tN8t448,
their 414otlon and illllng or raoanciee. Slmllar requlrrmnts
were oontalned In Artlole t817 1/4b, Complete Texas Statute8,
1920. ~844 al80 Aots 19300;U8t Legislature, Fifth Called Se84ion,
p. Zle, Ch. 66, Seotion 5, appearing as Artiole 8774a, VernpIIcin18
Texss Civil Statutes, lQZ6, Pooket Part.
Art1014 e814, ReYi8ed Civil Statutea of 1925, provides
In part a8 r0110w8:
Vaxlng and bonding pfnversas are provided for
rlrewhere In the laws of this State are.hereby guaran-
teed to ruoh oonsolldated dlstriote, * * **
At the date or the oonsolldation of the dlstrlots In quer-
t&on, Artlole 2817 1/4(h), Complete T4Xa8 Statutes, lQZ0, provided:
"It is hsreln expressly provided that taxing and
bonding power8 as are provided for 4184where in the law8
of this State are hereby guaranteed to the dlstrlot oon-
solidatlng under the provisions ,oPthis Act, either oom-
20: tfhool dlstrlote.or lndepsndent 8OhOO1 districts,
Artlole Z704, Revleed Civil Statutes of 19Z5, oontain8
the following provision:
*The Commissioners* court tor the aommon sohool
distriota in it8 oounty and the di8triot 8OhOO1 truetees
ror the lndependent~dletrlots lnoorporated ror 8ohool
purposes only bhall have power to levy and oauee to be
oollooted the.annual taxes and to Issue the bonds hsre-
In authorized subjsot to the following provlslons:n
HOG. 35.E. twrrin, Page 3.
It will be noted that under Artlole 2806 the Commls-
slonere’ Court oanvasaea the returns of the election and declares
the eohool distrlote ooneolldated baaed upon the result of euch
election. Thereafter the.-oounty board or e.ohool trustees In
oompllanoe with Article 2800 appoints a board composed of seven
trustees. It was held in our opinion No. O-1229, addressed to
the Hon. Loule T. Holland, County Attorney, Montague County,
that :
RThe oonsolldatlon of school di8triots b4COm48
srrectlve upon the oanvaaa of the election and deolara-
tlon of the result by the CommlssionersV Court as
provided In Artiole 2806. Bland vs. Orangerisld In-
tlpendant Sohool DistriOt (T.C.A.1929) 24 6.1. (26)
.0
The oon8olldatlon having been orreoted by the do-
olaratlon or the oommlee.lonersl oourt alter the canva88 or the
election returns and the taxing power being lodged In the oom-
miseioner81 oourt and not In the looal board or txu6tee8 for
oommon rohool diBtriOt8, it Is our opinion that the raiiw4
of the oounty board of rch001 trustees to appoint the proper
number or trustees for the newly rormed oonsolldated oommon
echo01 biatrlot would not Invalidate a tax levy made ror such
district ae provided by law.
Yours very truly
ATTORNEY G- OF TEXAS
BY
Cecil C'8%,"""!k
h3lstant
ccctm
APPROVEDCCT 10, 1939 (STAMPED) Approved
Opinion Committee
Robert E. Kepke By: B.W.B. ,Ohalrman
ACTINGATTORNEY GENERALOF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144952/ | OFFICE OF THE ATTORNEYGENERAL OF TEXAS
AUSTIN
lion. Homer Qarrlaon, Jr., Page 2
towns or oities in TOXM at a point where a oommlttee or oon-
foreno* of repre8ent8tive Stoakmen meet in Odlldi regular or
annual sorrloa, li the prime purpore of o~lllng nuoh wrotlng
at ouoh point aa6 time be to enable the mrmyere an6 emplo~eer
of the Department to attend ruoh oonvontlon or meeting of
reprerentatlve rtookmen at 6tate expense.
Iourm very truly
ATTORWYQEHERALOF TEXAS
BY ( Signed)
Ceoll 0. Camwok
A6rlrtmt
APPROVEDOiW ‘7, 1959
Robert E. Kepkr (rigned)
ACTIIIQ ATTORUEX0EREFU.LOF TEXAS
( STAHPED)Approved
Opinion Oommlttee
By: BUD, Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144958/ | Honorable G. A. Walters
County Attorney
San Saba County
San Saba. Texas
Dear Sir: Opinion No. O-1450
Re: To what fund should the
county treasurer deposit
the excess commissions
received by him over and
above his $2.000 maxi-
mum compensation earned
as commissions on the pro-
ceeds of the sale of ‘Road
Bonds voted by the county.
By your letter of September 14, 1939, you submit for the
opinion of this department three questions, which we quote as follows:
-1. To what fund should the County Treasurer
deposit the excess commissions received by him over
and above his $2.000.00 maximum compensation earned
as commissions of the proceeds of the sale of road bonds
voted by the county?
-Z. Is he required to deposit these excess com-
missions in the general fund 7
“3. Or, is the Commissioners’ Court authorized
to use these excess commissions in the road districts
for which the bonds were voted and sold? *
The County Treasurer, under the provisions of Articles
~1709 and 1710. is authorized and required to receive all moneys belong-
ing to the County, irrespective of the source from which they are de-
rived, and to disburse and account for all moneys which shall come into
his hands by virtue of his office. For performing his official duties, he
is allowed. under Article 3941. stipulated commissions on certain moneys
.received and Raid out by him. Within the statutory limits. the Commis-
sioners’ Court sets the percentage which shall be paid him as commis-
sions~.
Hon. G. A. Walters, Psge 2 (o-1450)
Subject to certain exceptions, which do not concern us
here, Article 3943 provides that the maximum compensation to be al-
Towed the county treasurer in a county such as San Saba shall not exceed
$2.000.00 annually.
Our Supreme Court in Harris County v. Charlton, 243 S.W.
460, 112 Tex. 19, held:
“The commissions accrued to the benefit of the
county treasurer as he handled the various funds en-
trusted to his care . . . When his limit of $2,000 was
reached in collecting and disbursing these funds, in
whatever month, then his right to collect and retain
further commissions . . . ceased.”
If, as your letter intimates, the commissions specified
in Article 3941 were set aside or collected and retained by the County
Treasurer even after the maximum allowable had been earned, such set-
ting aside or retention was not authorized by law.
It is provided in Article 7523 that moneys realized from
the sale of road district bonds “shall be placed in the county treasury of
such county to the credit of such political subdivision or road district of
such county. . . . * This means that such moneys belonging to the road
districts of the county constitute a special fund in the county treasury,
separate and apart from the county funds.
These road district funds can never become part of the
county general fund. Certainly the fact that a portion of them have been
retained by the County Treasurer under the mistaken impression that
such portion constituted commissions to which he is entitled by law does
not change their character as road district funds. Red River County v.
Graves (Civ. App.. Texarkana, 1926) 288 S.W. 54. See also Watson v.
El Paso County (Civ. App.. El Paso, 1918). 202 S.W. 125.
~The Red River County case was a suit by the county to re-
cover excess commissions collected and retained by the County Treas-
urer. The court held that the county could not recover that portion of tbe
excess commissions which came from the Road district fund since it did
not allege that it sought recovery of that portion for the use and benefit
of the road district.
In answer to your first question, therefore, it is the opin-
ion of this department that under the statutes above noted and under the
decision in Harris County v. Charlton. supra, no occasion should arise
Hon. G. A. Walters, page 3 (o-1450)
for the County Treasurer in San Saba County to receive any commissions
whatsoever after he has earned his maximum compensation of $2.000.00
for any fiscal year.
However, if due to a misinterpretation of the law, the
County Treasurer collected commissions in excess of that maximum,
such excess must be returned to the fund, or funds, from which it
came.
U all of the excess commissions. that is. that portion of
the total commissions which was received after the maximum had been
earned, came from funds belonging to the road districts for which the
bonds were voted and sold, all of such excess must be returned to the
road districts. This answers your third question.
In answer to your second question, if a11 of the excess
came from the road district fund, such excess cannot lawfully be placed
in the county general fund.
Trusting that the above sufficiently answers your inquiry,
we are
Yours very truly
.ATTORNEY GENERAL OF TEXAS
APPROVED NOV 10. 1939
/s/ Gerald C. Mann
By /s/Robert E. Kepke
ATTORNEY GENERAL Robert E. Kepke
OF TEXAS Assistant
By /s/ Peter Maniscalco
Peter Maniscalco
PM:BT/cm
APPROVED
Opinion Committee
By BWB
ChaIrman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288785/ | Affirmed; Opinion Filed June 22, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00441-CR
RAMON CAMPA SOVERANES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1452686-N
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Stoddart
A jury convicted Ramon Campa Soveranes of the aggravated kidnapping of Mercy
Vasquez and sentenced him to ten years’ incarceration. In a single issue, appellant argues the
evidence is insufficient to support the conviction. We affirm the trial court’s judgment.
FACTUAL BACKGROUND
Harlen Flores patronized El Cristal Bar on the night of February 23, 2014, to drink beer,
play pool, and see her friend Mercy Vasquez who worked as a bartender. A man, later identified
as appellant, sat down next to Flores and bought two or three beers for her. He asked for her phone
number, and, when she declined to provide it, he became angry. Flores moved to the other side of
the bar where another friend was sitting. Appellant followed Flores and Vasquez told him to leave
Flores alone. Appellant told Flores he would “come for her” before he left the bar for twenty-five
to thirty minutes. When appellant returned, Vasquez heard a woman shouting “[h]e has a gun.”
Appellant began yelling: “where is the white one, where is the white one, I want the white one.”
Vasquez believed appellant was looking for Flores because Flores has light-colored skin.
Flores testified when appellant saw her again, he grabbed her and told her “I want to take
you with me; I want you to go with me.” Although she tried to escape, appellant dragged Flores
outside while pointing his gun at her. Flores did not want to go with appellant, but he was “taking
me by force” and she was afraid. Eventually appellant threw Flores to the ground injuring her.
Vasquez went outside, saw Flores, and took her inside the bar. Appellant returned to the bar and,
while holding a gun, yelled “where is the white one? Where is the white one? If you don’t give
her to me, I’m going to kill all of y’all.”
Appellant grabbed Vasquez and told her to “turn the white one over to him or for me to tell
him where the owner [of the bar] lived.” When Vasquez did not do either, he took her outside
against her will. He had a gun and Vasquez was afraid. Before pushing her out the door, appellant
told the bar patrons he would kill anyone who followed him. With the gun in her side, he took
Vasquez to his pickup truck, which he had parked “a little far away” from the bar. He told her to
be quiet and walk faster. When they were nearly to his truck, the police arrived in response to a
disturbance call.
As the officers approached, they saw a man and woman walking away from the bar. The
man had his left arm over the woman’s shoulder and was “squeezing her to him.” The officers
told the man to stop and he did, raising his hands into the air, which caused his jacket to open.
They saw a pistol in his waistband. Once the officers handcuffed appellant on the ground, they
found a pistol next to him along with sixteen bullets. The police took appellant into custody. The
police later identified Vasquez as the woman who appellant had his arm around.
–2–
After the events, Vasquez watched the surveillance video taken by the cameras at the bar
and she testified the video captured what occurred that night. The video was played for the jury.
The jury also saw pictures of Flores taken on the night of the incident, which showed injuries to
her arms, legs, and head.
Flores identified appellant in court as the man who dragged her and then Vasquez from the
bar. Christopher Taylor of the Dallas Police Department also identified appellant in court as the
man arrested at El Cristal Bar.
LAW & ANALYSIS
We review a challenge to the sufficiency of the evidence in a criminal offense for which
the State has the burden of proof under the single sufficiency standard set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014).
Under this standard, the relevant question is whether, after viewing the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011).
This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Therefore, in
analyzing legal sufficiency, we determine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the light most
favorable to the verdict. Id. When the record supports conflicting inferences, we presume the
factfinder resolved the conflicts in favor of the verdict and therefore defer to that determination.
Id. Direct and circumstantial evidence are treated equally: circumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt. Id.
–3–
As applicable here, a person commits the offense of aggravated kidnapping if the person
“intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during
the commission of the offense.” TEX. PENAL CODE ANN. § 20.04(b). “Abduct” means to restrain
a person with intent to prevent her liberation by (1) secreting or holding her in a place where she
is not likely to be found or (2) using or threatening to use deadly force. Id. § 20.01(2)(A), (B).
“Restrain” means to restrict a person's movements without consent, so as to interfere substantially
with the person's liberty, by moving the person from one place to another or by confining the
person. Id. § 20.01(1)(A). Restraint is “without consent” if it is accomplished by force,
intimidation, or deception. Id.
Appellant argues the evidence is insufficient because the State did not prove appellant’s
identity as the perpetrator of the aggravated kidnapping. Vasquez could not identify appellant as
the man who kidnapped her. However, she testified the man who attacked Flores was the same
man who kidnapped her. Flores identified appellant in court as the man who dragged her from the
bar and testified the same man kidnapped Vasquez. Taylor also identified appellant in court as the
man arrested at El Cristal Bar who, at the time the police encountered him, had his left arm over a
woman’s shoulder and was “squeezing her to him.” The woman subsequently was identified as
Vasquez. Additionally, once the police handcuffed appellant on the ground, they found a pistol
next to him along with sixteen bullets. Vasquez and Flores both testified the man who grabbed
and dragged them had a gun.
The evidence also shows appellant exhibited a gun, a deadly weapon, while restraining
Vasquez and preventing her liberation through the threat of deadly force. Appellant restricted
Vasquez’s movements without her consent and moved her from one place to another.
–4–
After viewing the evidence in the light most favorable to the verdict, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. See Clayton,
235 S.W.3d at 778. We overrule appellant’s sole issue.
CONCLUSION
We affirm the trial court’s judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180441F.U05
–5–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RAMON CAMPA SOVERANES, On Appeal from the 195th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F-1452686-N.
No. 05-18-00441-CR V. Opinion delivered by Justice Stoddart.
Justices Lang and Myers participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 22nd day of June, 2018.
–6– | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4145049/ | OFFICE ~OF THE ATTORNEY GRNERAL OF TEXAS
AUSTIN
Hon. Ooorga H. Shepyrd
Com#mller of Fubllo Aooounts
Austin, Texa8
Dear Sir:
blJ.1for th
This ir to aaknowlad
August 30th for our oplnlod
the General Appropri
Buatd of Insurano4 C
Your lottar raa
ishod a oopy 0r
your opini 08 tlon or th4 ata-
tuted and a e insureno de-
16 welter c. wooa-
oat the purpom
lnt4rpretedthere-
our wasidoratioa of
t8 sot out belw.
itI&at ths botton or
0. O-1176 rtateer
view of oar anwor to tho
8 gltsn, prodo not think
otate we note no prohibl-
he rarioua ltma m8ntiOn4d
E.4nte'sAom44 nivieion may
paId from th4 at&a a g;Onaral
en thowh the A&wits' Liosaeo
is44 appropriated,in, ths ridet to tha
ganeral appropriationbill do not ruf-
rsoo to There is a0 lan u-6
in the trd:r%%Loting the dlriJ OZI
solel;lt6 the me of tb4 t444 thmo
montionea.*
Hon. CJoorge n. Sheppard, Peg4 2
*Is It not reaaonablo to oonsider this por-
tion or your opinion to be In conrllot dth the
following rlderr appended to the appropriation8
r0r the Board 0r I~ur4noo Commiselonerein sen-
ats Bill 427, Aote or the Forty-sixthLegimlaturer
w*SubJeo~tto the limitations set
forth in the provisions appearlhg at
the end or this Aot, all Ag4utB' Lic-
onso fess colleoted by tlrtuc of the
lloonse lens, aball be deposited in
the State hoasury, end ate hereby ap-
propriatedand may be expanded, durlag
the fisoal years glding August 91, 1940
and August 31, 1941, In acoordanoe with
th4 lawa of this stat4 r0r pafment 0r
the ltsps listed above...
**Prwlded that the rore(rolng ap-
propriatlonarortho LKe Dlvieion (et
oept the approprlatiouatortha Exaznln-
ing Division and the Liosncr@g Dfrlaion
which lnvs~herslnaboroboon provided'
i'or)shall be gald out OS the Csnoral
heratls Tund.*
*on p-4 14 or opinion o-n76 ~00. point: wt
that the sa la r ies
lpproprlatsdin Senate Bill 427
fOr three Mutual A86OaSWnt SUpemieora and 0114
Mutual Aaseaasmnt aeoretaryare payable rmnY[atual
AesmmAcnt iass approprlatod to.thriinm-mano4
department in Ssaats Bill 158.
-he above salary appropriationsam listed
in Senate Bill 427 under the Life lfivl4ion of
ths lnaurancs deapartment and that dlrlsions*ap-
propriatloncar4 expressly payable frostthe gen-
oral rav4uu4 fund (see rider quoted soaendly
above).
-should this Departmentrollow the abort
paragraph of Opinion O-1176 and set up the aQ-
proprlation6for three Mutual Asseesment Super-
rlwra and one ssqreta17~-to be paid iroa the
Special Mutual Assersmsnt Fund aa oreated by Ssn-
ate Bill 1387 If w, what mill be the 4tatua
of these salary appropriationsafter Xay 12, 1941,
the normal expirationdate of the appropriation
of wtual Asseswwt r444 made in Sonets Bill
1351"
Ron. C4orge R. Sheppard, Rag4 2
Se&ion s or Sonate Bill HO. 427 on pago 150 or
th4 sonata Journal roads as iollws:
'SOO. 3. It is further provided that in
the av4nt the statutes cb ths State or Tex4a pro-
vide that any amount, revs or tunds horoln ap
proprlatodto be paid out or lwal or special
roes or funds, that the same be so paid out or
said local or speolal foes or funds lnetead or
being paid out or the Uenoral Revenue pund.*
Seotion 38 of Sonate Bill Ho. 135 as passad by
the 46tb Lagislatureroads aa follws:
*All ress Raid to the Board of Insuranas
Conznlesiomrsby all associations regulated; by
this Ackshell bs and the 44m4 are hero and nw
appropriatedfor the balanoe cU the fiscal.year
ending Augxst 31at, 1939, to the pileand benorft
of tha Life Insurano4 Dlrlslon of the Bonrd 0i
Ineurance CQPmiasioners,to be ~446 by the Llrs
Insuranoo Commlsalonerror the purpoa.0or enforo-
lng and carrying out the provisions 0r this Aot
and other lawn rolatlng to the regulationand
supervisionof suoh aswoaiation;prorldsd, how-
oror, that thersarteranoh fees shall bo 4XpCnd-
ed under suoh limitationsas the Legislaturemay
dealgnats In tho general deRartm4ntalapproprla-
tion Ml11 slOh.f446 to bo abp06it4d in the Stat4
Treasury as a special fund to be ueed as and for
the purposes aforeeald and are b4r4 and nou ap-
proprlatodfor suoh purposes and all laws or parts
or laws to the aontrary are biro and nw express-
ly ropeale& to the extant of such oor.Uliotonly."
no 4freot of the s4401nl portion or &mate Bill
427 above quoted Is to prorido that the appropriaticnafor
the Lire Division shall be paid out of the Gemoral Rermue
Fund, and the a~propristlonsfor the 2lnIng Dl~lsion
and ths Licene&ng Division shall be paid aa thorellubove
provided. S4nat.oBill 136, as passed by ths 46th LegIsla-
ttLC4,providas rorths 3234 or r448 paid to the Board or
Insurance COmdEdOnOrO by all assoolationsregillated by
the Aot by tha'x,tr4Inmranoe Division ror th4 purpose or
anforaingand oarrging out ths provisionsof such Act and
other laws relating to the regulation and 4aprvlslon of
such eseooiation4.
Hon. Goorge H. Sheppard, hge 4
Vieunderstand that the three Xutual Aseeeemsnt
Supervisors and one Mutual Assaswont Seorotsry,appropria-
tions for whloh am provided for the Liie Mvlaion in Sanato
3111 427, are a4ploy4eewhose duty it is to anfor and
carry out the provisionaor.SQate Bill 138 end other laws
relating to the regulationand aupsrrielonof aswolatlolla
covered by aucrhAct.
It r0110w8 that by virtue or th4 provision8 of
Saotion 3 of.the general rldsr sppended to S4nat.aBill 427,
above quota&, ths Sacs prwldod by Senata Bill 156 should
be applied to*rerdthe paynmnt of the 8alaries of the thrso
Mutual Assessment Supsrvlwrs and one Mutual Asaosamont
Secretary to the extent that they are available,bsfore
roaort may be had to the General Revenue Pund. Se4 Oplnlon
No. 04.360, attaahsd hereto ror your inrormation. Although
Ray 12, 194l, would be ths normal expiratfondata or the
appropriationor fees made In and by &mats Bill 135, aupra,
Section 3 of Seuate Bill 427, a8 above quoted, eifeotlvoly
praaorfb4athe ue4 which may bs made of suoh foes and lo
auffloientIn and of Itoolf me an appropriation,oonsldered
In oonneotlonwith ths dedloation of euoh teas found in
Senate Bill X.5, to require the applicationor suohre48
toward the purposes and expanses for whiohthoy ore avail-
able, during the current flsoal blennIum.
You are, thereio+ respectfullyadvised that it
is the opinion oi t,hledepartmentthat you should apply
the fees oolleoted by ths Board or InsuranceCammisslonera
ixun asaooiationaregulated bp Senate Bill l3S tward the
payomnt or the appropriationsmade for tha three Yutual
Asseosmont Superviwra awl 0x1~Mutual Aeeessmaut Sooretary,
before reaortiogto ths GslleralRer4nu4 Aud rortha pay-
ment or auoh approprlationa,and that the General Revenue
Fund may not be rssortad to tar payment of auoh approprla-
tlonlr unless woh lee5 am inaufflolontto pay euoh appro-
priations ruily, ,inwhioh event ths aibri0i42i4ymay be ma4
up from the Csnaral R4venua Fund.
You am further advised that In view of the rldcr
appandod to the approprlatlonrorthe Board or Inauranoe
Conm&slonera in Senate Bill 427, above quoted, It is the
opinion of this dopartnmntthat the various itema mention-
ed in the Agents* Lfcsnae Division oannot bo paid from
the State*4 Sonaral ~RevenusFund, and our Opinion No, O-1176,
heretoforerendered, la amandad and modified to thl4 ex-
tent.
son. George B. Shapgard, Fs&e 5.
R'ncI:pbp | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144951/ | 213
dI
b
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
r6novo6 tha prop6rtpowaer8fi teaoe froa th6 road-
wa 18 It the aouaty’r obl&etlon to rebuild
8aI'd ha00 ?or laid property owa6r6, Or IAO;~~
f$$good Oondition 68 it W66 ktOr8 b6 L
2L4
pnorabl6 Don 3. IXrkrr, Face 6
oatiOIlFrOOeOdi~, FU.WhtNJ~,OOntX'-t Ol-otherwire.
Seotloa 17 of Artlole I of the st6t6 COli6titUtiOll
prides thata
"h'opemoa'8 property shell be taken, dam-
aged or dertroyed for or applied to pubUc uee
without odb~u6t.soompsnsatloabeing Imae, unl8ss
by the coneeat of awh~pers~nj and, rhea taken,
8xOeFt for the U8e of the 6tate, 8UOh 00XZIp8ll66-
tion rhall be first mnde, or scoured by a de-
posit of money; and no lrrevooabla or unooatrol-
lab18 @3r& Of 8p601Q1 5W1irir6&38 Or iEEUUllitiO8,
8hall be nadei but all prlrlle@e and franohi8es
~ra.ntOdby the L.e~lslature, or oreated under its
authority shall be 8ubjeot to the control thsr60f.m
we quote iron Texas JurlS. Vol. 16, p. 994, 08 Sol-
1-1
*In other jur~sdiOtion8 there 16 a OonfliOt
of authority upon the question OS the right to
recover the costs of any renmol of bull&n&@
ilndrences as a separ& item of damme, aok
mthoritlee holdlry:that thla Co8t l6 merely (L
iaot to be oonsideied ln drtetiniry:the de&w
clatlon oi the land by the t&la&. In T6xa8,
while all authorltlea qree that the Jury nay
tske aooount of Ssct that the rsnoval OS 6tru6-
tures 18 neoersitated by the Condenn6t~onof
part oi the traot, some deci6loM appear to ln-
diaate that ruch dam&e Mayanot be awarded aira
8epsrate item, but other6 hold t&t a rerdlct is
not objeotlonable for the sole rea6on thst the
OO6t Of the rerntal Of 6trUOtW68 tlpp6m8 66 6
dlstlnot item and rerdiot.
Vhe 8ubstantial point involved is that,
under the eneral priaolpie o? the law of &am-
ages, the % 6tFUOtiOIl8 lU3Oey
not ba 80 dram a8
to permit a double reoorery. The dsfendant is
protooted where, on an award inoludlry an lt6m
for remral or 8truatwe6, it 16 made clear that
the generul item for depreciation exolude8 the
.eeparsteitem6 mentioned. A fortiori, where a
8il@O 8m 16 awarded ror all depreolatlon in-
eluding the cost of removal of stNQttme6, nn
215
Bonorablo Doa D.
In8truotloa conrider
.* __the soat
of reamring
of depraolatloa 18 not objeotlonable either a6
permitt1 a doublr Mootery or a8 being a oharge
oa the ve %t of the ovldeaoe.
"On the other band, Inrtruotlorrsare objso-
tlonable a8 allowIng a double recovery where the
jury are oharged to oonslder ovary Saot and air-
omuIt.anceof evidence In a88esslng the deprsola-
tlon, and then, by a further lmtruotloa, are
directed to oonslder the oo8t of t0mofa.land re-
ereotloa of fence8.w See the aa8e6 of W$'6STS.
LfoLaIll,100 S. Ib'.
802; city Of San isntonlot8.
Fite, 224 9. E. 911; Ft. Forth and D. 5. P. 1.
Company ~6. Judd, 4 S. W. (26) 1032; Central
Fewer and Light Co. ~8. Sillacy County, 14 S. 8.
(2d) 102.
No 6peoIflo 6a8wer to the aborementloned question
a688 which might be Involved In
could apply to all of the tt
aoqulring right-of-Way for road purposa8 and the rebulldl~
or replaoing of fen008 for the propemty ovrner8, but each 0~186
would be 60Yemed by it8 own facts.
Where right-of-way 18 acquired by purohase, contract
or otheruI8e except by oondenmatIon prooesdIng8 an¶ the con-
8truotlon or rebuildlag o? the fence 16 the vhoie or a part of
the oQn6IderatIonfor tuoh new right-of-way or addltlonal
right-of-ray reaured by tlm oounty, then the oounty would be
obligated to carry out It6 agrement With the landowner regard-
ing the rebuIldinp,or oonstruatlon of the fenoe acoording to
the oontract or egreepent had between the parties.
In the oa8o of ?!orrI6VII.Coleman County, 28 S. F.
380, the court 8aidt
We thiok the item In the acoount for cost of
fire miles of fenoe, a8 a 4istinCt itemof danIa688,
via8properly stricken out. The question la, what
additional burden was put upon the land aifeoting
its value by opening the road7
If 6UCh a6w or additional ri ht4f-way I8 acquired
udgmmt of the court
by oondsnnatlon proceedings, then the 'j
would oontrol.
- .
216
gonorable Don D. Parker, Page 4
Trustin% that the foregoing answers your Inquiry,
m remsin
YOUr8 very truly
ATTO?JE!f GENWJ. OF T2iX.S
By t&fQQflL
tide11 7illlIam
A8SistElLt
COMMITTEE
A r.4 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144966/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
IxRAro c. MANN
As.ss
.s. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132329/ | TEI~E=A-JTORNEYGENERAL
OP TEXAS
AURTIN. TFXAS 78711
septenber12, 1977
Georse G. Killinger, Ph.D. Opinion No. H-1051
Chairman
Board of Pardons and Paroles Be: Authority of the
Stephen F. Austin Building Board of Pardons and
Austin, Texas 78701 Paroles to require a
commissioner to assume a
new duty station.
Dear Dr. Killinger:
You have requested our opinion regarding the authority
of the Board of Pardons and Paroles to require a parole com-
misioner to assume a new duty station.
In 1975, the Legislature amended article 42.12, Texas
Code of Criminal Procedure, to provide for the appointment of
parole commissioners "[t]o aid and assist the Board of Pardons
and Paroles in parole matters." Sec. 14A(a). The commissioners
are invested with the "same duties and authority as the board
members" in "matters of parole decisions," but the statute
specifically states that
[tlhe board members shall continue to
exercise their responsibility for the
administrative operation of the board
of pardons and paroles.
Sec. 14A(e); (h). Furthermore, the commissioners are directed
to
perform their duties as directed by the
board in its rules and regulations affect-
ing these commissioners.
Sec. 14A(e). In addition, the statute provides that the Board
may adopt such other reasonable rules not
inconsistent with law as it may deem prop-
er or necessary with respect to . . . the
conduct of parole hearings . . . .
p.4324
George G. Killinger, Ph.D. - Page 2 (H-1051)
Sec. 15(d).
Pursuant to these provisions, the Board has recently
promulgated Rule 205.01.02.009, which states:
To provide efficient coverage and access
to all units of the Texas Department of
Corrections, the Board of Pardons and
Paroles may change the designated duty
station of any commissioner to any loca-
tion within the state of Texas upon 60
days' written notice, except that one
commissioner appointed by each appointing
authority shall reside in Walker County.
In our opinion, article 42.12 furnishes ample authority for
the Board to promulgate this rule. The Board members exercise
the sole responsibility for the administration of the Board.
The commissioners are required to "perform their duties as
directed by the 'board in its rules," and the Board members
are granted additional authority to adopt rules for the con-
duct of parole hearings. Accordingly, we believe that the
Board of Pardons and Paroles is authorized to adopt a rule
which requires a parole commissioner to accept a new duty
station.
SUMMARY
The Board of Pardons and Paroles is
authorized to adopt a rule which requires
a parole commissioner to accept a new
duty station.
of Texas
DAVID M. KENDALL, First Assistant
p. 4325
I
George G. Killinger, Ph.D. - Page 3 (H-1051)
c. ROBERT HEATH, Chairman
opinion Committee
jst
P. 4326 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132213/ | The Attorney General of Texas
May 24, 1978
JOHN L. HILL
Attorney General
Honorable Bill Clayton Opinion No. H- 1167
Speaker of the House
State Capitol Re: Use of funds by state-
Austin, Texas 787ll supported universities.
Dear Speaker Clayton:
You have requested our opinion regarding the use of funds by state-
supported universities. You first ask whether interest monies accumulated on
constitutionally dedicated funds, appropriated funds, and other revenue
defined as “local funds” may be used at the discretion of the particular
university.
Section 11 of article 7 of the Texas Constitution, which creates the
Permanent University Fund on behalf of the University of Texas System and
the Texas A & M University System, provides that
the interest accruing thereon shall be subject to
appropriation by the Legislature to accomplish the
purpose declared in [article 7, section 101.
Section lla of article 7 provides further that the
interest, dividends and~other income accruing from the
investments of the Permanent University Fund, except
the portion thereof which is appropriated by the
operation of Section 18 of Article VII for the payment
of principal and interest on bonds or notes issued
thereunder, shall he subject to appropriation by the
Legislature to accomplish the purposes declared in
Section 10 of Article VII of this Constitution.
Section 18, which authorizes the issuance of bonds by the various institutions
of the University of Texas and Texas A & M University Systems, directs that
bonds issued thereunder “shall be payable solely out of the income from the
P. 4720
Honorable Bill Clayton - Page 2 (B-1167)
Permanent University Fund.” Finally, section 17 creates “a special fund for the
purpose of acquiring, constructing and initially equipping buildings or other
permanent improvements” at designated institutions of higher learning.
A pro rata portion of the interest from each university’s fund under sections
17 and 18 of article 7 is credited to that institution’s account in the state treasury,
pursuant to erticle 2543d, V.T.C.S., and is used, first, to retire outstanding bond
obligations. Any surplus must be used to finance additional permanent improve-
ments. Thus, interest on these funds is subject to appropriation for the
constitutionally specified purposes.
With regard to other funds, section 51.008(b) of the Education Code requires
that every state institution
deposit in the state treasury all cash receipts . . . that may
be derived from all sources except auxiliary enterprises,
noninstructional services, agency and restricted funds,
endowment funds, student loan funds, and Constitutional
College Building Amendment funds.
Any interest received on such deposits which is not credited to a constitutional fund
under article 2543d is allocated to the General Revenue Fund, “with the exception of
that portion required by other statutes to be credited on a pro rata basis to
protested tax payments.” A state university thus has no control over the use of
interest accruing on any funds which are deposited in the state treasury, since such
interest becomes a part of the General Revenue Fund and subject to legislative
appropriation.
As we have noted, section 51.008 of the Education Code describes various
kinds of university receipts which need not be deposited in the state treasury.
Section 51.002 further authorizes certain institutions to retain control of sums
derived from certain activities. Expenditure of these local funds is controlled by
section 51.004 of the Education Code, which requires that separate accounts be kept
“showing the sources of all sums collected and the purposes for which disbursements
are made,” and specifically, that general funds be kept separate from trust funds.
Education Code 5 51.004(b). Interest on each of these accounts
may be credited to an appropriate account iQ either general
funds or trust funds in relation to the sources of temporary
investments in time deposits, if the disposition of the
earnings was not specified by the grantor.
See Acts 1977, 65th Leg., ch. 872, at 3094, art. IV, S 2 (appropriating institutional
Gds for the operation, maintenance and improvement of the respective colleges
and universities). Education Code S 51.004(d). Thus, subject to any restrictions
P. 4721
. -
Honorable Bill Clayton - Page 3 (R-1167)
imposed by the Legislature in the Appropriations Act or otherwise, interest from
local funds which aFe not classified as trust funds may be proportionately credited
to the appropriate account and used by the university. The disposition of interest
accruing on trust funds may be specified by the grantor, but if it is not, it must be
made “available for loans, scholarships, fellowships, institutional research, faculty
aid, and other lawful purposes.” $&
You also ask whether state-supported universities are required to engage in
standard competitive bidding practices regardless of the funding source of the
purchase. Article 664-3, section 5, V.T.C.S., requires that the Board of Control
purchase all supplies, materials, services, and equipment
used by each Department of the State Government, includ-
ing the State Prison System, and each eleemosynary
institution, Teachers College, Agricultural and Mechanical
College, University of Texas, and each and all other State
Schools OF Departments of the State Government heretofore
or hereafter created. . . .
Certain purchases may be made without Board authority, however, including
[pl urchases of supplies, materials, services and equipment
for resale, for auxiliary enterprises, for organized activities
relating to instructional departments of institutions of
higher learning, and for similar activities of other State
Agencies, and purchases made from gifts and grants . . . .
As to this latter group of items, the statute does not require Board of Control
approval, and, as a result, an institution is not expressly required to make such
purchases on the basis of competitive bidding.
SUMMARY
Interest accruing on funds under sections 17 and 18 of article
7 of the Texas Constitution must be used to retire
outstanding bond obligations and to finance permanent
improvements. Interest on the remainder of the Permanent
University Fund is subject to legislative appropriation. ln
general, accrued interest on local funds may be expended by
the particular university, but certain restrictions are
imposed upon the use of trust funds. Competitive bidding is
required by article 664-3, V.T.C.S., on most purchases by
state-supported universities, but certain items are excepted
therefrom.
P. 4722
Honorable Bill Clayton - Page 4 (1.1-1167)
Very truly yours,
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
p. 4723 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132230/ | The Attorney General of Texas
April 4, 1978
JOHN L. HILL
Attorney General
Honorable Leonard Prewitt Opinion No. H- 1150
Executive Secretary
Teacher Retirement System of Texas Re: Whether employees of the
1001 Trinity Street School Tax Assessment Practices
Austin, Texas Board are members of the
Teacher Retirement System of
Honorable Joe Murphy Texas or the Employees Retire-
Executive Director ment System of Texas.
Employees Retirement System
of Texas
1800 San Jacinto
Austin, Texas 787ll
Gentlemen:
You have requested our opinion regarding whether employees of the
School Tax Assessment Practice Board are members of the Teacher
Retirement System or the Employees Retirement System.
