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https://www.courtlistener.com/api/rest/v3/opinions/4150849/ | 03/07/2017
DA 15-0051
Case Number: DA 15-0051
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 53N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DONNIE DORRELL NOLAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 13-901
Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, Chad R. Vanisko, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Ingrid Rosenquist, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: February 8, 2017
Decided: March 7, 2017
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Defendant Donnie Nolan appeals from his conviction for failure to register
as a violent offender, a felony. Violent offenders must register pursuant to §§ 46-23-503,
-504(1), MCA (2011).1 Then, “[i]f an offender required to register under this part has a
change of . . . residence . . . the offender shall within 3 business days of the change
appear in person and give notification of the change to the . . . [appropriate] registration
agency.” Section 46-23-505(1), MCA.
¶3 In 1996, Nolan was convicted of felony robbery in Atlanta, Georgia, and he was
required to register as a violent offender while living in Montana pursuant to the Montana
Sexual and Violent Offender Registration Act. In October 2011, following his release on
parole in Montana on an unrelated offense, Nolan completed an information form that
denoted he was required to register as a violent offender in compliance with Title 46,
chapter 23, MCA. Nolan registered his address as 225 Jackson Street, Billings, Montana.
Over the next two years, according to records maintained by the Yellowstone County
1
Unless otherwise noted, all references to the Montana Code Annotated refer to the 2011
version.
2
Sheriff’s Office (YCSO), Nolan updated that address to reflect a trip out of town, a move
to another address, and his return to 225 Jackson Street.
¶4 On May 7, 2013, Nolan entered into a rental contract and began to occupy a
residence at 706 Avenue C, Billings, Montana. Nolan did not register the 706 Avenue C
address with the YCSO. As a result, he was charged with “knowingly fail[ing] to register
as a sexual or violent offender, verify said registration, or keep said registration current”
in violation of §§ 46-23-504 to 46-23-507, MCA. Nolan raised a constitutional objection
in the District Court to § 46-23-504(4)(a), MCA, arguing that the language providing that
the registration agency “may require” registration of additional residences is vague and,
as such, unconstitutional. The District Court denied his motion, but conducted the trial,
with the parties’ consent, on the question of whether Nolan had abandoned his residence
at 225 Jackson Street when moving to 706 Avenue C:
THE COURT [to Nolan]: You’re going to have all of your constitutional
rights at trial. And the jury’s going to basically, as near as I can tell, have
about one question to answer: Did he move, or did he just pick up an
additional residence?
¶5 At trial, the prosecution argued that Nolan abandoned his prior residence at 225
Jackson Street and moved to a new location, thus requiring that he update his registration
in accordance with § 46-23-505(1), MCA. Nolan’s defense was that he simply acquired
an additional residence, while also maintaining the prior one, and, thus, was not required
to register the second address based on the statutory language that the registering agency
only “may require” registering the additional address, and he was not so requested by
YCSO, a fact which the State did not contest.
3
¶6 During the settling of jury instructions, the District Court reiterated:
The only way that you’re convicted, Mr. Nolan, if I understand it, is if the
jury believes that you moved from . . . Jackson to Avenue C without
retaining a residence at . . . Jackson. If the – if the jury believes that you
moved from one place, abandoned it, moved to another place, they’re going
to convict you.
The District Court gave instructions reflecting this understanding, and defense counsel
argued to the jury:
Absent an affirmative request, Donnie had no obligation to provide all
addresses. Donnie cannot be found criminally responsible for failing to
provide information that was never requested. The State has failed to prove
beyond a reasonable doubt that Donnie abandoned his Jackson Street
address.
After deliberations, the jury found Nolan guilty of one count of failure to register as a
violent offender.
¶7 On appeal, Nolan argues the District Court erred in denying his motion to dismiss
that challenged the constitutionality of § 46-23-504(4)(a), MCA. The State responds that
Nolan waived this argument in the manner he tried the case, but that, in any event, the
District Court avoided Nolan’s constitutional objection by instructing the jury that if it
found Nolan had two residences and had not abandoned his prior home, he was not
guilty, but if it found that he had abandoned his prior residence, he was guilty of violating
§ 46-23-505(1), MCA, and not § 46-23-504(4)(a), MCA.
¶8 “The denial of a motion to dismiss in a criminal case presents a question of law,
which this Court reviews de novo.” State v. Betterman, 2015 MT 39, ¶ 11, 378 Mont.
182, 342 P.3d 971 (citation omitted).
4
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
District Court’s interpretation and application of the law were correct.
¶10 Affirmed.2
/S/ JIM RICE
We concur:
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
2
We commend the District Court, Hon. G. Todd Baugh presiding, for the long patience and
courtesy it extended during the trial in this case. The transcript demonstrates that the Defendant
was continually disruptive, including interrupting hearings with comments, singing, and cell
phone conversations, but that the District Court was calm and deliberative throughout the
proceeding.
5 | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125131/ | 16‐734‐cv
Fletcher v. Convergex Group, L.L.C., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 10th day of February, two thousand seventeen.
4
5 PRESENT: ROSEMARY S. POOLER,
6 PETER W. HALL,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges.
9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10
11 LANDOL FLETCHER,
12
13 Plaintiff‐Appellant,
14
15 v. No. 16‐734‐cv
16
17 CONVERGEX GROUP, L.L.C., CONVERGEX
18 EXECUTION SOLUTIONS L.L.C., CONVERGEX
19 GLOBAL MARKETS LTD., CONVERGEX
20 HOLDINGS L.L.C., GTRADE SERVICES L.L.C.,
21 and “JOHN DOES” 1‐10,
22
23 Defendants‐Appellees.*
24 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
*The Clerk of Court is respectfully requested to amend the caption as set forth
above.
1
1 FOR PLAINTIFF‐APPELLANT: JAMES A. MOORE, McTigue Law
2 LLP, Washington, D.C. (David Steven
3 Preminger, Keller Rohrback,
4 L.L.P., New York, NY, Erin M. Riley,
5 Keller Rohrback, L.L.P., Seattle, WA,
6 on the brief).
7
8 FOR DEFENDANTS‐APPELLEES: MELISSA D. HILL (Brian T. Ortelere,
9 Jeremy P. Blumenfeld, on the brief),
10 Morgan, Lewis & Bockius LLP, New
11 York, NY.
12
13
14 Appeal from a judgment of the United States District Court for the Southern
15 District of New York (Louis L. Stanton, Judge).
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
17 AND DECREED that the judgment of the District Court is VACATED AND
18 REMANDED.
19 Landol Fletcher appeals from the judgment of the United States District Court
20 for the Southern District of New York (Stanton, J.) dismissing his claims against
21 Convergex Group LLC and others (“Convergex” or “Defendants”) for lack of subject
22 matter jurisdiction. Fletcher, a participant in a defined benefit plan (the “Central
23 States Plan” or the “Plan”), brought this putative class action pursuant to the
24 Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(2).