The School Tax Assessment Practices Board was established by the 65th
Legislature. Education Code S ll.71 - ll.88, Acts 197’7, 65th Leg., ch. 1, at 29.
The same statute amended section ll.01 of the Education Code to read:
The State Board of Education. the State Board for
Vocational Education, the state commissioner of
education, the School Tax Assessment Practices Board,
and the Sta,te Department of Education shall comprise
the Central Education Agency.
(Emphasis added).
Section 3.03 of the Education Code provides that, with certain
exceptions,
[el very employee in any public school or other branch
or unit of the public school system of this State is a
p. 4670
Honorable Leonard Prewitt
Honorable Joe Murphy - Page2 ?H-1150)
member of the [teacher] retirement system as a condition
of his employment.
“Employee” includes “any person employed to render service on a full-time, regular
salary basis by . . . the Central Education Agency. . . .” Education Code S 3.02.
Since the School Tax Assessment Practices Board is a component of the Central
Education Agency, it seems clear that the Teacher Retirement System, rather than
the Employees Retirement System, is the system which must extend coverage to
Board employees. Accordingly, it is our opinion that aR persons employed by the
School Tax Assessment Practices Board on a full-time regular salary basis are
members of the Teacher Retirement System.
SUMMARY
AR persons employed by the School Assessment Practices
Board on a full-time regular salary basis are members of the
Teacher Retirement System.
APPROVED:
c .“-’
jst
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https://www.courtlistener.com/api/rest/v3/opinions/4097859/ | STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2016
Plaintiff-Appellee,
v No. 328874
Wayne Circuit Court
DEMOND STEELE, LC No. 15-000748-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and SAAD and METER, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of two counts of assault with
intent to do great bodily harm less than murder (AWIGBH), MCL 750.84; felon in possession of
a firearm, MCL 750.224f; and possession of a firearm during the commission of a felony
(felony-firearm), second offense, MCL 750.227b. The trial court sentenced defendant, as third-
offense habitual offender, MCL 769.11, to 100 months to 20 years’ imprisonment for each of the
two convictions of AWIGBH, 3 to 10 years’ imprisonment for the felon-in-possession
conviction, and five years’ imprisonment for the felony-firearm conviction. We affirm.
This case involves a shooting that occurred on Pingree Street in Detroit. On July 4, 2014,
defendant, Chike Kelley, Che Daniels, and Eric Garland were all at Kelley’s rental property on
Pingree Street. There was a physical altercation between Kelley and defendant. Daniels got
between them to prevent them from fighting. Testimony indicated that defendant pulled out a
silver revolver and shot Daniels three times, including in the head, shot Kelley in the shoulder
once, and then shot at Garland, who was located in the adjoining dining room.
Defendant argues that he was deprived of the effective assistance of counsel when his
defense attorney did not request an adjournment or seek assistance to find defendant’s father,
Demond Steele, Sr. (hereinafter “Steele”), who went missing the day he was scheduled to testify.
We disagree.
-1-
Defendant failed to preserve the issue of ineffective assistance of counsel for appeal
because he did not bring a timely motion for a new trial or move for a Ginther1 hearing in the
lower court. People v Petri, 279 Mich. App. 407, 410; 760 NW2d 882 (2008). Whether a person
has been denied the effective assistance of counsel is a mixed question of law and fact. People v
Matuszak, 263 Mich. App. 42, 48; 687 NW2d 342 (2004). A trial court’s factual findings, if any,
are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from
an ineffective-assistance-of-counsel claim de novo. See id. This Court reviews an unpreserved
claim of ineffective assistance of counsel for errors apparent on the record. People v Lopez, 305
Mich. App. 686, 693; 854 NW2d 205 (2014).
“To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense.” People v Riley (After Remand), 468 Mich. 135, 140; 659 NW2d 611 (2003). Counsel’s
performance is deficient when it falls below an objective standard of reasonableness under
prevailing professional norms. Id. A defendant is prejudiced if there is a reasonable probability
that, “but for defense counsel’s errors, the result of the proceeding would have been different.”
People v Heft, 299 Mich. App. 69, 80-81; 829 NW2d 266 (2012). “Effective assistance of counsel
is presumed, and the defendant bears a heavy burden of proving otherwise.” People v
Solmonson, 261 Mich. App. 657, 663; 683 NW2d 761 (2004). Additionally, a defendant must
overcome the presumption that the challenged action was sound trial strategy. People v
Trakhtenberg, 493 Mich. 38, 52; 826 NW2d 136 (2012). The burden on a defendant to overcome
the presumption is heavy, and, “[i]n general, the failure to call a witness can constitute
ineffective assistance of counsel only when it deprives the defendant of a substantial defense.”
People v Payne, 285 Mich. App. 181, 190; 774 NW2d 714 (2009) (quotation marks and citation
omitted). “A substantial defense is one that might have made a difference in the outcome of the
trial.” People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68 (2009) (quotation marks and
citation omitted). “Trial counsel is responsible for preparing investigating, and presenting all
substantial defenses.” Id.
The record indicates that defense counsel did not plan to call Steele until the third day of
trial, when counsel informed the trial court that she intended to amend her witness list to include
Steele. Defense counsel said that Steele would provide testimony that would attack Kelley’s
credibility. The trial court allowed defense counsel to amend the witness list to include Steele.
On the fourth day of trial, Steele spoke with defense counsel off the record and claimed
that he wanted to confess to the shooting. Defense counsel informed Steele that he would need
to be appointed an attorney if he was going to confess to the crime. An attorney, Jeffrey
Schwartz, appeared on the record to inform the trial court that he was there to represent Steele.
He stated that he had been unable to locate Steele even after speaking with Steele’s family
members. On the record, the trial court released Schwartz, but asked that he try to look for
Steele one last time and to inform the court if he was found.
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
-2-
Defense counsel then proceeded to inform the trial court what Steele’s expected
testimony would be. Defense counsel stated:
I did have a number of conversations with [Steele], starting last I want to
say Friday, I believe. This trial started on Thursday. He first contacted me on
Friday. He had indicated a willingness to testify. He was going to testify about a
phone conversation that he had with one of the complainants in this matter, a
phone conversation at the hospital. He, also, indicated to me that a number of
different sort of versions of events that occurred that day [sic].
Today I was advised by -- that he was going to testify that, in fact, he was
at the residence on Pingree that day and that he was the shooter. When I spoke
with him he was-- At that point we went and spoke with you. The [c]ourt
indicated that-- I felt he needed to talk to a lawyer. If he was going to testify in
that manner for sure he needed a lawyer before he incriminated himself. And I
came in to talk to you about getting a lawyer appointed for him and the [c]ourt did
that, and now it appears that he is not here any longer.
So I honestly don’t know what his testimony would be. I really don’t
know. But he’s gone.
The trial court explained that the date and time for trial had been set and ordered the trial
to continue. Defense counsel rested. Before closing arguments, the trial court asked defense
counsel one last time if she had made contact with Steele, but defense counsel said that she had
not seen him. The trial court then stated, “[Steele] has not contacted any of my staff or made any
presence known. So I just want the record reflecting with regard to that.” There was no other
mention of Steele, and the trial concluded with a verdict on the fifth day.
Defendant argues that the failure to seek an adjournment or assistance in locating Steele
when he could not be found constituted performance that fell below an objective standard of
reasonableness because without Steele’s testimony, defendant did not have a strong defense and
his case “more or less depended entirely on attacking the credibility of the witnesses the
prosecution brought forth.”
Defendant has not shown that defense counsel’s inaction was unreasonable because there
is no indication that Steele would have been available to testify at a later time. Defendant relies
on People v Tommolino, 187 Mich. App. 14, 18; 466 NW2d 315 (1991), where an attorney’s
failure to seek an adjournment to procure two alibi witnesses was deemed not objectively
reasonable and considered “unsound strategy.” However, the instant case is unlike Tommolino,
because this Court, in Tommolino, acknowledged that the two alibi witnesses could have been
subpoenaed to testify. Id. Here, Steele’s latest iteration of his probable testimony was that he
had been the shooter, but defense counsel could not subpoena Steele and require him to either
confess to the crime or invoke his Fifth Amendment right. The Michigan Supreme Court has
held that an attorney cannot compel a witness to appear before a jury knowing the witness will
-3-
claim his Fifth Amendment privilege against self-incrimination. People v Dyer, 425 Mich. 572,
576-579; 390 NW2d 645 (1986).2 Defendant cannot show that defense counsel’s inaction fell
below an objective standard of reasonableness
In addition, defendant has failed to show that counsel’s inaction resulted in prejudice.
Defendant argues that defense counsel’s failure to seek an adjournment was prejudicial because
the outcome would have been different had Steele confessed to the shooting. However, nothing
in the record shows that Steele would have ever been available, and even if he was, that he would
have actually waived his Fifth Amendment right and confessed to the shooting.
In Tommolino, 187 Mich. App. at 19-20, this Court concluded that the defendant had not
been prejudiced when his defense counsel failed to request an adjournment. There, the defendant
had testified that one of the alibi witnesses was his ex-fiancée and she “indicated a willingness”
to testify. Id. at 20. However, the Court emphasized that no evidence was presented that showed
that the alibi witness would have testified as the defendant claimed. Id. Here, while defense
counsel said Steele had indicated a willingness to testify and confess, she was not sure if Steele
would have actually done so. She said, “I honestly don’t know what [Steele’s] testimony would
be. I really don’t know. But he’s gone.” Steele never signed an affidavit confessing to the
crime, never went on the record claiming he would testify, and never appeared in court to waive
his Fifth Amendment right.
Also, there is no indication that the trial court would have granted an adjournment or
assistance (which, necessarily, would have required an adjournment, given the timing of events).
Indeed, there was a high likelihood that the trial court would have denied the request,
considering that Steele inexplicably went missing from the courthouse3 on the fourth day of a
five-day trial, the case was ready for closing arguments, and the trial court had once previously
adjourned the date set for trial. Defendant cannot show the requisite prejudice.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Henry William Saad
/s/ Patrick M. Meter
2
The fact that Steele could not be found on the day he was scheduled to testify supports the
proposition that trial counsel had reason to believe Steele would likely invoke his Fifth
Amendment right if subpoenaed.
3
He had been there earlier and departed.
-4- | 01-03-2023 | 11-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4097876/ | Fourth Court of Appeals
San Antonio, Texas
November 9, 2016
No. 04-16-00715-CV
IN THE INTEREST OF M.L.D.R.E. AND D.A.E.,
From the County Court at Law, Val Verde County, Texas
Trial Court No. 3147-CCL
Honorable Sergio J. Gonzalez, Judge Presiding
ORDER
The trial court clerk has filed a notice stating appellant has not designated materials to be
included in the clerks’ record. Appellant is not required to file a request for or designation of
materials to be included in the clerk’s record. See TEX. R. APP. P. 35.3(a); 34.5(a), (b). The filing
of the notice of appeal triggers the clerk’s duty to prepare, certify, and file the clerk’s record, as
long as appellant has either established she is indigent, see TEX. R. APP. P. 20.1, or made
satisfactory arrangements to pay the clerk’s fee. See TEX. R. APP. P. 35.3(a). We order the trial
court clerk, Jo Ann Cervantes, to file the clerk’s record by November 18, 2016.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 9th day of November, 2016.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 11-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4145199/ | Ho lding
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LaglJbur, ra0T.d mmh iteu from ha bill.
?arthor holdingthtwidu thoteru of
rpeolal prmirlonrin the bill, vhlch vero got
ntwa meh aplo 00s l UO a o o o a wy to th a
OOOEO~C~~ aa err 1 0iont deiatmtim 0f ttu
burlnrrrof the Doputunt in the oaastractlm
ula ulnt~or of hlghuys my k ap10~03, Ln
lddltlm to thoro itrdrod in the Mllr
oRIcB8 GP TEE ATToBlpl GmBML
Bon. Brady Gsntr
Chairran Btato h lghvay C~ulml
Austin, I .xA‘
Oplnlm no. o-a*
R o tP iseao rt~WIr nOC’S
rat0 o r lttr to a
Tat0 or ruloos itoar or par1tionrpra 4dad
lnbiumlal ~proprl~tlcafor HlghwyDa-
our lllrr -t*
%B IT BnAcTiiDBT TBB LBGIsLATmB GP TBB UATB or TBxA8:
lB sTr c a1 .
f& t
the swud mu o flmey huoln
rprolilsd or so moh tharoof as may ba nsoosruf
ITI
hereby lpproprhtod mat of any ~OAO~Sin thr 6t.t.
fruary not othenlss approprtatwl, or out of spealal
funds as my bo &own, for ths mpport ad Irlntsaanaa
of the swual dopartmnts and yanq4or of the Mats
Gwumt for the two-mar pulod bog- Soptabw
1, 1939, and anding AU@& 3, 19b"
&an oous the lppro rlatim to the Ad utcmt GsUual*s
&partmnt iollovod by appro ations to the var i cxu other dopart-
untr of the State . Uttar the heading
e * under ths sub-headingmMNnistratim Diris-i
tbl&-sawn positions vlth t)o salaries attached to moh gosltlas
bsing met opposlta thr saw for ra@ mar or tha blauln. rha
total of tha salarlrsfor aah of the tVo mars thus llsttrd
1s
Divi8ica” UO 8Ui-
flxmltotdll~
slmllarlp urmwd,
Em. Brady Gentry, C2.
*a. 8t8tiour ad offie0 8umi0~
Frlntlug Forms Rent en Tabulak
lng ~irehlnrs bosta6s r.1. hens
ma Telrgrap h wlin: SuppP10s and
tLpalrs, thtpphs for Jaaltor.,
Bqulpmant, Printed Forms for Count
28x Collsotsr., Bxprsss ma Rslg d
ana cmtinimt 0xpma0a . . . . . . 8 92,539.oo $ 92.539.00
"2. TraTolblg Bxpmmes . . . . . . . . m 12.000.00
row kinteaa ma a0rli8twt~ s104,539.00 8 104,539.00~
Ia the bill as prsssatd to the Gwunor there then fol-
iw0a an itomisation of 327 positims, numbered accordingly, vith
salarlss sst opposlts, ln th. following form:
wspartrsnt, aaa Dlmtrlot IInPloyeer
‘1. Adainlrtrativ. Assistant . . . . . 8 '~2g.g 8 4,200.m
2. Osorstary to *dnlnlstratlvs Assistant ,S@LoO
3. claims Aaaustu . . . . . . . , . . t ,00&O t ,OOO.OO
326. Mstrlct Lksepu . ~. . . . . . . 2,100.&
327. Dlstrlct Bookksrper. . . . . . . . 2-w
r0t.l &lerlss . , . . . . . . , . $ 518,870.& 8 R8,870.&*
lamedlately uuder the above there appeared the follovlagr
“lhint.nanCo and Wlsc.llan.ous:
‘1. Travsllng .xpens.s LZ.ocM.OO
total Haintuxiuc. and l4lsc.llea.ous ) 54Q,QQ p
Total Department and District Em-
MT-• -521.87D.09
*Grand Total - Stats Hlghvay Dspartmert uplo,372.00 1,010,372.00
‘EIGEUI DBPA-
*her. I. hsrsbp approprlatsd out of the State Hlgh-
vay Rand a ~mafflclent amount for the purpose of rolaburs-
lng the stats Prison Board for the oost of menufact~lag
automobile ltcanee platas, as prcnldsd by Eouse Bill 459,
Chapter 178, General Lava of the Regular Ssssloo of thr
Forty-third Legislature. It is sxpressly provldsd that
the Stats Prison hard shall prepare a statswnt of
ooinplets oosts vhloh shall b. audited by the Stats Auditor
before a pries for the 1loan.a plates Is fixed by the
Board of control and that the audited statement provided
for herein shall serve as the basis for the price ohergsd
the State lilghuay DopartmezIt.
“Therr Is hereby appropriated out of the Stats Bigh-
YB Fund for oath of the flsaal pars ending August 3,
l$& and A~e\lst 3l 19bl the sums of $50 000&O which
8mountshall ba trinsf&d from t-ha Stat: Hlghvay ma
to the General Nna of th. Stat. of Tsxas, la order that
the State Iilghvay Muad vi11 bear it. $net part of the
upenss lncurrea by other Stat. Dspartmonts ln ssrvlng thr
Iilghway Dspartnent and also to oovsr the oost of furnlsh-
lng heat, water ad povsr to th. State El&way Department.
The State Comptrollm and ths Stats Treasurer are hereby
authorized and dire&.& to transferthe amomts hsrsin
appropriated from the State El&nay had to the General
Bevenue Fund slthsr annually ot swai-annually at aa7 tlm.
during each of the sald fiscal wus.
Eon.
l2rwldod, that the above and faagolng a mo unts ap
proprinted huein for the Otate Elghvay Doputment ma for
ssrvicss rMfiOr8U byothsr Agenolu of the state QW.I.~-
met to the HI hvay Department Shall be paid out of the
state Highway fun d upon varran~s 1sm.d by the stat.
Ocmptroller as r vi&r& by Chapter 1 Title 116, gevlS.d
Civil Statute, hi5 and amsndmwtS 4hweto; provlaed
further that dl f&S or balancss of funds ca hand septa-
lwr X, 193 ,( au& all funda homing lnto the gtate Highway
ma, ana aorivsa from rsgistratlon fsss or from othu
s~uross~ aftu drdwtlng the total of the speolflc lp p r o -
prlatlons herein u&e, are hsrrby appro rlatsd to tha
Stat@ i&&way Dsputlprnt for the sstabl 4Shmsntof a Syrtam
of State Elghuays and the aonstructlm and msintenanc.
therrof as contemplated wd Sat forth ln said Cha tu 1,
9ltlo d6 and Chapter 186 General Laws of thr Bef&l-
ksslm of the Thirty-ninth Lsglalaturo, ad amandmentS
thusto.
efhs Stati Elghway Comlsslon Is hereby oxprssSly
luthorlzrdto purchase, through the hoard of Control, any
lddltlonsl Squlpaent, an& motor vehieloe neossSary la the
opinionof the Stats Highvay Department
purchase of a passsngsr ou in sxcoss ot swau inmlmd ma
fifty dollars ($750;00) Including the trads-ln value of a
uSsd Oar, end thls llmlted prloo Shall oovar a Oar lqulppsd
vlth bunpors and rxtra rim or vhesl, but not an extra oaS-
lng or tube.
‘YrWldSd that BO gtate Highway RmdS Shell be US.d
or upsndod in the ment of full or partial salaries,
or to putlclpats ln ths m plemsatlng of sny salaries for
84 ma of work aon0 for, & or under the mpsrvislo~ or
dlrsotlon of ths 8tate Elghuay Dopartmwt, other than those
amounts spsclflcsll prwlaed ln the above appropriations,
wham the total to L ma amh additional respootive
l
at not excesdlng the amounts pwolflcal1~ appropriated
therein for such eImIle pOsItl.os. . .
The GWSLPO~blue-pencllled the 327 positlone listed UIL-
der the sub-heading ~Dspartment aud District gnployees I1 (among
other porltlonr not germane to this opinion) and the IIem of
$fi,OOO~OOper ysar for travsllng expenses, SIgned the bll.1, and
mu8a a proolamstlon reading8
*I hare sigma ma ap rwea an of senate Bill no.
427, An Act making appropriatlone for the Support and
malntenenoa of the lxecutlve and admlnlstratlve depart-
ments Snd agenoles of the Stats povernment for the tVo-
par period beglnnlng September 1, 1939 and -ding A-a-
uet 31, l&l, vlth exc.ptl&n of the ItemS set out belw
vhioh are hereby vetoed and dlsapprovod for the rsawn
that the large deficit of the general fund and the gen-
lrel unsatlafacbory conditionof tbs State finaaOOs
makes it naoessary for me’to disapprove these Item.,”
am. Bradydentry, !A.
uo will flrrt point oatwut the prwldm Lathe gm=d
rida to the .ffoat that and *as rbould rwort to th. (I.'jcra
-a'~* Ftmd at the #'idof rah y&r "unlosrotherwisepm&j& e
-1 Or m h r r ltb o iw pmldsd" in the bill, does not qpl to
th* gl&fay WWtMnt*O lpproprlatlm. For, such rwarslm I:s
lthonlse prohibitedby law. ArtlG.0 66740, Rerlsd Clvll Statutq
:3%;;; PaWsme 55 60 u. (26) 153. kid Artlalo 66% reads
'AU mOn*YSlpW Or horoaftw doposltsdin th Stats
~umU?J to wit d thr *State Rigbay Ymd,r ln&&-
ill Federalrid lmeys de orltod to the uodlt of
2 d fbad mder the tomr of ehe Federal sighwayAst
ad dl Oomtf aid mmrya doporltrd to the am&t of
wld rPad mdor the terms of tbls *at &all be Itrb)eat
to ~prOPri&iCCI fOl-the wO&fiC pOrpO6.6f th. iap?OV.-
mat of said systsm of Gtate Elghways by tha St&r ~lgh-
my Dep a ema nt .l
lknoo, tbare 0e.uba no mm&m or any of theer umeys to
tbn Oaual Hevonuemd.
Ia the bill mder oon8lderatIm than are appropriations
fOr the pVwnt Of a lsrgo mber of llstod podtloas in the State
Highway Department and eutaiu other spealftod ltem8. The balanoa
of tha Stab Highway Fuud for the next Mamlum (afterdduatln#
t& nlmlmraswnts to the irison Bo;rrdand the GenaralFund) 18 then
lpproprfatd to the Department for the rstabllshment, ooastructloo
and ~latenanco of a rystrn of State Highways. There 1s no llmlta-
gll&8od,~m thlr %e.lsnoo." It 18 govolaod cmly the slse of
4v%ag all the rife& to the Govornor~s a!x lm t&t oan
ba glvrn; th& olldnatlaa of the 327 posltlonslisted mdar the nDs-
msrtmant,and utstrlctlEn@yoos' mb-dlrlslm, and of tho $5 000.00
trsw1ln.gexpenseItan. had the aileat of lacroasiag by $523 870.00
the amount appropriated for the lstabllshwnt, omrtructlan kd main-
tumncr af the M&vays.
ti approprlatlm of the who&e of this balaneo was not dis-
turbd by the Cwomor. Aecupanlad as Itwsbya soheduleaf sal-
ulos gwemlng the omploymnt of addltlmal mm, it Is plaia that
thr Legislaturesnd the Oovsrnorlntmdsdthet suchaddltlmal~ oy-
ls a sd g h th a nwmo a r y ln th eo c mo mlc ul
o n6lfflclsntuee of e'
he
Rmd dght k paid out of mch balance.
Ctato lilgtarqp
&&udly, there were two approprlatlonsof such $523,870.00.
With the first of such appropriationsthereofretosd it falls into
and autopratlaally kc-6 a part of the i\md approp~ated for the Cm-
str uc tim, lsta b llsh m a U@
nt maintenanceof a S~&WI of highways in-
6ludIngthe uao of neoassary pprtr thereof for the payment of se&es.
naay of the spproprlatlms to the *ai1oxu dePtAdmmt6 do not
emtaln any ltlchrl.:as, or s olialprovisiOna; as those aPPan?ad t0
Approprlatlm. Yr lre such riders appear and theirwotis-
the Ziighuay
lam ~0 plain as thay am in this eas*, Uld We IlOt WtOed,lffeot
mst k given 4othk
with the 327 positionsm&ted out thl6 bill 1s so far as the
highway appropriatim is cmcrmed is almod
prfatlms to th;t Departerntin 193l, 1933
me riders during all thi,s time the :&pertment has
aa were deemednecamary, additionalt0 those pOSltim# lieted in tbr
approprititlonbills, and so far as we know the validit?Of m;ch Waoid
provl&ms and the over of the Departmentto dOr sdaitlmal mm lo-
dor them lus nwer L en queetlmed. lcno~ing the comtruotimthus
flat206upm ita legislation,DWlXQ that effOotWalltfnrebeins Ma
PHI. Brad7 Gentry, M.
to mch speolalpmidas, or ridus the Leglelaturohas rr
onaotodthe ~tlumdagaln md& dono rothlstlme.. he-
mbly It ws tioviththo inklmthet the ume lffeot would
oontlnu* to ho veu. Artlolo6674 Revhod Civil Statutrr is
sly Uroctory % oo fsr a8 the mat&r of mabaring apl& is
oa~oarnod,and bar aowr km renddud otiwwlr~.
'Pployoe' shall uau ovary parson in the ser-
vloo z*the Otatr Highway De artmad rader luy appoint-
mant or oxprom suntract of El re oral or vrlttm, whoee
name ap us upon the pay roll 0) the atate HIghway Do-
psrtun r , ucrpt officials lppolntod by the Covunor with
the ldvlw and omsent o ftinSo na te lxcopt olerloalend
oiflor aployeos not required by their dutlrs to tram1 or
work away from tholr office, and lxoopt all porltlons for
rhioh Itodsod lpproprlationr uo made by the Leglslatmr.
M pusm in the rrvlar of the Litate HI&way Dopubant
who 1s paId on a or QIIcay baslr other
or year,shall be oon-
ooupeneatlonmdu ths
tar and provlsIons of thls*d. Provided n"t@rdthaa-
lo persm shall be claselfiod as an 'employer* nor
glbls to sny compeneatloabonefltr un:br the tar and pro-
vIslens of this Act until he shell bars submlttad hlmsrlf
fir a tot a p h y slsalxmlnatlm
l by a regularly liceused
physlcisnor mugoon doslgnatodby the State Hlgh~ay Depart-
uut to m&o lch uamluatlon and thueafter boa outflied
by the State BlghwsyDeputmsnt to bo plac+d m ths pay
roll of the State Rlghway Dsputmsnt*"
The abow In l ross gsneral ~agislatlvr reoognitiar Of
the validity 'p s not ltsmisrd In tbr bill.
of lmploymen
Plviug offeet to the Wvemor*s lctIaI tha blue-penollled
ltons must go out of the bill. The speolal rovirlme rafirrod to,
howover,furnish ample authorityfor the orePoynnt of such MU as
msy be necessaryIu the laouoticP1and lfflclontsddulrtration of
tha purpororof the Dapartaant,in the lstabllshment, cceietructlm
and nalntenauco of a ryrtom of State EIghvays, as coatrmplated snd
sot forth in Chaptu 1, Tltlo ~6, Rwlsod Civil Statutes, aud Chap-
ter 186, General Laws Regular Sosslon, 39th Leglslaturo, and amend-
ments thereto In l dd!tlon to those Itemlsed In thr bill. If It ia
neoessaryto ill1 a put or all of the 327 p6rltlons In qwrLlm for
muohpurposes It may be done.
.,
iro&Vggi"l
EFlAl OF TExA8
B /m/ Glenn R. Lewis
GBGcl:wb 0I onn R. Lewis, A~lstsnt
fhlr opinion has boeu aonslduod in omfuence, apnnrd,
and ordued rwwrdrd.
./s/
-.ilerald C. Rsnn
ORULDC.naeP
At'TOaAEYOGEBEBU. OFTEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132339/ | Honorable Chet Brooks Opinion No. H-1041
Chairman, Senate Human Resources
Committee Re: Employment of the
Senate Chamber handicapped by state
Austin, Texas 78711 agencies.
Dear Senator Brooks:
You have requested our opinion concerning the employment
of handicapped persons by state agencies and the payment of
travel expenses incurred by such employees. Your first ques-
tion originally involved the propriety of a job description
for a particular position; however, the job description was
modified after you submitted your request. In light of that
modification the remaining portion,of your first inquiry in-
volves the general question of restrictions upon employment
of handicapped persons.
Article 4419e(l), V.T.C.S., provides:
Section 1. The policy of the State of
Texas is to encourage and enable persons
who are blind'or otherwise physically
handicapped'to achieve maximum personal
independence, to become gainfully em-
ployed, and to otherwise fully enjoy and
use all public facilities available with-
in the state.
In addition, article 4419e(3), V.T.C.S., provides:
(f) An employer who conducts business in
this state may not discriminate in his em-
ployment practices against a handicapped
person solely on the basis of his handi-
cap if the person's ability to perform the
task required by a job is not impaired by
the handicap and the person is otherwise
qualified for the job.
See also V.T.C.S. arts. 664-5(1)(a), 664-6(l) (a), 678g; 29
--
U.S.C. S 793(a).
P. 4285
Honorable Chet Brooks - Page 2 (H-1041)
Thus as a matter of statutorily expressed public policy,
state agencies may not refuse to employ a qualified handicapped
person "on the basis of his handicap."
Your second question involves payment to handicapped em-
ployees for travel expenses, You first ask whether a handi-
capped employee may be reimbursed for both the use of a per-
sonally owned vehicle and the expense of retaining a driver
for the vehicle so long as the amount does not exceed the cost
of the use of public conveyances for an equivalent amount of
travel. Section 8 of article 6823a, V.T.C.S., provides:
An employee whose duties customarily re-
quire travel within his designated head-
quarters may be,authorised a local trans-
portation allowance for his travel. Such
allowance, however, may not exceed the
transportation allowance for use of a
privately owned automobile as set by the
Legislature in the General Appropriations
Acts, except that an employee with a physi-
cal handicap which precludes his personal
operation of a privately owned automobile
may, without regard to the standard other-
wise set in the General Appropriations Acts,
be authorized a reasonable transportation
allowance not to exceed the amount to which
such handicapped employee would be entitled
for similar travel occurring outside of his
designated headquarters.
Section 6(a) of this article provides for rules and regula-
tions to be promulgated by the Comptroller. These regula-
tions are contained in the State Employee Travel Allowance
Guide which provides at page 10:
Employees traveling under provisions of
S.B. 881, 64th Leg., [art. 6823a, S 8, as
amended] will be allowed the actual cost
of transportation via bus, taxi or the
mileage allowance of sixteen (16) cents
per mile for an automobile driven by a
volunteer driver.
It is therefore clear that the reimbursement to a handicapped
employee who utilizes a private automobile is limited to six-
p. 4286
. .
Honorable Chet Brooks - Page 3 (H-1041)
teen cents per mile. We have discovered no authority for re-
imbursement on the basis of the cost of public conveyance where
no public conveyance is in fact utilized.
You also ask whether a state agency may establish a spec-
ial system for reimbursing the transportation expenses of han-
dicapped employees who are unable to drive a personally owned
vehicle in the performance of their duties. Since article
6823a provides for reimbursement for travel expenses under
regulations of the Comptroller, individual state agencies do
not have authority to establish a special system of reimburse-
ment which conflicts with rules and regulations of the Comp-
troller.
Your final question is whether such a special system would
constitute "affirmative action to employ and advance in em-
ployment qualified handicapped individuals" under 29 U.S.C. 9
793(a). While as we noted above individual agencies lack autho-
rity to develop "special systems" in this context, the regu-
lations of the Comptroller constitute a form of a special
system. In our view those regulations as well as section 8
of article 6823a may constitute such "affirmative action."
See 29 U.S.C. 791b, 20 C.F.R. 741.4 (1976).
-
SUMMARY
State agencies may not refuse to employ
a qualified handicapped person on the
basis of his handicap. A handicapped
employee who utilizes a private automo-
bile and driver on state business is
limited to sixteen cents per mile reim-
bursement. State agencies do not presently
have authority to develop a special system
of reimbursement for travel by handicapped
employees; under current law the system
is provided by the Comptroller under article
6823a and the General Appropriations Acts.
truly yours,
Attorney General of Texas
p. 4287
Honorable Chet Brooks - Page 4 (H-1041)
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
jst
p. 4288 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4118443/ | PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1915
MARIO SALINAS; WILLIAM ASCENCIO, Plaintiffs, on behalf of
themselves and others similarly situated; BERNALDINO SALINAS;
FRANKLIN HENRIQUEZ,
Plaintiffs - Appellants,
and
JOSE DOLORES MANCIA; OSMEL HERNANDEZ; HENRY GARCIA
VIERA; HENRY GARCIA,
Plaintiffs,
v.
COMMERCIAL INTERIORS, INC.,
Defendant - Appellee,
and
J.I. GENERAL CONTRACTORS, INC.; JUAN FLORES RAMIREZ,
personally; ISAIAS FLORES RAMIREZ, personally,
Defendants.
--------------------------------------------------
SECRETARY OF LABOR; NATIONAL EMPLOYMENT LAW
PROJECT; LABORERS' INTERNATIONAL UNION OF NORTH
AMERICA MID-ATLANTIC REGIONAL ORGANIZING COALITION;
CENTRO DE LOS DERECHOS DEL MIGRANTES,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at
Greenbelt. J. Frederick Motz, Senior District Judge. (8:12-cv-01973-JFM)
Argued: October 27, 2016 Decided: January 25, 2017
Before WYNN, FLOYD, and HARRIS, Circuit Judges.
Reversed by published opinion. Judge Wynn wrote the opinion, in which Judge
Floyd and Judge Harris joined.
ARGUED: Sally Jean Dworak-Fisher, PUBLIC JUSTICE CENTER, Baltimore,
Maryland, for Appellants. Michael J. Jack, LAW OFFICES OF MICHAEL J.
JACK, Marriottsville, Maryland, for Appellee. Dean Romhilt, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor.
ON BRIEF: Darin M. Dalmat, Kathy L. Krieger, JAMES & HOFFMAN, P.C.,
Washington, D.C., for Appellants. M. Patricia Smith, Solicitor of Labor, Jennifer
S. Brand, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation,
Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Amicus Secretary of Labor. Brian J. Petruska, LIUNA MID
ATLANTIC REGIONAL ORGANIZING COALITION, Reston, Virginia;
Catherine K. Ruckelshaus, NATIONAL EMPLOYMENT LAW PROJECT, INC.,
New York, New York, for Amici National Employment Law Project, Laborers’
International Union of North America Mid-Atlantic Regional Organizing
Coalition, and Centro De Los Derechos Del Migrantes.
2
WYNN, Circuit Judge:
J.I. General Contractors, Inc. (“J.I.”), a now-defunct framing and drywall
installation subcontractor owned by brothers Juan and Isaias Flores Ramirez,
directly employed Plaintiffs Mario Salinas, William Ascencio, Bernaldino Salinas,
and Franklin Henriquez as drywall installers. During its existence, J.I.—and
therefore Plaintiffs—worked almost exclusively for Commercial Interiors, Inc.
(“Commercial”), a company offering general contracting and interior finishing
services, including drywall installation, carpentry, framing, and hardware
installation.
Plaintiffs sued J.I., the Ramirez brothers, and Commercial (collectively,
“Defendants”) for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201 et seq.; the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl.
§§ 3-401 et seq.; and the Maryland Wage Payment and Collection Law, Md. Code
Ann., Lab. & Empl. §§ 3-501 et seq. According to the complaint, Commercial and
J.I. jointly employed Plaintiffs, (1) requiring aggregation of Plaintiffs’ hours
worked for Commercial and J.I. to assess compliance with the FLSA and Maryland
law and (2) rendering Commercial and J.I. jointly and severally liable for any
violations of the statutes.
The district court granted summary judgment to Commercial, holding that
Commercial did not jointly employ Plaintiffs because J.I. and Commercial entered
3
into a “traditionally . . . recognized,” legitimate contractor-subcontractor
relationship and did not intend to avoid compliance with the FLSA or Maryland
law. J.A. 1138–39.1 But the legitimacy of a business relationship between
putative joint employers and the putative joint employers’ good faith are not
dispositive of whether entities constitute joint employers for purposes of the FLSA.
Rather, joint employment exists when (1) two or more persons or entities share,
agree to allocate responsibility for, or otherwise codetermine—formally or
informally, directly or indirectly—the essential terms and conditions of a worker’s
employment and (2) the two entities’ combined influence over the essential terms
and conditions of the worker’s employment render the worker an employee as
opposed to an independent contractor.
Applying this test, we conclude, based on the undisputed facts, that
Commercial jointly employed Plaintiffs for purposes of the FLSA and the
analogous Maryland law. Accordingly, we reverse.
I.
A.
J.I. directly employed Plaintiffs as drywall installers. Since 2009, J.I.
contracted to provide labor for two companies: Commercial and a now-defunct
1
Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this
appeal.
4
contractor known as P & P. Nearly all of J.I.’s work came through its contracts
with Commercial. Notably, J.I. contracted to provide labor for P & P only when
Commercial had no work available for J.I. to complete—which occurred twice, at
most. Thus, as J.I. employees, Plaintiffs worked almost exclusively for
Commercial during the course of their employment.
J.I. generally was responsible for hiring and firing Plaintiffs, though one
Plaintiff testified that a Commercial foreman threatened him with termination due
to work the Commercial foreman viewed as substandard. And on another
occasion, when J.I. had difficulty enrolling in an insurance program mandated for a
particular jobsite, Commercial required several Plaintiffs to complete applications
for employment with Commercial and to work directly for Commercial on the
project. Typically, J.I. paid Plaintiffs; however, on at least a few occasions,
Plaintiffs received paychecks issued by Commercial.
Commercial also played a role in determining Plaintiffs’ daily and weekly
schedules. At each jobsite, the general contractor and others, including
Commercial, decided upon the start and end times for work on the jobsite. In
addition to regular hours on the site, Commercial foremen told certain Plaintiffs to
work additional hours or to report to work on Sundays. Commercial also was
involved in determining where Plaintiffs worked each day. Commercial’s
superintendent regularly communicated Commercial’s site-specific staffing needs
5
to the Ramirez brothers, who assigned J.I.’s employees in accordance with
Commercial’s requests.
While working on Commercial’s jobsites, Plaintiffs wore hardhats and vests
bearing the Commercial logo. And Commercial foremen gave J.I. supervisors
sweatshirts branded with Commercial’s logo for those supervisors to wear while
working on Commercial projects. In addition to these outward markers, Plaintiffs
were instructed to tell anyone who asked that they worked for Commercial.
Upon reporting to the assigned jobsite each day, Commercial required
Plaintiffs to sign in on timesheets provided by Commercial and bearing
Commercial’s logo. Commercial retained these timesheets, storing them in a
temporary office typically located on each jobsite before sending them to
Commercial’s main office in Maryland for retention. Using these timesheets,
Commercial foremen recorded the time Plaintiffs reported to work, as well as the
time Plaintiffs finished working each day. By contrast, J.I. did not keep or
maintain written records of Plaintiffs’ hours.
After signing in for work on nearly every morning, Commercial required
Plaintiffs to attend meetings. At these meetings, Commercial foremen gave
instructions regarding the projects Plaintiffs needed to complete and the methods
they needed to follow in doing so. Commercial also required Plaintiffs to attend a
weekly safety meeting. Because Plaintiffs are native Spanish speakers and speak
6
limited English, J.I. supervisors generally translated the Commercial foremen’s
instructions to Plaintiffs.
Commercial foremen continually supervised Plaintiffs as they completed
their assigned tasks. For example, when J.I. did not have a supervisor at a jobsite,
Commercial foremen told Plaintiffs what to do and how to do it. And regardless of
whether J.I. had a supervisor at a jobsite, Commercial foremen “check[ed]”
Plaintiffs’ work throughout each day to “[m]ak[e] sure that the work [wa]s
quality.” J.A. 78c. Commercial foremen also verified that J.I. employees’ work
was “acceptable” before Commercial issued payment to J.I. J.A. 81b. If Plaintiffs’
work was not up to Commercial’s standards or specifications and J.I. had a
supervisor on site, Commercial communicated the deficiencies to Plaintiffs via
J.I.’s onsite supervisors. Plaintiffs were then expected to remedy the identified
shortcomings.
Commercial owned and provided nearly all the tools and materials Plaintiffs
used to complete their tasks, even though Commercial’s contract with J.I. provided
that J.I. was obligated to provide all materials and equipment. In particular,
Commercial supplied Plaintiffs with nail guns, chop saws, lasers, safety goggles,
ropes, gloves, earplugs, and gangboxes (metal storage boxes) for overnight tool
storage. Commercial also provided the materials Plaintiffs needed to complete
their work, including metal studs used for framing and the drywall installed on
7
Commercial projects. By contrast, J.I. did not own or provide Plaintiffs with any
equipment or materials, and Plaintiffs provided only small, handheld tools.
B.
On July, 2, 2012, Plaintiffs filed a collective action under the FLSA, the
Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection
Law against Defendants in the United States District Court for the District of
Maryland.2 The complaint alleged that Defendants willfully failed to pay
Plaintiffs’ wages, including overtime wages, in violation of the FLSA and
Maryland law. Plaintiffs asserted that they were jointly employed by Commercial
and J.I., rendering Commercial and J.I. jointly and severally liable for any
violations of the FLSA or Maryland statutes. 3
2
Franklin Henriquez, Osmel Hernandez, Jose Mancia, Bernaldino Salinas,
and Henry Viera—Mario Salinas’s and William Ascencio’s coworkers at J.I.—
joined as plaintiffs soon thereafter. Osmel Hernandez and Jose Mancia accepted
Rule 68 offers of judgment from J.I. and the Ramirez brothers and are not parties
to this appeal. Henry Garcia also is no longer a plaintiff in this action. Therefore,
only Mario Salinas, William Ascencio, Bernaldino Salinas, and Franklin
Henriquez remain as Plaintiffs.
3
On appeal, the parties address only whether Commercial was Plaintiffs’
joint employer under the FLSA. Our resolution of the FLSA joint employment
question also resolves Plaintiffs’ claims under the Maryland Wage and Hour Law,
which defines “employer” consistently with the FLSA. 29 U.S.C. § 203(d)
(defining employer as “any person acting directly or indirectly in the interest of an
employer in relation to an employee”); Md. Code Ann., Lab. & Empl. § 3-401(b)
(defining “employer” as including “a person who acts directly or indirectly in the
interest of another employer with an employee”). We have interpreted these laws
(Continued)
8
Commercial moved for summary judgment, arguing that it did not jointly
employ Plaintiffs. To determine whether Commercial and J.I. jointly employed
Plaintiffs, the district court created and applied a novel multifactor test focusing on
the legitimacy of the contracting relationship between Commercial and J.I. and
whether the putative joint employers intended to evade federal and state wage and
hour laws. In particular, the court’s test examined the following five factors:
(1) Was the relationship between JI and Commercial one that
traditionally has been recognized in the law?
(2) Was the amount paid by Commercial to JI pursuant to the
contract between them sufficient to permit the direct employer
to meet its legal obligations under the FLSA while earning a
reasonable profit?
(3) Did the relationship between JI and Commercial appear to be a
“cozy” one, i.e., one that is virtually exclusive and shaped by
things other than objective market forces?
(4) Is the alleged violation of the FLSA one of which Commercial,
during the ordinary course of performance of its own duties,
should have been aware?
consistently in prior cases. See McFeeley v. Jackson St. Entm’t, 825 F.3d 235, 240
(4th Cir. 2016) (“Because plaintiffs’ claims under Maryland labor laws run parallel
to their claims under the FLSA, our analysis of federal law extends as well to the
state law claims.”). Plaintiffs acknowledge that their claim under the Maryland
Wage Payment and Collection Law “is now moot.” Appellants’ Opening Br. at 6.
Accordingly, our decision does not address that claim.
9
(5) Are there other indicia that the relationship between JI and
Commercial was designed to abuse the employees of the direct
employer?
J.A. 1138. Applying this test, the district court concluded that Commercial did not
jointly employ Plaintiffs. Consequently, Plaintiffs (1) could not aggregate the
hours they worked for J.I. and Commercial in determining compliance with the
FLSA and Maryland law and (2) could not hold Commercial jointly and severally
liable for the alleged wage and hour violations.
With Commercial dismissed from the suit, Plaintiffs’ claims against J.I. and
the Ramirez brothers proceeded to trial. After a three-day bench trial, the district
court entered judgment in favor of Plaintiffs against J.I. and the Ramirez brothers,
in the amount of $18,482.16. The district court later awarded Plaintiffs $7,850 in
attorneys’ fees and costs. J.I. and the Ramirez brothers satisfied the judgment in
full.4
Plaintiffs now appeal the district court’s conclusion that Commercial did not
jointly employ Plaintiffs. On appeal, Plaintiffs assert that the district court’s novel
joint employment test (1) did not conform to the FLSA’s definitions of “employ,”
“employee,” and “employer”; (2) failed to adhere to the Department of Labor’s
longstanding regulations regarding joint employment; and (3) improperly limited
4
In footnote 5, infra, we explain why this judgment does not render
Plaintiffs’ claims against Commercial moot.
10
joint employment liability to situations in which “a court finds evidence of
subterfuge or indicia of abuse.” Appellants’ Opening Br. at 1–2. For the reasons
given below, we agree with Plaintiffs’ assertions.
II.
A.
Congress enacted the FLSA in 1938—in the midst of the Great
Depression—to combat the pervasive “evils and dangers resulting from wages too
low to buy the bare necessities of life and from long hours of work injurious to
health.” S. Rep. No. 75-884, at 4 (1937). Congress intended the FLSA “to free
commerce from the interferences arising from production of goods under
conditions that were detrimental to the health and well-being of workers,”
Rutherford Food Corp. v. McComb, 331 U.S. 722, 727 (1947), and “to protect ‘the
rights of those who toil, of those who sacrifice a full measure of their freedom and
talents to the use and profit of others.’” Benshoff v. City of Va. Beach, 180 F.3d
136, 140 (4th Cir. 1999) (quoting Tenn. Coal, Iron & R.R. Co. v. Muscoda Local
No. 123, 321 U.S. 590, 597 (1944), superseded in part by statute, 29 U.S.C. §
254(a) (1947)). To that end, the FLSA establishes a federal minimum wage and
requires employers to pay “a rate not less than one and one-half times the regular
rate” to employees who work more than forty hours in a single workweek. 29
U.S.C. §§ 206(a), 207(a)(1).
11
Consistent with the FLSA’s “remedial and humanitarian” purpose, Tenn.
Coal, 321 U.S. at 597, Congress adopted definitions of “employ,” “employee,” and
“employer” that brought a broad swath of workers within the statute’s protection.
In particular, Congress defined “employ” as “to suffer or permit to work.” 29
U.S.C. § 203(g). This definition derived from state child-labor laws, which
imposed liability not only on businesses that directly employed children but also
on “businesses that used middlemen to illegally hire and supervise children.”
Antenor v. D & S Farms, Inc., 88 F.3d 925, 929 n.5 (11th Cir. 1996); Rutherford
Food, 331 U.S. at 728 & n.7; see also People ex rel. Price v. Sheffield Farms-
Slawson-Decker Co., 121 N.E. 474, 476 (N.Y. 1918) (explaining that a New York
child-labor law’s definition of “employed” as “permitted or suffered to work”
imposed liability “equally” on businesses that employed children directly and
businesses that employed children indirectly through agents).
Likewise, Congress defined “employee” as “any individual employed by an
employer,” 29 U.S.C. § 203(e)(1), describing this language as “the broadest
definition that has ever been included in any one act.” United States v.
Rosenwasser, 323 U.S. 360, 363 n.3 (1945) (quoting 81 Cong. Rec. 7657 (1937)
(statement of Sen. Hugo Black)); Tony & Susan Alamo Found. v. Sec’y of Labor,
471 U.S. 290, 300 n.21 (1985) (same). And Congress defined “employer” in a
similarly expansive fashion, providing that an “employer” is “any person acting
12
directly or indirectly in the interest of an employer in relation to an employee.” 29
U.S.C. § 203(d) (emphasis added). The Supreme Court has explained that the
“striking breadth” of these definitions brings within the FLSA’s ambit workers
“who might not qualify as [employees] under a strict application of traditional
agency law principles” or under other federal statutes. Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 326 (1992).
Although the FLSA does not expressly reference “joint employment,” the
Department of Labor’s first set of regulations implementing the statute—which
remain in force—recognize that “[a] single individual may stand in the relation of
an employee to two or more employers at the same time under the Fair Labor
Standards Act of 1938, since there is nothing in the act which prevents an
individual employed by one employer from also entering into an employment
relationship with a different employer.” 29 C.F.R. § 791.2(a).
To that end, the regulations distinguish “separate and distinct employment”
and “joint employment.” Id. Separate employment exists when “all the relevant
facts establish that two or more employers are acting entirely independently of
each other and are completely disassociated with respect to the” individual’s
employment. Id. (emphasis added). Separate employers may “disregard all work
performed by the employee for the other employer” when determining their
obligations under the FLSA. Id. By contrast, joint employment exists when “the
13
facts establish . . . that employment by one employer is not completely
disassociated from employment by the other employer[].” Id. (emphasis added).
“[J]oint employers are responsible, both individually and jointly, for
compliance with all of the applicable provisions of the act, including the overtime
provisions, with respect to the entire employment for the particular workweek.”
Id. Accordingly, the hours an individual works for each joint employer in a single
workweek must be aggregated to determine whether and to what extent the
individual must be paid overtime to comply with the FLSA.5 See Chao v. A-One
5
The principle that joint employers are jointly and severally liable for
complying with the FLSA, including its overtime provisions, serves as the basis for
our rejection of Commercial’s argument that Plaintiffs’ claims are moot.
Commercial asserts that Plaintiffs were awarded a judgment against J.I. and the
Ramirez brothers; that this judgment was satisfied; and that, since Plaintiffs
claimed that Defendants were jointly and severally liable for all violations,
Plaintiffs recovered all of the relief available to them through that judgment. We
reject Commercial’s reasoning. Far from having “no remaining claims,”
Appellee’s Response Br. at 21–22, Plaintiffs assert claims for relief that can be
granted only if we reverse the district court’s award of summary judgment and
conclude that Commercial was Plaintiffs’ joint employer. Namely, Plaintiffs seek
payment of unpaid overtime wages from weeks in which they worked less than
forty hours for J.I. and Commercial considered separately, but more than forty
hours for J.I. and Commercial in the aggregate.
Plaintiffs have adduced sufficient evidence for us to conclude that, if we
deem Commercial their joint employer, additional relief may be available. In
particular, Plaintiffs point to documents showing at least one week in which each
Plaintiff worked more than forty hours for Commercial and J.I. in the aggregate,
but less than forty hours for each entity considered separately. These unpaid hours
were not covered by Plaintiffs’ judgment against J.I. and the Ramirez brothers,
which reflected only unpaid overtime wages from weeks in which Plaintiffs
(Continued)
14
Med. Servs., Inc., 346 F.3d 908, 916–18 (9th Cir. 2003) (aggregating an
employee’s hours for each joint employer to determine whether the joint employers
complied with the FLSA overtime provision); Karr v. Strong Detective Agency,
Inc., 787 F.2d 1205, 1207–08 (7th Cir. 1986) (aggregating the hours worked for
each joint employer separately to determine the total overtime pay owed).
Therefore, the joint employment doctrine: (1) treats a worker’s employment by
joint employers as “one employment” for purposes of determining compliance
with the FLSA’s wage and hour requirements and (2) holds joint employers jointly
and severally liable for any violations of the FLSA. Schultz v. Capital Int’l Sec.,
Inc., 466 F.3d 298, 305, 307, 310 (4th Cir. 2006).
The Supreme Court has long recognized that two or more entities may
constitute joint employers for purposes of the FLSA. For example, in Rutherford
Food—which predated the Department of Labor regulations setting forth the
circumstances in which joint employment generally exists—the Court observed
that the plaintiff meat boners could be employed both by the subcontractor that
worked more than forty hours for J.I. alone. As instructed by Cedar Coal Co. v.
United Mine Workers of America, 560 F.2d 1153 (4th Cir. 1977), we have
considered the relevant documents only “[i]n ascertaining whether the case[ is]
moot” and not “in ascertaining the merits.” 560 F.2d at 1166. On remand, the
district court is tasked with determining whether and to what extent Plaintiffs are
entitled to damages for unpaid overtime wages associated with this evidence.
15
directly employed them and by a slaughterhouse operator who supervised and
controlled their daily work. 331 U.S. at 724–25, 730; see also Zheng v. Liberty
Apparel Co., 355 F.3d 61, 70 (2d Cir. 2003) (“Rutherford was a joint employment
case, as it is apparent from the Supreme Court’s opinion that the boners were, first
and foremost, employed by the [independent contractor] who had entered into a
contract with the slaughterhouse.”). Likewise, in Falk v. Brennan, 414 U.S. 190
(1973), the Court found that maintenance workers who provided services to
apartment complexes were employed both by the owners of the complexes and by
the company that contracted to provide management services for the complexes
because that company maintained “substantial control” over the conditions of the
workers’ employment. 414 U.S. at 195.
Following the Department of Labor’s regulation and the Supreme Court’s
decisions recognizing the joint employment doctrine, Congress repeatedly has
reaffirmed that the FLSA’s definitions of “employ,” “employee,” and “employer”
dictate that two or more entities can constitute “joint employers” for purposes of
the FLSA. For example, in amending the FLSA in 1988, Congress recognized the
“FLSA joint employment rule,” explaining that “there are some situations in which
an employee who works for two separate employers or in two separate jobs for the
same employer has all of the hours worked credited to one employer for purposes
of determining overtime liability.” S. Rep. No. 99-159, at 12 (1985); H.R. Rep.
16
No. 99-331, at 23 (1985). Congress also endorsed the FLSA’s joint employment
doctrine in enacting the Migrant and Seasonal Agricultural Workers Protection
Act, 29 U.S.C. §§ 1801 et seq. (the “Migrant Workers Act”), which uses the same
definition of “employ” as the FLSA. 128 Cong. Rec. S11,749 (daily ed. Sept. 17,
1982) (adopting “[t]he exact same principles . . . to define the term ‘employ’ in
[Migrant Workers Act] joint employment situations as are used under FLSA”
(emphasis added)).
B.
Notwithstanding the joint employment doctrine’s venerable and entrenched
position, courts have had difficulty developing a coherent test distinguishing
“separate employment” from “joint employment.” As explained below, courts’
attempts to distinguish separate employment from joint employment have spawned
numerous multifactor balancing tests, none of which has achieved consensus
support.
The genesis of the confusion over the joint employment doctrine’s
application appears to be the Ninth Circuit’s decision in Bonnette v. California
Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983). Emphasizing that
courts must consider “the circumstances of the whole activity” and that no set of
factors was “etched in stone,” the Bonnette Court concluded that four,
nonexclusive factors “provide a useful framework” for determining whether an
17
entity constitutes a joint employer: “whether the alleged employer (1) had the
power to hire and fire the employees, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records.” 704 F.2d at 1469–70 (internal
quotation marks omitted).
Bonnette’s four-factor joint employment test derived from the test the Ninth
and Fifth Circuits used to distinguish employees from independent contractors for
purposes of the FLSA. Id. (citing Real v. Driscoll Strawberry Assocs., Inc., 603
F.2d 748, 756 (9th Cir. 1979); Hodgson v. Griffin & Brand of McAllen, Inc., 471
F.2d 235, 237–38 (5th Cir. 1973)). These factors reflect the common-law test for
determining whether an agency relationship exists, which focuses on the putative
principal’s “formal right to control the physical performance of another’s work.”
Zheng, 355 F.3d at 69 (citing Restatement of Agency § 220(1) (1933) (“A servant
is a person employed to perform service for another in his affairs and who, with
respect to his physical conduct in the performance of the service, is subject to the
other’s control or right to control.”)). A number of courts, including district courts
in this Circuit, apply the Bonnette factors in determining whether two entities
constitute joint employers for purposes of the FLSA. See, e.g., Gray v. Powers,
673 F.3d 352, 355 (5th Cir. 2012); Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d
18
668, 675–76 (1st Cir. 1998); Dalton v. Omnicare, Inc., 138 F. Supp. 3d 709, 717
(N.D. W. Va. 2015).
Emphasizing that Congress intended for the FLSA to “stretch[] the meaning
of ‘employee’ to cover some parties who might not qualify as such under a strict
application of traditional agency law principles,” Darden, 503 U.S. at 326, several
circuits have liberalized the Bonnette test, see, e.g., Zheng, 355 F.3d at 69; In re
Enterprise Rent-A-Car Wage & Hour Emp’t Practices Litig., 683 F.3d 462, 468–
70 (3d Cir. 2012). As the Second Circuit explained, “the four-factor test cannot be
reconciled with the ‘suffer or permit’ language in the [FLSA], which necessarily
reaches beyond traditional agency law.” Zheng, 355 F.3d at 69. Accordingly,
although satisfaction of the Bonnette factors “can be sufficient to establish
employer status . . . a positive finding on those four factors is [not] necessary to
establish an employment relationship.” Id. (emphasis omitted).
Rather than developing an entirely new joint employment test, courts have
elected to supplement the four Bonnette factors with additional factors intended to
take into account the FLSA’s more expansive definition of “employee.” For
example, Zheng identified six additional factors that speak to whether, as a matter
of “economic reality,” a putative employer “has functional control over workers
even in the absence of . . . formal control.” Id. at 72. The Eleventh Circuit applies
an eight-factor test—with five factors that derive from regulations implementing
19
the Migrant Workers Act and speak to many of the considerations addressed by the
Bonnette factors—designed to assess whether a worker is “economically
dependent” on a putative joint employer. 6 Layton v. DHL Express (USA), Inc., 686
F.3d 1172, 1176–77 (11th Cir. 2012). And although the Ninth Circuit has not
expressly replaced the Bonnette test, it now assesses whether a joint employment
relationship exists using thirteen nonexclusive factors, five from the text of the
Migrant Workers Act regulations and eight derived from case law. Torres-Lopez
v. May, 111 F.3d 633, 639–41 (9th Cir. 1997). “[L]ike other open-ended balancing
tests,” this universe of nebulous factor tests has “yield[ed] unpredictable and at
times arbitrary results.” Lexmark Int’l, Inc. v. Static Control Components, Inc.,
134 S. Ct. 1377, 1392 (2014) (Scalia, J.).
6
The Migrant Workers Act and the FLSA identically define “employ” as “to
suffer or permit to work.” 29 U.S.C. § 203(g); id. § 1802(5) (defining “employ” as
having “the meaning given such term under section 3(g) of the Fair Labor
Standards Act of 1938”). Moreover, the regulations promulgated pursuant to the
Migrant Workers Act define joint employment under that Act as having the same
scope as joint employment under the FLSA. 29 C.F.R. § 500.20(h)(5) (“The
definition of the term employ includes the joint employment principles applicable
under the Fair Labor Standards Act.”); H.R. Rep. No. 97-885, at 6 (1982)
(explaining that the Migrant Workers Act’s adoption of the FLSA definition “was
deliberate and done with the clear intent of adopting the ‘joint employer’ doctrine
as a central foundation of this new statute”). Therefore, cases involving joint
employment claims under the Migrant Workers Act are particularly relevant to an
examination of joint employment under the FLSA. The “regulatory factors” often
relied upon by courts in considering joint employment claims are located in 29
C.F.R. § 500.20(h)(5)(iv).
20
We agree that Bonnette’s reliance on common-law agency principles does
not square with Congress’s intent that the FLSA’s definition of “employee”
encompass a broader swath of workers than would constitute employees at
common law. See Darden, 503 U.S. at 326. Accordingly, courts should not rely
on the Bonnette factors in determining whether a worker constitutes an employee
or independent contractor for purposes of the FLSA and analogous labor statutes.7
But focusing on Bonnette’s errant reliance on common-law agency principles
diverts attention from two more fundamental problems with the use of the Bonnette
factors—and tests built upon those factors—in the joint employment context: that
the factors (1) improperly focus on the relationship between the employee and
putative joint employer, rather than on the relationship between the putative joint
employers, and (2) incorrectly frame the joint employment inquiry as a question of
an employee’s “economic dependence” on a putative joint employer.
As to the first problem, recall that the joint employment doctrine addresses
whether a relationship exists between two entities such that they should be treated
as a single employer for purposes of determining compliance with and liability
under the FLSA. To that end, the Department of Labor regulations state that joint
7
This Court follows the six-factor test set forth in United States v. Silk, 331
U.S. 704 (1947), abrogated in part by 503 U.S. 318 (1992), to determine whether a
worker is an independent contractor or employee for purposes of the FLSA. See
infra Part IV.B.
21
employment exists when employment by one employer is “not completely
disassociated from employment by the other employer[].” 29 C.F.R. § 791.2(a)
(emphasis added). Likewise, we have held that the joint employment inquiry must
address the “relationship between the employer who uses and benefits from the
services of workers and the party that hires or assigns the workers to that
employer.” Schultz, 466 F.3d at 306 (emphasis added) (internal quotation mark
omitted) (quoting Ansoumana v. Gristede’s Operating Corp., 255 F. Supp. 2d 184,
193 (S.D.N.Y. 2003)).
Tests focusing on the relationship between a worker and a putative joint
employer—like the Bonnette test—do not address, much less solve, the problem of
whether two entities are “entirely independent” or “not completely disassociated”
with regard to the essential terms and conditions that govern a worker’s
employment, 29 C.F.R. § 791.2(a), and thus whether the worker’s employment
with the two entities should be treated as “one employment” for purposes of
determining compliance with the FLSA, Schultz, 466 F.3d at 307. In particular,
regardless of whether two entities qualify as employers under the Bonnette factors,
courts still must determine whether those two entities are “not completely
disassociated,” 29 C.F.R. § 791.2(a), with regard to the terms of a worker’s
employment, such that “all of [the] hours worked [should be] credited [as if] to one
employer for purposes of determining overtime liability,” S. Rep. No. 99-159, at
22
12. Likewise, even if two entities do not independently constitute employers under
the Bonnette test, their combined influence over the terms and conditions of a
worker’s employment may give rise to liability under the FLSA if the entities are
“not completely disassociated” with regard to the worker’s employment. See
Schultz, 466 F.3d at 305 (“The district court therefore erred by weighing the degree
of control exercised by [one putative joint employer] against that exercised by [the
other]. The court should have instead weighed the agents’ control against the total
control exercised by [both joint employers].”). In other words, Bonnette and its
progeny do not squarely address the “joint” element of the “joint employer”
doctrine.
The second problem with the Bonnette factors and related tests—their focus
on whether “as a matter of economic reality, the individual is dependent” on a
putative joint employer, Layton, 686 F.3d at 1175—also reflects a failure to
distinguish the joint employment inquiry from the separate, employee-independent
contractor inquiry. Courts’ focus on economic dependency derives from the
Supreme Court’s decisions in Rutherford Food and Goldberg v. Whitaker House
Cooperative, Inc., 366 U.S. 28, 33 (1961). See, e.g., Torres-Lopez, 111 F.3d at
639–40; Antenor, 88 F.3d at 932; Bonnette, 704 F.2d at 1469. Yet neither case
supports the use of economic dependence to guide the entire joint employment
analysis.
23
In Rutherford Food, the Supreme Court considered whether Kaiser, a
slaughterhouse operator, employed meat boners who were directly employed by an
independent contractor that provided labor for Kaiser’s meat deboning process.
331 U.S. at 724–25. The meat boners “did a specialty job on [Kaiser’s] production
line,” working in one room within the slaughterhouse to remove the bones from
cattle carcasses as they were conveyed into the room by Kaiser employees on an
overhead rail running throughout the slaughterhouse. Id. at 726, 730. In
performing their tasks, the meat boners used Kaiser’s premises and equipment and
were supervised by one of Kaiser’s “managing official[s].” Id. at 730. These
factors, among others, reflected that “the circumstances of the whole activity”
compelled the conclusion that the “meat boners were employees of” Kaiser for
purposes of the FLSA. Id.
Although Rutherford Food recognized joint employment—that both Kaiser
and the independent contractor employed the meat boners—the case principally
addressed whether the meat boners were employees or independent contractors of
Kaiser, not whether Kaiser and its independent contractors were joint employers.
See id. at 727–28 (“We pass only upon the question whether the boners were
employees of [Kaiser] under the Fair Labor Standards Act.”). Indeed, before the
case reached the Supreme Court, the Tenth Circuit characterized “[t]he strongly
contested issue [as] whether the boners were and are employees of Kaiser, within
24
purview of the Act, or were and are independent contractors.” Walling v.
Rutherford Food Corp., 156 F.2d 513, 516 (10th Cir. 1946), aff’d, 331 U.S. 722
(1947). Therefore, Rutherford Food embraced economic dependency as a vehicle
for distinguishing employees from independent contractors—not for determining
whether two entities jointly employ a putative employee for purposes of the FLSA.
Goldberg likewise applied the “economic dependence” test to distinguish
between employees and independent contractors and not as the basis for finding
joint employment. There, the Court considered whether members of a cooperative
that made and sold “knitted, crocheted, and embroidered goods of all kinds” were
also the cooperative’s employees. 366 U.S. at 28–29. The Court concluded that
the members, who made goods for the cooperative, were neither “self-employed”
nor “independent,” but rather were “employees” based on the “economic reality”
test. Id. at 32–33. Goldberg did not address joint employment and relied heavily
on United States v. Silk, 331 U.S. 704 (1947)—the foundational case addressing
how to distinguish employees from independent contractors for purposes of the
FLSA. Id. at 33.
Although economic dependency is the prism through which courts should
distinguish employees from independent contractors, as Rutherford Food and
Goldberg demonstrate, it does not capture key ways in which putative joint
employers may be “not completely disassociated” with respect to establishing the
25
terms and conditions of a worker’s employment—the relevant question in
determining whether entities constitute joint employers. 29 C.F.R. § 791.2(a). For
example, in determining whether entities are joint employers, courts have
considered whether workers perform a “specialty job on the production line,”
Torres-Lopez, 111 F.3d at 640; work on a putative joint employer’s premises, id.,
or perform a job “integral” to a putative employer’s business, Antenor, 88 F.3d at
932; and whether the putative joint employer prepares payroll, id., or maintains
possession or control over the workers’ employment records, Enterprise Rent-A-
Car, 683 F.3d at 471. We agree that these considerations are relevant to the joint
employment analysis in that they speak to whether putative joint employers are
“not completely disassociated” with respect to the terms and conditions of a
worker’s employment, but we also recognize that these facts do not render a
worker economically dependent on a putative joint employer.
Courts’ conflation of economic dependency with whether two entities are
“not completely disassociated” with respect to a worker’s employment arises from
their improper focus on the relationship between a putative joint employer and a
worker, rather than the relationship between putative joint employers. If a court
addresses whether one entity is a worker’s “employer” under the FLSA, then it
makes sense to examine economic dependency. After all, that focus is derived
from cases that seek to answer the same question framed in reverse: whether an
26
individual is an entity’s “employee.” But such a focus is inapposite to the joint
employment inquiry, which requires courts to determine whether the putative joint
employers are not wholly disassociated or, put differently, share or codetermine the
essential terms and conditions of a worker’s employment.
In sum, courts have failed to develop a coherent test for determining whether
entities constitute joint employers. The myriad existing tests—most of which
derive from Bonnette—improperly (1) rely on common-law agency principles; (2)
focus on the relationship between a putative joint employer and a worker, rather
than the relationship between putative joint employers; and (3) view joint
employment as a question of economic dependency. Accordingly, district courts
should not follow Bonnette and its progeny in determining whether two or more
persons or entities constitute joint employers for purposes of the FLSA.
C.
In Schultz, this Court established a two-step framework for analyzing FLSA
joint employment claims, under which courts must first determine whether two
entities should be treated as joint employers and then analyze whether the worker
constitutes an employee or independent contractor of the combined entity, if they
are joint employers, or each entity, if they are separate employers. 8 466 F.3d at
8
We recognize that deeming two or more persons or entities “joint
employers” after determining that the first step of the joint employer framework is
(Continued)
27
305–07. Regarding the first step, Schultz identified the Department of Labor
regulations as the starting point for determining whether two or more entities
constitute joint employers for purposes of the FLSA and focused on the nature of
the relationship between putative joint employers. Id. at 306; see also Nat’l Cable
& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005) (holding
that if a statute is silent or ambiguous as to a particular issue, courts must “defer
. . . to the agency’s interpretation so long as the construction is a reasonable policy
choice for the agency to make” (internal quotation marks omitted)).
But unlike many of our Sister Circuits, we have not identified specific
factors courts should consider in determining whether a joint employment
satisfied—in other words, that the persons or entities codetermine the essential
terms and conditions of a worker’s employment—seems to put the cart before the
horse by suggesting that the persons or entities are “employers” before we
determine whether the worker at issue is an “employee” within the meaning of the
FLSA. Accordingly, we reiterate that joint employment exists when both (1) two
or more persons or entities share, agree to allocate responsibility for, or otherwise
codetermine the essential terms and conditions of a worker’s employment and (2)
the worker is an “employee” within the meaning of the FLSA.
However, we continue to refer to persons or entities that codetermine the key
terms and conditions of a worker’s employment as “joint employers” (even before
analyzing whether the worker is an employee) for two reasons. First, the
Department of Labor’s regulation suggests that “joint employer” is the appropriate
term for a person or entity that satisfies the first step of our framework by being
“not completely disassociated” with respect to the worker’s employment. 29
C.F.R. § 791.2(a). And second, “joint employer” is a term of art commonly used
by courts to refer to persons or entities that codetermine the essential terms and
conditions of a worker’s employment.
28
relationship exists, prompting our district courts to apply a variety of multifactor
tests. See, e.g., Dalton, 138 F. Supp. 3d at 717 (applying the four-factor Bonnette
test); Jennings v. Rapid Response Delivery, Inc., Civil No. WDQ-11-0092, 2011
WL 2470483, at *3–4 (D. Md. June 16, 2011) (applying a nine-factor test derived
from Bonnette and Zheng); Heath v. Perdue Farms, Inc., 87 F. Supp. 2d 452, 457
n.4 (D. Md. 2000) (applying a nine-factor test derived from the Migrant Workers
Act regulations and case law).9
In light of this confusion—and our admonition that courts should no longer
employ Bonnette or tests derived from Bonnette in the FLSA joint employment
context—we now set forth our own test for determining whether two persons or
entities constitute joint employers for purposes of the FLSA. In doing so, we are
guided by the Supreme Court’s direction that the FLSA “must not be interpreted or
applied in a narrow, grudging manner.” Tenn. Coal, 321 U.S. at 597. Rather,
“because the Act is remedial and humanitarian in purpose, it should be broadly
interpreted and applied to effectuate its goals.” Benshoff, 180 F.3d at 140 (internal
quotation marks and citation omitted).
9
Notably, the trial judge in this case applied a different joint employment
test from that applied in another recent case. See Hall v. DIRECTV, LLC, Civil
Nos. JFM-14-2355, JFM-14-3261, 2015 WL 4064692, at *2 (D. Md. June 30,
2015).
29
As we made clear in Schultz, any joint employment inquiry must begin with
the Department of Labor’s regulations, which distinguish between “separate”
employment—when two persons or entities are “entirely independent” with respect
to a worker’s employment—and “joint” employment—when the two persons or
entities are “not completely disassociated.” 29 C.F.R. § 791.2(a). To that end, the
regulations identify three nonexclusive scenarios in which joint employment, as
opposed to separate employment, generally exists:
(1) Where there is an arrangement between the employers to share
the employee’s services, as, for example, to interchange
employees; or
(2) Where one employer is acting directly or indirectly in the
interest of the other employer (or employers) in relation to the
employee; or
(3) Where the employers are not completely disassociated with
respect to the employment of a particular employee and may be
deemed to share control of the employee, directly or indirectly,
by reason of the fact that one employer controls, is controlled
by, or is under common control with the other employer.
Id. § 791.2(b) (footnotes omitted). Each of these scenarios focuses on the
relationship between the putative joint employers—the proper focus of the first
step of the joint employment inquiry, which turns on the relative association or
disassociation between entities with respect to establishing the essential terms and
conditions of a worker’s employment.
30
Although the regulations identify three distinct scenarios, all three speak to
one fundamental question: whether two or more persons or entities are “not
completely disassociated” with respect to a worker such that the persons or entities
share, agree to allocate responsibility for, or otherwise codetermine—formally or
informally, directly or indirectly—the essential terms and conditions of the
worker’s employment. Cf. Enterprise Rent-A-Car, 683 F.3d at 468 (“[W]here two
or more employers . . . share or co-determine those matters governing essential
terms and conditions of employment—they constitute ‘joint employers’ under the
FLSA.” (internal quotation marks omitted)).