25 Fletcher alleges that Convergex engaged in an undisclosed scheme to double charge
26 Plan participants for securities transactions. That conduct, Fletcher claims,
27 “violated ERISA fiduciary duties of prudence and loyalty and constituted prohibited
2
1 transactions in violation of ERISA,” causing financial losses to the Plan, in violation
2 of 29 U.S.C. §§ 1104(a)(1)(B) & 1106(b). Fletcher seeks to bring the action on behalf
3 of himself and in a representative capacity as a participant of the Central States Plan.
4 He also seeks to represent members of other ERISA plans affected by Convergex’s
5 double‐charging scheme.
6 On appeal, Fletcher asserts that the District Court erred in concluding that (1)
7 he failed to establish a cognizable injury in fact sufficient to confer Article III
8 standing in either his individual or representative capacities, and (2) he lacks Article
9 III standing to bring claims on behalf of plans of which he is not a member. We
10 assume the parties’ familiarity with the facts and record of the prior proceedings, to
11 which we refer only as necessary to explain our decision to vacate and remand.
12 We conclude that allegations describing Convergex’s breach of fiduciary
13 duties of prudence and loyalty under ERISA, its violation of ERISA’s prohibited
14 transactions provision, and the resulting financial loss sustained by the Central States
15 Plan are sufficient to confer Article III standing on Fletcher in his representative
16 capacity as a Plan participant. See L.I. Head Start Child Dev. Servs., Inc. v. Econ.
17 Opportunity Comm’n of Nassau Cty., Inc., 710 F.3d 57, 67 n.5 (2d Cir. 2013); see also
18 29 U.S.C. § 1132(a)(2).
3
1 Having erroneously held that Fletcher did not have standing to represent
2 other members of his own ERISA plan, the District Court understandably also ruled
3 that Fletcher had no standing to represent members of ERISA plans of which he was
4 not a member, without separately analyzing that issue. We therefore vacate that
5 ruling and remand to the District Court to determine in the first instance whether the
6 conduct alleged by Fletcher relating to the Central States Plan “implicates the same
7 set of concerns” as the conduct by Convergex that is “alleged to have caused injury”
8 to putative class members who are not participants in that Plan. NECA‐IBEW
9 Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 162 (2d Cir. 2012); see
10 also Ret. Bd. of the Policemen’s Annuity & Ben. Fund v. Bank of N.Y. Mellon, 775
11 F.3d 154, 160–63 (2d Cir. 2014), cert. denied sub nom. Ret. Bd. of the Policemen’s
12 Annuity & Annuity & Ben. Fund v. Bank of N.Y. Mellon, 136 S. Ct. 796 (2016).
13 For the foregoing reasons, the judgment of the District Court is VACATED
14 AND REMANDED for further proceedings consistent with this order.
15 FOR THE COURT:
16 Catherine O=Hagan Wolfe, Clerk of Court
4 | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132488/ | . -
The Honorable Arthur C. Eads Opinion No. H-892
County Attorney
Bell County Re: Legality of a county
P. 0. BOX 474 paying a secretary to
Belton, Texas 76513 administer a program of
legal services to the
indigent.
Dear Mr. Eads:
You ask if the Commissioners Court of Bell County has
authority to provide the service of a county employee to
refer indigents to Bell County attorneys who agree voluntarily
to represent and counsel the indigent individuals without
charging any fee for such services. You further advise that
the guidelines for this program were prepared by the Bell
County Bar Association and have been submitted to the Com-
missioners Court for approval.
County commissioners courts have only such powers as
are given by the Constitution or statutes, Canales v. Laughlin,
214 S.W.2d 451 (Tex. Sup. 1948), or as are found byiiecessary
implication to arise from such express powers. Anderson 2 v
Wood, 152 S.W.2d 1084 (Tex. Sup. 1941).
Article 2351, V.T.C.S., provides:
Each commissioners court shall:
11.
and .
are unable to support themselves. (Emphasis
added),.
P. 3756
The Honorable Arthur C. Eads - page 2 (H-892)
We believe that the legal aid arrangement for assisting
indigents as proposed to the Bell County Commissioners Court
is dependent on the interpretation of section 11 of article
,2351, V.T.C.S., which provides for the "support of paupers."
In an early court decision involving a suit for medical
expenses, Monghon S, Sisson --
v. Van Zandt County, 3 White & W.
240, 242 (Tex. Ct. App. 18861, the court held that providing
for the support of paupers meant "more than supplying them
with food and clothing and a house to stay in." See
Attorney General Opinion C-293 (1964). A more recent decision
defined support as
a very flexible term . . . [which] includes
.zgygg!z---more than the bare necessities
o . . . . Lumbermen's Reciprocal Ass'n
v. Warner, 245 S.W. 664, 665-6 (Tex. Comm'n
Fp. 1922, jdgmt adopted). (Emphasis added).
Attorney General Opinion O-2474 (1940) emphasized the humani-
tarian goals of the statute and held that it authorized the
Commissioners Court of Montague County to pay $3.50 per
month per resident indigent in order to facilitate the
purchase of textiles from which garments would be made for
distribution to poor and indigent families. And finally,
Attorney General Opinion M-605 (1970) held that the Commis-
sioners Court of Harris County had the implicit authority
under the "support" provisions of section 11, article 2351
to provide funds for participation in a federal employment
and job training project to benefit the poor.
We believe, therefore, that it probably would be held to
be within the power and discretion of,the Bell County Commis-
sioners Court to pay a secretary to administer the referral
of indigents to local attorneys who will in turn render
services to the indigents without charge. Since court
decisions and attorney general opinions have so construed
the "support of paupers" provision of,article 2351 in order
to aid the county poor, and since the limited service you
offer in connection with this legal aid program is as
important as other services previously classified as support,
we answer your question in the affirmative.
P. 3757
,. :
The Honorable Arthur C. Eads - page 3 (H-892)
SUMMARY
The Commissioners Court of Bell County may,
in their discretion, authorize payment of
a secretary to administer a program of
legal services to indigent residents of
the county under section 11 of article
2351, V.T.C.S.
-Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M.XENDALL, First Assistant
(34&l!LAJ
C. ROBERT HEATH, Chairman
Opinion Committee
jwb
P. 3758 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132494/ | The Honorable B. L. DeBerry Opinion No. H-886
Engineer-Director
State Department of Highways Re: Legal rate of interest
and Public Transportation to judgment in an eminent
P. 0. BOX 5075 domain case when the con-
Austin, Texas 78763 demnation award was prior
to the amendment to article
5069-1.05, V.T.C.S., and the
judgment was subsequent to
the amendment.
Dear Mr. DeBerry:
You have requested our opinion regarding the legal rate
of interest on a judgment in an eminent domain case. The
condemnation award was made prior to September 1, 1975, which
is the date on which the statutory interest rate was increased
from 6 to 9 percent. The judgment, however, was entered after
that date.