In answering this question courts should consider six factors:
(1) Whether, formally or as a matter of practice, the putative joint
employers jointly determine, share, or allocate the power to
direct, control, or supervise the worker, whether by direct or
indirect means;
(2) Whether, formally or as a matter of practice, the putative joint
employers jointly determine, share, or allocate the power to—
directly or indirectly—hire or fire the worker or modify the
terms or conditions of the worker’s employment;
(3) The degree of permanency and duration of the relationship
between the putative joint employers;
(4) Whether, through shared management or a direct or indirect
ownership interest, one putative joint employer controls, is
controlled by, or is under common control with the other
putative joint employer;
31
(5) Whether the work is performed on a premises owned or
controlled by one or more of the putative joint employers,
independently or in connection with one another; and
(6) Whether, formally or as a matter of practice, the putative joint
employers jointly determine, share, or allocate responsibility
over functions ordinarily carried out by an employer, such as
handling payroll; providing workers’ compensation insurance;
paying payroll taxes; or providing the facilities, equipment,
tools, or materials necessary to complete the work.
We emphasize that these six factors do not constitute an exhaustive list of all
potentially relevant considerations. To the extent that facts not captured by these
factors speak to the fundamental threshold question that must be resolved in every
joint employment case—whether a purported joint employer shares or
codetermines the essential terms and conditions of a worker’s employment—courts
must consider those facts as well.
We also emphasize that “[t]he ultimate determination of joint employment
must be based upon the circumstances of the whole activity.” Schultz, 466 F.3d at
306 (internal quotation marks omitted); 29 C.F.R. § 791.2(a) (“A determination of
whether the employment by the employers is to be considered joint employment or
separate and distinct employment for purposes of the act depends upon all the facts
in the particular case.”). As Judge Easterbrook explained in Reyes v. Remington
Hybrid Seed Co., 495 F.3d 403 (7th Cir. 2007), “[a] score of 5 to 3 decides a
baseball game,” not whether two entities constitute joint employers under the
relevant totality-of-the-circumstances test, 495 F.3d at 407. And, the Department
32
of Labor regulation’s focus on whether two entities are “entirely independent” or
“not completely disassociated,” 29 C.F.R. § 791.2(a) (emphasis added), indicates
that one factor alone can serve as the basis for finding that two or more persons or
entities are “not completely disassociated” with respect to a worker’s employment
if the facts supporting that factor demonstrate that the person or entity has a
substantial role in determining the essential terms and conditions of a worker’s
employment. 10
D.
We adopt the test set forth above for several reasons. First, the test focuses
on the relevant relationship—the relationship between the putative joint
employers—as dictated by the Department of Labor regulation and the purpose of
the joint employment doctrine. 29 C.F.R. § 791.2(a). Focusing on whether
putative joint employers share or codetermine the terms and conditions of a
worker’s employment also prevents courts from conflating the two separate
10
We reiterate that the joint employment inquiry is a highly factual analysis.
Accordingly, while one factor supported by significant facts pointing to two or
more entities’ codetermination of the key terms and conditions of a worker’s
employment may be sufficient to establish that the entities are joint employers,
another factor with weaker factual support may not be. For example, a general
contractor that sets the start and end times for all work on a jobsite or establishes
site-wide safety protocols may not be a joint employer absent additional evidence
of the general contractor’s codetermination of the essential terms and conditions of
the workers’ employment.
33
inquiries within the joint employment analysis: (1) whether two or more entities
are “not completely disassociated” with respect to a worker’s employment and (2)
in the context of the worker’s entire employment, whether the worker is an
employee protected by the FLSA or an independent contractor outside the statute’s
scope. That courts must apply different factors in determining whether entities are
joint employers and whether workers are employees or independent contractors,
and must weigh those factors through different lenses—whether the putative joint
employers are “not completely disassociated” with regard to establishing the
essential terms of a worker’s employment versus whether workers are
economically dependent on a putative employer—further serves to differentiate the
two inquiries.
By focusing on the relationship between putative joint employers, our test
also captures situations that tests focusing solely on the relationship between a
worker and a putative joint employer cannot resolve. For instance, a finding that
two entities independently constitute a worker’s employers for purposes of the
FLSA does not resolve whether the entities amount to joint employers such that the
worker’s hours for both employers must be aggregated to determine compliance
with the statute. Likewise, two entities that do not individually employ a worker
within the meaning of the FLSA may still have to comply with the FLSA if their
combined influence over the essential terms and conditions of the worker’s
34
activities gives rise to an employer-employee relationship. Our test provides
clarity in such situations, whereas tests focusing solely on the relationship between
a worker and each putative joint employer, like Bonnette, fail to address—much
less resolve—the entities’ joint obligations.
Finally, the test set forth above is appropriately different from—and more
inclusive than—joint employment tests applied under other statutes that do not
define “employ,” “employer,” and “employee” as broadly as the FLSA. The
Supreme Court has contrasted the “striking breadth” of the FLSA’s definition of
“employee” with other statutes that define the term more narrowly, stating that an
entity may constitute an employer for purposes of the FLSA even if it is not an
employer under other statutes. Darden, 503 U.S. at 326.
We highlighted the implications of this difference in the context of joint
employment in Butler v. Drive Automotive Industries of America, Inc., 793 F.3d
404 (4th Cir. 2015). There, we dealt with whether two entities were joint
employers for the purposes of Title VII of the Civil Rights Act of 1964. 793 F.3d
at 408. We adopted a nine-factor “hybrid test” for determining when joint
employment exists for Title VII purposes, deeming “the common-law element of
control . . . the ‘principal guidepost’ in the analysis.” Id. at 414. In adopting this
test, we noted that “FLSA cases . . . are not particularly transferrable to Title VII
cases” because the FLSA defines “employee” more broadly than Title VII and a
35
number of other federal labor statutes. Id. at 412 n.10. By rejecting the common-
law “control” tests—like Butler and Bonnette—and instead focusing on whether
two entities are “not completely disassociated” with regard to their
codetermination of the key terms and conditions of a worker’s employment, the
test set forth above remains true to Congress’s intent to define employment more
expansively in the FLSA than in other statutes.
E.
In reaffirming Schultz’s two-step analysis and setting forth factors to aid in
determining whether two or more entities are “not completely disassociated” with
respect to a worker’s employment, we also reject the novel test developed and
applied by the district court, which focused on whether the relationship between
putative joint employers was (1) “traditionally . . . recognized in the law,” (2)
represented a reasonable business decision, or (3) reflected a bad faith effort to
avoid compliance with wage and hour laws. J.A. 1138–39.
That the general contractor-subcontractor relationship—or any other
relationship—has long been “recognized in the law” and remains prevalent in the
relevant industry has no bearing on whether entities codetermine the essential
terms and conditions of a worker’s employment and, therefore, constitute joint
employers for purposes of the FLSA. As the Second Circuit has noted, “the
prevalence of an industry-wide custom is subject to conflicting inferences. While,
36
on the one hand, it may be ‘unlikely’ that a prevalent action is ‘a mere subterfuge
to avoid complying with labor laws,’ on the other hand, the very prevalence of a
custom may ‘be attributable to widespread evasion of labor laws.’” Barfield v.
N.Y.C. Health and Hosps. Corp., 537 F.3d 132, 146 (2d Cir. 2008) (quoting Zheng,
355 F.3d at 73–74).
More significantly, classifying contractors and subcontractors that share,
allocate responsibility for, or codetermine the essential terms and conditions of a
worker’s employment as joint employers and requiring them to comply with the
FLSA’s wage and hour requirements does not undermine the many reasons the law
has “traditionally” recognized the general contractor-subcontractor relationship. In
particular, to the extent a subcontractor constitutes a bona fide independent
contractor, the general contractor will limit its liability for the subcontractor’s
negligence. Rowley v. Mayor & City Council of Balt., 505 A.2d 494, 496–97 (Md.
1986) (“The general rule is that the employer of an independent contractor is not
liable for the negligence of the contractor or his employees.”); Restatement
(Second) of Torts § 409 (1965). And by entering into a general contractor-
subcontractor relationship, the general contractor may not have to comply with tax,
labor, and benefits laws that have narrower definitions of “employ,” “employee,”
and “employer” than the FLSA. See Darden, 503 U.S. at 322–27. Accordingly,
contrary to Commercial’s protestations, applying the joint employment doctrine in
37
accordance with the intent of Congress and the Department of Labor does not
undermine—let alone deal a fatal blow to—the “traditional” benefits of general
contractor-subcontractor relationships; it simply ensures that “the wages paid by
private employers are sufficient to maintain the bare cost of living.” 11 H.R. Rep.
No. 75-2182, at 6 (1938).
The fact that contracting out employment services represents a “reasonable
business decision” likewise has no bearing on whether two entities constitute joint
employers and therefore must jointly comply with the FLSA’s wage and hour
provisions. In numerous circumstances, courts have deemed an arrangement
between two entities joint employment for purposes of the FLSA, notwithstanding
the entities’ reasonable business purpose for entering into the arrangement. For
example, in Barfield, the Second Circuit acknowledged that a hospital contracted
with referral agencies for temporary nursing services as a result of a “legitimate
business concern” stemming from the shortage of health care workers available for
full-time employment. 537 F.3d at 146. Nonetheless, the court held that the
hospital jointly employed a nursing assistant who was directly employed and paid
by three referral agencies with which the hospital contracted. Id. at 145–48.
11
Again, we emphasize that certain elements of “traditional” general
contractor control over workers on a jobsite may not be enough alone to trigger a
finding that the general contractor jointly employs every worker on the site. See
supra n.10.
38
Likewise, in Schultz, we concluded that a Saudi diplomat and an independent
security services contractor jointly employed plaintiff security agents for purposes
of the FLSA, notwithstanding that the contracting relationship made “business”
sense because of licensing requirements for security businesses. 466 F.3d at 300–
01.
Finally, that two persons or entities did not enter into a relationship with the
intent to avoid compliance with the FLSA is not dispositive as to whether the
persons or entities codetermine the key terms and conditions of a worker’s
employment or whether, ultimately, they are joint employers. To be sure, the joint
employment doctrine serves to “preserve[] . . . [FLSA] protection so as to prevent
such abuses as manipulation of job scheduling or rotation of workers to circumvent
overtime requirements.” H. Rep. No. 99-331, at 23–25. Accordingly, facts
demonstrating that two entities jointly engaged in a bad faith effort to evade
compliance with the FLSA—such as by strategically allocating levers of control
over a worker so that neither entity independently constitutes the worker’s
employer—will provide strong evidence that the entities are “not completely
disassociated” with respect to that worker’s employment.
But as the Third Circuit has recognized in the context of the National Labor
Relations Act—a labor statute that defines employment more narrowly than the
FLSA—joint employment also can exist when “one employer while contracting in
39
good faith with an otherwise independent company, has retained for itself
sufficient control of the terms and conditions of employment of the employees who
are employed by the other employer.” N.L.R.B. v. Browning-Ferris Indus. of Pa.,
Inc., 691 F.2d 1117, 1123 (3d Cir. 1982) (emphasis added). For this reason, we
join other courts in rejecting joint employment tests, like the one developed and
applied by the district court in this case, that turn on whether an arrangement
between putative joint employers was “purposely structured to avoid FLSA
obligations.” Barfield, 537 F.3d at 146–47 (holding that an entity can constitute a
“joint employer even absent a showing of subterfuge or business bad faith”).
III.
A.
We now apply the joint employment test set forth above to determine
whether summary judgment was properly granted in favor of Commercial’s
position that it did not jointly employ Plaintiffs. We review a district court’s award
of summary judgment de novo, Morrison v. Cty. of Fairfax, 826 F.3d 758, 765 (4th
Cir. 2016), viewing all facts in the light most favorable to the nonmovant,
Monahan v. Cty. of Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996). A court may
award summary judgment only when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
40
We also review de novo whether an entity is a joint employer for purposes of
the FLSA. Moreau v. Air France, 356 F.3d 942, 945 (9th Cir. 2004); cf. Schultz,
466 F.3d at 304 (“[W]hether a worker is an employee or independent contractor
under the FLSA presents a legal question that we review de novo.”). In this case,
we conclude that any factual disputes are immaterial and, therefore, resolve the
joint employment question based on the undisputed facts in the record.
Applying the joint employment test set forth above, we conclude that
Commercial and J.I. jointly employed Plaintiffs based on the following undisputed
facts:
• Plaintiffs performed nearly all of their work on Commercial jobsites and for
Commercial’s benefit;
• Commercial provided the tools, materials, and equipment necessary for
Plaintiffs’ work, with Plaintiffs providing only small, handheld tools;
• On at least one occasion, Commercial rented a house near the jobsite for J.I.
employees to stay in during a project;
• Commercial actively supervised Plaintiffs’ work on a daily basis by having
foremen walk the jobsite and check Plaintiffs’ progress;
• Commercial required Plaintiffs to attend frequent meetings regarding their
assigned tasks and safety protocols;
• Commercial required Plaintiffs to sign in and out with Commercial foremen
upon reporting to and leaving the jobsite each day;
• Commercial foremen frequently directed Plaintiffs to redo deficient work,
communicating problems to J.I. supervisors who translated the information
to Plaintiffs;
41
• Commercial foremen told certain Plaintiffs to work additional hours or
additional days;
• Commercial communicated its staffing needs to J.I., and J.I. based Plaintiffs’
jobsite assignments on Commercial’s needs;
• When J.I. performed certain “time and materials” work for Commercial and
was paid on an hourly, rather than lump-sum, basis, Commercial told J.I.
how many of its employees to send to the project and how many hours those
employees were permitted to work;
• Commercial provided Plaintiffs with stickers bearing the Commercial logo
to wear on their hardhats and vests bearing Commercial logos to don while
working on Commercial jobsites;
• J.I. supervisors instructed Plaintiffs to tell anyone who asked that they
worked for Commercial;
• Commercial provided J.I. supervisors with Commercial-branded sweatshirts
to wear while working on Commercial projects;
• On at least one occasion, Commercial required J.I. employees to apply for
employment with Commercial and directly hired those employees.
Although a majority of factors are not necessary to support a finding that two or
more entities are “not completely disassociated” with respect to a worker’s
employment, see supra Part III.C., based on these facts, nearly all of the factors we
identified above support such a finding.12
12
We note that, under these undisputed facts, Commercial would amount to
Plaintiffs’ joint employer under the four-factor Bonnette test, which we held no
longer applies in FLSA cases. See supra Part II.B. Thus, though the framework
we announce today supplants other formulations of the FLSA joint employment
test and makes clear that tests derived from principles of common-law control are
(Continued)
42
Regarding the first factor—supervision—Commercial and J.I. jointly
directed, supervised, and controlled Plaintiffs. In particular, Commercial
continuously supervised Plaintiffs, providing feedback and direction—both
formally, through frequent mandatory meetings, and informally, through one-on-
one instruction—regarding the methods and quality of Plaintiffs’ work and
compliance with safety protocols. Commercial also could—and did—require
Plaintiffs to redo work Commercial found deficient. J.I. supervisors assisted in this
supervision by translating Commercial’s instructions and providing additional
direction to Plaintiffs. Not only did Commercial supervise Plaintiffs’ work, it also
required Plaintiffs to hold themselves out as Commercial employees by providing
Plaintiffs and J.I. supervisors with Commercial-branded clothing and safety
equipment to wear on Commercial jobsites.
The second factor—authority over terms and conditions of employment—
also supports a finding that Commercial and J.I. were “not completely
disassociated” with respect to Plaintiffs’ employment. Although J.I. generally was
responsible for hiring and firing its employees, Commercial, in consultation with
insufficient to capture all employment situations that come within the auspices of
the FLSA, there will be cases—like this one—in which it produces the same result
as those formulations. Put differently, control is a sufficient condition—but not a
necessary condition—for an entity to constitute a joint employer for purposes of
the FLSA.
43
others, dictated Plaintiffs’ hours and, at times, required Plaintiffs to work
additional hours or on additional days. And when J.I. performed work for
Commercial paid on an hourly, as opposed to lump-sum, basis, Commercial
instructed J.I. regarding how it should staff the project and when it could pay
overtime. Additionally, in at least one instance, Commercial directly hired at least
one Plaintiff due to J.I.’s inability to enroll in an insurance program required for its
employees to continue working on Commercial’s jobsites.
Regarding the third and fourth factors, although Commercial did not own
J.I., Commercial and J.I. had a longstanding business relationship. The
overwhelming majority of J.I.’s contracts were with Commercial, and Plaintiffs
worked almost exclusively on Commercial jobsites. Even after J.I. went out of
business, Commercial continued its business relationship with the Ramirez
brothers, who formed a new business, F.R. General Contractors, Inc., that has
contracted with Commercial to provide drywall and framing services.
That Plaintiffs worked on premises controlled by Commercial speaks to the
fifth factor—whether Plaintiffs worked in a location controlled by one or more of
the putative joint employers. Indeed, Commercial required Plaintiffs to sign in and
out of the jobsite with Commercial foremen and supervised Plaintiffs’ actions
while they were on the jobsite.
44
The final factor—codetermination or allocation of responsibility over
functions ordinarily carried out by employers—also supports a finding that
Commercial and J.I. were “not completely disassociated” with respect to Plaintiffs’
employment. In particular, Commercial supplied Plaintiffs with all the tools,
materials, and equipment necessary to perform their work. Moreover, on one
occasion, Commercial provided a house for J.I. employees to live in while working
on a Commercial jobsite. And while J.I. issued Plaintiffs’ paychecks, Commercial
recorded Plaintiffs’ hours on timesheets, maintained those timesheets, and required
Plaintiffs to sign in and out each day.
B.
Nevertheless, Commercial maintains that it did not jointly employ Plaintiffs
for four reasons. First, it asserts that “Commercial and JI had nothing more or less
than the contractor-subcontractor relationship which is normal and standard in the
construction industry.” Appellee’s Response Br. at 13, 53. But, as explained
above, that Commercial and J.I. engaged in a “traditional,” “normal,” or “standard”
business relationship has no bearing on whether they jointly employ a worker for
purposes of the FLSA. See supra Part III.E.
Second, Commercial emphasizes that its practice of having foremen
supervise Plaintiffs’ work and, through J.I. supervisors, demand corrections as
needed amounted to “quality control” and therefore was not indicative of joint
45
employment. Appellee’s Response Br. at 29, 50. We agree that an entity does not
become a joint employer by engaging in the oversight necessary to ensure that a
contractor’s services meet contractual standards of quality and timeliness. See
Moreau, 356 F.3d at 951 (finding that “indirect supervision or control . . . to ensure
compliance with various safety and security regulations” was not indicative of joint
employment when done “to verify that the task was done properly”); Zheng, 355
F.3d at 74–75 (finding that although “extensive supervision of a plaintiff’s work is
indicative of an employment relationship,” “supervision with respect to contractual
warranties of quality and time of delivery has no bearing on the joint employment
inquiry”).
But in this case, Commercial’s supervision of Plaintiffs went beyond
“double-check[ing] to verify that the task was done properly.” Moreau, 356 F.3d
at 951. Rather, Commercial foremen engaged in daily oversight of Plaintiffs’ work
and provided regular feedback and instruction, through J.I. supervisors, to
Plaintiffs regarding the pace and quality of their work. In addition, Commercial
foremen conducted frequent meetings to instruct Plaintiffs regarding the projects
they needed to complete and the methods by which they should do so, as well as
the safety protocols they should follow. Taken together, these facts amount to
“extensive supervision . . . indicative of an employment relationship,” rather than
an assessment of compliance with contractual quality and timeliness standards.
46
Zheng, 355 F.3d at 74; see also Torres-Lopez, 111 F.3d at 642 (finding that the
putative joint employer’s “daily presence” on the jobsite and ability to “inspect all
the work performed . . . both while it was being done and after” its completion
weighed in favor of finding joint employment).
Contrary to Commercial’s protestations, we also give little weight to the fact
that Commercial’s foremen generally spoke only to J.I.’s supervisors and did not
speak to Plaintiffs directly. The FLSA provides that indirect control is sufficient to
render an entity an “employer” under the statute. 29 U.S.C. § 203(d) (defining
“employer” as “any person acting directly or indirectly in the interest of an
employer in relation to an employee” (emphasis added)). The regulations
implementing the FLSA also expressly contemplate that direct or indirect
supervision and control is probative of joint employment, stating that joint
employment will generally exist when employers “share control of the employee,
directly or indirectly.” 29 C.F.R. § 791.2(b)(3) (emphasis added).
To that end, courts have concluded that “the ‘suffer or permit to work’
standard was developed to assign responsibility to businesses that did not directly
supervise putative employees.” Antenor, 88 F.3d at 933 (emphasis added); see
also Torres-Lopez, 111 F.3d at 642–43 (concluding that “indirect control as well as
direct control can demonstrate a joint employment relationship”). Accordingly,
“[i]t is well-settled that supervision is present whether orders are communicated
47
directly to the laborer or indirectly through the contractor.” Aimable v. Long &
Scott Farms, 20 F.3d 434, 441 (11th Cir. 1994); see also Hodgson, 471 F.2d at 238
(“The fact that [the putative joint employer] effect[s] the supervision by speaking
to the crew leaders, who in turn sp[eak] to the [workers], rather than speaking
directly to the [workers] does not negate a degree of apparent on-the-job control
over the [workers].”). Here, Commercial supervised Plaintiffs by communicating
instructions, on a daily basis, to Plaintiffs through J.I. supervisors. Commercial’s
use of J.I. supervisors to convey instructions to Plaintiffs, therefore, supports,
rather than precludes, a finding that Commercial jointly employed Plaintiffs.
Third, Commercial emphasizes that its relationship with J.I. was that of a
principal and an independent contractor, with J.I. receiving a “fixed price” or
“lump sum” for supplying labor to Commercial. Appellee’s Response Br. at 45.
Although the FLSA does not define employee “so broadly that all or almost all
employees of independent contractors . . . become ‘employees’ of every firm
whose premises they enter,” Reyes, 495 F.3d at 406, neither does the FLSA
automatically exempt entities that use independent contractors to provide labor
from complying with the statute’s wage and hour provisions. Significantly,
“independent contractor status does not necessarily imply the contractor is solely
responsible for his employees under the [FLSA]. Another employer may be jointly
responsible for the contractor’s employees.” Hodgson, 471 F.2d at 237. Here,
48
Commercial and J.I. codetermined the key terms and conditions of Plaintiffs’
employment and therefore constituted joint employers, regardless of whether J.I. is
properly characterized and treated as Commercial’s independent contractor for
other purposes.
Finally, Commercial maintains that a ruling in Plaintiffs’ favor will render
every general contractor a joint employer of its subcontractor’s employees and
thereby impose unreasonable financial burdens on general contractors. We
disagree. As an initial matter, we reiterate that courts must assess joint
employment “based upon the circumstances of the whole activity.” Schultz, 466
F.3d at 306 (internal quotation marks omitted). Accordingly, were we confronted
with different facts establishing that a general contractor possessed—and
exercised—less pervasive authority to determine the essential terms and conditions
of employment of a subcontractor’s workers, our conclusion as to whether the
entities were “not completely disassociated” may have been different.
Additionally, we note that, given the FLSA’s particularly expansive definition of
“employee,” a finding that a general contractor constitutes a joint employer for
purposes of the FLSA does not necessarily mean the general contractor is a joint
employer for purposes of other federal and state laws. See supra Part III.D.
Regarding the implications of our holding on the continued financial
viability of the general contractor-subcontractor relationship, we commend the
49
Seventh Circuit’s astute observation in Reyes that “[i]f everyone abides by the law,
treating a firm . . . as a joint employer will not increase its costs.” 495 F.3d at 409.
Put differently, when—as here—a general contractor contracts work out to a
subcontractor that directly employs workers, the general contractor will face no
FLSA liability so long as it either (1) disassociates itself from the subcontractor
with regard to the key terms and conditions of the workers’ employment or (2)
ensures that the contractor “cover[s] the workers’ legal entitlements” under the
FLSA. Id. Only when the general contractor “hires a fly-by-night operator . . . or
one who plans to spurn the FLSA” is the entity “exposed to the risk of liability on
top of the amount it has agreed to pay the contractor. And there are ways to avoid
this risk: either deal only with other substantial businesses or hold back enough on
the contract to ensure that workers have been paid in full.” Id.
*****
In sum, the undisputed facts establish that Commercial and J.I. shared
authority over and codetermined the key terms and conditions of Plaintiffs’
employment, rendering Commercial Plaintiffs’ joint employer.
B.
Having concluded that Commercial and J.I. were “not completely
disassociated” with respect to Plaintiffs’ employment, we next must consider
whether, based on their “one employment” with Commercial and J.I., Plaintiffs
50
were employees or independent contractors. Schultz, 466 F.3d at 305, 307. As we
explained above—and unlike with the threshold codetermination inquiry—“[i]n
determining whether a worker is an employee covered by the FLSA, a court
considers the ‘economic realities’ of the relationship between the worker and the
putative employer” or employers, in the event the worker is jointly employed. Id.
at 304 (emphasis added). “The focal point is whether the worker ‘is economically
dependent on the business to which he renders service or is, as a matter of
economic [reality], in business for himself.” Id. (alteration in original) (quoting
Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 570 (10th Cir. 1994)); see also
Bartels v. Birmingham, 332 U.S. 126, 130 (1947) (“[I]n the application of social
legislation employees are those who as a matter of economic reality are dependent
upon the business to which they render service.”).
When a worker is economically dependent on a putative employer—or, in
the event two or more entities codetermine the essential terms and conditions of the
worker’s employment, his putative joint employers—he qualifies as an employee
protected by the FLSA. By contrast, a worker whose profit or loss depends upon
his own creativity, ingenuity, and skill is an independent contractor outside of the
FLSA’s scope. Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947) (“The
definition ‘suffer or permit to work’ was obviously not intended to stamp all
51
persons as employees who, without any express or implied compensation
agreement, might work for their own advantage on the premises of another.”).
We consider six factors in determining whether a worker constitutes an
employee or independent contractor: “(1) the degree of control that the putative
employer has over the manner in which the work is performed; (2) the worker’s
opportunities for profit or loss dependent on his managerial skill; (3) the worker’s
investment in equipment or material, or his employment of other workers; (4) the
degree of skill required for the work; (5) the permanence of the working
relationship; and (6) the degree to which the services rendered are an integral part
of the putative employer’s business.” Schultz, 466 F.3d at 304–05. These
factors—which derive from the Supreme Court’s opinion in United States v. Silk—
are “designed to capture the economic realities of the relationship between the
worker and the putative employer.” Schultz, 466 F.3d at 305.
Here, the district court found—and the parties do not dispute—that Plaintiffs
were J.I.’s employees. Because Plaintiffs were economically dependent on J.I.
alone, they were necessarily economically dependent on Commercial and J.I. in the
aggregate. Indeed, were we to analyze the Silk factors from the perspective of
Plaintiffs’ “one employment” with Commercial and J.I., Schultz, 466 F.3d at 307,
several factors would weigh even more heavily in favor of deeming Plaintiffs
“employees” within the meaning of the FLSA. For example, with regard to the
52
first factor, due to Commercial’s daily supervision of Plaintiffs, Commercial and
J.I.—as Plaintiffs’ “one employer”—exercised greater control over Plaintiffs’ work
than J.I. exercised alone. Likewise, given that Commercial, rather than J.I.,
provided all of the materials, supplies, tools, and equipment that Plaintiffs used for
their work, the third factor weighs more heavily in favor of employment when
viewed from the proper perspective of Plaintiffs’ “one employment” with
Commercial and J.I. Accordingly, we conclude that Plaintiffs were employees
based on their entire employment for both J.I. and Commercial, and that J.I. and
Commercial jointly employed Plaintiffs for purposes of the FLSA.
IV.
In sum, the district court errantly applied its novel five-factor test to
determine whether Commercial jointly employed Plaintiffs. Under the proper test,
joint employment exists when (1) two or more persons or entities share, agree to
allocate responsibility for, or otherwise codetermine—formally or informally,
directly or indirectly—the essential terms and conditions of a worker’s
employment and (2) the two or more persons’ or entities’ combined influence over
the terms and conditions of the worker’s employment render the worker an
employee as opposed to an independent contractor. Applying this test, we find that
Commercial and J.I. jointly employed Plaintiffs for purposes of the FLSA.
53
Therefore, we reverse the district court’s award of summary judgment in favor of
Commercial and remand for further proceedings.
REVERSED
54 | 01-03-2023 | 01-25-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132238/ | The Attorney General of Texas
March 23, 1978
JOHN L. HILL
Attorney General
Honorable Patrick J. Ridley Opinion No. H- 1142
Bell County Attorney
P. 0. BCk 474 Re: Sick leave policy for
Belton, Texas 76513 county officials.
Dear Mr. Ridley:
You have requested our opinion regarding a new sick leave policy
recently adopted by the Bell County Commissioners Court.
In Attorney General Opinion H-860 (19’76), we held that, at least since
January 1, 1972, the effective date of article 3912k, V.T.C.S., the commis-
sioners court of Bell County had been “authorized to provide sick leave to
elected county and precinct officials, and, by extension, to compensate those
officials for the unused portion of any sick leave earned after that date.” On
August 16, 1976, the commissioners court adopted the following resolution:
Effective October 1, 1976, accumulated sick leave for
elected officials shall be terminated; that at the
present time all accumulated sick leave over sixty
days shall be paid to the elected officials; the
remaining amount of accumulated sick days shall be
left on the records and at such time as any affected
elected official leaves his office either by defeat,
death,, or resignation, the same shall be paid either to
the official or his estate.
You first inquire about the validity of this resolution.
In our opinion the resolution is valid, but it is subject to a limitation.
Payment for sick leave constitutes part of an individual’s “salary.” Attorney
General Opinion H-860, supra. Section 1 of article 3912k provides that the
salaries of “county and precinct officials and employees who are paid wholly
from county funds” may not be set lower than they existed on January 1, 1972.
The commissioners court is without authority to terminate sick leave accrual
for an office, if, when the value of the sick leave which accrues to that
p.’ 4644
Honorable Patrick J. Ridley - Page 2 (B-1142)
particular office is subtracted from the present total compensation for the office,
the compensation is lower than existed on January 1, 1972. We emphasize that
section 1 of article 3912k applies, however, only to those county and precinct
officials who are paid wholly from county funds. Within the scope of this
limitation, we believe that the resolution of the commissioners court regarding
termination of sick leave for elected officials is valid.
You also ask about the statute of limitations with regard to an elected
official’s claim for payment of “accumulated sick leave over sixty days.” The
commissioners court has provided that payment for excess sick leave shall not be
paid to the elected official or his estate until he “leaves his office either by defeat,
death, or resignation.” In our opinion, any claim for payment of excess sick leave
will therefore not accrue until the official vacates his office. -See Ditto Investment
Co. v. Ditto, 293 S.W.2d 267, 269 (Tex. Civ. App. - Fort Worth 1956, no writ).
SUMMARY
A resolution of the commissioners court of Bell County
which terminates sick leave for elected officials is valid
within certain limitations. The statute of limitations on an
elected official’s claim for payment of sick leave under the
resolution accrues at the time the official vacates his
office.
Aery truly yours,
Attorney General of Texas
APPROVED:
YiIh&kLz
DAVID M. KENDALL. First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
jst
P. 4645 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144983/ | OFFICE OF TNE A’ITORNEY GENERAL dF TEXAS
AUSTIN
%lt%rttlnLlt01y thsre 5a-e nw pmcl-
lx& 9 llutJ7SpOP suits vhicb gp3v out of Ii@&-
taona vhloh hrroe bow c1053u. There are no (Lo-
sets OS such liquUM.om dth which to my fhe
SZpW5OS OP 8UOh litpid3tfQ~- trnvel3np:
oxpmes
for attornjys, cwrt coats*dep5sit5,vltxlwn
Saw msl tho 3qx3ns53 OS ouch titneas. 'ibeae
dts rzmt be &d'tioctin the fnterostof t&e
gllhlAO* Mr oxaqlo, all cosots Or tha dnoriosn
stat0 mnl: of sIzlix&urg
vero sold, an2 the prooaa4e
distrtitod among the oroaltors,3M tha xiquiaa-
tion 010sodby order OS the ls5triotcourt or
wlalgo county: Ths unitad mxtos, assorting a
profwrod lien q@nct tha rrr;sots of the bunk
thw sold,haa brwght suit tn-kheIXLztrzlot Ceurt
the sala of -sota
of UidalgoCounty to sat us9.d.a
akm&wmttO~". CJbv2awlythe sutt mot bo aa-
. mere we, hovwor, no mnfls OS tlra
1iquldaMon out of 6hbh to pay those aostt3.
'al t&L8 oonlumtlonx roepeatrlulje&b-
pit two quwu.o~r
a(l) Crrnthesurplu8.abe? $mnt&mea,
Sn the ofV3ao ezqynsoacoouatbe utm1 in the pay-
mentof+theooot aS~oS.e~strifs oSth%~cWraet-
ert
*(2) If this Purxlis not available,or
zgttiy what other 3ouroo 03n the90 ex-
JktiOlit
462 of the Rwie#l ciril Gtatutoe
pa08 OS r0xh7st
.C~pw5stfon OP Mnmaor, enpleyaes
e& Ossietanta, ana all 03~05 cf tzqmvis-
+on and ligUild&m shall be Slz& by the Con-
&Ld~oncr, vbo shclll, frwzltluE to tilde,pw-
s33t tQ the DistMct Cmrt fn G13 coonty ill
uldoh enlB,bzuUc~~kuiktitmatcon~is
looRtl3d, ix in soesion,;ma to the juLl@ there-
of, If in yaoution, an %..fdzo3LUWLEUQCP
stdxxmnt OS th.acxpmscs zincucrod by hizlin
the liquidationof snah brmk or bsniiand trust
cm-, ub%ch no0cmt sk312be 3~provocI by
sois court, A.s3.~3 s~stiitn,or t&o $a;:~3 thora-
of, is in v3cstion,unless obj3otion is Silo&
..
theretauithiatcnd5ysrrft0rtheiilb~a
~sontstion of said oxpmso accOuntm.
The*off¶.oeoxpensesoooua~ mntionedbyyou
&-tioxo 462 ztsaalately3%ova quoted.
t)mt t&it3Art.iOlO
.Xt
*5 a ppopr sotup In pr~uznoo of tho proviclon9of
wiillbe men
authorszestllspwment r: "all expenses
or falpcrYlEloll
bti0n
fl not ti~ossibla~Pop the proper
0s insolvoat
ol~p~islon
a02 llquidation~. Zt Is %Iq%%Otio;lblo,
and llqul.-
banks to ho oarriedou a&thoutoppfce
. Those &~ntLal expQnsosappl;p%xXcom?on
to til ImUcs In fho hands 05 the Corcritionor far li@da-
fion, maa no partlcul3.rprtlon thereofcon BG nlloorbted
to w particula!bank, asxi iadoccl, such, of courso, 5s
not tie pcwposoof ths sotup or the wOffie3 espanse50-
oouav . Wen,lnthe oourso of the periodloslreports
by the Cocmissienerto the %udi~iiSusl Diz;trict
Comts of
the oxpnws of UqutiLntlsq:, the PartAoulm bank wer
rbioh that oonrt h3s jurl63%ctiorr, the oetiPotod aatmss-
lacnta&ustsUohbPslrisinoludedcu.nlsp~orodbythe
punse, SUQ& ns you Pwtlon, ragamos of tho wi$.n or .
tim OS tho aoquisiti~. The snnd has wan ac~latti
5nl set 0 t for that vary parrm30. As fxtiotod ty you,
suits or.t8”o churnotw oentioml in your lettoraDIetbe
doSozx%od and ospmms, such us those tmA.onoilby you,
Lust bo paid, ZUU t&we is no otlt~rfU%l f’rop;vfi+ch
w-
Lautsmay beua&o.
80 that,your queetionIlo.. 9.sanmmnl ln
tho ttsm-mstiva,nna th5s aaha an anmror to your secard
Qlostionunn3cwssry~
very truly yowa | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145593/ | . --
Hon. George H. 6heppard
comptroller of Fublio Aooowts
Austin, Texas
Dear Sir:
I, dm6on6tmi&inrithoutmyrroiq+
Th$6 i6 iX UEOW? to YOU? btter irrhioh-yoti 86k rhOthOr or iOt ad-
6dssion t6x66 M due oa the *xatiomti &ir Show6 6pomored bgtha.%rh krth
Janion CImu?mrof Commr60 umd6rthe @zki6ion&.of Bow+6 Bill IBo.8 (660. 6, .
Arb. III.thar~~f), ~rtrfoorCh~~giE~&, tbird~oalled 6666i&, 1956,' ood-
ified a6 &tiOlW7047~($9), V-a'6 #tJd+ii~ Rkiidd Cid.& &RhdOE of
Tausb The 6mtaiaI faots that you gav6 U6 lr6 a6 follolnr
@Ix ooueotiokmi.fh.& &%r Sh&, u'idmisaiom prioe ~oi'eO#fok a&l& ud 26#
for oMldre~~6 6hargd. . . .'
?!%a Natioml Air show is owed and d+rated bp'lndividkli ia Atl6xtr; Q6or-
gia, and.it traml6 fromplam to flak6 wheti the~Xum Si'~t&B6 give. Tab
Ehar60,"&3t6 OhEW~~~.=hibdtiW~ bi%$i%gQf PirpltiO6 ud'th6
Juniox Chwber of Ce6mmr66 obtalmd 8 arll $ortlon'of th6 pkOo66dk 6fth.6.
66.id6hOWto lu diettikzted to~ths(JoodLallowFrPdudth6 8&aP6l Rmd
forth6ir afforts in sponsori~ thm &a. . '..
:
". . .'There 1116no el~e?lt of OWpetitiCn iwmlvmi Patti iir Shm NhrtSO-
-r. It R6 6l6I'dy8 dsmDn6tratioa Of tbe~hradli~ Of'rii@6X66 a& adro-
8autioal d&i666 for the purpose of iaabrwtikg and eduoatirgthe pldlio a6
totha ~~66aad muipnlrfioa of 6irp1a66, primarily. The sbr show it primar-
ilyinthe nature of a piature shar,oper& play or aq+h&ng oft&trature,
ero6ptth6trath6rth6%~6e filmor haveth6 show ooafiaednith5.m abuild-
ix& the air Show of oour6e i6 outdd6, b6oause ofth6 naoessity of Using a
large area. a .~ ln
Artiols 7647a (19), which is"th6 only 6t6tut6 rs6koonqm&d uith
ia this diEou66iOn, zwads a6 fOllOW6:
'%6X=y p6rEOX,,fiw, 666OOiatibIAOf p6rEOIl6,or 6opmmtior orairg or open-at-
illgSay ph0-6 Of 666I666,6ti whiqh Char@6 P &U-i66Orfee for ad6liEEiOa;ill-
oludiwg exbibiticms a theaters, mxtionrp
piotur6 theat6r6, opera hells, Pd
iaoluding horse raoiag, dog raoing, m6tm-6yo&6 raoing,;W1W6OoM3a, =~oi%g,
and Ilke OOXt66t6 and e%hibi~iOBt,-:6*-tioludirg daW6 hpl16, night dubs,
skating rink6,apd 6sy pad all oth6r.plaoer of mtusemmt not pfohi%it6d %y
Hon. George H. Sheppard , page 2 (O-820)
law, shall fils'uith the State Comptroller a quarterly report ou th625th day
of January, April, July, aad Ootober for the quartsr emiiag on the last day
of the praosding month3 said report shall show the gross smount reoeivsd 6nd
the price or fee for atission2 provided, howswr, no tan shall be levied
underthis &t oaan6 ad6ds6ioa oollssted for dauoes, moving piotures, operas,
p.l~~, and 61uaioLlentsrtaimwmtts, all the proceeds sf rhiuh inure exolusive~
ly toth6 beaefit of Etate, religtius, educational, or oharitable institutions,
60016t166, or organidation6, - if no part oft&e net earnings thereof inure
to the benefit of any private stookholder or individual6 and provided further,
that theater6, motion piotur6 theaters, operas, plays, and other like 65u66-
ments where the admission oharge 16 less than fifty-one (51) cents per person,
and when, no tan i6~dUe herermder, 6hall ‘be rslievsd fromihe filing of a
report wd the paymnt of a frx lwied under the prsvi~isms of this &&ion.
&id person, firm, assooiatioa of per6on6, 6r oor@oratloaa, at the tins of
Emkiagmlah lwport shallpayto thsTrea6ur6rof this State a taxinlater
ud amount6 as foll.ons6
61. A t6x of owcsnt oa eaoh ten (10) o&x or each frastimal part thereof
p63d a6 a&6ission to theaters, moficmpiotursthsater6, op6ra6, plays, and
lik6 6nuasemsni~6
*hers the acha'issisn
oharg6dia in ems688 of fifty-ens (61)
06nb6 per per6cQt.'
"2. A for of on6 osnt on eaohtea (10) oewts or saoh fractional part thsreof
pid 86 admission to horse raoing, dog raoiag, 6mt6r-syole.raoing, automoM
raoing, and likemeohauical oranimaloont66tr snd 6nhlbitions. ,ki6 subreo-
tion 6h6ll 36 6ffeatiV6 on D6o6&6r 1, 1938.
'3. A tax of oaeoent on saohtsn (10) Cents~or a'fbwtiowl prt thereof paid
CL6Irmnimmionto duoe hrll.6,sight 01~66, 6lhting rink6,and 6ayand all &her
lib, ph666 Of 666I666Bnt6,OOnb+t8, a6Id6Xhi7&tiOnE lrheI.6the ad&b&on
0hUg.O iS in eXOe68 Of flfi3'4nO (51) asnt6.
64. On the amounts pid for admission ly season ti&et, subsoription, or lease
for admisaioa to ugr plaae of aviuaQneart,
a tan squivalert toten (10) per ssatum
of the pnount paid therefor, provided a siagls l&ii.~~ionto the plaoe of amuse-
ment would be subjest to taxation under the foregoing provisions.
%, &I all passes or ocmplim6ntary tiokets to any plaoe of amussm6nt mhere a
tan on admlssioa is lsvied under '&is Sestion of this Act a tan equivalent to
one oent on ePohten (10) oeats or each fraotimal part thereof charged as ad-
mission where the a&cissi~ ohargs to such plaos of Pmasemslltis in sxass6 of
filty-oae (51) sent8 per persoa.
66. All the &vsnue6 derived under and by virtua of this Swtion shall 56
orsditsd by the Treasurer, one-fourth to the AvailakilsWho01 Fund, 6nd thres-
fourths to the Texas Old Age Assistano6 Fund.6
As the admission ohugo ia the 0~86 &der aonsider4tion was less than
fifty-one (51) cents, It is olear that sub6eofioa8 la dn 3 of said Art%010
7047a(19) do not apply. We must con6ider whether or not subseotion 2 applies
tothe facts in this sale.
--
Hon. George Sheppard, page 3 (G-820)
Itdll be notiabd that sub-section 2 places a tax on admissions to
"horse raoing, dog raaing, motorayolb racing, automobile racing, and like
meohanioal or animal eontests and dbitions.* Ev6rythiagthatis mxonbd
specifioally i6 a type or kind of racing. Raoing is clearly a oontest or
bxhihition. The word "like" is a wurd of modifiaation or limitation a6 used
here. llhbnthe phrase.wlike meohanicl or animal contests of bxhibition8"
fOlloWS a list of Epeoified oOkft66t8 and exhibitionS that caaSi6t only of
racing, it is our oonclusion that the phrase means only contests and exhibi-
tions of the same kind, towit, racing. This theory of reasoning is known
a8 bjusdbm gbnsris, which 56 stated in 39 Tbx. Jut. 292, 6s follows:
24OZ'iS (Of the 86nM kind) impOrt;sthatgbnbral Word6
2tL‘zgz:Aeh pa ioular or spbaific thing6 will be ooafined +io
things'bfthe samekind. n brief, i&b genm%Il WOld8 80 used are not t0 b6
aonstrued in their widest sense, brt lrto be held as applying only to pereoas
or things of the 86z6b klad and alas6 a8 those enumerated. . . .s
lkdbr t&b faots givenas thb s~timal Air show," which-you a6k
abut; wa6 not a raob and included no raoing. Thbrbforb,.it is not covered
%y Said EUbEba'iiW 2.
m%‘b :&WA M) %X68 app6llat6 0OUX-t WA666 O,A this ~tiOUhr qUbEt%Oa,
and we haw been una&le to find any out-of-atate d6ui-tdeoi6ions coastrulng
a statute bxaotly like this3 hut we have found'soms appellate oourt 0~806
that hrw oonstrued Ei&utb~ Similar tothi~~oae. 'I,thb ease of RX g6rtb
Roquomore, 80 Tex. Grim. B. 282,~~131~6.H. 1101, ~32 L. B. A. (8.8.) 1188, the
Court of &iudxal &pp.&ii of ~TbxM ~Uabdt hb 8anb kind of rsasoning m bw
used herb in holding that a hasb%6ll'g6mb did notoomb within the phra8b
in &t&610
"8uOh other slfltl6W6WitS' l99 of the Penal Code of 1896, and in
arriving atthat ooaolusion the oourt said:
"To datbxminb this oorreotly, reooursb mwtb had to artiolb 199 of the Penal
Me of 1896, oa whioh rblianoe i% had by the 6tatbto hold relator. This
article is as followsr *Aq merohent, grocer, or dealer in wax-68or mer~han-
disb, or trader in 6ny basinbss whatsoever, or the proprietor of 6ny plaoe of
publio bmu~bmbnt, orthbagbnt or %plqe of aqvSuch person, who shall sell,
barter or pewit hi6 plaoe of businessor plaoe of pulilioamusement to he open
for the purpose Of tZbffio or pPibli0-S@Ibnt on Sunday, Shall be fined not
108s tbra trerrty aor more thaa fiffy dollars. The ten6 'PlUOe of public
a~m851bnt~ shall ba OOnStXVbd to mean alrouses, thbatbr8, mrib+q theaters and
suoh other amuscrmentaas are exhibited and for whioh an a&6ission fee is
charged2 ud shall also inolude dance6 at disorderly houses, low dives and
plaobs of like oharaoter with or without fees for admi86ioa.* Itwill h6
noted that th%S article undertakes to n6mb and designate the place of public
amuaaent, sad it is said that it shall be 60 Oonstrued a6 to mean Oireusb6,
theaters, variaty thbater6,and suoh other amu66mbnts a6 are exhibited aud
for which an admission fee is charged, and shall also include dances at dis-
orderly houses, low divb8,and plaobs of like character with or wihout fees
for admission. That lmseball is not speoifioally n@bd, of 00111‘86, is clear.
Hon. Cborge Ii.Sheppard, page 4 (C-820)
Hhatwe are to understand hythb general term 'and such otheramrusbmnta as
are exhibited and for mhioh 66 admission fee is charged?" clearly rltt
t&Ilk
amusements of a like or similar character. This seem6 to have %bbn the cou-
6trQdiOn giwn to a similar datutb %y mamy courts. . . .
“tithe 0660 Of kX pi-b0 Muokbufuss, 52 Tex. Cr. R. 467, 107 6.W. 1131,wb
hgd occa610n to rbvibw aud cumidbr at length the rule of oonstnxtioa ap
plicahle to a statute suoh as thi6. We there said: 'It is a familiar rule
that, uherb gb6crralwords folly ; particular and specific words, the fonu-
br must bb ccnfinbd to things of the sams kind. . . . The doctrine itself
is thus well expressed in Lesis* Sutherland, Statutory Construction: men
there are general Word6 following partioular aud spboifio word8,thb former
must be confined to thing8 Of the Sam, kind. -This 18 kno6n a8 the rtib or
dOofrin0 of bjusdbm gsneris.' Some judicial 8fpte166nt8ofthi doctrinb arb
herb givbn. %b,t gWV3t-PlWord8 fOllOrra0 ~blrtiO% Of pal-ticulpYthiwgS,
suohwozds mUat he hbld to include only suchmpttbrs or objects mare of
the ~a616kind as those specifically OWncrirtsd.~ *Thb rulb is that where
WPdS of a pbrticul6.rdbsoriptioa in P 6tatutb arb followbd ly geaeral word8
that an, not so specific 6nd limited, unless thsre bb a clear manifbstbtion
of a watraq purpose, the geabral words are to be con8iSued a8 applicalilbto
persons or thiag6, or cases of like kind to those designatbd hytb partioti
hZ'WWd6.* *It is a principle of 8tatutoay co66truotion bvwiywhbre rboog-
nicbdawd actbdU~,not~tlylith'respe~to peti Statutb6,buttOthO60
affectirg 6614 civil right6 aad dutib6, that tieI-3 w0rdS partioulpr4 dbsig-
nattiug 6pbCifiO.acf6 or tw6gS QMf followbd % b6d a68OQiatbd wlthwords of
geaer6l impel-t,eoWprbhbW6~Vb~db8i~tiugabt6 OrthiWgs,thb 1attbral-b
generally to be regarded a8 comprehending only~wattbn of thb 8nmb kimd or
olrss asthose prtricularly stat6d. lhey are to be deemed to have been used,
not iathe hoard 6ewe whichthbymlght hear, if standing d-0, tit 88 relet-
bdtoth6 16~36 of morb dbfimlfb ubpPrticulsr616a~~imgWithWhioh thbyarb
a6sooiatbd.~* . . ."
The same t&e of rea8oming was used bythb 6upremb Court of l&nub-
SOti it,thb 0960 Of 8kdO V. t%6lSb6~~a~, 112 Ibian.62, 127 B; we 444, 21
Ann. Gas. 670, inlbich it saidt
6. ; . That part of section 4981 nbcbssai$ to sbtcnt herb reads* Ull hunt-
ing, shotting, fishing, playing; horse racing, gsmfng and other public sports,
exercises pad sti.~*
6Dobs thb s&d 'show8' as u8ed in section 4Q8l inoludb a tiving pio-
turb show, or similar bntbrtaim6bnt,whbm conducted in a building where the
omly fbatur6 of publicity oonsists in the fact that the public i8 invitbd t0
attemdamd an-the laxildimgbgmams of ambS+ramcb opeming oaa pu%lio
street? Xumtiag, shottimg, fishing,playimg, hoisb racing, pad gawimimg
undoubtedly refer to outdoor life. The words~ 'other publio sports, exeroisb,
amd shows,' by rbasom of their association lith what precbdbsthbm, refer to
the 6-e aharacter of sports or brbroises, via., those conduoted out of doors.
!&is is thb proper applioatiom of the malo ejusd& genbrisr Geaeral words,
following am bmxwwration of particulars, are limitbd %y r6fereacs fo the prb-
ceding particular Qumeration, andan, to %e con&rued as inoludiag only all
Hon. George H. Sheppard, Rage 5 (O-620)
other like things. . . .
n. . . We have reaohed the -1usion that the exhibition as conducted by
appellant is not within the provisions ofthe statute. . . ."
Similar reasoning was used lythe Supreme Court of Illinois in the
*se of CSty of Cliaton Vt.3ilso0, 257 Ill. 580, 101 N. E. 192, which see.
Iu the oase under consideration,the contests and exhibitions sp,c-
ifioally emmarated are all raoiug events, and under the rule of ejusdm
eneris we do not think that the lards "like msohanioal or animal oontests
Eiima Idtioass inolude or refer to axuair show," which consists of outdoor
aeronautical demonstrations without racing of any kind.
Other oases that support our &molusio~ a.re'State'v.Flather, 79 Kau.
513, 100 Pao. 57, 21 L.R.A. 23, 131-m. St. Rep. 3393 Ex parte Nset.167 lb.
527, 57 S.H. 1025, 80 &a. St. Rep. 6363 and Crute V. Mate, 21 Ala. App. 530,
109 Sou. 617r
We do net believe our muolusina is in oonfliot with the oases of
Rx parte klngerfelter, 64 Tex. Grim. Il.30, 142 S.X. 5552 3uooaro V. State.
02 Tea C&a. R. i, 197 8. lf. 9821 and He@saa V. State, 60 T&x. Crdm. R. 548,
227 S.U. 954; because those oases only held that a mbPiag $oture show was
the ssme kindand &araeterof amusement as a theater and was imlndeddthin
the phrace "theaters and suoh other amusements.*
Our answer to your question isthat under the fasts suhmittad to us
fbr consideration, there sre not admission texes due On the "Rational Air
Shows sponsomd by the Fork Worth Junior Chamber of Commeroe.uader the terms
of Article 7047~ (19).
Very truly yours
AlTo.RNJZY
~GEIWAL OF TEXAS
By /s/ Cecil c. Ro-tsah
Ceoil C. Rots&
Assistant
~FJR~ti;~.3#&939 Opinion Wittee
ByRYiF
A'l!TOI?REYGERER6LOFTEXAS chairman
(Note: For a prior opinion, see Vol. 380, p. 272 of letters of the
Attoraey General which relatesto Fat Stock Shows) | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4359255/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-1793
______________
YONY EUGENIO BANEGAS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of Orders From
The Department of Homeland Security and
The Executive Office for Immigration Review
Agency No. A076-575-377
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 15, 2019
______________
Before: GREENAWAY, JR., SHWARTZ, and PORTER, Circuit Judges.
(Filed: January 16, 2019)
______________
OPINION ∗
______________
∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Yony Banegas petitions for review of the Board of Immigration Appeals’ (“BIA”)
order affirming the Immigration Judge’s (“IJ”) denial of his application for cancellation
of removal. Because Banegas’s constitutional right to due process was not violated when
an IJ who had reviewed the record but was not present at his cancellation hearing ruled
on his cancellation application, we will deny the petition.
I
Banegas, a native and citizen of Honduras, entered the United States in 1993 and
became a lawful permanent resident in 1999. In 2016, the Department of Homeland
Security filed a Notice to Appear charging Banegas with removability under 8 U.S.C. §
1227(a)(2)(A)(ii) based on his theft and simple assault convictions.
IJ Walter Durling held Banegas’s first five calendar hearings. IJ Barbara Cigarroa
presided over Banegas’s cancellation of removal hearing (“the merits hearing”). In
deciding whether to exercise discretion to grant relief, IJ Cigarroa weighed positive
factors, including the length of Banegas’s residence in the United States, his relationship
with his two minor children, and the difficulties Banegas has faced, against negative
factors—chiefly Banegas’s extensive record of arrests and convictions for various
offenses, including driving under the influence (“DUI”) and simple assault, which
Banegas characterized as consisting of false allegations primarily attributed to his
conflict-prone relationship with a girlfriend. At the conclusion of the merits hearing, IJ
Cigarroa orally denied Banegas’s application for cancellation of removal and Banegas
waived his right to appeal the denial.
2
Banegas filed a motion to reopen based on incapacity due to mental illness. At the
time he filed the motion, IJ Cigarroa was no longer available to resume Banegas’s case.
As a result, IJ Durling considered the motion, granted it, and issued a new order denying
the cancellation application. Banegas appealed, and the BIA remanded the case for entry
of a formal judgment on Banegas’s eligibility for removal. IJ Durling held a hearing
where he explained that he would familiarize himself with the record from the merits
hearing before issuing a judgment. Banegas’s counsel did not object. 1 IJ Durling
subsequently issued a written opinion in IJ Cigarroa’s name denying Banegas’s
cancellation application. 2
Banegas again appealed, and the BIA remanded with instructions to the IJ to issue
a new order stating whether he had reviewed the record as required under 8 C.F.R.
§ 1240.1(b). IJ Durling did so, confirming that “the court had in fact ‘familiarized’ itself
with the record by reading the transcript and reviewing each and every single piece of
evidence the parties submitted” in compliance with § 1240.1(b), A.R. 51, and again
denied Banegas’s cancellation application. 3 Banegas appealed.
The BIA dismissed the appeal, affirming the IJ’s refusal to grant discretionary
relief and concluding that: (1) Banegas received a fair hearing, as the IJ familiarized
himself with the record and considered the totality of evidence; and (2) IJ Durling’s
absence from the merits hearing did not prevent him from considering Banegas’s remorse
1
Banegas did not attend this calendar hearing, but his counsel consented to
proceed in his absence.
2
The BIA explained that IJ Durling “signed for” IJ Cigarroa.
3
This opinion was issued in IJ Durling’s name.
3
and rehabilitation, as Banegas failed to specify “evidence in the record demonstrating
rehabilitation and remorse.” A.R. 4. Banegas petitions for review.
II 4
When the BIA issues its own opinion on the merits, we review the BIA’s decision,
not that of the IJ. Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014) (quoting
Bautista v. Att’y Gen., 744 F.3d 54, 57 (3d. Cir. 2014)). However, where, as here, the
BIA expressly adopts portions of the IJ opinion, we review both the IJ and BIA decision.
Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009) (citations omitted). Under 8
U.S.C. § 1252(a)(2)(B), we lack jurisdiction to review denials of discretionary relief
including “any judgment regarding the granting of relief,” such as cancellation of
removal for certain permanent residents, except that we may review “constitutional
claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D). 5 Under this standard, “we are
4
The IJ had jurisdiction over Banegas’s immigration proceedings under 8 C.F.R.
§ 1208.2, and the BIA had jurisdiction over the appeal under 8 C.F.R. §§ 1003.1(b) and
1240.15. We have jurisdiction over final orders of the BIA under 8 U.S.C. § 1252.
5
The Government argues that we lack jurisdiction to review the BIA’s affirmance
of the IJ’s discretionary decision to deny Banegas’s application for cancellation of
removal because Banegas does not raise a colorable legal claim, and his due process
argument represents an “attempt to recast his disagreement with the way the Board
exercised its discretion.” Appellee’s Br. at 9-10. “To determine whether a claim is
colorable [for purposes of jurisdiction under 8 U.S.C. § 1252(a)(2)(D)], we ask whether
‘it is immaterial and made solely for the purpose of obtaining jurisdiction or is wholly
insubstantial and frivolous.’” Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010)
(quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10 (2006)). Thus, our inquiry is
whether Banegas is making an “argument that the IJ abused his discretion” disguised in
“legal clothing to invoke this Court’s jurisdiction.” Id. at 187 (internal quotation marks
and citations omitted).
Banegas’s claims are colorable questions of law, not veiled challenges to
discretionary decisions. Banegas does not challenge how the IJ exercised his discretion;
rather, he challenges whether the IJ issuing the ultimate decision on his application had
4
limited to pure questions of law, and to issues of application of law to fact, where the
facts are undisputed and not the subject of challenge.” Kamara v. Att’y Gen., 420 F.3d
202, 211 (3d Cir. 2005) (internal quotation marks and citations omitted). We review the
BIA’s legal determinations de novo. Martinez v. Att’y Gen., 693 F.3d 408, 411 (3d Cir.
2012) (citation omitted).
III
Due process requires that those in removal proceedings receive “the opportunity
to be heard at a meaningful time and in a meaningful manner.” Abdulai v. Ashcroft, 239
F.3d 542, 549 (3d Cir. 2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)),
superceded on other grounds, Saravia v. Att’y Gen., 905 F.3d 729, 736 (3d Cir. 2018).
Thus, an alien in removal proceedings “(1) is entitled to factfinding based on a record
produced before the decisionmaker and disclosed to him or her; (2) must be allowed to
make arguments on his or her own behalf; and (3) has the right to an individualized
determination of his [or her] interests.” Id. (internal quotation marks and citation
omitted). Where a petitioner claims he was deprived of his due process right to “[make]
his case to the BIA or the IJ,” id., “he must show (1) that he was prevented from
reasonably presenting his case and (2) that substantial prejudice resulted[,]” Fadiga v.
the appropriate information before him as a matter of law. Because Banegas raises
colorable claims that present pure questions of law, namely, whether 8 U.S.C.
§ 1229a(b)(2)-(3), 8 C.F.R. § 1240, and due process require an IJ to be present at a merits
hearing on an application for cancellation of removal before ruling on it, we have
jurisdiction under 8 U.S.C. § 1252(a)(2)(D).
5
Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (internal quotation marks and citation
omitted). Because Banegas cannot make either showing, we must deny his petition.
A
The Immigration and Nationality Act provides that removal proceedings may take
place in person, through video or (with the consent of the alien) phone conference, and
even without the alien’s presence, provided the parties agree and safeguards are in place
“to protect the rights and privileges of the alien.” 8 U.S.C. § 1229a(b)(2)-(3). Thus,
there is no requirement that the proceeding must always occur in person. In addition, the
regulations allow for one IJ to be substituted for another where the first IJ “becomes
unavailable,” as long as the new IJ “familiarize[s] himself or herself with the record in
the case” and “state[s] for the record that he or she has done so.” 8 C.F.R. § 1240.1(b).
As a result, an IJ can rule on the merits of an application without being present at the in-
person hearing.
Here, the BIA ensured that IJ Durling fully complied with 8 C.F.R. § 1240.1(b),
even remanding to confirm that he had conducted a full review. At the calendar hearing
following IJ Durling’s substitution for IJ Cigarroa, IJ Durling told Banegas’s counsel that
he would familiarize himself with the record before ruling, gave counsel a chance to
object and, after the BIA’s remand, made clear that “the court had in fact ‘familiarized’
itself with the record [in compliance with 8 C.F.R. § 1240.1(b)] by reading the transcript
and reviewing each and every single piece of evidence the parties submitted.” A.R. 51.
Section § 1240.1(b) ensures that no procedural defect occurs that would prevent a
petitioner from reasonably presenting his case and receiving due process when an IJ who
6
did not hear the live testimony nonetheless decides the case. Abdallahi v. Holder, 690
F.3d 467, 473 (6th Cir. 2012). Indeed, “[n]o due-process violat[ion] occurs when a
second IJ takes [over] the case” and complies with § 1240.1(b), even if “the successor IJ
specifically refuses the alien’s request for an in-person hearing[.]” Gaye v. Lynch, 788
F.3d 519, 527 (6th Cir. 2015) (internal citations omitted) (discussing due process claim
arising from IJ substitution, but dismissing claim on jurisdictional grounds because the
petitioner failed to exhaust it before the BIA). Because the proceedings here complied
with § 1240.1(b), IJ Durling’s absence from the merits hearing neither impaired his
ability to rule nor deprived Banegas of due process. 6
Moreover, there is no reason to suspect that IJ Durling’s absence from the merits
hearing and reliance on the paper record caused him to overlook anything material to the
evaluation of Banegas’s claim. Indeed, judges often rely on documents, including
transcripts of testimony, to rule. While credibility determinations about testimony are
often based on how the witness looked, acted, and sounded while testifying, these
observations are unimportant where neither IJ made any adverse credibility
determination.
In addition, Banegas does not point to anything from the merits proceeding that IJ
Durling could not glean from the paper record regarding Banegas’s remorse or
rehabilitation. Rather, as the BIA observed, “the record shows a lack of remorse and
6
Likewise, contrary to his argument on appeal, Banegas’ proceedings did not
violate 8 U.S.C. § 1229a(b)(2)-(3). To the extent this statutory provision can be
construed as guaranteeing an in-person proceeding, Banegas received one, and it
occurred with all of the applicable regulatory safeguards.
7
rehabilitation as the respondent had repeated assault and DUI offenses, continually
blamed the incidents on his girlfriend’s jealousy, stated that the incidents did not happen
as indicated in the police reports, and stated that he pleaded guilty so he could ‘get out.’”
A.R. 3-4. Because the record disclosed all the IJ needed to evaluate Banegas’s alleged
remorse and rehabilitation, and Banegas has not shown he was “prevented from
reasonably presenting his case,” Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006),
his due process claim lacks merit.
B
Even if Banegas had successfully identified a procedural defect in the
consideration of his application, Banegas’s due process claim still fails because he cannot
show substantial prejudice. To show substantial prejudice, a petitioner must demonstrate
that the alleged procedural infraction has “the potential for affecting the outcome of [the]
deportation proceedings.” Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir.
2017) (emphasis and citation omitted). Banegas cannot make the requisite showing here
because he has not identified how an in-person presentation of his case, as opposed to a
comprehensive review of the transcript and the evidence he presented, might have had
any effect on the outcome. This is not surprising as IJ Cigarroa reached the same
conclusion at the end of the in-person hearing that IJ Durling reached after reviewing the
complete record; each IJ individually declined to grant discretionary relief. Thus,
Banegas has not shown that the lack of in-person presentation of his case before IJ
Durling had the potential to affect the outcome of his cancellation proceedings. As a
8
result, Banegas has not shown substantial prejudice, id., and, for this additional reason,
his due process claim fails.
IV
For the foregoing reasons, we will deny the petition for review.
9 | 01-03-2023 | 01-16-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4351940/ | Third District Court of Appeal
State of Florida
Opinion filed December 19, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-1794
Lower Tribunal No. 14-27483
________________
Manuel Chiong-Cortes,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Martin Zilber,
Judge.
Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant
Attorney General, for appellee.
Before EMAS, FERNANDEZ, and LOGUE, JJ.
LOGUE, J.
Manuel Chiong-Cortes appeals his conviction of burglary of an unoccupied
conveyance and petit theft as well as his sentence as a habitual offender to eight
years in prison followed by two years of probation. We affirm the conviction
without further comment, but reverse the sentence and remand for resentencing.
At the end of the sentencing hearing, the trial court stated: “I’ll tell you, Mr.
Chiong-Cortes, I’ve heard a lot of excuses from you and I have seen the pattern of
criminal conduct for close to 30 years. And the one thing I haven’t heard is any
remorse, just excuses.” The trial court later said: “And that is really the biggest
concern here.”
These comments indicating the trial judge considered Appellant’s lack of
remorse in fashioning the sentence constitute reversible error. As we have
previously explained:
Although a defendant’s expression of remorse and
acceptance of responsibility are appropriate factors for
the court to consider in mitigation of a sentence, a lack of
remorse, the failure to accept responsibility, or the
exercise of one’s right to remain silent at sentencing may
not be considered by the trial court in fashioning the
appropriate sentence.
Green v. State, 84 So. 3d 1169, 1171 (Fla. 3d DCA 2012). See Mentor v. State, 44
So. 3d 195, 196 (Fla. 3d DCA 2010) (“A review of the sentencing hearing
indicates that the trial judge impermissibly considered Mentor’s protestation of
innocence and lack of remorse.”); A.S. v. State, 667 So. 2d 994, 995-96 (Fla. 3d
2
DCA 1996) (reversing disposition in juvenile case where trial court’s comments
indicated reliance on child’s protestation of innocence).
Here, even though Chiong-Cortes made an extended presentation to request
mitigation, the trial court did not expressly limit his comments regarding
Appellant’s lack of remorse to its rejection of the request for mitigation. In light of
the trial court’s own statements, we are compelled to conclude that Appellant’s
lack of remorse was one of the factors considered in entering the sentence. See
Soto v. State, 874 So. 2d 1215, 1217 (Fla. 3d DCA 2004).
Accordingly, we reverse the sentence and remand for a new sentencing
hearing. As we have in the past, in an abundance of caution, we direct the new
sentencing hearing be conducted by a different circuit court judge. T.R. v. State, 26
So. 3d 80, 83 (Fla. 3d DCA 2010). The new judge has the discretion to enter any
legal sentence. See Price v. State, 838 So. 2d 587, 588-89 (Fla. 3d DCA 2003);
State v. Swider, 799 So. 2d 388, 390-91 (Fla. 4th DCA 2001); Palmer v. State, 182
So. 2d 625, 626 (Fla. 4th DCA 1966).
Conviction affirmed; sentence reversed; case remanded.
3 | 01-03-2023 | 12-19-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4351941/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WAYNE CULBERTSON and BETH CULBERTSON,
Appellants,
v.
21st MORTGAGE CORPORATION,
Appellee.
No. 4D18-164
[December 19, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John B. Bowman, Judge; L.T. Case No. CACE 14-021051
(11).
James R. Ackley of Law Offices of James R. Ackley, P.A., West Palm
Beach, for appellant.
Sonia Henriques McDowell of Quintairos, Prieto, Wood & Boyer, P.A.,
Orlando, for appellee.
PER CURIAM.
We affirm the summary final judgment in all respects but one ― genuine
issues of material fact remained regarding the amounts owed by the
borrowers for private mortgage insurance (PMI) and interest on the note.
When summary judgment was entered, the loan had been in default for
nearly eight years. The bank submitted an affidavit in support of its
motion for summary judgment. Loan histories from several servicers were
attached to the affidavit and the affiant stated that her testimony was
based on her review of these records.
“Under ordinary circumstances, a summary judgment can be
supported if the undisputed evidence shows that all values matched with
the payment history admitted into evidence.” O’Connor v. U.S. Bank Nat’l
Ass’n, 253 So. 3d 628, 630 (Fla. 4th DCA 2018). Here, the amounts
awarded for PMI and interest are not supported by the loan histories
attached to the affidavit.
Only one of the loan histories includes any payments for PMI, and the
sum of those payments is less than the amount claimed in the affidavit
and awarded in the final judgment. 1 On the issue of interest, the loan
histories are incomplete and show varying interest rates, while the affidavit
sets forth a fixed interest rate since default. The final judgment awarded
the amount of interest claimed in the affidavit. 2
While the bank established its entitlement to damages for PMI and
interest, because the values awarded do not match the loan histories
admitted into evidence, the bank failed to establish the amount
recoverable for those items at summary judgment. We reverse and remand
to the circuit court for further proceedings on those damages items and
for the entry of an amended final judgment.
GROSS, MAY, JJ., and CARACUZZO, CHERYL, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1The loan history shows 65 PMI payments while the final judgment awards
damages for 90 PMI payments.
2The affiant stated that interest was 4.125% from October, 2009-May, 2017, but
this was an adjustable rate note, and the loan history shows interest rates
ranging from 3.375% to 7.625% during the same period.
2 | 01-03-2023 | 12-19-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4351942/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
VALENTIN RODRIGUEZ, P.A.,
Appellant,
v.
RICHARD ALTOMARE,
Appellee.
No. 4D18-0785
[December 19, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; David French, Judge; L.T. Case No. 502015CA009281AH.
Valentin Rodriguez of Valentin Rodriguez, P.A., West Palm Beach, for
appellant.
Peter Ticktin and Kendrick Almaguer of The Ticktin Law Group,
Deerfield Beach, for appellee.
DAMOORGIAN, J.
Appellant, Valentin Rodriguez, P.A. (“Attorney”), appeals an order
entering a directed verdict in favor of Richard Altomare (“Client”). The
issue on appeal is whether Attorney was required to present expert
testimony to establish the reasonableness of the fees in his breach of
contract action against Client for unpaid legal fees. We reverse.
Client entered into a retainer agreement with Attorney for
representation in a mail and securities fraud case in federal court. Under
the agreement, Client was required to pay: $50,000 as an initial, non-
refundable retainer; an additional $50,000 if the case went to trial, for a
trial lasting no more than four days; an additional $3,000 per day if the
trial lasted longer than four days; and an additional $5,000 for sentencing.
Client’s federal case proceeded to a five day trial. At the conclusion of
the case, Attorney billed Client a total of $111,334 in fees and expenses
for his services. Client paid $22,500, leaving a balance of $83,834 after
certain other adjustments were made. Thereafter, Client executed a
promissory note in favor of Attorney for the unpaid balance. Receiving no
further payments from Client, Attorney sued Client for breach of the
retainer agreement and sought compensatory damages in the amount of
$83,834. Client responded to the complaint, but did not challenge the
reasonableness of the flat fees charged by Attorney. The matter ultimately
proceeded to a jury trial.
At trial, Client stipulated that he entered into the retainer agreement
and did not pay Attorney the entire amount due. Accordingly, the only
issue at trial concerned the amount of damages. To establish the amount
of damages, Attorney introduced into evidence the retainer agreement, the
invoice sent to Client listing the flat fees billed, and the promissory note.
Aside from a best evidence objection regarding the promissory note, Client
did not object to this evidence. Attorney also testified about his legal
training and experience, the work he performed on Client’s behalf, and the
balance due by Client.
After Attorney rested, Client moved for a directed verdict on the grounds
that Attorney failed to present independent expert testimony to establish
the reasonableness of the attorney’s fees. Attorney countered that no such
expert testimony was required in a breach of contract action involving a
flat flee. Moreover, Attorney argued that there was more than enough
record testimony to justify the flat fees charged in the federal case. The
court granted the motion for directed verdict on the grounds that Attorney
was required to present independent expert testimony to establish the
reasonableness of the fees. This timely appeal follows.