As an example, you describe a situation in which the
special commissioners filed an award of $5,625.00 on Sep-
tember 13, 1971. On September 20, 1971, the State deposited
that amount into the registry of the court and took possession
of the land, as provided in article 3268, V.T.C.S. Four
years later, the 64th Legislature amended article 5069-1.05,
V.T.C.S., increasing the statutory rate of interest from 6
to 9 percent, effective September 1, 1975. Subsequently, by
a judgment dated January 9, 1976, a jury awarded the condemnee
an additional amount of $16,875.00. You ask our advice as
to the legal rate of interest on that additional $16,875.00
between September 28, 1971, and January 9, 1976.
p. 3731
. -
The Honorable B. L. DeBerry - page 2 (H-886)
Initially, we observe that the condemnee is entitled to
interest on the jury's additional award from the date the
initial deposit is made until the date of judgment. City
of Amarillo v. Attebury, 303 S.W.Zd 804 (Tex. Civ. ADD. -.
sari110 1957; nom. In Watkins v. junker. 40 S:W. 11
(Tex. Sup. 18971, which involved a breac:hontract, the
statutory interest was 8 percent at the time of the breach,
but was subsequently lowered to 6 percent. The Supreme Court
held that "the rate fixed by law should be applied while in
force," Id. at 12, and ordered recovery at the lower rate
from thedate of the statutory change.
This view has recently been affirmed, with regard to
amended article 5069-1.05, in Micrea, Inc. v. Eureka Life
Insurance Co. of America, 534 S.W.2d 34e,3- (Tex.Civ.App. --
Fort Worth‘-rV'lb;writ ref'd n.r.e.), and is in accord with the
prevailing rule in most other jurisdictions. See e.
Ci& yfi C~~p;'0;~3~~~~;".2d+ ~;Il;S;~:,l;;~2&%%-.
g q
Sup. 1934 ; Yamamoto v. Coste lomN.Y.S.2d 33 (N.Y. Sup. 1973).
Thus, in our opinion,ihe legal rate of interest on the $16,875.00
award is 6 percent per annum prior to September 1, 1975, the
effective date of the statutory amendment, and 9 percent there-
after until paid. V
SUMMARY
The legal rate of interest to judgment
in an eminent domain case is 6 percent per
annum prior to September 1, 1975, the
effective date of the amendment to article
5069-1.05, V.T.C.S., and 9 percent thereafter.
Very truly yours,
Attorney General of Texas
p. 3732
. .
The Honorable B. L. DeBerry - page 3 (H-886)
Opinion Committee
jwb
p. 3733 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132500/ | The Honorable Ben Ramsey Opinion No. H- 880
Chairman
Railroad Commission of Texas Re: Application of Texas
P. 0. Drawer 12967 Surface Mining and Reclama-
Austin, Texas 78711 tion Act to clay mining
which incidentally produces
lignite.
Dear Mr. Ramsey:
You ask whether operations which extract lignite coal
incidental to surface mining of clay used in the production
of brick, are within the provisions of the Texas Surface
Mining and Reclamation'Act and, therefore, subject to
regulation by the Texas Railroad Commission.
In connection with the Legislature's directive to the
Railroad Commission in the Texas Surface Mining and Reclama-
tion Act, article 5920-10, V.T.C.S., to regulate the production
of coal and uranium by surface mining and the reclamation of
lands dieturbed by such activities, you advise that there
presently ex1c.t at leaat two operations in this rrtate engaged
in the surface mining of clay to be ured in the production
of brick which incidentally produce lignite coal. Such coal
is segregated and stockpiled for the expressed purpose of
either providing a future energy e.ourcefor use in brick
production or for sale to the public. You alao advise that,
by comparison to the amount of clay surface mined at these
operations, the amount of lignite coal removed and stockpiled
is nominal and seldom, if ever, exceeds ten percent of the
volume of material extracted and not regarded as spoil.
p. 3705
The Honorable Ben Ramsey - page two (H-880)
Section 3 of article 5920-10, V.T.C.S., states that the
purpose of the Surface Mining and Reclamation Act is
to prevent the adverse effects to society
and the environment resulting from unregulated
surface mining operations, as defined herein . . . .
"Surface mining" is defined in section 4(2) as:
[Tlhe mining of minerals by removing the
overburden lying above the natural deposit
thereof and mining directly from the natural
deposits thereby exposed . . . .(Emphasis added).
Section 4(l) includes in its definition of "minerals" only
"coal, lignite, uranium and uranium ore." Therefore, on its
face, article 5920-10 does not apply to surface mining
operations involved solely in the production of clay.
The legislative history of the Act supports this con-
clusion. In the original version of the Act, "minerals"
were defined as "soil, clay, coal, lignite,
gravel, talc, limestone, rock, metallic ore,
substances of commercial value." (Emphasis added).
%%%!e Committee G Natural Resources adopted a substitute
bill which deleted clay and other minerals underlined above.
Such substitute was passed by both Houses in substantially
its present form. The omission of significant words from
an amendment indicates that the Legislature desired to change
the effect of the statute or intended to exclude the object
theretofore accomplished by the words omitted. See 53 Tex.
Jur.Zd, Statutes 9 178 and authorities cited therei-n. While
a statute conferring administrative authority will generally
be liberally construed, the agency must not go beyond the
clear intent of the Legislature. Stauffer v; City of San
Antonio, 344 S.W.2d 158 (Tex. Sup. 1961); l??ex. JuxZd,
Administrative Law S 6. Since the Leaislature clearlv
intended to exclude clay mining operations from the effect
of article 5920-10, we are of the opinion that the Railroad
Commission is precluded from regulating those clay mining
operations which only incidentally involve the mining of
lignite.
p. 3706
I -
The Honorable Ben Ramsey - page three (H-880)
In making its determination as to whether the extrac-
tion of lignite is more than a mere incident to a clay mining
operation, the Railroad Commission should keep in mind the
purposes of the Texas Surface Mining and Reclamation Act and
should be vigilant to insure that an operator does not use
clay mining as a subterfuge to escape application of the
Act.
SUMMARY
The Texas Surface Mining and Reclamation Act,
article 5920-10, V.T.C.S., does not authorize
regulation by the Texas Railroad Commission
of surface mining operations solely involving
the production of clay. Whether an operation
is a clay mining operation which only inci-
dentally involves the production of lignite
requires a factual determination by the
Commission, based on the particular
facts and circumstances involved in each
case.