It is well established “that where a party seeks to have the opposing
party in a lawsuit pay for attorney’s fees incurred in that same action, the
general rule in Florida is that independent expert testimony is required.”
Sea World of Fla., Inc. v. Ace Am. Ins. Cos., 28 So. 3d 158, 160 (Fla. 5th
DCA 2010). Similarly, “case law throughout this state has adhered to the
requirement of an independent expert witness to establish the
reasonableness of fees, regardless of whether a first or third party is
responsible for payment.” Robin Roshkind, P.A. v. Machiela, 45 So. 3d 480,
481 (Fla. 4th DCA 2010). Such a requirement exists “because attorneys
have an ethical duty, pursuant to the Florida Rules Regulating the Florida
Bar, to charge fair and reasonable fees, regardless of the terms of the fee
agreement.” Id. at 481–82.
If, however, a party is seeking to recover previously incurred attorney’s
fees as an element of compensatory damages in a separate breach of
contract action, that party is not required to provide an independent expert
witness to corroborate the reasonableness of the fees. Sea World, 28 So.
3d at 160–61; see also Schwartz v. Bloch, 88 So. 3d 1068, 1072 (Fla. 4th
2
DCA 2012) (“Roshkind does not require independent expert testimony to
establish the reasonableness of professional fees, including attorney’s fees,
when those fees are an element of compensatory damages.”).
In the present case, Attorney sought the previously incurred attorney’s
fees as an element of compensatory damages in his breach of contract
action against Client. Accordingly, Attorney was not required to present
an independent expert witness to establish the reasonableness of the fees.
Schwartz, 88 So. 3d at 1072; Sea World, 28 So. 3d at 160–61.
Moreover, because Attorney sought to recover flat fees and Client not
only acknowledged the obligation when he executed the promissory note
but also failed to raise any substantive objections to the evidence at trial,
Attorney was not required to establish the overall reasonableness of the
fees in his breach of contract action. See Gossett & Gossett, P.A. v.
Mervolion, 941 So. 2d 1207, 1209 (Fla. 4th DCA 2006) (holding that the
court erred in reducing the amount of attorney’s fees contractually billed,
which the client did not dispute or otherwise question, to an amount the
court found reasonable, explaining that “[a] charging lien is contractual in
nature and is to be based upon the amount agreed with the client, not an
amount to be determined by the trial court”); Universal Beverages
Holdings, Inc. v. Merkin, 902 So. 2d 288, 290 (Fla. 3d DCA 2005) (holding
that the attorney was not legally required to provide a detailed accounting
of the number of hours expended and services rendered in his breach of
contract action because “[t]he matter of a fee agreement between a lawyer
and his client is a question of contract,” and the attorney therefore was
only required “to show the existence of an oral contract and its terms”);
see also Matter of Innkeepers of New Castle, Inc., 671 F.2d 221, 230 (7th
Cir. 1982) (holding that because the fee contract expressly provided that
the attorney would recover fifty percent of any net recovery, it was error
for the court “to use a ‘reasonable fee’ standard in lieu of the valid fee
contract as the basis for determining the extent of [the attorney’s] lien”).
Accordingly, the trial court erred in entering a directed verdict in favor
of Client. In light of the stipulations at trial, we reverse and remand for a
new trial on the issue of damages only.
Reversed and remanded for new trial.
WARNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3 | 01-03-2023 | 12-19-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4351946/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SKY ZONE LLC, ACTIVEPEN LLC and JONATHAN HOVELL,
Appellants,
v.
MICHAEL RYAN WEEKLY,
Appellee.
No. 4D18-1583
[December 19, 2018]
Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No.
17-23604 CACE (12).
Charles M-P George of Law Offices of Charles M-P George, Coral Gables,
and Derek H. Lloyd, Christopher R. Cooper and Loanmy Saranova of
Chartwell Law Offices, Miami, for appellants.
Gary M. Farmer, Sr. and Gary M. Farmer, Jr. of Gary M. Farmer, Jr.,
P.A., Lighthouse Point, F. Catfish Abbott and Brittany R. Ford,
Jacksonville, and Dixie Dan Powell, Crestview, for appellee.
GERBER, C.J.
The defendants in a personal injury action appeal from the circuit
court’s non-final order denying their motion to compel arbitration and stay
litigation. The defendants’ motion and the plaintiff’s response raised
several arguments of both a legal and evidentiary nature. The circuit court
then held a hearing at which both legal arguments and evidence were
presented. At the end of the allotted hearing time, the circuit court
commented that the parties did not request an adequate amount of time,
and the hearing ended abruptly without the court issuing an oral ruling.
Shortly after the hearing, the circuit court entered an order summarily
denying the defendants’ motion.
Effective review of the circuit court’s order is impossible. While the
parties presented legal and factual arguments during the hearing, the
circuit court’s order contains no findings of facts, conclusions of law, or
any basis for the circuit court’s decision. See Nationstar Mortgage, LLC v.
Cullin, 2018 WL 5984111 at *1 (Fla. 4th DCA Nov. 14, 2018) (“Because the
trial court failed to state the basis for its decision and to make any factual
findings on the record or in its final judgment, we are unable to conduct a
meaningful appellate review.”); Exotic Motorcars and Jewelry, Inc. v. Essex
Ins. Co., 111 So. 3d 208, 209 (Fla. 4th DCA 2013) (“In cases where, as
here, orders on review cannot be resolved without meaningful findings,
effective review may be deemed impossible and the cause remanded for
findings, notwithstanding that such findings may not be mandated by rule
or statute.”).
Ordinarily, we would remand the case to the circuit court to enter an
amended order containing factual findings and legal conclusions to
support its decision. See id. at 209-10 (“[W]e reverse and remand for the
trial court to enter an amended final judgment and to make findings
accordingly.”).
However, because the judge who issued the order has since retired, we
are left with no other choice but to remand the case for a new hearing
before another judge who may issue an order capable of effective review.
See Cullin, 2018 WL 5984111 at *2 (“If the trial judge is no longer serving
or is unable to enter an amended final judgment reflecting the basis for
the decision, then a new trial must be conducted.”).
Reversed and remanded for new hearing.
CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 | 01-03-2023 | 12-19-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4132244/ | The Attorney General of Texas
March 15, 1978
Honorable Neal T. Jones, Jr. Opinion No. H-1136
County Attorney for Hill County
Hillsboro, Texas 76645 Re: Construction of section
17.99, Texas Education Code.
Dear Mr. Jones:
You inquire whether section 17.99 of the Texas Education Code requires
the reclassification of rural high school districts as independent school
districts. Section 17.99, which was enacted in 1975 as one section of House
Bill 226, reads as follows:
On September 1, 1978, all common school districts
located in a county and in counties with no common
school districts, rural high school districts, or indepen-
dent districts with less than one hundred fifty flSO>
ADA that do not support county school administration
from ad valorem tax revenue generated pursuant to
the provisions of Chapter 18 of this code. shall be
reclassified as independent school districts by the
Central Education Agency, and thereafter the districts
shall be governed by the provisions of law applicable to
independent school districts. Members ~of the govern-
ing boards of a common school district reclassified as
an independent school distrmt shall continue to serve
as trustees of the district until their respective terms
of office expire. Each district shall continue to be
governed by the same number of trustees elected for
the same terms of .office in effect immediately
preceding the district’s reclassification.
@l17phasis added). 8ducation Code S 17.99; Acts 1975, 64th Leg.,.ch. 478, at
After studymg House B111 226 with particular attention to the
underlined language, we have concluded that section 17.99 does not require
the reclassification of any school districts.
House Bill 226 as introduced would have terminated State funding for
all county school superintendents, leaving the county and school districts the
p. 4628
Honorable Neal T. Jones, Jr. - Page 2 (R-1136 )
option of supporting county school administration. Its six sections, enacted with
amendments as sections 17.94 through 17.99 of the Education Code, provided for the
abolition of any county school administration that was not funded locally. Section
17.99 in the original version of the bill reclassified as independent school districts
all common school districts located in a county that chose not to support county
school administration. However, the Senate amended sections 17.94, 17.95, and
17.99 by adding the underlined language. The bill as enacted applied only to
“counties with no common school districts, rural high .school districts, or
independent districts with less than one hundred fifty (150) ADA.” -See Attorney
General Opinion H-1103 (1977).
The Senate Education Committee, which amended section 17.94, discussed
this change at a meeting on April 16, 1975. Tape recording of Senate Education
Committee, filed in Senate Staff Services Office. It was explained that if a county
had one independent school district with less than one hundred fifty average daily
attendance, the office of the county superintendent would not be abolished. If the
county had one common school district, the office would not be abolished. Thus,
the discussion reflected a decision not to end State funding for a county with even
one of the enumerated districts.
The amending language was added to sections 17.95 and 17.99 on the Senate
floor. Daily Senate Journal, 64th Leg., R.S., 1975, at 938. Its addition to section
17.95 merely conformed it to section 17.94. The addition of the amendment to
section 17.99, however, rendered that provision very difficult to interpret. As
amended and enacted, section 17.99 applies to “4 common school districts located
in a county and counties with no common sctiool districts. . . .ll (Emphasis added).
This description is self-contrad%tory, and no school distri~ct fits it. The provision
therefore applies to no school districts, with the effect that no common school
districts will be reclassified as independent school districts pursuant to its
provisions.
This result, however, is consistent with the apparent legislative purpose
expressed during the bill’s consideration. The reclassification of common school
districts as independent would have prepared them for the loss of county
administrative services by enabling them to perform those services themselves.
Compare Education Code SS 22.08 - 22.10 with 23.01 - 23.31. Since the bill as
enacted did not withdraw State funding for county school administration in counties
with even one common school district, there was no need to increase the powers of
those districts. Thus, our conclusion that section 17.99 has no effect actually
furthers the legislative intent reflected in House Bill 226 as a whole.
We are aware of a construction that would give section 17.99 some meaning.
It could be interpreted as applicable to common school districts located in a county
having no school district, whether common, rural, or independent, with less than
one hundred fifty average daily attendnnce. Rowever, the legislative history of the
bill and other provisions of the Education Code show that the independent school
P. 4629
Honorable Neal T. Jones, Jr. - Page 3 (H-1136)
district with less than one hundred fifty scholastics belongs in a discrete class of
school districts. Educ. Code S 23.02 (independent school district having fewer than
one hundred fifty scholastics); S 22.01 (common school district); SS 25.01, 25.02
(rural high school district). The limitation of one hundred fifty students does not
apply to the common and rural districts. We decline to edopt a construction which
is contrarv to the legislative intent ascertainable from the bill and the Education
Code taken as a whole. -See State v. School Trustees of Shelby County, 239 S.W.2d
777 (Tex. 1951).
SUMMARY
Section 17.99 of the Education Code does not require the
reclassification as independent districts of any school
districts.
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jst
p. 4630 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132420/ | E ATTORNEY GENERAL
OF TEXAS
AURTIN. TBfZKAS 78711
March 18, 1977
The Honorable Bill Clayton Opinion No. H-960
Speaker of the House
State Capitol Re: Construction of article
Austin, Texas 78701 249c pertaining to land-
scape irrigation.
Dear Speaker Clayton:
You have requested our opinion concerning the construction
of article 249c, V.T.C.S., which provides for the regulation
of the practice of landscape architecture. You have asked
us whether the Board of Landscape Architects may issue only
procedural rules for practice before it. You have further
asked that we reconsider our decision in Attorney General
Opinion H-495 (1975) that plumbing is a profession within
the disclaimer contained in section 12 of article 249c.
-- also Attorney General Opinion H-890 (1976). Finally,
See
you have asked whether a licensed landscape irrigator may
connect a landscape irrigation system to a raw or potable
water supply and whether a licensed plumber may do so without
a landscape irrigation license.
Section 4(a) of article 249c was amended in 1973 to
broaden the powers of the Board of Landscape Architects.
Before the amendment the Board could "promulgate procedural
rules and regulations only . . . to govern the conduct of
its business . . . ." Section 4(a) presently provides that:
The board shall promulgate procedural rules
and regulations . . . to govern the conduct
of its business and proceedings, and setting
standards governing the connections to any
public or private water supply system by a
landscape irrigator.
Clearly, the Board is now authorized to adopt regulations
setting standards for the connection to water supply systems
by its licensees; to that extent its rule making authority is
not limited to procedural matters.
P. 4002
- -
The Honorable Bill CiaytOn - page 2. (H-960)
In H-495 we decided that plumbing was within the meaning
of "profession' as used in section 12 of article 249c, which
provides in part:
[Plrovided however, that this Act shall
not be construed as repealing or amending
any laws affecting or regulating any other
profession.
Consequently, we decided that a landscape architect could not
perform work which was within the definition of "plumbing"
contained in article 6243-101, V.T.C.S., for section 14
thereof prohibits such unlicensed practice. Attorney General
Opinion H-495 was issued on January 15, 1975, at the beginning
of the regular session of the 64th Legislature. The statutes
were not amended, and in light of this apparent legislative
acquiesence we reaffirm our construction of section 12 of
article 249c.
As noted in Opinion H-495, section 2(a) (2) of article
6243-101 defines "plumbing" to include:
[T]he installation, repair and maintenance
of all piping, fixtures, appurtenances and
appliances in and about buildings where
a person or persons live, work or assemble,
for a supply of gas, water, or both, or
disposal of waste water or sewage.
The connection of pipes to a water supply is clearly
within this definition if it takes place "in and about
buildings where a person or persons live, work or assemble."
Subject to certain exceptions, only a licensed plumber may
make such installations. V.T.C.S. art. 6243-101, S§ 3, 14.
Where the installation is not "in and about" such buildings
it may come within the definition of landscape irrigation under
article 249c. See Sec. 5. Where it is so classified, with
some exceptions,only a licensed landscape irrigator may make
the connection. V.T.C.S. art. 249c, $§ 2, 5(b). We are
fully aware of the overlapping nature of the statutory
definitions and the ambiguities resulting therefrom, but
under section 12 of article 249c, the definition of "plumbing"
must predominate.
p. 4003
- -
The Honorable Bill Clayton - page 3. (H-960)
SUMMARY
The Board of Landscape Architects may
promulgate regulations setting standards
for connections to water supply systems
which are applicable to its licensees.
"Plumbing" is a profession within section 12
of article 249c. Where connection to water
supply systems constitutes "plumbing" under
article 6243-101, generally only a licensed
plumber may make the connection. Where it does
not constitute "plumbing" and is "landscape
irrigation" under article 249c, generally
only a landscape irrigator may make the
connection.
Very truly yours,
APPROVED:
DAVID M.,&ENDALL,
Opinion Committee
lfd
p. 4004 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132306/ | TWEATTORNEYGENERAII,
OFTEXAS
Aun~w. TEZXAS 78711
:
October 19, 1977
in
Honorable M.. L. Brockette Opinion No. H-1074
Commissioner of Education.
Texas Education Agency' Re: .&layterms of school
201 E. Eleventh Street district trustees be changed
Austin,,JTexas from six years to three
_ years?
Dear Mr; Brockette:
You have, requested:our opinion'c&ce&nq the following
questions; .,.
;i(l,)
~Bay a .echool,di.etri.ct
that has~.pre-
.~v&msly.instituted a texm 05~six years
for ite trusteea under.either,qeneral or
special law of this state revert back to
.....aterm of,,:threeyeacsiby ,a majority vote
: MI subsection.
~.of.i~t~B't~i1st~~'eursuant (bl
0f~Section 23.131 .'
. . ”
; ., ,; :’
(2).'If so, ~ho&~&&&ds ~hav&.unex~
.p,ired
terms as of thedate of We.election
at which the three-year term is adopted
. continue.~to'serve tihe.unexpLred,portions.
of their six-year terms, orishould one-,
two-.,.o'rthreeyear-eerms for all seven ‘.
trustees be .drawnby.Lot,as provided in
subsection.,( Section 23.13?. (:
-;: ., ,, '&
youadv!Use that :purssantto former article 27746, V.T.C.S.,
presently section:,23.;1,4~f.the,Education Code*,the Board of
Trustees ,of an i:ndependent~schoo,lB&strict adopted six year
terms by a majority vote. .Secti'on 23.14 contains no language
which ,would'preventthe Board from,revokinq its adoption of
six year terms. Cf. Education Code, ,9 23.11(f'):;See Attorney
General ~Op%nion.,?Iz6 (L~974),,: ~: 'I
I... I.,.
&ction~23.l3;ef me ~Educat&'Co& pxovides in part:
,: s !.(b) Th~eei& og trtrstees.m& be three
.(3),years in any!in&pendent.distri~ct-,other
than a county-w&de .d&trict 'inwhiczhthe
trustees, by a majority ~vote, adopta three-
year 'termand, at least'90 days .priorto a
Honorable M. L. Brockette - Page 2 (H-1074)
regular election date, publish in a newspaper
printed in the county in which the district
is situated notice of the election and the
terms for which the trustees are to be elect-
ed.
(c) Elections shall be held annually.
At the first regular trustee election after
the creation of the district or the adoption
of the three-year term, as provided above, the
seven trustees elected shall determine by lot
the terms for which they are to serve, as
follows: the three members drawinq~numbers
1, 2, and 3 shall serve for a term of one
year: the two members drawing numbers 4 and
5 shall serve for a term of two years: and the
: - two-members drawing numbers 6.and:7 shall
serve for a term of three years.
(d) Each year, following the first election,
eitherthree,or. two trustees shall:be elected,
the number dependinq~upon that required to
constitute a board of seventrustees.
Subsection ($1 clearly.authorizes "any independent school dis-
trict, other~than a,county-wide district" to adopt three year
terms by majority vote of the ,trustees.~Accordingly, in our
opinion any independent school district other than a county-,
wide distrrict.mayestablish three year terms for trustees by
majority~vote.of the board.
Your,second.question,is whether al.1positions on the board
must be filled at the next election following the adoption of
three yearsterms. Subsection (c) of section 23.13 clearly
contemplates that%even trustees" will be elected in 'suchan
election. Therefore, in our opinion all seven positions on the
board must be filled in the next election following an adoption
of three year terms., See Attorney General Opinions H-220 and
H-219 (1974). The ter%Tof those elected is governed by sub-
section (c) of sect.ion23.13.
., .S u M.M:A R.Y
Any independent school district other than
a county-wide district may adopt three,year
terms for trustees.by majority vote of the
board of trustees. Al.1positions on the
board must be filled in the next election
pursuant to subsection (c) of section
23.13 of ~theEducation Code.
P- ,,44?0,
:;
Honorable M. L. Brockette - Page 3 (H-1074)
APPROVED:
DAVID M. KENDALL, .First Assistant
c. ROBERT REATH,.ChairRIan
Opinion
: Comittf+e
jat "'
p. 4401 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4391021/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO SALAS-ANDAZOLA, AKA No. 17-72688
Ernesto Salas,
Agency No. A091-867-824
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Ernesto Salas-Andazola, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s order of removal. We have jurisdiction under 8 U.S.C. § 1252.
We review for abuse of discretion the agency’s denial of a continuance, and review
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
de novo questions of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009).
We deny the petition for review.
The agency did not err or abuse its discretion in denying for lack of good
cause Salas-Andazola’s request for a continuance, where he had eleven months to
prepare for his final hearing, and he failed to explain the relevance of the evidence
he sought to obtain. See 8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012 (listing
factors to consider). We reject Salas-Andazola’s contention that the agency failed
to consider relevant factors or insufficiently articulated its decision. See Mendez-
Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009) (concluding that the agency
applies the correct legal standard where it expressly cites and applies relevant case
law in rendering its decision); Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th
Cir. 2010) (holding the BIA adequately considered evidence and sufficiently
announced its decision).
PETITION FOR REVIEW DENIED.
2 17-72688 | 01-03-2023 | 04-25-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4132250/ | The Attorney General of Texas
March 1, 1978
KIHN L. HILL
rdttorney General
Honorable Patrick J. Ridley Opinion No. H- 1138
County Attorney
Bell County Re: Construction of the Speedy
P. 0. Box 474 Trial Act.
Belton, Texas 76513
Dear Mr. Ridley:
You ask three questions about the application of the Speedy Trial Act to
a trial de novo in county court following a conviction in justice or municipal
courts. The justice and municipal courts have jurisdiction in misdemeanor
cases where the fine does not exceed two hundred dollars. Code Crim. Proc.
arts. 4.11, 4.14; see Penal Code SS l.O7(a1(141, l.O7(a)(211, 12.23. In appeals from
these courts to the county court, “the trial shall be de novo in the trial in the
county court, the same as if the prosecution had been originally commenced
in that court.” Code Crim. Proc. art. 44.17. A portion of the Speedy Trial
Act, article 321\.02(4) of the Code of Criminal Procedure provides for
dismissal of the complaint if the State is not ready for trial within “30 days of
the commencement of a criminal action if the defendant is accused of a.
misdemeanor punishable by a fine only.” You ask when the criminal action
commences in cases of appeal to the county court for a trial de novo.
A defendant who appeals to the county court for a trial de novo has
presumably had a speedy trial pursuant to article 32A.02 in the lower court.
Article 32A.02 provides for a speedy trial, not a speedy appeal. However, the
appeal from a municipal or justice court vacates the conviction and transfers
the charge to the county court as if originally filed there. Code Crim. Proc.
art. 44.17; McIntosh v. Watts, 5 S.W.2d 1003 (Tex. Civ. App. -- Waco 1928, no
writ). The fact that the trial de novo is part of an appeal process should not
exempt it from the speedy trial provisions, which apply to retrial following
appeal as well as to the first trial. In our opinion, the trial de novo in the
county court is subject to~the requirements of article 32A.02.
The provisions of article 32A.02 describing the commencement of a
criminal action do not provide an answer to your question. The Act provides
that a criminal action generally commences when an indictment, information,
or complaint against the defendant is filed, or when he is arrested to answer
for the offense, if earlier. No information is required in the county court on
p. 4611
Honorable Patrick J. Ilidlcy - l’W! 2 (H-1130)
appeal from a justice court conviction, Knecdlcr v. Stnte,, 99 S.W.2d 605 (Ter.
Crim. App. 1936), and a defendant arrested following trial in the lower court is
arrested pursuant to a conviction and not to answer for the offense, see Code
Crim. Proc. arts. 44.13, 45.51. The general rule thus dots not apply to thecase you
inquire about. Exceptions for retrial following mistrial, an order granting a new
trial, appeal, or collateral attack do not apply either. Code Grim. Proc. art.
32A.02, S 2(b). We therefore turn to the criminal code provisions governing the
trial de novo to determine when the criminal action commences in county court.
The appeal to the county court is perfected when the defendant files a valid
appeal bond. Code Crim. Proc. art. 44.14. At that point the judgment of the
inferior court is superseded, and the county court acquires appellate jurisdiction.
Deal v. State, 423 S.W.2d 929 (Tex. Crim. App. 1968); McNamara v. Druse, 26 S.W.
506 (Tex. Crim. App. 18941. The justice no longer has authority over the case,
except to send it to the county court. Page v. State, 9 Tex. Ct. App. 466 (1880).
Accordingly, we believe that the requirement of a speedy trial in cases involving a
trial de novo begins when the defendant files a valid appeal bond.
You also inquire about the application of article 17.151 of the Code of
Criminal Procedure to a defendant who has appealed to the county court. This
provision states in part:
Section 1. A defendant who is detained in jail pending
trial of an accusation against him must be released either on
personal bond or by reducing the amount of bail required, if
the state is not ready for trial of the criminal action for
which he is being detained within:
(4) five days from the commencement of his
detention if he is accused of a misdemeanor
punishable by a fine only.
You inquire when the defendant’s detention begins within this provision.
There are two ways to give the county court jurisdiction of an appeal from
the justice court. Guenzel v. State, 80 S.W. 371 (Tex. Crim. App. 1904). The
appellant can file an appeal bond, in which case he is freed from custody. Code
Crim. Proc. art. 44.13; see art; 44.16; Chatfield v. State, 47 S.W.2d 315 (Tex. Crim.
App. 1932). If this happens, he has not been detained and need not avail himself of
the provisions of article 17.151. In the alternative, he can remain in the sheriff’s
custody. Burt v. State, 186 S.W. 770 (Tex. Crim. App. 1916); Guenzel v. State, M.
In this caqis detention begins when he is actually taken into custody following
conviction. See Code Crim. Proc. arts. 45.43, 45.51. If the State is not ready for
trial within rive days from the beginning of this detention, he is to be released
under the provisions of article 17.151, section 1.
p. 4612
Honorable Patrick J. Ridley - Page 3 (H-1130)
You finally inquire about the amount by which article 17.151 requires the bail
to be reduced. That provision states that the defendant must “be released either on
personal bond or by reducing the amount of bail required . . . .‘I In our opinion, the
bail must be reduced to an amount defendant can pay and thereby secure his
release. The amount of reduction necessary to release the defendant will depend
on the facts of each case. A token reduction of one dollar will not comply with this
section’s requirement that defendant “be released . . . by reducing the amount of
bail required.”
SUMMARY
A trial de nova in county court following conviction in
municipal or justice court is subject to article 32A.02 of the
Code of Criminal Procedure, providing for speedy trials of
criminal charges. The criminal action commences for
purposes of article 32A.02 when the defendant files a valid
appeal bond. The defendant’s detention, for purposes of
article 17.151 of the Code of Criminal Procedure begins when
he is actually taken into custody following conviction in the
municipal or justice court. The article 17.151 requirement
that defendant “be released . . . by reducing the amount of
bail” means that bail must be reduced to an amount he can
afford to pay.
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
jst
p. 4613 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132252/ | The Attorney General of Texas
February 27, 1978
JOHN L. HILL
Attorney General
Honorable Wilson E. Speir Opinion No. H-1128
Director of Public Safety
P. 0. Box 4087 Re: Whether a court is required
Austin, Texas 78773 to report certain convictions to
the Department of Public Safety
7o,cammuce,aunezm
Ddb.lx.-
where probation is granted.
ZW7-
Dear Mr. Speir:
YOU ask whether a judge may grant probation to a defendant convicted
of a traffic. offense punishable by fine only. Article 4, section llA of the
Texas Constitution provides for probation of convicted defendants under
conditions prescribed by the Legislature. This section of the constitution is
not self-enactii, Burson v. State, 5B S.W.Zd 948 (Tex; Crim. App. 1974);
State v. Klein, 224 S.W.2d 250 (Tex. Crim. App. 19491, and article 42.13 of the
Code of Criminal Procedure is the enablii act for misdemeanor orobation.
Lee v. State, 516 S.W.2d 151(Tex. Crim. Aps. 1974h see also Attorney General
Opinion C-492 (1965).
The court has authority under certaii circumstances to grant probation
to a defendant found guilty of a misdemeanor “wherein the -maximum
permissible punishment is by confinement in jail or by a fine in excess of
$200.” Code Crim. Proc. art. 42.13, S 3(a). Probation may not be granted
under article 42.13 for offenses where the maximum punishment is a fine of
two hundred dollars or less. See Attorney General Opinion C-515~(1965). If a
traffic offense is punishable ay by a fine of two hundred dollars or less, see,
s, V.T.C.S. art. 6701d, S 143(b), probation is not available to a defendant
found guilty of it. We note also that justices of the peace have jurisdiction in
criminal cases only where the fine does not exceed two hundred dollars and
thus do not have occasion to grant probation under article 42.13. See Code
Crim. Proc. art. 4.b Em 325 S.W.2d 386 (Tex. Crim. AE1959).
The jurisdiction of corporation courts is similarly limited. Code Crim. Proc.
art. 4.14; Ex parte Seals, 255 S.W.2d 215 (Tex. Crim. App. 1952). When a
defendant is found guilty of a traffic offense punishable by a fiie in excess of
two hundred dollars, see, e.g., art. 67Old, SE 159, 162, he may seek probation
under article 42.13.
P- 4603
Honorable Wilson E. Speir - Page 2 (H-11281
You next inquire about the application of article 6687b, section 25(b) in cases
where the defendant receives probation. Section 25(b) provides in part:
Every court having jurisdiction over offenses committed
under this Act, or any other Acts of this State regulating the
operation of motor vehicles on highways, shall forward to
the Department a record of the conviction of any person in
said court for a violation of any said laws . . . .
Section 25(e) defines “conviction” as a final conviction. Section 4(a) of the
Misdemeanor Probation Law provides as follows:
Sec. 4. (a) When a defendant is granted probation under
the terms of this Act, the finding of guilt does not become
final, nor may the court render judgment thereon, except as
provided in Section 6 of thii Article.
(b) The court shall record the fact and date that
probation was granted on the docket sheet or in the minutes
of the court. The court shall also note the period and terms
of the probation, and the details of the judgment. m
court’s records may not reflect a final conviction, however,
unless probation is later revoked in accordance with Section
6 of thii Article.
(Emphasis added). Since the probated judgment is not a final conviction, the court
is not required by article 6687b, section 25(b) to forward it to the Department of
Public Safety. Attorney General Opinions M-673 (1970); M-498 (1969); C-515 (1965);
.compare Attorney General Gpinion M-1057 (1972) (felony conviction may become
final despite probation under article 42.12). See also Standifer v. Texas Department
of Public Safety, 463 S.W.2d 38 (Tex. Civ. App. - Houston U4th Did.1 1971, no
writ). However, the Misdemeanor Probation Act itself requires that a copy of each
probationer’s fingerprints be sent to the Department, and that the Department keep
a record of misdemeanor arrests and their disposition. Code Crim. Proc. art. 42.13,
S 5(b).
You also inquire about the validity of a judicial order granting probation
which you submitted to us. Since we do not review judgments of the trial courts Of
this State, we decline to answer thii question. -See Attorney General Opinion H-905
(1976).
SUMMARY
Misdemeanor probation under article 42.13 of the Code of
Criminal Procedure is not available to defendants convicted
of an offense with a maximum punishment of a fine not to
‘p
p. 4yo4
Honorable Wilson E. S@r - Page 3 (H-1128)
exceed two hundred dollars. When a defendant receives
probation under article 42.13, hi conviction is not final.
JOHN L. HILL
Attorney General of Texas
APPROVED:
C. ROBERT HEATH, Chairman
Opiion Committee .
jst | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145596/ | :’
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Hon. Anaror Yatton
mt~~'t*Abt&rn"
#
Doer Pira Attention: Mr. pL+sQ w lJmt8lll
,i\
haion or tr0 pu8
~0dlng or d004.
haA been poatcr
6tato were not
shall bo ma40 by the iirat
the rpee4y ml., wlthoubtha
t in court, or a mri8imt
as and other property rer thr
eon, uta on erorymar thematter r0r
llke nannu: ar all lands and oshor
property upon whioh Oh. tax.8 hare not been midi
and the dred of winroyan4oto the pawoh-or for
allla~16sau6 othv property t&us #old ahall bo
held to mat a good'8ndperiod tit10 Im th0
purahimm thereoi, rubjeot to bo lrapeauhwl only
ror aotual fraudi prorid~4, that the rormm 0-F
ahallwithin two ywkrr from &et.0or the r5.m
tar reaord of the Purehailor”~ Deed hmve the rbt
to redoUP the land on the r0ii0nia6 bad*:
=(i) withinthe sir8t ye 0r the dmpti0n
periodupon the paymentor the amouut or money
9alQ ior tholoaa, inoltilngOne (#LOO) Dollar
hx DwI R800rdlngTOO ~6 all taxer, ponsltlo8,
iatuoot an8 lost8 p8id plus notoxroodia~ twonty-
sir. (8s$) peroolltor the oggrogato tot&la
"(8) ~Within'tholast year Of the radamptlon
period upon the paymentor the 60w or money
paid iOr the land, ineludingOne ($1.00)Dollsr
Tax Deed Yooordlng Foe and all taxes, penaltlos,
intu08t 0a 008t0 paia pbu8 not ~000alOg rifty
(so$) pexyont or the aggregate tot&l.-
&tlolo 'Iam,Rorlo.4ClTll statuto8, as apondoa*
road0 00 row:
vh0 owner 0r the rosl estate sold ror uto
payment of tome, or his heir8 or aulgu or legal
ropruontatlroo amy, tithln two (a) pars after the
date of riling #or roeora of the puohoooro dead,
havothorlgbt to rodoomtho land onthofollowlnu
baolq
=(l) Within the flret you of the ro4oaptIon
or mh0y pau
the pp0nt 0r the m03tt.e
d, lnolualngon. Dolmr ($1.00) tax
boa rooomilng r00 0a4 0u tax08, p0nOltlo8, inter-
at awl 8osts thsroaftarpaid tltoroon pLu8 ton par
oont .(+0$) or the ag8rogto total.
'$2) Withinthe lost ye&w of the rehmption
period upon the payment 0r the emouut 0r money pal13
ror the land, includingOne Dollar ($1.00)tu (Loo&
rooordlngroe and all tuos, pe~altios,intorootmb
uste thoroaftu paid thoroonplus twenty pu Out
(80$)of the aggregatetotal.
Vrorido&, that eubjoetto the ownox% right
to re&oom as aforoea i 6, any lioa holderor party
iatorosbl may within the Wne abore opoaifl?dro-
them raid property under the ow prorislons.
lso o .8.Thlo Act is intendedt4 apply to and
aorern tha amuut nooossaryto be paid ror rodamptlon
froa all mete, carmty,~nlolpol
. - and/of dlstrlot
_a*_- --I_
Veo .8.Inlddltlor,
to rodeoalna diroot
from tho purohasor,robqtlon MY alsa be-made k8
groridod in Artlolu t&34 ai t?ioR wlo o dCiiil '.\'
8~tUtO8 Or TOFU Or 108b.*
btiti. r+O, ~OViOOd Ciril.8tatUt.8,
a8 UOJId@d,
rude a0 r0Zlarr:
Whenever load i8 0014 under a doeroo8nd
f\pdguntor Court tar tuoo lotiodby ar for any
aOtI?iOt Ug81dSOd OadU th0 iW8 Or th0 Sati Oi
~~UUdthO~thOdtJ tO1O~Wdoo~~t tUO8, the
o wnero tluoh geoperty,or oapno haviiyan IntoroOt
lhll
‘tb o r o ln, hate .tho right to rodoea the sue at
_: et mash ml.."
titlolom94b,PwioodP&vil statutoo,&8 aaendod,
~0 0 r0oll0tr.t
rlhmovor lams! 18 0016 uador a dooroo urd
Judmnt of oourt
for tOroe loriodby or ior the
State, or by ‘or for auy copaty ulthln ,$ho 8kto,
the'ewnu or oueh property,u anyone hmiga UL
~intoroot thoroln,&all have-theright to rodoa
thmMIm~tulytlwwlthintwo US frOB th. ht.
tirlu0h ~10 up o np a y m e0r
ntLOUF 10 th0 -t p a id
by the porOhaOOr at lU8h 8010; provldodthat Ui8
purohaou at ouoh tor#OlOSurw Oslo, and hl8 asolgu,
&all not be ontltlodto the poo8us1on of the
property 00ld ror twoa until
th e
lrgdr~ti~n of
two 708rS rroppthe date or'0u0h 0al.o..
8inOO &tiOlO '1=, ~0riS.dairi 8tatUt.8,vOWfdO8
that ii any land oold to the Stats pador tu ?oroolosurosale
is not rodoomodwithin the time prooarlbodby law, the shuiti
Ohti.;l 801l th. OiLO at plbllo Orptarjr,it bOOOPb8,liOOO88~ %O
dotorslao what periodor time lo allwod t&o londownordthla
whloh to ro&oomtholond thus 8oldundor tomolo8~o sale.
fr Artlolo7883 governs,thon2ho landownerwould hate tm
YO~B Rro!B
- ._ th?.dptp 0r iilia6 ror roooya_ ?r.“! p\trclhMU*S
--- ._
Bon. Amlrww Pattoa, June 12, 1939, Pago 4.
Mlolo VIII Se&Ion W, 'hniMtutlon ai Texas,
Ia the only pnmldon Lathe Con8tltutloatouohfnglapon
the right 0r a h4d0UtlO~to HaOOlR ma Sold r0r aolln~uant
t6XM. huwer, the Leglolaturomey make provlsfonsror
mmh rdozzptlon In sltuatlononot oororedby tho Constltu-
tl.on.Hinksonv. Lmenxo Inaopna~t schoolDistrict,109
a. ‘a’,1008i a08 *oDallas Countymy IzqnwopabntDiot-
dot v. Ihgoq 2% b. w. ox) ,tBB.