Very truly yours,
A
_' Attorney General of Texas
i :
DAVID M. KENDALL, First Asssitant
C. ROBERT HEATH, Chairman
Opinion Committee
jwb | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145098/ | Baker, flatts, Andre k. rherton
httornsys at Law
lCspsr8on
Build&
&ouston,Texas
DsarSlrs:
we have your lett
ouropmonwithrere?6Tlo0
plant and othsr 6
a? 800% to rei@r6
plnionnlewlpupcmthe qaes-
proposedsgraarsazYiolate+s
0r the Stat6 0r Tntas,or
sion of Tew isstmdwider the
*This tJgmm&mt
shall h6 subfeetto all Yslid
xmlea and regulation6ef the Railroad Ce~saioa
ol Texas or 0thbT regulatory body hay* jurisdio-
t&on; and Sellerswill epeFatsth4.rwells and pro-
duoethe gas thekefraain atmordauoewith all sooh
orders,tu3336 and rt?@tlatioins,
rrndB%yer will apar-
ate its pdaat,lines evrd~qtipnent, inawor&anrre
with all autrhorders, m&lee and ~e@.etiens."
jjaker,
aotts, AndrarpBcwhartoa,Pa&e e
CoaotruSngthe agreemat a8 a whole, partloular
in Yiew of .Lrt101e
X-VIIIquotedabow, it la our oplnlon%a
the proposeda&reFnt does not violateany of the oon~am-~
or any ordersof the I&$&
tion statute6of the State of Telbutu
road CotiSSlon of 'fezsoissuedunder the authorityof SU&
rtatutesand that the proposedagroamnt io authorized under
the ~oVl8ions of 8eotlon81 of Irrtiole6008 of the Retired
Civilstatutes.
COMMIITEE | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145108/ | Honorable F. B. Caudle
County Attorney
Franklin County
Mt. Vernon, Texas Opinion Mmber O-1303
Ret Does the~Board of Trustees
have authority to designate poll-
ing places in bond elections for
Dear Sir: an independent school district?
We are in receipt of your opinion request and quota from your
letter as follows:
"In an election to determine the issuance of bonds
for an independent school district wholly within a Justioe
Precinct and containing the entire city limits of a toam, by
an order of the Board of Trustees ordering the election, the
courthouse was designated as the only polling place. The
Justioe Precinct in which the independent sohool district
was located had four voting precinots. All the votes in the
independent sohool district election were cast in eleation
Precinct k. 2.
"First: In view.& Artiale Six, Se&ion Three-A of
the Constitution, would any of the votes be counted
exoept those residing in Precinat No. 21
"Secondr Article 2708, R.S. 1926 authorizes the
Board of Trustees to designate the polling plaaes
and the order~did designate the courthoWe a8 the
polling plaoe; would Article Six, Section Three-A
of the Constitution, or Article 2768, R.S. 1926
dontrol?"
Article 6, Se&ion Sa of the Constitution reads p8 fOlloWat
%hen an election is held by aqy county, or any
number of aountiss, or any political subdivision
of the State, or my political subdivision of a
county, or any defined district nov?or hereafter
to bs described and defined within the State and
which may or may not include tams, villages or
munioipal corporations, or any city, town or vil-
lage, for the purposs of issuing bonds or other-
wise lending oredit, or expending money or
. I\
Hon. F. B. Caudle - Page 2 (0-13X)
assming any debt, only qualified eleotors
who own taxable property in the State, oounty,
political subdivision, district, city, tom or
village where such eleotion is held, and who
have duly rendered the same for taxation,
shall be qualified to vote and all electors
shall vote in the election precinct of their
residenoer*
Article 2788 reads, in part, as follows:
* e . * The election for said bonds shall be held with-
in thirty days after order of election, as fixed in the
eleotion order. The board of trustees shall at the seme
time fix the polling plaoes for holding such election
and name a judge and tm clerks at each polling place
. . ."
A11 independent school districts are created for free school
purposes aud their affairs arc managed by a board of trustees. The Consti-
tution provides that in all bond elections the electors shall vote in the
election precinct of their residenoe. There is no provision in the Consti-
tuticnrwhich expressly prohibits the Legislature from providing.that when
a defined territory is incorporated into en independent school district it
shall constitute an eleotion precinot for all elections held for school
purposes8 and in the absence of an express provision in the statute, author-
iaing such districts to that effect, we think it will be implied from the
very nature of the case that it was so intended.
We are therefore of the opinion that for the purpose of voting
on the iesumoe of bonds or for the purpose of voting oa all questions
affecting the interest of the public sohools within en independent school
&&riot, such territory legally constitutes a residence voting preoinct
&thin the meaning of the Constitution, the polling plaoes to be desi&ated
by the school~tnretees as provided in Artiole 2788* See Parks et alvs.
West, 108 S.W. 466.
But if we are mistaken in this view of the law in holding that
an independent school district oonstitutes a re.idenoe voting precinct in
detemining whether or not bonds should be issued and polls should have
been opened at all four voting precincts within the district,we feel oer-
tain that the courts would not invalidate the election where the board of
trustees, whose duty it is to designate the voting places, made an error
in naming only one, unless it bc show that they acted with a fraudulent
purpose.
It is a canon of the election law that an election is not to.be
set aside for a mere formality or irregularity which oan not,bc said iu any
. . I
Hon. F. B. Caudle - Page 3 (o-1303)
manner to have affected the result of the election. Courts are enxious
rather to sustain than to defeat the popular will. Dillon Xunicipal Car-
porations, Fifth Ed., Vol. 1, p. 642.
Corpus Juris states the rule as follows: "That where the
polling place selected by the proper officers is outside the election dis-
trict vho vote thereat arc not disfrsnchised on that account if the eleo-
tion is otherwise lawfully conducted. Evenwhcre the Constitution of the
State restricts the right to vote to the election distfiot wherein the
elector resides, yet where a distinction between an eleotion district and
an election precinct is recognized, votes cast at a polling place outside
of the precinct but within the district arc not to be rejected." 20 Cor-
pus Juris, 102; Davis vso State, 12 S.W. 857; Ex parte Stein, 135 S.1. 136.
In Ek p6rte Write, 28 S.K 542, the election precincts of a
tom were laid off from the aourthouse sE(uarc,the courthouse not being in-
cluded in any ofthem, the votes wsre cast in different roaas of the court-
house, the court held that the Constitution, Article 6, Section 2, provid-
ing that electors should vote in the precinct of their residence, did not
invalidate the election.
In view of the foregoing, it is.our opinion that the votes
of all the legally qualified voters of the school district voting at the
plaoe designated asthe polling place by the board of trustees should be
counted.
Very truly yours
ATT0RNE.i GENERAL OF +JXXAS
By
s/Claud 0. Bootlxaan
Claud 0. Boothman
Assistant
COB:sregw
APPBOVED SEP. 1, 1939
Approved Opinion Committee
s/Gerald C. Mann By EWE Chairman
ATTOFUJEXGENKW, OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132327/ | Honorable Wilson E. Speir Opinion No. H-1853
Texas Department of Public Safety
5805 N. Lamar Boulevard Re: Automatic suspension
Box 4087 of driver's license.
Austin, Texas 78773
Dear Col. Speir:
You have asked about the constitutionality of the "auto-
matic" suspension of drivers' licenses required by section 24
of article 6687b, V.T.C.S.
That section of the statute provides, inter e, that
"[tlhe license of any person shall be automatically suspended
upon final conviction" of driving a motor vehicle while under the
influence of intoxicating liquor or narcotic drugs. Whenever
any person is convicted of such an offense, the court in which
such conviction is had must require the surrender to it of all
licenses held by the person convicted; the court clerk is there-
upon to forward them to the Department of Public Safety together
with a record of the conviction. If the convicting court orders
it, the Department will then issue a "restricted" license to
the offender if he is not imprisoned, Attorney General Opinion
H-794 (1976), but the original license remains suspended. V.T.C.S.
art. 6687b, S 25.
The Department of Public Safety has taken the position
that once the conviction becomes final, the suspension of the
license is automatic and no further action need be taken by the
court or by the Department to make the suspension effective.
It has been recently suggested, however, that the 'automatic"
feature of the statute denies due process of law to license-
holding offenders by failing to accord them a hearing on the
matter and by failing to accord them notification of the sus-
pension. You ask:
Does an in-state final conviction of driving
while intoxicated make "automatic" the sus-
pension of the individual's drivers license?
P. 4329
An Eaual Omrxtunitv E~D~OWT
Honorable Wilson E. Speir - Page 2 (H-1053)
We answer in the affirmative. See Dixon v. Love, 52
-
L.Ed.2d 172 (1977).
In 1951 the Supreme Court of Texas refused writ of error
in the case of Tatum v. Texas Dep~artment oft Public Safety, 241
S.W.2d 167 (Tex. Civ. App. -- Austin 1951, writ ref'd). The
opinion of the Austin Court of Civil Appeals in that case re-
jected "due process" attacks upon the automatic suspension
provisions of sections 24 and 25 of article 668713, V.T.C.S.,
saying, "appellant was afforded an opportunity to be heard
on the charges against him and from which the suspension of
his driver's license stemmed." 241 S.W.Zd at 171. See
Taylor v. State, 209 S.W.2d 191 (Tex. Crim. App. 194n The
suspension of a license following such an in-state criminal
trial is an automatic incident of the failure of the license
holder to prevail at the trial of the criminal charges lodged
against him.
If he finally fails, i.e., if the in-state conviction be-
comes final, the suspension is automatic, whether a report of
the conviction is sent to the Department of Public Safety or not,
whether or not the judgment of conviction specifically provides
for the suspension, and whether or not the defendant actually
surrenders his license to the court. No action by the court,
the jury, or the Department of Public Safety is necessary
to bring the suspension into effect. Marley v. State, 394
S.W.2d 516 (Tex. Crim. ADD. 1965): Standifer v. Texas Dept. of
PP.
Public Safety, 463 S.W.2h-38 (Tex; Civ. A-- -- Houston [14th
Dist.] 1971, no writ): Texas. Dept. of Public Safety v. Preble,
398 S.W.2d 785 (Tex. Civ. App. -- Houston 1966, no writ):
380 S.W.2d 783 (Tex. Civ.
,
301 S.W.2d 276 (Tex. Civ. APP. -- Eastland 1957, writ dism'd).
Note, however, that section-24 of article 6687b; V.T.C.S., is
not applicable to out-of-state convictions. Hurley v. Texas
Dept. of Public Safety, 505 S.W.Zd 700 (Tex. Civ. App. -- Eastland
1974, no writ); Smith v. Speir, 504 S.W.2d 936 (Tex. Civ. App. --
Ft. Worth 1974, nom]-
SUMMARY
An in-state final conviction of driving
while intoxicated automatically suspends
the convict's driving license without the
necessity of further official action.
P. 4330
Honorable Wilson E. Speir - Page 3 (H-1053)
APPROVED:
jst
p. 4331 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132340/ | TH-EA~TORNEY' GENERAL
OF TEXAS
AUIWX’XN. 'I%CXAS
78711
JOEN L. x3xX&
*-~NmY 0 -Ax.
August 12, 1977
Honorable Jesse James Opinion No. H-1040
State Treasurer
P. 0. Box 12608, Capitol Station Re: Disposition of interest
Austin, Texas 78711 from the Employees Life,
Accident and Health Insurance
and Benefits Fund Account.
Dear Mr. James:
You inquire about the disposition of interest on the
Employees Life, Accident and Health Insurance and Benefits
Fund Account, known as Fund No. 973. The Fund, created by
article 3.50-2, section 16, of the Insurance Code, consists
of contributions for group life, accident and health in-
surance made by the state and state employees. It was
"created with the treasury of the State of Texas" to be ad-
ministered by the trustees of the Employees Retirement System.
Ins. Code art. 3.50-2, 99 3(11), 16(a). You wish to know
whether interest earned on time deposits made by the Treasurer
from Fund 973 should be credited to the Fund itself or deposited
into the General Revenue Fund pursuant to article 2543d, V.T.C.S.
Article 2543d, V.T.C.S., provides in part:
Sec. 1. Interest received on account
of time deposits of moneys in funds and
accounts in the charge of the State
Treasurer shall be allocated as follows:
To each constitutional fund there shall
be credited the pro rata portion of the
interest received due to such fund. The
remainder of the interest received, with
the exception of that portion required
by other statutes to be credited on a
pro rata basis to protested tax payments,
shall be credited to the General Revenue
Fund. The interest received shall be
allocated on a monthly basis.
Attorney General Opinion M-468 (1969) held that article 2543a
did not apply to interest on federal funds granted to the State
i.
I
! p. 4282
.
Honorable Jesse James - Page 2 (H-1040)
for specific purposes. Characterizing them as trust funds,
the opinion determined that any income became part of the
fund, to be used only for the purposes for which the grant
was made, and not for the general operation of State govern-
ment.
We believe that Fund 973 is also a trust fund as were
the federal funds discussed in Attorney General Opinion M-468.
It is administered by a trustee with considerable discretion
as to how the fund shall be invested and spent. Ins. Code
art. 3.50-2, SS 4, 16(c). Although the trustee may pay ad-
ministration expenses only within limitations specified an-
nually by the legislature, it may pay for insurance coverages
without fiscal year limitation. Id. 9 16(a). The Fund may,
of course, be spent only for insuzce coverage and adminis-
tration expenses. The trustee which administers Fund 973 also
administers the Employees Retirement System Funds, which this
office has determined to be trust funds. Attorney General
Opinion WW-565 ~(1959); see Letter Advisory No. 132 (1977).
Interest on investmentsof Fund 973 is expressly made part of
the fund. Ins. Code 3.50-2, 8 16(c). We believe that interest
on time deposit accounts, although it is not interest on an
investment, see Lawson v. Baker, 220 S.W. 260, 268 (Tex. Civ.