In the oaso of Elnkacnvr ba Indo~ondant
&boo1 Diotdot, aupre, the Sob001dlstrlct8usG Hin
ror duinquent taue aa obtained a judgrcont0f roro-
UoOWO. said foaepent al80protidedthat the owner
8hmldhe~othorlghtto rwdownaaldlow3 atonytlaotith-
in tU0 #@~a fZWSth0 hkt0 0fOu0, W- pY.WaOr Qub&
the amunt pad by the pOrahCI8U at the wil.. The land-
4moroomplalnode+ftholattorpart ofraid jpdgment,eon-
tona1ngthnthoSlmuldh8Te tbo rightt43rodoaL3tholand
Pldu ktioio mt3s, u ~oodso, upon pqtit0ttt 8r thbramttnt8
thorol.nprovided. no quote r- me oourt*s0pinLona0
iollmrr
-0 oomot aooodoto this 00ntQLtion.
The Old art:010 ‘Pi?83 IntO a plrt Of SOOtiOa 19
of the hot or 3.806,o. 152, p. 259, whioh dealt
rithuluof lad ibrtaxesbythstaxoollw&vrr
uador sumtuy prooea, and had ao roforenooto
go2 maa8 under fntgaente or ioretrlom at tu
. Z&xeowr, that act, llko all others pdac
to the owiotnient ai ar:;lole 7B4a in 19.OE?, had
roforenooto #al08for taxeo duo the atate, maa-
tloa, am? bitlea. Hone 0r th03thaa any w0rcm00,
&usafara8 the matter 0r red66ptlon18 00noOmmd,
to mhti 0r roU 08tate wrier roratolom 0r tu
3.iien8OUin~ to SOhO and OthSrdtstrlatsmt0d
under the lare of tAe state. no oonst.ltutloMl
provlolon for ouoh rodomptlon,artiolea, section
13, &ppiiOd Onw t0 SU243RI7 8tiO6 IMaO bp tar
W~eCtOII3 tiORtho tar muUs ard Rot to 8aiO8
smae unaer fOrOt3iO8UPB 0r tax uons by 00uxt juag-
nonts. city or San 4ltonlo v. Berry, 92 'pa. 319,
48 S. b".496; C~ll.iDe et al T. Porgueonet al, 22
Tax. Clr. App. 652, 56 9. 2, 225. There is nothing
in th. 1StO ~OndmeIlt8 Or 0ith.T the COMit~tUtion
or the otatuto, art10109283,rhlohuould lndleato
on intention to lxtond tholr applloation.*
I
.’
Artl0l.e?n34a md 9%ub, hrlimd Cirilst8tutu,
uere enaot4bU h 1927, end Artioio9LB3, aa emaM&., ma8
ulaotedin 19x5. me llmgpage0s.d In seotionEimf Artiolo
92SS la ray broad aad,:to ly the 1-t' mm.00 rory alom
to making #at etatutoapply to 8ohooldistriattax 8al.s
and to nlu aade aftor mart foxwolo8ur~a, as roll 8a
oluauwyshl.8. Zba Legtsiatu~ ha6 not obeyed LLrsmandato
Of IlttiOiO m1, 6OOtiOn is, Of the %IStitUtiOn Snd hMJ
ma&s ~3 prmisloa for the 8ale of land Sor dallnquunttaxea
ulthoutthe neo r 88ity o fluita in oourt. The 03nrrtnOotlon
plaesd0a iet20ie 7283 by th0 hrariu COW 0r cidi Ap
~8 in th0 -AI 0a8e,tbw0x-o. ~08 aaid kti0i0
f&3, at i8a8t ror the prumnt, bqwatlve.
teollag&peii8dto mllu thecourtof Ciril Ap-
*a18inthoEhkmntoLorenzo I&epndontSohoolDiotrloti
8aae,~tla0ur0plsloathatArtlole 9@34b,Ravtr~Cldl
Stetutaa would govern the prioa ot rod4baptton
in the
oaao tit& uhbh ue are &we 8onurml. It follouathat
the parfod of ndaaptlon allowedthelandarm haa lrglred
ondtheland p~rsntionmaynoube aoldumiartho prorlslona
of &t&01@ t888, Rwlred Clril Statutea.
Yours vary truly
ATTOR?4EYQBfi5RALC@TJ!ZAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145126/ | OFFICEOFTHE A-ITORNEY GENERALOFTEXAS
AU6WN
Eon. ci5rm-d 33. Jones, me65d6nt
T6X66 ~6iUlO10.ogi56fi1 C0116~6
LubboQk, %‘6X66
we hare r0r aoluuml
85, 1940, uhioh w6 quoter
er edv56ed that one-ha3.r 04
r06t ch50ag0 urd 02wdr or
*bile 8h6r6 will be pro-
teotd by @i6 peasrcit tmpadr trcnining fm1&6.~
Although your letter xerer6 to Senate Bill 439,
A6t6 of idI6 46th L6gialature, w6 a66usn that, 6iJ%QO your
appropriation 16 found 56 ROW6 Bill &85, pSS6e6 by the
66m LB 56lature you laeant to rerer to th6 laG*et as*.
Upon th&l 666674&5O~I WI) rUther 5nt6XQr6t FOtW l.dt6r 66
cautng rar a det&t5on .at the qu66t56+4mthr th6
trip pXOQO6Qd is irn: 6tate b65&666, Witi th0 ~066&@ Or
Honorable Cllrford B, Jone6, president., -6 E:
subsection 6 0r ths general rider appendeb to Eou6e all.
e55. whioh sub6mtIon r6ads 66 mllow6:
*Trar&ing E~&~Ml606. dll peZXOIl6 MFlOyS&
in My capadty bp the66 state eihaoationd ialrtl-
tUtiOlI6 tUld8&3n&36 Who tX9VOl at the eX'pM64
Or the State, am he+e~by 1lmltetIfo the 68me
e16OWt6 auth~r%60d for 66qdoy666 of the 8t6te De-
~JWkSmXt~ Wd the C66QtrO~62664106da di6bUE6ing
6rrf06r 6W.l reuuire the 66meme$hodig orair
p6entatIon end r0aps. HO trs!re15ag 6XpSnr66
Shf511 be iMUrrOd by 6&y 410plOy44 Or 6aJ7 or the
66hOO16, OX O%her agene5;6 &afm~heroin, OUt6166
or the bounda I66 or the #tat@ at TOXWB, exaept
.torSt6ttebwiW6.6, pad upon the adw.nae.rribtcu,
6oMfBR~ Or th6 8ohO4lt6 si#NLd Or R4gWt6 Or Did-
X06%0X6. %‘hS ~OdaiOzl6 Of th$S AGt dth W3fem
8868 fo txw4ling aDO46 *hall not .amJr -tfJ th4
h66d6 Of th6 ill6tit3 5-6 Xhht8 tn th56 A96 IlOX~
1.The brip mW% bP)rOX th4 htQQOY8pii6hRMtOr 6%6t4
bMdii666, QOUTIO, has refermaa to tih6t 6t6tO bWi-
‘W&B, of
ma66 wimh $6 cxmunitted t;othe,pWtiWl6r ~inr@tUtiOa by &Ioh
the psrson I6 eaploye4. ft.&m6 not 6~ift61&Qte t&d 61$em-
ployee or.66 bduaat5onarl InrtIt,utIoni66y~mM69a trip eutsI&a
Or $he etat6 Of %X66 UF tN65rte6~3
Whiah 6046 Wt OOJlQ.XRoh4
butSee #id porull or. hI6 In6tItut&oa, butwhldh b-6 oi666CW
6t6te bas5n666 eomm5tteb.'bo emtheier'aad4#6tiiMktsgm8y 6f the
etatee
priot to t&s aralcirrg
4r u lJ.&@out6Iao or the bwtld-
fionorable curr0ra B. SOnC6, prc61405t, page 3
tution, the advanac wrltfen eonecat of the mati of Regents
or Dlrcotors or the echoolawt be obtaIned. This, of course,
aontczapl6tca that the Board or gcgonts dr Directors 6bal1, In
the rirst InetanaC, determine whether the purpose or the trip
la the aooozipliahmcnt ot 6td6 bueinesc oolwittcd to ths Iu-
6tItutIon which they govern, and whether It 5s ncoescary that
the trip be mud8 ror the aoeomplI6hment of such busIncs8.
VB regret to Cdri6C that your letter doe6 not glvc
w 6uffIoIcnt lnrormatlon (~6 to the uaturc 0r the organization
whloh wl.L1mcet at ChIaagO au6 the bwlnwo to be traneaatod
*here by alas Johtmon, to Caable u6 to paw upon the queetlon
whether oz not the Mp has ror its purpose the hransaotlon
0r crtatc busIncs8 oomatttrd to your in6tltutton. xt would 60~45
that the trip Inrolre% t$c dcvclopammt or a progma 56 Home
~OllWiO8 Rc6CaPOh. WC do not, however untlcrstsad the state-
y&UAt -it really iTMU6 fhtitiiSi66'JO&16m 16 uXp0atCd $0
a. The question or the attcnaanos or xi66 ~ohucon upon
the Institute 5s not one ta bc Uetem5ned by tie ~titutc,
but aa indlaated abwc, by the prop2 6uthoritiC6 or. the ool-
leg6 . $,5kQwiao; the question a6 to ,wht?thera progrcunof Boz6~
$00lUdO6 RCsesrah Shotid be In your colle8c la 0~
rnr the 66tcxm5nation or the of your mllcge
rather than ror the aCtCmbdiC6 0r the x'nstituts Ct chIcago.
8ilNC YOU 00 JLd Stat0 that JOW .iMtitXZtiOn de6ire6 ", h""
Xi86 JOhnsOn t0 chiO6@ f.n the iuX%harMCe ox U pr
gomae ~conomios ifcscarah a&opted or imder aowidcr6t OF on for
Pdoptlon by pour college authorItIcr, Cay ~xprcerbn the& ws
might g5rs upon the puestion whether 6t3tC~ bu65ncsti QOnOWR-
Iug your Instltutlon 3.6 iavolrcd In .%I# trip would be predl-
MtC4d UPOXA mere SLUd6C~ IIf ~000&,e6IXC t-0 6UbBIi.tto W u
adore detailed 8tatemnt or the Xaats 5uyolyCd,. we 6hC11 be
glacl to gins you an opinion thereon.
yeurs very truly
A'IZWNRY GBWYIRAL OF TEXAS
RIcham W. FairOhild
ATTORNEY GEXE=,& ~6sIst&nt
APPROVE
OPINION
CoMMrmE
lwa
c | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142166/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable John S. Rudd, Jr.
Assistant Diraotor and Aotuarp
Teaoher Rotlrement Sfstem of Texas
Austin, Texas
(.
Dear Sir1
.,.
,.,, :
_'
.-.:!Wa
hare
in rhlobfou ask the
lOWin& thr88 qU8atfOIlst
. . i
.ox‘awardomade?
22 of Saotion 1 of the Teaoher Retirement _
Aot Vernon's Annotated Civil Statutes) pro-
V1td8S as lollowst
“(22) *Retirement* shall maan withdrawal
from serVio8 with a retirement 0llOWanOe granted
under the.provision6 ot this Aot."
: .
Ronorable John S. Rudd, Jr., Page 2
Subseotion 1 of Se,otlon5 reads as follower
"1. Service Retirement Benefits.
"Any member may retire upon written appli-
oation to tha state Board or !!!rUEt8eS. btiX8-
ment shall be OrrOotive ae or th8 end or the
sohool year then Ourrent, provided that th8 said
member at the time 80 spt30iriOd r0r his retlr8-
ment shmll have attained the age or sixty (60)
years and shall have oompleted twenty (20) or
more years Of oreditable ~8rVi.00,and
further that X0 retirement ehall be:8fP+eOt V8
prior to Auaust 31. 1941. Any member in ~aerv-
ice who has attained the age of seventy (70)
years shall be retired forthwith, provided that
with the approval of his employer he may remain
iIISBlTfO8." (Rmpheais fupplfed)
Thus, It la seen that the statute speoirioally pro-
vides that n0 retirement beOous8 Or s8l'ViOe."shallb8 8iieOt-
ive prior to August 31, 1941.“
.Subseotion 7 Of S8OtiOll 6 provid8s in part as fOllOws;..
"7. Optional Allowancea fOr'~S%rViO8
Retirement.
*With tha provision that no optional seleo-
tion shall be erreotive in 0880 a benerloiary dies
wlthdn thirty (30) days after retirement, and that
suoh a benerioiary ehall be considered as en aot-
ive mamber at the time or death, until the rlrst
payment on acoouut Of .any 88~~108 benefit beoomas
normally due, any member may elect to r8oeiVe his
membership annuity In an annuity payable through-
out life, or he.may eleot to receive the aotuttrfal-
equivalent at that time, of his membership annuity
in a reducedmembership annuity payable throughout
life with the provision that)
"Option (l).~ * * *"
Itls provided If a beneriolary dies within 30 days
after retirement that no optional aeleotion shall be efreotive
and that suoh benefiaiary shall be considered as an aotive mam-
her at the time of death.
Honorable John S. Rudd, J-r.,Pa'ge3
Subseotion~ of S8otion 5 reads In,part aa followar
"6. Return'& kooumalated Contributions.
"Should a member cease to be a teticherex-
aept by death or retirement under the provisions
or this Aot, he shall be paid in full the amount
of the aooumulated contributions standing to th8
oredit of.his individual aouount lo the Teaohar
Saving Fund. Should 8 member die befOX ratlre- _'
'
ment, the ,amount of his aooumtiated oontrlbutiona
atandlng to tha oredlt or his individual aooount
shall b8 paid as provided by tha’lewe of.,desoent
end distribution or Texas unless h8 has dir8Oted
the aooount to be paid otharwise.~ * *'**
If a-member dies within 30 days after rWiirem8nt;'
then Subseotlons 6 and 7 plaoe him in the position oooupled
by a mamber who died before retirement. Thererow. "the
amount Or his aoOrmtulat8doontrlbutlons Standing to the Credit
of his individual aooount shall ba paid as.provlded by the
laws or deSO8nt and ddstrlbutlon of TeIse unless h8 has dl-
reoted the acoount'tq be paid otherw~s8.W It roiiowfi that
your first question is answered in the arriX3~tiV8~
We now turn to your second question, i7harea.mem-
ber has made en optional selebtion under Seotlon b(7); is
the aotual reoelpt of'hls.flrst monthly payment a prerequl-
Sit8 t0 the 8ff8CtiV8lleSSOf the option? be think not, The
statute does not require It, end there would be no authority
or justirioationto read it Into the statute. The retired
member did not die mithin 30 days after retirement; end be-
fOX8 the first payment beoame due, the member seleoted his
option. It follows that a valid option was 8ffeOtad. Your
aeaond questton is; therefore, answered in theafflrmetive.
The person whom the member nominated or designated
under the optio~nala8l8otlon provisions would not be entitled
or have th8 right to a monthly payment or the membership an-
nuity until after th8~retired member had died. The first
payment b8Oam8 due while the retired~membberwas living. You
Eonoreble John Se Rudd, Jr., Pefie 4
are r8epe~.tf&l.yadvls8~,~therefore, that the September 30th
payment should be paId to the edminiatrator of the deoeaSsd
menbert estat8.
very truly yours | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132363/ | TWE.L%ITORNEYGENERAL
OF TEZXAS
AUSTIN, TEXAS 78711
June 22, 1977
Honorable Bob Armstrong Opinion No. H- 1017
General Land Office
Austin, Texas 78701 Re: Whether the School
Land Board may trade for
land pursuant to article
5421c-13 V.T.C.S., and
retain leasing rights.
Dear Mr. Armstrong:
You have requested our opinion regarding the authority
of the School Land Board to retain leasing rights in lands
traded pursuant to article 5421c-13, V.T.C.S. That statute
provides, in section l(a):
The School Land Board in conjunction with
the General Land Office is authorized to
trade fee and lesser interests in Public
Free School Fund Lands for fee and lesser
interests in lands not dedicated to the
Public Free School Fund upon a decision
by the School Land Board and the Commis-
sioner of the General Land Office that
such trade or trades are in the best public
interest of the People of Texas. Such trade
or trades may be made either for the purpose
of aggregating sufficient acreage of con-
tiguous lands to create a manageable unit:
for acquiring lands having unique biological,
geological, cultural, or recreational value:
or to create a buffer zone for the enhance-
ment of already existing public land, facil-
ities, or amenities. Such trades shall be
on an appraised value basis (such appraisal
to be made by appraisers of the General Land
Office and concurred in by the School Land
Board, and such appraisal shall be conclu-
sive proof of the value of the land). The
trades shall be for land of at least equal
value. The State of Texas shall retain the
subsurface mineral rights to oil and gas
wherever practical and in all events when
p. 4197
Honorable Bob Armstrong - page 2 (H-1017)
there is oil and gas production within fifty
(50) miles of such State land. Such trades
shall be by a deed to be signed jointly by
the Commissioner of the General Land Office
and the Governor. Failure of the Governor
to sign such a deed constitutes his veto
of the proposed trade, and the proposed
trade shall not be made.
You ask whether the statute's directive that the state "retain
subsurface mineral rights to oil and gas" includes a reserva-
tion of leasing rights.
Article 5367, et seq., V.T.C.S., the so-called "Relin-
quishment Act," enacted 1919, conveys to the surface owner
of all public free school lands as an agent of the state "an
undivided fifteen-sixteenths of all oil and gas which has been
undeveloped and the value of the same" on all such lands.
Greene v. Robison, 8 S.W.Zd 655 (Tex. 1928). Its purpose was
"to connect the surface owner more closely and less unprofitably
with the development of the minerals." Norman v. Giles, 219
S.W.Zd 678, 681 (Tex. 1949). The surface owner is authorized
to sell or lease the oil and gas found thereon. V.T.C.S. art.
5368.
Article 5421c-13, Section 4, however, which was enacted
in 1973, provides that "la111 other laws or parts of laws
in conflict with this Act are repealed to the extent of the
conflict." In our opinion, when the circumstances of article
5421c-13 are applicable, that statute, by requiring the state's
retention of subsurface mineral rights, must be deemed to pre-
vail over the Relinquishment Act in the event of any conflict.
Accordingly, it is our opinion that the reservation to the
State of Texas of subsurface mineral rights in lands traded
pursuant to article 5421c-13 includes a reservation of leasing
rights.
SUMMARY
Article 5421c-13, V.T.C.S., prevails over
conflicting provisions of the Relinquishment
Act, article 5367, et seq., V.T.C.S., and
as a result, the reservation to the State
P. 4198
Honorable Bob Armstrong - page 3 (H-1017)
of Texas of subsurface mineral rights to
oil and gas traded pursuant to article
5421c-13 includes a reservation of leasing
rights.
Very truly yours,
Attorney General of Texas
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
p. 4199 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132269/ | The Attorney General of Texas
January 6, 1978
JOHN L. HILL
Attorney General
Honorable William W. Day Opinion No. H- 1111
Criminal District Attorney
of Calhoun County Re: Source of payment of a
P. 0. Box 1001 judgment against Calhoun County
Port Lavaca, Texas ‘77979 Drainage District No. ll.
Dear Mr. Day:
You have requested our opinion regarding the source of payment of a
judgment against Calhoun County Drainage District No. ll.
In 1961, the Legislature validated the District by special act, and
declared it to be a validly existing and op?rating district under article 16,
section 59 of the Texas Constitution. Acts 1961, 57th Leg., ch. 339, at 716.
The act provides that the District is
vested with, all of the rights, powers, privileges and
duties conferred and imposed by the General Laws of
the State of Texas now in force and hereafter enacted
applicable to water control and improvement districts
. ...
Sec. 1. In June, 1977, a plaintiff secured a judgment against the District for
damages to his property resulting from the District’s construction of
improvements on Agua Dulce Creek. The Calhoun County Auditor, who also
serves as auditor for the District, has asked that you determine which of the
District’s statutory funds should be used to satisfy the judgment.
A water control and improvement district is required by the Water Code
to maintain at least two separate funds, a construction fund, section 51.351,
and a maintenance fund, section 51.352. The construction fund must be used
to pay expenses, debts, and obligations necessarily
incurred in the creation, establishment, and main-
tenance of the district and to pay the purchase price
of property and construction contracts, including
purchases for which the bonds were issued.
Water Code 5 51.351(b). We do not believe that the payment of a judgment for
damages may reasonably be said to be an obligation “necessarily incurred in
the creation, establishment and maintenance of the district.“.
P. 4550
Honorable William W. Day - Page 2 (H-1111)
The maintenance fund must be used
to pay all expenses of maintenance, repair, and operation of
the district except the expenses of assessing and collecting
taxes for the interest and sinking fund. Expenses for
collecting taxes for the interest and sinking fund shall be
paid fro,m the interest and sinking fund.
Water Code S 51.352(b). Section 51.352(c) provides, however, that a district
may pay from the maintenance fund other expenses for
which payment is not provided in this chapter.
No specific provision is made in chapter 51 of the Water Code for the satisfaction
of a judgment against a water control and improvement district. In our opinion,
such payment should be deemed to constitute “other expenses” and therefore,
payable out of the maintenance fund.
The Supreme Court’s decision in Harris County Plood Control Dist. v.
Mihelich, 525 S.W.2d 506 (Tex. 1975) supports this view. In that case, the Court
mt a water control and improvement district should use its maintenance fund
to satisfy a judgment for damages under the Texas Tort Claims Act. Id. at 510-R.
See also-Hrown County Water Improvement Dist. No. 1 v. Austin Mill annrain Co.,
-2d 523 (Tex. 19401. Thus, it is our opinion that Calhoun County Drainage
District No. 11 should pay a judgment of damages rendered against it from its
maintenance fund.
SUMMARY
Calhoun County Drainage District No. 11 should pay a
judgment of damages rendered against it from its main-
tenance fund.
Attorney General of Texas
APPROVED:
%JLlLL*
DAVID M. KENDALL, First Assistant
p. 4551
Honorable William W. Day - Page 3 (H-1111)
Opinion Committee
M
P. 4552 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4391028/ | IN THE SUPREME COURT OF THE STATE OF DELAWARE
IN THE MATTER OF THE §
PETITION OF JAMES ARTHUR § No. 92, 2019
BIGGINS FOR A WRIT OF §
ERROR §
Submitted: April 22, 2019
Decided: April 24, 2019
ORDER
Following the denial of his motion to proceed in forma pauperis on April 3,
2019, the petitioner was directed to pay the Court’s filing fee by April 18, 2019, or
else his petition would be dismissed without further notice. The petitioner has not
paid the filing fee. The dismissal of this petition is therefore deemed to be
unopposed.
NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rules 3(b)(2)
and 29(b), that this petition is DISMISSED.
BY THE COURT:
/s/ Gary F. Traynor
Justice | 01-03-2023 | 04-25-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4144985/ | . .
THE A-IT~RNEY GENE-L
OF TEXAS
Hon. Edgar-E. Payne
County Attorney
Hockleg County
Levelland, Texas
Dear Sir: OpinFon No. O-1423
Re: .IsRoy Dunn, Justice Precinct No.
5, Hockley County, Texas, a pub-
lic weigher?
Your request for an opinion on the following question
and statement of facts has been received:
"IS ROY DUNN, OF JUSTICE PRECINCT NO. 5,
HOCKLN COUNTY, TEXAS, A PUBLIC WEIGHER?
"Statement of facts.
For the past several years, there has been
elected a public weigher for Justice Precinct No.
5, Hockleg County, Texas, under authority of
Article 5683, Rev. Civ. Statutes 1925, and a
public weigher was so elected for said Precinct
on November 8, 1938, and he has complied with
the requirements of Chapter 6 of the Rev. Civ.
Statutes and has quallfted as said public weigh-
er, was sworn in Andyhas received his certifi-
cate from the Commissioner of Markets and Ware-
houses as well as his Commission of office.
"Prior to thts year (1939). the elected pub-
lic weigher has weighed cotton at the Lubbock
Compress Company at its office in Levelland,
Texas, and a charge of 10 cents per bale of cot-
ton has been made for his weight tickets. Wheth-
er or not the public weigher was paid a salary
for hFs services, received the 10 cents charged
for weighing, or worked under some othertrade
or agreement with the compress company, I do
not know and I believe is Fmmaterial in arrlv-
lng at a correct answer to the question here
involved.
"Sometime during the past year the present
. -
Ron. Edgar E. Payne, page 2 O-1423
elected public weigher was offered a salary to
weigh cotton at the compress company's office
and he refused their offer.
"Roy Dunn has never been elected to the of-
fice of public weigher of said Precinct No. 5.
"Roy Dunn presented a bond to the commission-
ers ' court of Hockleg County, Texas, and the court
passed the following order:
"'WHEREAS, Roy Dunn has presented to the
bommlssioners' court a good and sufficient bond
as public weigher of cotton, wool, sugar, grain,
hay and pecans in accordance with law in the sum
of Twenty-five Hundred ($2500) Dollars, and
'WHEREAS, he desires to weigh for compensa-
tion for the public, and
'WHEREAS,'he is a resldent citfzen of Prec.
'No. 5, Hockley County, Texas,
"IT IS THWHPORE, ordered by this court
that this bond.be in all things approved and
that the County Clerk of Hockleg County notify
the Commissioner of Markets and Warehouses of
Texas of the approval of said bond.
ATTEST: (Signed ) C.D. Bass J. A. Ellis
County Clerk (Signedj County Judge'
whfch said order, you will note, is not dated
but was filed in the office of the County Clerk
of Hockley County, Texas, on the 10th day of
January A.D. 1939, and that portion of the or-
der relative to notifying the Commissioner Mar-
kets and Warehouses has been done by the said
clerk.
"Roy Dunn was not appointed as public weigh-
er by the Governor upon the recommendation of
the senator and a majority of the representatives
from this senatorial district, in fact, has not
been appointed.
"The following state of facts also exist:
1. Lm, TEXAS IS THE ONLY CITY AND/OR
TOWN LOCATED WITHIN SAID JUSTICE PRECINCT
NO. 5;
.
Hon, mgar E. Payne, page 3 o-1423
2. LEVELLAND, TEXAS HAS NEVER RECEIVED IN AhT
ONE YEAR ONE HUNDRED THOUSAND BALES OF COT-
TON FOR SALE OR FOR SHIPMENT; Art. 5681;
3. LEVELLAND, TEXAS HAS NEVER RECElVED AS MTJCH
AS FIFTY THOUSAND BALES OF COTTON, TWENT?-
FIVE THOUSAND TONS OF COTTONSEED, NOR THE
AMOUNT LISTED OF ANY OTHER COMMODIT1 NOR
ANY COMMODITY IN LARGE QUANTITIES; Art. 5681;
"Roy Dunn is not the owner of the Lubbock
Compress Company but has made some kind.of trade
or agreement to weigh cotton at the compress for
them. The company does not buy nor seI1 cotton
but only compresses and stores it and apparently
Roy Dunn has attempted to qualify under Article
5704 but there would be no need for the owner to
weigh cotton as therein provided,and the company
is not in a place where no public weigher has been
appointed or elected. Art. 5704."
As pointed out in opinion No. O-1188 of this Depart-
ment to the Honorable W. S. Bussey, Chief of the Weights and
Measures Division of the Department of Agriculture:
"Numerous opinions have been written by this
department on questions relating to pu'blic
weighers, first, who are appointed under Arti-
cles 5681.and 5692, Revised Civil Statutes,
1925; second, elected under Article 5683, Re-
vised Civil Statutes, 1925; and who qualify
y-&r AEti$i,e+2704,Revised Civil Statutes,
D
Roy Dunn is listed as a duly qualified public weigher
on the Fublic Weighers Ledger of the Weights and Measures Di-
vision of the Department of Agriculture as foliows:
"Roy Dunn. Levelland. Public Weigher.
Article 5704, Revised Civil Statutes, 1925.
Precinct No. 5- Certificate expires January
10, 1941."
Since Roy Dunn has qualified under Article 5704 of
Revised Civil Statutes, 1925, your question is whether or not
Article 5704 authorizes private weighers to qualify as public
weighers and weigh for hire where there are regularly elected
(Article 5683, R.C.S.. 1925) or a pointed public weighers (Art-
icles 5681 and 5692, R.C.S., 1925P .
Hon. Edgar E. Payne, page 4 O-1423
Article 5680 of the Revised Civil Statutes, 1925, de-
fines "Public Weigher" as follows:
"Any person engaged in the business of public
weighing for hire, or any person, who shall weigh
or measure any commodity, produce or article, and
issue therefor a weight certificate or weight
sheet, which shall be accepted as the accurate
weight upon which the purchase or sale of such
commodity, product or article is based, shall be
known as a public weigher, and shall comply with
the provisions of this chapter. The provisions
of this article shall not apply to the owners,
managers, agents or employees of any compress or
any public warehouse in their operation as a ware-
houseman. This exemption shall not apply in any
manner to any Texas port."
Article 5704, Revised Civil Statutes, 1925, reads as
follows:
"Nothing in this chapter shall prevent any
person, firm or corporation from weighing his
own cotton, wool, sugar, hay, grain or pecans
in person. In places where there are no public
weighers appointed or elected, any person who
shall weigh cotton, wool, sugar, grain, hay or
pecans fcr compensation shall be required be-
fore weighing such produce to enter into a bond
for twenty-five hundred dollars approved and
payable as in case of public weighers referred
to in this chapter, and conditioned that he
will faithfully perform the duties of this of-
fice and turn over all property weighed by him
on demand of the owner. This article shall not
apply to merchant flouring mills."
It will be noted that the statute reads that I'inplaces
where there are no public weighers appointed or elected, any
person who shall weigh, etc." The language of the statute is
not prohibitory. It does not state that in places where there
are public weighers appointed or elected, no person shall qual-
ify as a weigher for compensation". The statute cannot be con-
strued as a prohibition.
In the case of Paschal v. Inman, 157 S.W, 1158, the
Supreme Court of Texas held in an injunction suit instituted
by a duly elected and qualified public weigher of Justice Fre-
cinct No. 4 of Wood County to restrain Inman from conducting
the business of a private weigher in such precinct and for the
recovery of damages:
- .
Hon. Edgar E. Payne, page 5 O-1423
"The business of private weighing is a legl-
timat,evocation and falls within those ordinary
occupations of life which the citizen is privi-
leged to follow as an inalienable right, subject
only to such restraints and limitations as may
be imposed in a valid exercise of the police
power of the State. Since the liberty of pur-
suit as to such a calling is not dependent upon
legislative sanction, the author1t.yfor its
abridgment must rest in some positive and valid
l.egalinhibition. l. * *.*"
"It is c early recognized in the present
statutes tha& the election of a public weighe;n
in a justice precinct shall not operate as a
denial to all persons of the right to therein
pursue the business of private weighing." * * *'I
The case of Martin v. Fog, 234 S,W. 698, decided by
the Amarillo Court of Civil Appeals, is amp1.elegal authority
for answering your question in the affirmative, It holds that
any person has the right to pursue the occupation of weigher
for the public, and that the bond required of such weigher is
the,bona provided for in Article 7834, Complete Texas Statutes,
1920. (Article 7834 being almost identical with Article 5704,
R.C.S., 1925).
The court reviewing the legislation on the subject
said:
"We not only~do not find the 'positive inhi-
bition' against the pursuit of the business by
others than those appointed or elected, but, as
stated, the language used in the act suggests
the contrary purpose.'
and again --
"If it had been the intention of the Legislature
to prohibit any persons except all official weighers,
elected or appointed under the terms of the law,
from engaging in the business of weighing, it,,would
have been easy to have expressed such intent.
On August 6, 1926, George B. Terrell, Commissioner of
Agriculture, directed the identical question before us to
Attorney General, Dan Moody. It read:
"Under Articles 5680 and 5704, R.C.S., 1925, may anY
citizen other than an official weigher, elected or appointed
. -
Hon. Edgar E. Payne, page 6 O-1423
under the terms of the law, engage in the business of weigh-
ing for the public. I quote Article 5704 (7834) (4216), etc."
In a conference opinion dated September 2, 1.926,by
Han, C .L. Stone, Assistant Attorney General, and countersigned
by Attorney General, Moody, it was held:
"1* The business of private weighing is a
legitimate vocation and falls within those orj,f-
nary occupations which a citizen is privileged
to follow as an inalienable right, subject onl,y
to the valid exercise of the police power of
the State,
"2. Since the right of a person to engage in
the business of weighing for the public in not
dependent upon legislative sanction and the au-
thority for its abridgment must rest in some pos-
itive and valid legal inhibition in the absence
of such inhibition, a person is authorized to
engage in the occupation of weighing for the
public notwithstanding the fact that there is a
duly appointed or elected and qualified public
weigher in the same city, precinct, or county."
'On September 14, 1927, in the administration of Attor-
ney Generai, Claude Pollard, in an opinion dated September 22,
1927, by the Honorable Joe S. Brown, Assistant Attorney Gen-
eral,,it was held:
"As t.heCourt has held in effect, any pri-
vate individual shall have the privilege of
weighing for compensation by entering into a
bond for $2,500000 approved and payable, as in
the case of public weigher and conditions that
he vii1 faithfully perform the duties of his
office and turn over property weighed by him on
demand of owner. The statute does not provide
for any particular term of office. The time
which a person shall exercise an occupation of
weighing for the public it seems is left within,
the discretion of the person who qualifies under
the statute.
"It is the opinion of this Department that
such weigher who qualifies under Article 5704
would occupy said position so long as the public
for whom he is weighing is protected by a bond
as requires by the statute.
Hon. Edgar E. Payne, page 7 O-1423
In opinion No. O-1188 of this Department we have pre-
viously recognized the right of a private individual to
qualify as a weigher for the public under Art. 5704, R.C.S.,
1925.
It is our opinion that any person may qualify as a
weigher for,the public for hire under Articles 5680 and 5704,
R.C.S., 1925, and weigh for the public for compensation ir-
respective of whether or not there are regularly elected or
appointed public weighers in the same precinct. Since the in-
diviaual named in your~letter has posted bona in the statu-
tory amount and same has been approved by the Commissioners'
Court in compliance with Article 5704, R.C.S., 1925, and,cer-
tificate has been issued by the Division of Weights and Mea-
sures of the Department of Agriculture upon the authority of
thencourt order, we hold that said individual is authorized to
engage in the occupation of weighing for the public notwith-
standing the fact that there is a duly appointed or elected
and qualified public weigher in the same precinct.
We wish to thank you very much for the able brief
which you submitted upon the subject, end call your attention
to the fact that we are enclosing copies of opinions dated~
August 6, 1926 and September 22, 1927 of former administra-
tions of this department, the former being conference opinion
by Assistant Attorney General C.L. Stone to Hon. Geo. B.
Terrell, Commissioner of Agriculture and the latter belng
opinion by Assistant Attorney General, Joe S. Brown;to Hon.
Geo. B. Terrell, Commissioner of Agriculture, Austin, Texas.
Trusting that we have fully answered your inquiry,
we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
DS:ob By s/Dick Stout
Encl. (opinions dated Dick Stout
8-6-26 and 9-22-27) Assistant
APPROVED SEF 29, 1939
s/Gerald C. Mann
A'ITORNEYGENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145008/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
873
Bon. COO. x. 00x, pege 8
“Act. 7c50. Saoitory
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1.5.,
I~. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145010/ | Re: t!aqa & of,thecounty
bo&d ,octi@ees slrobold
tbd officdof t- for en
I ltbbpd& @Doldiatrict.
We ue la mpipt of yqy latter.of.,Septqba~5, W3pF In which
you mquest aa op2aionof thiiDqwtaee 6” to wZIstheror not a member
of.tbs coonty-6 of .truetece
may alab hold’t&x&?flce
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BO:RS:M | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4293014/ | Citation Nr: 1829320
Decision Date: 05/25/18 Archive Date: 06/12/18
DOCKET NO. 13-17 665 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine.
2. Entitlement to a disability rating in excess of 20 percent for right leg radiculopathy affecting the sciatic and common peroneal nerves.