APP. -- Austin1920, writ ref'd), must also become part of
the fund. As a trust fund, it is not subject to the provisions
of article 2543d. -See Attorney General Opinion O-3607 (1941).
SUMMARY
Interest on time deposits of the Employees
Life, Accident and Health Insurance and
Benefits Fund Account must be credited to
the Fund itself and not deposited to the
General Revenue Fund pursuant to article
25436, V.T.C.S.
;_
(J$cZ&
.
,,Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
! p. 4283
Honorable Jesse James - Page 3 (H-1040)
c. ROBERT REATH, Chairman
Opinion Committee
jst
p. 4284 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145138/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Xr. John C. Ksrburger
County Attorney, Fayette County
LaGranee, Texts
Dear 9lr:
0pln.ionNo. o-1274
Re: Is a suatloe'0
liehave your letter
opinion from this Departme
be he14 by reason of the man and a neero who
were killed by the REUW b .in the pn80ne0 0r
another white pereon and nen who are llvlng.
a4 Justice or t
his duty, to ho1
the rollorlng,oa
ld, or from any eauae
t andor mntmnas of the
or aore good wltneaaa5.w
Tour8 very truly
ATT- GJNZRAL OF TEXAS
ATTORNEY GXNWAL OE'TBXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145148/ | THE ATTORNEY GENERAL
OF TEXAS
AUSTIN 11, TEXAR
GERALD C. MANN
Honorable James E. Kilday
Director, Motor Transportation Division
Railroad Commission of Texas
Austin, Texas
Dear Sir: Opinion No. O-1264
Re: Whether under facts stated J. H.
Robinson Truck Lines may be re-
routed.
We received your letter of August 10, 1939, wherein you submit to
us the following facts:
The J. H. Robinson Truck Lines now holds and operates a certificate
of convenience and necessity from Houston to Corpus Christi over
State Highway No. 3 from Houston to Rosenburg, over State Hi hway
No. 12 from Rosenburg to Victoria, over State Hi hway No. 12% from
Victoria to Sinton, and over State Highway No. 1% from Sinton to
Corpus Christi. He is authorized to serve all intermediate points
over this route. The route thus travelled is a very congested one,
especially between Houston and Rosenburg. The certificate holder
has requested of the Commission a re-routing in part of his line
which would authorize him to operate as follows: All through ship-
ments between Houston and Corpus Christi and vice versa would be
carried over State Highway Non.35, known as the "Hug the Coast High-
way," and no services would be rendered over said State Highway No.
35 at any point between Houston and Corpus Christi. He would re-
tain his old route only for the purpose of serving points interme-
diate between Houston and Corpus Christi on that route and would
not carry through shipments between Houston and Rosenburg over the
old route. You are advised that State Highway No. 35 is now traveled
only about half as much as the route over which Robinson now goes.
It is also represented that the distance between Houston and Corpus
Christi over State Highway No. 35 is about 26 miles farther than
the old route travelled by Robinson, although he will be able to
make the distance about an hour and half quicker, due probably to
the fact that on the new route he will not be stopping to serve in-
termediate points.
The Railroad Commission will hold a hearing upon such application
for a re-routing but at such hearing it is proposed to,exclude and
and hear no evidence upon questions of public necessity and conven-
ience and the inadequacy of the existing transportation facilities
Honorable James K. Kilday, page 2 O-1264
between Houston and Corpus Christi. You request our opinion as
to whether the Railroad Commission would have the authority, after
such a hearing, and if the above facts are found to be true, to
grant the application.
In the case of Railroad Commission vs. Red Arrow Freight Lines, 96
S. W. (2d) 735, before the Austin Court of Civil Appeals, the facts
involved were briefly there: H.H. Lawler became the owner by pur-
chase of two certificates of convenience and necessity, one to
operate from Houston to San Antonio and intermediate points and the
other from San Antonio to the Rio Grande Valley via Edinburg and
serving intermediate points. He filed an application before the
Railroad Commission for a so-called re-routing to permithim to go
directly from Houston to Edinburg without serving intermediate
points .on that route. His theory was that he could already haul
freight from Houston to Edinburg and points beyond and vice vsrsa,
going by San Antonio, and that no new service was, therefore, in-
volved. It appeared in that case, however, that the new route was
about 120 miles shorter than the one by way of San Antonio and that
his service between Houston and Edinburg would be siiortenedabctiut
30 hours. Over the protest of competing carriers, the Railroad
Commission limited the hearing and its findings to the adequacy of
the Highways over which the re-routing was sought. The trial court
eat aside the order of the Commission granting such re-routing and
the Commission appealed to the Court of Civil Appeals, That court
affirmed the action of the trial court but its opinion was based
purely upon the proposition that the new route was so much shorter
and quicker that in fact the re-routing operated to inaugurate a
new direct service between Houston and Edinburg and thence into the
Valley, and that on account thereof, the Commission erred in not
requiring Lawler to show the need of such additional service and in
not also requiring him to show the inadequacy of existing facilities.
Since the judgment of the Court of Civil Appeals was based upon the
reasoning that the change of route would shorten Lawler's travel-
ing distance to substantially and make his service so much quicker
as in fact to constitute the inauguration of a new service, we be-
lieve it may be clearly inferred that the court's action would have
been different if the route had not been substantially shortened
and the service substantially quickened. In the case before us the
new route will be 26 miles longer than the old one, We do not be-
lieve that the mere fact that he will be able to make the new dis-
tance about an hour and a half quicker than the old one, on ac-
count of not stopping to serve intermediate points, is substantial
enough a change as to constitute a new service. Subsection (c)
and the first paragraph of subsection (d) of Section 4 of Article
qllb, Revised Civil Statutes, read as follows:
"(c) The Commission is further authorized and empowered and
it shall be its duty to supervise and regulate motor carriers
in all matters affecting the relationship between such motor
carriers and the shipping public that may be necessary in the
interest of the public. '
Honorable James E. Kilday, page 3 O-1264
"(d) The Commission is further authorized and empowered and
it shall be its dut to supervise and regulate motor carriers
in all matters whetKer specifically mentioned herein or not
so as to carefully preserve, foster and regulate transporta-
tion and to relieve the existing and all future undue burdens
on the highways arising by reason of the use of the highways
by motor carriers, adjusting and administering its regulations
in the interest of the public."
We do not believe that the advantages in competition to be gained
by Robinson over competing carriers would be sufficient to off-set
the right and power of the Commission to shift a part of the traf-
fic from the over-burdened route heretofore travelled by Robinson
to the new route. Our answer to your question is, therefore, in
the affirmative.
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY
Glenn R. Lewis
Assistant
GRL;N;ml
APPROVED AUG. 19, 1939
GERALD C. MANNA
ATTORNEY GENERAL OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145158/ | . .
THEA~TORNEY GENERAL
OF TElxAs
Hon. Johu Stapleton Opinion Ro. O-1254
County Attorney Re: Did the office of county super-
Floyd County intendent of public instruction of
Floydada, Texas Floyd County terminate when the schol-
astic population fell below 3000 in
Dear Sir: 19381 And related questions.
Your request for an opinion on the questions as are herein stated
has been received by this department:
"Did the office of county superintendent of public instruction
of Floyd County terminate when the scholastic population of Floyd County
fell below 3000 in 19387 If such office did terminate, are Mr. Travis
and Mr. Wfie entitled to the monies they have received as salary foI;
their cervices in that capacity since January 1, 19391
"If it should be held that Floyd County has a valid office of
county superintendent of public instruction, does the appointment of the
Commissioners' Court of Mr. Guffie, as set out above, continue merely
until the next biennial election, or does it continue until the next
general election atwhich~ a county superintendent would normally be
elected?~ In either instance does Mr. Guffie's term for which he was ap-
pointed cease as Soon after the general election as the elected official
qualifies?
"If the population of Floyd County falls below 10,000 according
to'the 1940 Federal Census, will the office of Assessor and Collector
,of Taxes as a separate office in Floyd County, terminate?"
Your letter reads in part as follows:
.,.
"At the June Term, 1924, of the,X!ommissioners'Court of Floyd
County, the attention of such court was called to the fact that Flayd
County had a scholastic population of 3101 according to the scholastic
census of that year. At that meeting the court appointed a county super-
intendent of public instruction and provided for the election of a county
superintendent at the 1924 general election. Prior to that .timethe county
judge has served as ex-officio superintendent. From that tine to the
present Floyd County has had,.anoffice of county superintendent of public
instruction., The office was not created by a vote of the people atefan '~
election held for that purpose.
"The 1938 scholastic population of Floyd County, as determined
by the scholastic census taken that year, vas 2,758. Walter Travis was
- .
eon. John Stapleton, page 2 (O-1254)
a candidate for the office of county superintendent of public instruction
of Floyd County in the 1938 general election and received a majority of
til the VOteE cast for that office in such election. Mr. Travis qualified
and YBBissued a commlseion by the governori he served in the office from
January 1, 1939, to July 1, 1939, at which latter date he resigned. The
Commiesioner’s Court of Floyd County appointed Clarence Guffie to serve
Mr. Travis’e unexpired term. Mr. Guffie haa served in euch office since
July 1, 1939, and at the present time is atill serving in such office
and receiving pay therefor.”
Adfcls 2688, Revired Civil Statutes, as amended, reada ae fol-
10x8:
‘“Phe Commimslonerr’Court of every county having three thoueend
(3,000) echolartlc population or more ae rhown by the precedlng echolartic
cezwu8, rhall at a Oeneral Election provide for the election of e County
Superinto~bent to lerve for a term of four (4) yeare, who ohall be a per-
#on of educational attalnmente, good moral character, and executive ability,
@nd who rhell be provided by the Cwmlrrlcmrr~ Court with BIIoffice in
tha courthoure, end with aecerrary orfics furniture and fixturer. He
Ehall ba the holder of e teachart firrt grade certlflcate or teacher’@
maoAt certificate. In every county that rhall attain three thoueend
4”3,000) rcholartk populatlti or more the Commi@#ioneretCourt ohs11 ap-
polat ruch Superintendent who ah811 perform the duticr of ouch office
until the election end qualification of hia euccoeeor’. In countlee having
10~ than three thousand (3,000) echolartic population whenever more than
twmlty-rive por cent (25%) of the qualified votore of Said county an ehown
by the rots for Governor at the preceding Goneral Election ohall petition
the Commlrmlonerr~Court thorefor, mid Court rhall order BII election
for mid county to determine whether or not tho office of County Superin-
tendent rhallbe created in maid county1 and, if a majority of the quali-
fied property taxpaying votarta voting at eeld election ehall vote for
the creation of the office of County Superintendent la maid county, the
Comirelonerrl Court, at ite next regular term after the holding of raid
election, #hall create the office of County Superintendent, and name a
County Suporinteadant who ehell qualify under Chic Chapter and hold euch
office until the next General Election. Provided, that in all countlea
having a population in exce~e of three hundred and fifty thoueand (350,000)
@habitants according to the last available Federal Conme the County
Euperintondent shall be appointed by the County Board of Education and
ahall hold office for two (2) years, provided further, that this provi-
rioa rhall not operate 60 ar to deprive any elected Superintendent of
hlr offica prior to the expiration of the term for which he has been
electedi provided further that in countiea having a acholaatlc population
of between three thouaend (3,000) and five thousand (5,000) scholastica,
wherein the office of County Superintendent hae not been created and a
Superintendent elected, then in such countier the quo&ion of whether
or not much office la eetabliehed nhallbe determined by the qualified
voter6 of said county in B epecial election called therefor by the Com-
miesioners~ Court of eald county, upon petition therefor 88 hereinabove
epecif led.”
Eon. John Stapleton, page 3 (O-1254)
The case of Marfa Independent School District vs. Davis, County
Judge, et al, 102 SU 2nd 283, construing Article 2688, Revised Civil Stat-
utes, 8s amended, holds in effect that the purpose of amendment relating
to establleiua8ntof office of County Superintendent in counties having
8 certain scholastic population is to provide a method whereby voters may
determine whether the office is created when Comnissioners' Courts fail
to act and not to make existence of euch offices in those counties having
or attaining the designated scholastic population dependent'upon election
being called and that the office of County Superintendent is held to exist
in a county having a scholastic population of three thousand end eighty
where the Commissioners' Court called an election for such office end
superintendent was elected, notwithstanding question of whether such of-
fice should be created was not determined at an election under statute.
(Referring to Art. 2688)
The case of Miller vs. Brown, 216 S.W. 452, was a case in which
the facts are very similar to the facts presented in your inquiry and
this case holds in effect that the office of County Superintendent of
Public Instruction depends for its existence, under article 2750 (now
Article 2688) based on the condition of the scholastic census at each
general election, no election to such office being valid in a county hav-
ing a scholastic population of less than three thousand as shown by the
preceding census, except in counties where the office has been created
by 8n election held for that purpose. Since it was not the purpose of
this article, to create the office of County Superintendent of Public
Instruction, nor authorize the election to the same, in counties having
a scholastic population of less than three thousand as shown by the pre-
ceding census, except in counties where such office ha8 been created by
an election held for that purpose, and that one elected to such office
in a county having a scholastic population of less than three thousand,
where such office was not created by an election held for that purpose,
even if termed 8 de facto officer, is not entitled to the emoluments of
the office for the term for which elected.
The year of 1938 was a year for the election of a County Super-
intendent of Public Instruction in Floyd County and the scholastic popu-
lation of Floyd County fell below three thousand in 1938.