3. Entitlement to a disability rating in excess of 20 percent for left leg radiculopathy affecting the sciatic and common peroneal nerves.
4. Entitlement to a disability rating in excess of 20 percent for residuals of left shoulder fracture with status post left rotator cuff repair.
5. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities prior to September 15, 2016.
REPRESENTATION
Appellant represented by: Karl A. Kazmierczak, Esq.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Van Wambeke, Counsel
INTRODUCTION
The Veteran served on active duty from July 1985 to April 1988.
These matters come before the Board of Appeals for Veterans Claims (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in May 2011 and July 2011.
The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2016. A transcript is of record. The Board remanded the claims in May 2016 for additional development.
In an October 2017 rating decision, the RO recharacterized the left and right leg radiculopathy disabilities as radiculopathy of the left and right lower extremities affecting the sciatic and common peroneal nerves, granted service connection radiculopathy of the left and right lower extremities affecting the femoral and cutaneous nerves, granted service connection for a left shoulder scar, and granted entitlement to a TDIU effective September 15, 2016. The previously-styled claims involving left and right leg radiculopathy and the claim for entitlement to a TDIU, have been recharacterized as reflected on the title page. The Veteran did not appeal the decision with respect to the newly service-connected radiculopathy of the femoral and cutaneous nerves or the shoulder scar, and those issues are not before the Board. 38 C.F.R. § 20.200.
The issues of entitlement to a disability rating in excess of 20 percent for residuals of left shoulder fracture with status post left rotator cuff repair and entitlement to a TDIU prior to September 15, 2016, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The Veteran's lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.
2. The Veteran has no more than mild incomplete paralysis of the sciatic and common peroneal nerves in both lower extremities.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 20 percent for DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017).
2. The criteria for a rating in excess of 20 percent for right leg radiculopathy affecting the sciatic and common peroneal nerves have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.124a, Diagnostic Code 8520, 8620, 8720 (2017).
3. The criteria for a rating in excess of 20 percent for left leg radiculopathy affecting the sciatic and common peroneal nerves have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.124a, Diagnostic Code 8520, 8620, 8720 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to
the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The Board notes that actions requested in the prior remand have been undertaken. In this regard, additional VA treatment records were obtained and VA examinations
were provided. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board acknowledges the Veteran's attorney's assertion that the VA examiner who examined the lumbar spine disability in September 2016 failed to document at what point during range of motion testing pain started, which is information important to determine the presence of ankylosis. The Board disagrees since there is no indication the Veteran's lumbar spine exhibited fixation in flexion, extension, or at zero
degrees due to pain (as required for a finding of favorable or unfavorable ankylosis, discussed more fully below) and the examiner specifically noted the absence of ankylosis.
Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown,
8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet.
App. 32 (2011).
Entitlement to a disability rating in excess of 20 percent
for DDD of the lumbar spine
Service connection for the lumbar spine disability was originally established in an April 2003 rating decision. The Veteran filed a claim for an increased rating in November 2010. The lumbar spine disability is currently rated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243.
Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1).
Ratings in excess of 20 percent pertinent to the lumbar spine are provided for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id.
For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5).
Note (2) of the General Rating Formula provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a.
Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1).
The Veteran seeks a rating in excess of 20 percent for his lumbar spine disability. He contends that the condition has worsened, as shown on magnetic resonance imaging (MRI) and that he had been referred for physical therapy and treatment at a pain clinic. In March 2016, he testified that his back had gotten to the point where he could not sit or stand for very long periods of time and could not walk more than 40 to 50 feet without having to stop and rest. He indicated that if he was driving, he has to stop every 30 to 40 miles to take a break and stretch. The Veteran testified to using a cane pretty much every day; having pain at a level seven on a daily basis, even with the use of pain medications; that his back pain affected his sleep because he was unable to get comfortable at night and he would wake up due to pain and spasms; and that he could not bend over to pick things up. When asked if he has really bad days, the Veteran testified that he did, especially if a cold front or rain was coming in and he described being down for the count on those days and not being able to do anything, which had happened a couple times, could last a couple of days, and had been so bad that he had needed help in the bathroom and to bathe.
The preponderance of the evidence is against the assignment of a rating in excess of 20 percent for DDD of the lumbar spine. The Board acknowledges the Veteran's assertions. It also notes that treatment records corroborate that he underwent physical therapy for his spine and that he also received treatment at a pain clinic. In order to merit the assignment of the next highest (40 percent) rating provided under the General Rating Formula, however, the evidence must show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The evidence in this case does not show either. Rather, the Veteran's thoracolumbar spine exhibited forward flexion limited, at worst, to 40 degrees, and the absence of ankylosis was consistently noted. See VA examination reports dated May 2010, January 2011, and September 2016; VA and private treatment records.
Consideration has been given to functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected lumbar spine disability. The Board acknowledges the subjective complaints noted above in the lay evidence of record, as well as the objective evidence of functional impairment in the form of pain following repetitive motion during the May 2010 VA examination; the objective evidence of pain throughout the entire range of motion during the January 2011 VA examination; and the objective evidence of pain causing functional loss during forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation during the September 2016 VA examination. In this case, the Board does not find any additional functional loss which is not contemplated by the currently assigned 20 percent rating. The Veteran has described functional limitations which are contemplated in the schedular criteria, see 68 Fed. Reg. 51,454, and the Veteran himself has not described additional motion loss or functional impairments during flare-ups which meets or more nearly approximates the criteria for the next higher (40 percent) rating. In light of the foregoing, the Board finds that a rating in excess of the 20 percent rating for the Veteran's lumbar spine disability is not warranted based on functional impairment. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca, 8 Vet. App. at 204-06.
Nor is the assignment of an increased rating for the Veteran's lumbar spine disability warranted under the IVDS Formula. This is so because there is no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Board acknowledges that during the May 2010 VA examination, the Veteran reported that he had been "down" on bed rest seven different times in the last year for four to five days; however, on further questioning by the examiner, the Veteran denied going to a physician during any of these episodes or being prescribed bed rest by a physician and instead indicated that he took to bed rest on his own accord. The Board also acknowledges that the Veteran testified in March 2016 that he would be down for the count for a couple of days, during which he would not be able to do anything; during the September 2016 VA examination, however, he denied any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months and none of the private or VA treatment records indicate that any bed rest was prescribed.
The Board has also considered whether the Veteran's service-connected lumbar spine disability manifests any associated objective neurologic abnormalities other than the already service-connected radiculopathies of the lower extremities so as to warrant a separate rating under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The Board acknowledges that an October 2009 VA treatment record noted that the Veteran had some urinary symptoms. There is no indication that the urinary symptoms were positively attributed to the lumbar spine disability in either VA or private treatment records and a July 2014 VA treatment record documents that complaint of difficulty urinating resulted in an assessment of urinary hesitance due to known history of benign prostatic hypertrophy (BPH), not the lumbar spine disability. Moreover, the examiner who conducted the September 2016 VA examination did not find that there were any other neurologic abnormalities other than those noted in the lower extremities. For these reasons, a separate rating for other neurological abnormalities is not warranted in this case.
Entitlement to a disability rating in excess of 20 percent for right and left leg radiculopathy affecting the sciatic and common peroneal nerves
Service connection for right and left leg radiculopathy was originally established in a December 2008 rating decision. As noted in the Introduction, the RO recharacterized the left and right leg radiculopathy disabilities as radiculopathy of the left and right lower extremities affecting the sciatic and common peroneal nerves in an October 2017 rating decision. These disabilities are currently rated as 20 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8720. The Board notes the Veteran is separately rated for bilateral lower extremity radiculopathy affecting the femoral and cutaneous nerves. Thus, the symptomatology associated with those conditions cannot be considered in evaluating the lower extremity radiculopathy of the sciatic and common peroneal nerves. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided).
Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Ratings of 10, 20, 40 and 60 percent are assigned for incomplete paralysis that is mild, moderate, moderately severe, and severe, with marked muscle atrophy, respectively. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a.
Diagnostic Codes 8521, 8621, and 8721 provide ratings for paralysis, neuritis, and neuralgia of the external popliteal nerve (common peroneal) nerve. Ratings of 10, 20, and 30 are assigned for incomplete paralysis that is mild, moderate, and severe, respectively. A 40 percent rating is assigned for complete paralysis of the external popliteal nerve (common peroneal) nerve; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. Id.
In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id.
In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6.
The Veteran testified in March 2016 that his legs were giving away out from under his weight and pressure and that they were locking up and releasing. He described the pain as aching and described his legs feeling like they weighed a ton at times. He reported that when he tried to walk, he had pain in both hips, especially when walking on harder surfaces like concrete. The Veteran also testified that he had numbness and tingling at times and it would go down below his buttocks, to the back part of his knee caps, and on the back side of his legs. It did not bother him as much when he sat, but if he was walking or trying to move or stand up, the pain would increase.
During a January 2011 VA examination, neurologic review of symptoms indicated that there was a history of weakness and numbness in the lower extremities, but no history of paresthesias or poor coordination. Neurologic examination revealed normal coordination. Detailed reflex examination showed hypoactive bilateral knee and ankle jerk; plantar flexion was normal bilaterally. Sensory examination noted numb, weak lower extremities. Detailed motor examination showed active movement against full resistance with bilateral hip flexion and extension, bilateral knee flexion and extension, bilateral ankle dorsiflexion and plantar flexion, and bilateral great toe extension. Muscle tone was normal and there was no muscle atrophy.
During a September 2016 back Disability Benefits Questionnaire (DBQ), reflex examination continued to show hypoactive reflexes in both knees and both ankles. Sensory examination showed normal sensation to light touch in both upper anterior thighs (L2), and decreased sensation to light touch in both thighs/knees (L3), lower legs/ankles (L4/L5/S1), and feet/toes (L5). Straight leg raise testing was bilaterally positive. The examiner noted that the Veteran had radicular pain/other signs or symptoms due to radiculopathy, to include moderate intermittent pain in the right lower extremity and severe intermittent pain in the left lower extremity, and mild parethesias and/or dysesthesias and mild numbness in both lower extremities. Nerve roots involved included sciatic nerves and the severity of the radiculopathy was noted to be moderate on both sides.
During a September 2016 peripheral nerves conditions DBQ, in addition to the same findings as noted during the back DBQ, the examiner reported muscle strength testing showed active movement against some resistance with bilateral knee extension, bilateral ankle plantar flexion, and bilateral ankle dorsiflexion. There was no muscle atrophy and no trophic changes. The examiner reported that both sciatic nerves and both external popliteal (common peroneal) nerves had mild incomplete paralysis. The Veteran had regular use of a cane. The functional impact was that the bilateral radiculopathy occurred with prolonged standing and walking.
The preponderance of the evidence is against the assignment of ratings in excess of 20 percent for radiculopathy of the left and right lower extremities affecting the sciatic and common peroneal nerves under Diagnostic Code 8720. The next highest (40 percent) rating requires moderately severe incomplete paralysis. In this case, neither lower extremity has objective findings that would equate to moderately severe incomplete paralysis. Rather, during the January 2011 VA examination, although reflex examination revealed hypoactive reflexes with bilateral knee and ankle jerk, the Veteran's coordination was normal, there was only slight reduction in motor strength, and muscle tone was normal without atrophy. There was no change in reflexes or the findings during motor/muscle strength testing between the January 2011 and September 2016 examinations, and the September 2016 examination continued to show the absence of muscle atrophy. Moreover, the September 2016 peripheral nerves VA examiner indicated there was only mild incomplete paralysis of these nerves. In addition to these findings, treatment records reveal that the Veteran moved his bilateral lower extremity against gravity without focal deficit in September 2013, August 2015 and January 2016, and that his lower extremities moved equally and were intact to light touch in June 2015. These findings do not support a finding of moderately severe incomplete paralysis so as to support the assignment of ratings in excess of 20 percent for the radiculopathy of the left and right lower extremities affecting the sciatic and common peroneal nerves under Diagnostic Code 8720.
Additional Considerations
The Board has considered whether the Veteran's disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2017); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111, 118 (2008).
Here, although the Veteran's attorney asserts that the Veteran is entitled to extraschedular ratings for his service-connected disabilities, the Board finds that the rating criteria reasonably describe the Veteran's lumbar spine and bilateral lower extremity disability levels and symptomatology.
For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40 (2017); Mitchell, 25 Vet. App. 32, 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, and interference with weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Thus, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's lumbar spine disability picture, and referral for extraschedular consideration is not warranted.
Nor is the Veteran's disability picture so unusual or exceptional in nature as to render the schedular evaluations assigned for his service-connected radiculopathies inadequate. In this regard, pain, weakness, fatigue, tingling, numbness, swelling and paresthesias are contemplated by the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations are, therefore, adequate. Accordingly, referral for extraschedular consideration for these disabilities is not warranted.
The Board acknowledges that it is remanding the claim for entitlement to a TDIU prior to September 15, 2016, and that the Veteran's claim for a TDIU is based in part on his service-connected lumbar spine and bilateral lower extremity disabilities. However, as noted above, any impact on the Veteran's employment would need to be considered for extraschedular purposes only if the schedular criteria are inadequate to rate his service-connected disabilities. Id. at 118 ("[I]n cases regarding whether extraschedular referral is warranted, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule."). As the schedular ratings adequately contemplate his lumbar spine and radiculopathy disabilities, referral for extraschedular consideration is not warranted.
In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against ratings higher than those assigned, the doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
ORDER
A disability rating in excess of 20 percent for DDD of the lumbar spine is denied.
A disability rating in excess of 20 percent for right leg radiculopathy affecting the sciatic and common peroneal nerves is denied.
A disability rating in excess of 20 percent for left leg radiculopathy affecting the sciatic and common peroneal nerves is denied.
REMAND
During a September 2016 VA shoulder and arm conditions DBQ, the examiner reported that reduction in left shoulder muscle strength was entirely due to the diagnosed conditions. The Board finds that a muscle injuries examination would be beneficial to determine whether the Veteran may be more appropriately rated under a diagnostic code pertaining to muscle injuries involving the shoulder girdle or arm.
The claim for entitlement to a TDIU prior to September 15, 2016, is inextricably intertwined with the claim for a rating in excess of 20 percent for residuals of left shoulder fracture with status post left rotator cuff repair. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA muscle injuries examination to determine whether the service-connected residuals of left shoulder fracture with status post left rotator cuff repair includes manifestations that would be more appropriately rated under a diagnostic code pertaining to muscle injuries involving the shoulder girdle or arm. The claims file should be reviewed by the examiner. All appropriate tests and studies should be conducted and the results reported in detail.
2. After undertaking the development above and any additional development deemed necessary, the Veteran's left shoulder and TDIU claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 01-03-2023 | 07-10-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4162732/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN T. CALLIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:16-cr-00003-JAG-1)
Submitted: April 20, 2017 Decided: April 24, 2017
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
Mark A. Yurachek, MARK ALLEN YURACHEK & ASSOCIATES, Falls Church,
Virginia, for Appellant. Heather Hart Mansfield, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen T. Callis appeals his convictions and the 240-month sentence imposed
after he pled guilty, pursuant to a plea agreement, to coercion and enticement of a minor,
in violation of 18 U.S.C. § 2422(b) (2012); and sex trafficking of children, in violation of
18 U.S.C. § 1591(a)(l) (2012). Counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), conceding there are no meritorious issues for appeal. Callis has not
filed a pro se supplemental brief, despite receiving notice of his right to do so. The
Government has filed a motion to dismiss the appeal based on the appellate waiver in
Callis’ plea agreement. We affirm in part, and dismiss in part.
A defendant may waive the right to appeal if that waiver is knowing and
intelligent. See United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our
independent review of the record supports the conclusion that Callis voluntarily and
knowingly waived his right to appeal his convictions and any sentence imposed within
the statutory maximum. Thus, we conclude that the waiver is valid and enforceable.
Even a valid waiver does not waive all appellate claims, however. Specifically, a
valid appeal waiver does not preclude a challenge to a sentence on the ground that it
exceeds the statutory maximum or is based on a constitutionally impermissible factor
such as race, arises from the denial of a motion to withdraw a guilty plea based on
ineffective assistance of counsel, or relates to claims concerning a violation of the Sixth
Amendment right to counsel in proceedings following the guilty plea. See United States
v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178
(4th Cir. 1993). Moreover, the appellate waiver in Callis’ plea agreement did not waive:
2
(1) any sentencing challenges he may have if his sentence was in excess of the statutory
maximum applicable to his crimes; or (2) ineffective assistance of counsel claims. Callis’
sentence is below the statutory maximum applicable to his crimes. To the extent Callis
suggests that counsel provided ineffective assistance, we conclude that ineffective
assistance does not conclusively appear on the record and, thus, we decline to address this
claim on direct appeal. * United States v. Powell, 680 F.3d 350, 359 (4th Cir. 2012).
Accordingly, we grant the Government’s motion to dismiss the appeal, in part.
We are charged under Anders with reviewing the record for unwaived error, and our
review of the record in this case revealed no unwaived meritorious issues for appeal. We
therefore dismiss the appeal in part and affirm in part. This court requires that counsel
inform Callis, in writing, of his right to petition the Supreme Court of the United States
for further review. If Callis requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a copy thereof was
served on Callis. We dispense with oral argument because the facts and legal contentions
*
Callis’ ineffective assistance of counsel claim is more appropriately raised, if at
all, in a 28 U.S.C. § 2255 (2012) motion. See United States v. Baldovinos, 434 F.3d 233,
239 & n.4 (4th Cir. 2006). We express no opinion as to the merits of Callis’ ineffective
assistance of counsel claim.
3
are adequately presented in the materials before this court and argument would not aid in
the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
4 | 01-03-2023 | 04-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145073/ | 611
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Orville S. Carpenter
Chairman and Xrsoutire Direotor
Texar Unemployment Compenration Commission
ladin, Texas
Dear sir:
on the oonatruo-
21b of the iie-
vised Civil Statut
haa been reoei Your requeet re-
oites the IO11
me6 rr0m a cezc
e logs produoed
. X himself per-
llkewlsa engage8
her individuala who
e cutting and hauling
the above stated laota, together with
your Commlsoioa has demanded of A COQ
ntributiona under Texas Unemployment Corn-
pensatlon Xct on wages payable for eervioes performed by f
and other individuals ior A company; that A company has re-
fused to pay the contribution demanded, olaiaing that aer-
rices performed by I and other individuals do not oonstitute
employment under the Act mentioned; that you hare requested
A oompany to 8how to the 6atioiaotiOn OS the Commiaalon that
the ~rsrvioeaperformed by 1 and other iudiv'iduale do not oon-
rtitute employment, wages for which are rrubjeot to oontrlbu-
Mona uuaer the Piot, and that A company haa rafha to make
any ishowingafter a lapre of more than four month8 time.
“^ __ll..” ._._._” ._ -- _.
Honorable Orville S. Carpenter, Page g
You state your que8tloa a8 r0110w8:
TJader the sboye 8tate or raot8,
doea Seotlon 19 (g) (1) of the Tax68
UaslPploymeatCompenration Aot (Art1010
SSSlb-17 (8) (l), Veraon* Texan Clyll
Statuter, lOi%) operate to m&e the
renloee perroraed by X and the other
ladlridusle, eenloelr perfomad ror
nagee, la the amploymeat or the A,oom-
PtXifl 18 the COlroli88iOa, Upon in8titQ-
tlon or 8ult by the Attorney Q6aeral
ror the oolleotioa or ooatributioar
from A Company, required to make any
8houiag other than the fact8 pn86at6d
above, together with a statement of
the amount of oontx$butioas and pan-
alties sued ror? .In other w~rdo, JBW
re8t it8 oa86 apoa the
the Collllnireion
fsllar6 of the A 008ipaayto ehnrto
th6 8atl8faotioa of the Commlsrloa
that X and the other ladirldudL8 h6y6
been and will oontlaue to be free
from ooatrol or dfruotloa over thu
perronnaao6 or tholr u0xvioes, both
under the oontraot of 8enio6 and la
faot?"
Artiole SSZlb, Seotloa 17 (g) (1). a8 lt now
roada Is as follow8r
"'&MPLOYMEHT sabjoot to the oth-
er provi8lons or thlr 8ubreotloa.
msane serylo6, laoludiag renloe la
Iaterrtate oommaroe,
provided that say senioerr perfomei
by an Individual for ages shall be
duemodto be 6mploymeat 8ubje6t to
thl8 Aot aale and until it ia
shown to the 86tisfaotioa Of the aom-
ai88ioa that suoh indiyidual ha8 been
end will ooatlau6 ,to be ime rr0m ooa-
trol or direotdoa over the perBmaaaos
or suoh aerrioer both nuder hi6 oon-
traot of senlee sad la f66t."
*Artiole S8881b Seatiioa S (a);
PaJIpdnt: On and at’ier January 1,
‘613
Honorable Orville s. Carpenter,Psge 3
1936, Contributionsshall accrue and
become payable by each employerfor
each calendar year in which he is
subject to this Act, with respect to
wages payable for em?loyruxtoccur-
ring during such oalendor year . . ."
Section 7 (a) then requires t&-all employers
subject to the Act shall, after January 1, 1936, make the
contributionsas provided by the other portions or the Act.
As to what persons or firms are liable for contribution8
under the Act, we look ror the derinitioaor employer. AT-
title 5221b, Section 17 (f) (1) and Section 17 (t) (4) de-
fines employer:
*Any employing unit which ror
some portion or a day but not neoes-
sarily simultaneously,in each of
twenty (20) difrerentweeks, whether
or not suoh weeks are or were con-
secutive,within either the current
or the preceding oalendar year, has
or had in employment eight (8) or
more individuals(irrespectiveof
whether the same individualsare or
were empl,oyedIn eaoh such day); . . .
"Any employing unit which to-
gether with one or more other em-
ploying units, is owned or oontrol-
led (by legally enforceablemeans or
otherwise) directly or indirectlyby
the same interest, or which owns or
oontrols one or sore other employing
unita(by legally enforceablemeans
or otherwise),and which, if treated
as a single unit with such other em-
ploying unit, would be an employer
under paragraph (1) of this subsec-
tion; . . .*
ae then refer back to Section 19 (g) (1) (nticle
5221b, 17 (g) (l), Revised Civil Statutes), quoted on page 2
or this opinion, ror the detlnltionof the term employmrmt.
The facts recited by your letter do not affirmative
that such sarvioes are servioes performed f'orwages
614
honorable Orville S. Carpenter, Page 4
employment of the A company, nor that same are performed
under a aontraat or hire. For aught the raata submitted
show, the contrast may be ior a turnkey job. The law
authorize6 yuu, it you have reaeon to believe that aertafn
individuals are employees aoming within the requirement@
of this partiaulw Aat, to permit the employer to present
evidence to your Commiaslon of the true relationship be-
tween A company, X and the at&r individuala. This you
have attempted to do by requesting the A oo&Kny to~shor
to the Commission whether such Individuala mentioned In ;lour
letter are employees of the A company. At this junation, we
comumnt that in our oplnnionnotice to the A company given
iour months ago to appear and establish the r8latlooship 0r
the individuals msntloned in your letter appear8 to 118to
have been sufrlalsnt time ror the A company to have aomplied
if it had 80 desired.
You hare asked ii the Comml8slon may rest its
or A oompany to show to the eatisraa-
aase upon the f(iiltIr8
tton of the Conmission that I and ths other individuals have
been and will continue to be free from aontrol or A.
The 46th Legislature ha8 provided in Artiole
5221b, Section 12 (6) as hollows:
"In the event the Att0rn8y Cen-
era1 shall ii18 suit or a claim ror
aontributlons, penalties or Interest,
a8 provided in this Aat, and attach or
rile as an exhibit any report or audit
of such employer, and an afrldavlt
made by any member of the Texas Unem-
ployment Compensation Commission, or
any representative or the Comm&881oa,
that ths aontrlbutions, penalties or
interest shown to be due by said report
or audit are past dns and unpaid, that
all payments and credits have be83 al-
lowed, then, aales the party resisting
the same shall rile an answer in the
Sam8 tom and manner as provided by
Artiale 3736, Revised Statutes oi Texas
of 1925, as amended by Chapter 239,
Act8 or the Regular session 0r the
Forty-second Legislature, said Audit
Eonoribl. Onills S. Carpanter, Pag8 5
or report shall bo taken a8 prime
raoie 8vldenoo thereor, and the pro-
seedings Of said UtiOlO U8 hereby
madr applioable to suita to oollsot am-
tWr~pion8, psnaltler or interest here-
..
In tier 0r thlr authority, ii uo amwer to the petiti0u be
riled and the arrldarlt meets tho roqulrements or the ltatPt88,
the rrwornaooount maker a prima taoie ease. It will support a
judgment.
On the other &and it the C~rrnisslanriles a petition
oontainin&$a 8worn aOOOU.Ut and a worn denial ir filed by the
d8i8ndMt there is a burden apon the Comm.irs~onand it8 attor-
ney8 to 8hOW mr8 than that A OonrpMy failed to make My 8hOw-
ing berore the Comnlrsion.
?h8 dofinitlon or ‘onpl.0 ing Unit" and ‘8Ep1Oyer”
@88 the working ba8i8 for (Lets
lnination Of liability. Until
tha COiWBi88iOushow8 that + and other individual8 ars poriol!m-
iug remi for A oompany ror wage8 or under a oontradt or
hire them 18 nothing in eridenor to 8u8taia a judgment against
A Ooir@ny. we prarume that your audit or th8 booka or A oom-
pany will sh0w tho money or wages it hi38pald, the number of
p8rSOn8 ~081v1&5 it and th8 bay8 Or weeki Of OSplO~t&.
There mU8t be a 8hOWlEg Of tba iaOt8 neoesaary to
OOn8titat8 bB “8IBplOr8r’ r8lfAtiOll8hipbefOr th8 OOWt my
how if the finding ot the 18 ba88d UpOn anf 8TidenOe.
COaPri88lOII
Laok of 8Ueh proor would probably ro8ult in the OOurt8 riding
that the Co~amireionloted arbitrarily in making it8 finding.
Pr00r t&t wa 88 were paid to I ror 88nioe8 would be raffialent
to discharge-%it 8 burden 0r proof ar to him, or pr00r that hl8
8emio88 were perfOrm under a OOntraOt Of hfrs. BL)WOvU, the
oBr8 rlnding that ho perrowsd 88l'ViOeSunder a OOntra8t WOtid
not be 8tIfiiOi8ut,8inoe the oontraot might be on8 whlah would
render hir an independent ooutraaotor. Sinoe your iaot 8ittIatiOu
8hOW8 neither a paymant Of wag88 , nor semi088 perrormed undrr a
oontraet 0r hir8,~it does not di8alOS8 a prlaa raoir oarr, sad
your qtmstion mu8t be answered negatively. The 8worn aooount
w0uld, or oourse,~rarleot the amunt 0r oOntrlbatiOn8, prualtle8
and interest claimed. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132342/ | TRE ATFORNICY GENERAL
OF TEXAS
AUWIWN. TEXAS 78711
August 9, 1977
Honorable Alexander Nemer II Opinion No. H- 1038
County Attorney
Anderson County Re: Whether a sheriff may
Palestine, Texas 75801 work prisoners on his pri-
vate property.
Dear Mr. Nemer:
You have requested our opinion regarding the following
question:
Is it legal for a county sheriff to work
prisoners outside of the county jail on
the sheriff's private ranching and/or
farming operations whether or not such
county jail labor is voluntary on the part
of the prisoners and whether or not such
prisoners are paid for their labor out of
the personal funds of the sheriff?
As you note in your letter, articles 43.09 and 43.10 of the
Texas Code of Criminal Procedure pertain to labor on the part
of county prisoners. Article 43.09 provides in part that a
convicted defendant may "be put to work in the workhouse, or
on the county farm, or public improvements of the county. . . ."
Pursuant to this provision, this office has stated upon three
occasions that county prisoner labor may be used only upon
county projects. Attorney General Opinions WW-36 (1957);
O-3809 (1941); o-1061 (1939). The precise question you raise
was answered in the negative by Attorney General Opinion WW-36
(1957). Accordingly, in our opinion a sheriff may not work
county prisoners on private operations under any ci??%mstances;
county prisoner labor may be utilized only on county projects.
SUMMARY
A sheriff may not work county prisoners
on private operations.
p. 4277
Honorable Alexander Nemer II - Page 2 (H-1038)
APPROVED:
DAVID h KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jst
p. 4278 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150828/ | Electronically Filed
Supreme Court
SCWC-15-0000882
07-MAR-2017
10:44 AM
SCWC-15-0000882
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
ONEWEST BANK, N.A., Respondent/Plaintiff-Appellee,
v.
WARREN ROBERT WEGESEND, SR. and THELLDINE LINMOE WEGESEND,
Petitioners/Defendants-Appellants,
and
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR
WASHINGTON MUTUAL BANK and MILILANI TOWN ASSOCIATION,
Respondents/Defendants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000882; CIVIL NO. 13-1-0909)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioners/Defendants-Appellants Warren Robert
Wegesend, Sr., and Thelldine Linmoe Wegesend’s Application for
Writ of Certiorari, filed January 27, 2017, is hereby rejected.
DATED: Honolulu, Hawaiʻi, March 7, 2017.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson | 01-03-2023 | 03-07-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289132/ | SUPERIOR COURT
OF THE
STATE OF DELAWARE
RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
1 THE CIRCLE, SUITE 2
JUDGE
GEORGETOWN, DELAWARE 19947
TELEPHONE (302) 856-5264
June 27, 2018
Alita Joseph Alcide Carla A.K. Jarosz, Esquire
248 North Conwell Street Depal'l'ment of Justice
Seaford, Delaware 19973 820 North French Street, 6th Floor
Wilmington, Delaware 19801
RE: Alcide v. Mountaire Farms of DE, Inc.,
C.A. No. Sl7A-12-004
On Appeal from the Unemployment Insurance Appeals Board: AFFIRMED
Date Submitted: April 17, 2018
Date Decided: June 27, 2018
Dear Ms. Alcide and Counsel,
Alita Alcide appeals the decision of the Unemployment Insurance Appeal Board (“the
Board”) to affirm the Appeals Referee’s decision that found Ms. Alcide had failed to file a timely
appeal from her denial of benefits. The Appeals Referee determined that, because this failure Was
not due to administrative error on the part of the Department of Labor, the Claims Deputy’s decision
Was final and binding The Board’s decision is affirmed for the reasons stated below.
Nature and Stage of the Proceedings
Ms. Alcide Worked for Mountaire Farms of DE, Inc. (“Employer”) for several years until her
termination in September of 2017. Ms. Alcide filed for unemployment insurance benefits on
September 10, 2017. A Claims Deputy determined Ms. Alcide had been fired for just cause in
connection with her employment Specifically, the Claims Deputy found Ms. Alcide was terminated
for attendance/tardiness Ms. Alcide had received prior warnings regarding her attendance
According to Employer’ s Attendance Policy, eight instances are grounds for termination Ms. Alcide
received her eighth absence on September 8, 2017, when she failed to appear as scheduled.
The Claims Deputy’s decision was mailed on October 5, 2017, and stated that the
determination became final if an appeal was not filed by October 15, 2017. Ms. Alcide appeared in
person at the Department of Labor to appeal the decision on October 23, 2017.
An Appeals Referee held a hearing on October 13, 2017, on the sole issue of the timeliness
of Ms. Alcide’ s appeal. The Appeals Referee mailed a written decision on November 16, 2017. By
way of that decision, the Appeals Referee held that the evidence presented established that the
Claims Deputy’s decision was properly mailed to Ms. Alcide at her address of record.
Ms. Alcide appealed to the Board. The Board considered the matter on its review calendar
and decided the appeal on the previously submitted evidence. The Board affirmed the Appeals
Referee’s decision by way of written decision mailed on December 22, 2017. Ms. Alcide filed
a timely appeal with this Court on December 29, 2017.
Discussion
When reviewing a decision of the Board, this Court must determine whether the Board’s
findings and conclusions of law are free from legal error and are supported by substantial evidence
in the record.l “Substantial evidence” is “such relevant evidence as a reasonable mind might accept
1 Unemployment lns. Appeal Bd. v. Martin, 431 A.2d 1265 (Del. 1981); Pochvatilla v.
U.S. Postal Serv., 1997 WL 524062 (Del. Super. Ct. June 9, 1997); 19 Del. C. § 3323(a) (“In any
judicial proceeding under this section, the findings of the [Board] as to the facts, if supported by
evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the Court shall
be confined to questions of law.”).
as adequate to support a conclusion.”2 The Court’s review is limited: “It is not the appellate court’s
role to weigh the evidence, determine credibility questions or make its own factual findings, but
merely to decide if the evidence is legally adequate to support the agency’s factual findings.”3
Section 3314 of Title 19 of the Delaware Code provides, in pertinent part, that one shall be
disqualified for unemployment benefits if she has been “discharged from [her] work for just cause
in connection with [her] work.”4 “Generally, the term ‘just cause’ refers to a wilful or wanton act
in violation of either the employer’s interest, or of the employee’s duties, or of the employee’s
expected standard of conduct.”5 Violation of a reasonable company policy may constitute just cause
for termination, provided the employee is aware of the policy and the fact that the violation thereof
may result in the employee’s termination.6
The Claims Deputy determined that Ms. Alcide was discharged because she had violated
Employer’s Attendance Policy.
Section 3318(b) of Title 19 of the Delaware Code provides that a Claims Deputy’s decision
becomes final if a further appeal is not initiated within ten calendar days of its mailing An Appeals
Referee does not have jurisdiction to hear the merits of an untimely-filed appeal.
2 Gorrell v. Division of Vocational Rehab., 1996 WL 453356, at *2 (Del. Super. Ct. July
31, 1996).
3 McManus v. Christz'ana Serv. C0., 1997 WL 127953, at *1 (Del. Super. Ct. Jan. 31,
1997).
419 Del. C. § 3314(2).
5 Abex Corp. v. Toa'd, 235 A.2d 271, 272 (Del. Super. Ct. 1967).
6 Burgos v. Perdue Farms, Inc., 2011 WL 1487076, at *2 (Del. Super. Ct. Apr. 19, 2011).
3
In this case, the last day Ms. Alcide could have timely appealed the Claims Deputy’s
determination was October 15, 2017, but she failed to do so until October 23, 2017. The Appeals
Referee concluded there had been no error on the part of the Department of Labor and, as such, the
appeal was untimely. The Board denied Ms Alcide’s application for further review and affirmed the
Appeals Referee’s decision on the documents in the record.7
On appeal, Ms. Alcide tells the Court that she missed work due to health issues and that she
provided Employer with evidence of illness by way of doctors’ notes. Unfortunately for Ms. Alcide,
and as stated above, this Court must review the case on the record and may not make factual
findings The only issue preserved was the issue of the timeliness of Ms. Alcide’s appeal of the
Claims Deputy’s decision.
The record reflects that the Claims Deputy’s decision was mailed to Ms. Alcide’s mailing
address. There is no indication of any administrative error on the part of the Department of Labor.
Ms. Alcide had, and waived, the opportunity to present her version of the events leading to her
termination to an impartial tribunal. Accordingly, the Board’s decision is affirmed.
Conclusion
For the reasons stated herein, the Board’s decision to affirm the Appeals Referee’s
determination that Ms. Alcide’s appeal was untimely filed and thus not reviewable is AFFIRMED.
7 In appealing the Appeals Referee’s decision, Ms. Alcide filed a letter stating, “I do not
understand English and when I got the [Claims Deputy’s decision], I was unable to understand
the contents. By the time I got someone to translate it for me it was too late to file a timely
appeal, hence the reason why l filed late.” Department of Labor Record, at p. 55. Although Ms.
Alcide did not - and does not - argue her failure to understand English was grounds for excuse to
file an untimely appeal, the case law is clear: a claimant’s failure to seek help in translating a
Claims Deputy’s decision is “the result of his own inaction” or “his own fault.” Rosembert v.
Pera’ue Inc., 1996 WL 662988, at **2, 4 (Del. Super. Ct. Sept. 12, 1996).
4
IT IS SO ORDERED.
Very truly yours, /,----.
. Stdl | 01-03-2023 | 06-27-2018 |
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