In view of the foregoing authorities, you are respectfully ad-
vised that it is the opinion of this department that the office of County
Superintendent of Public Instruction terminated in Floyd County when the
scholastic population of such county fell below three thousand in 1938
and that the office of County Superintendent of Public Instruction has
had no existence, potential or otherwise, since January 1, 1939. You
are further advised that it is our opinion that neither Mr. Travis nor
Mr. Guffie are entitled to the emoluments of the office since January
1, 1939 and that the Commiesioners1 Court of Floyd County cannot appoint
Mr. Guffie to an office that did not exist at the time of his appointment.
Hon. John Stapleton, page 4 (O-1254)
Answering your question 88 we have, it is not necessary to answer
your second question as above quoted.
The third question submitted in your inquiry has been answered
in our opinion No. o-1105; therefore, we enclose a copy of this opinion
herewith.
Trusting that the foregoing fully ensvera your inquiries, we
remain
Yours very truly
A'JKCORNEXGENERALOFTE+7
By /a/ Ardell Willi.amS
Ardell Williams
Assistant
AW:AW:IM
NNCLCNRE
APPROVED SEP 19, 1939
IS/ Gerald c. Msn!
ATJ?OPdEYGENERALOFTEXAS
APPROVED
OPINION
COMMITTEE
BY /a/ B.W.B.
CHAIRMAN | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154139/ | IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: ESTATE OF MARY D. FRANO : No. 368 WAL 2016
:
:
PETITION OF: EAGLE : Petition for Allowance of Appeal from
ENVIRONMENTAL, L.P. : the Order of the Superior Court
ORDER
PER CURIAM
AND NOW, this 20th day of March, 2017, the Petition for Allowance of Appeal is
DENIED. | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289130/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
)
)
v ) Cr. ID. No. 1405006237
)
)
)
Earle D. Moore, )
)
Defendant. )
Date Submitted: March 12, 2018
Date decided: June 27, 2018
COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
Renee L. Hrivnak, Esquire, Delaware Department of Justice, 820 N. French St. 7th
Floor, Wilmington, Delaware, 19801. Attorney for the State.
John S. Edinger, Jr., Esquire, Offlce of Defense Services, 820 N. French St. 3rGl
Floor, Wilmington, Delaware, 19801. Defense Counsel.
Earle D. Moore, pro se, Defendant.
MANNING, Commissioner:
This 27th day of June 2018, upon consideration of defendant Earle D. Moore’s
Amended Motion for Postconviction Relief 1 (“Motion”), l find and recommend the
following:
Procedural Histo[y
Moore pled guilty to Assault First Degree, Possession of a Deadly Weapon
During the Commission of a Felony (PDWDCF) and Burglary Second Degree, on
June 15, 2015. As part of the plea agreement, the State agreed to discharge a pending
Violation of Probation as unimproved. The plea agreement indicated that the State
Would seek to declare Moore a habitual offender pursuant to ll Del. C. § 4121(a) as
to the Burglary Second Degree and PDWDCF charges. The plea agreement
indicated no specific recommendation as to sentencing and stated “open sentencing.”
The Truth in Sentencing form correctly listed the sentence ranges for each charge
and that Moore Would face a minimum mandatory sentence of at least 35 years at
Level Five. A pre-sentence investigation Was requested. The plea agreement
indicates that Moore Wished to pled Guilty But Mentally Ill (GBMI), however, the
State opposed this request and requested a hearing pursuant to ll Del. C. § 408(a).
On June 30, 2015 , the Court issued an order finding that the facts presented did not
support a guilty but mentally ill plea.2 Moore Was offered an opportunity to
lD.I.#76.
2 D.I. #45.
withdraw his guilty plea at that time but declined to do so and a pre-sentence
investigation was ordered.3
On November 13, 2015, Moore was sentenced as a Habitual Offender to 37
years of unsuspended Level Five time, followed by probation. Moore did not appeal
his conviction or sentence to the Delaware Supreme Court. On September 30, 2016,
Moore filed a first motion for postconviction relief pursuant to Superior Ct. Crim.
Rule 61. The Motion was referred to the undersigned commissioner on October 5,
2016. After numerous requests by Moore to enlarge the record and for extensions
of time, all of which were granted by the Court, Moore filed an amended Motion on
September 19, 2017. Defense Counsel and the State both subsequently filed
Responses on February 15, 2018, and March 12, 2018, respectively. Moore did not
file a Reply.
Upon my review of the pleadings in this matter, I did not deem it necessary to
hold an evidentiary hearing based on the nature of Moore’s allegations
Moore’s claims for postconviction relief can be summarized as follows:
Ground One: Ineffective assistance of counsel during the initial of his
plea negotiation such that it questions the validity of the
plea as to whether it was knowingly and voluntarily made.
Ground Two: Brady Violation. The State failed to disclose
reports tending to show that the victim was the
aggressor in previous domestic incidents.
3 D.I. #46.
Ground Three: Trial counsel showed no loyalty and made
disparaging statements about him to the victim
about him, including that he was an animal and
should die in prison and that he would allow the
State prosecutor to do what they wanted to him.
Ground Four: lneffective assistance of Counsel. Counsel failed to
contact any witness for the movant and did not
investigate the case. Counsel also failed to present
highly mitigating evidence due to his own personal
feelings toward movant.
Ground Five: Ineffective assistance of Counsel. Counsel failed to
make the movant aware of the penalty he faced by
telling him he would be able to receive an amount
of goodtime credits impossible for someone with
movant’s sentence.
Ground SiX: Counsel was ineffective by allowing prosecutors to
plea movant out to a charge he was not indicted on
without proper proceedings and that the result was
worse for movant.
Facts
According to the Affidavit of Probable Cause, on November 25, 2014,
Newark Police responded to 1 1 A O‘Daniel Avenue, Newark, Delaware, for a report
of a stabbing. Upon arrival, police discovered Maribel Dejesus who had suffered
multiple life-threatening stab wounds. Ms. Dejesus identified Moore as her
assailant. A witness at the scene reported to police that she had seen Moore stab
Dejesus with an eight-inch kitchen knife following argument before fleeing the
scene. A second witness at the scene also reported that she observed Moore stab
Dejesus. Police then issued a general radio broadcast for Moore who was arrested
by police a short time later with blood on his jeans, arms, and shirt. At the time of
his arrest, Moore stated to police “something like ‘l’m so sorry. I love her. She
cheated on me.”’ Moore was transported back to the scene of the crime and was
positively identified by both witnesses Moore later admitted to police that he kicked
in the front door and stabbed Dejesus repeatedly with a kitchen knife that he
retrieved from the kitchen. Moore was charged by police with Attempted Murder,
Criminal Contempt of a Domestic Violence Protection Order (PFA), and other
related charges.
Legal Standard
To prevail on an ineffective assistance of counsel claim, a defendant must
meet the two-pronged Stricklana' test by showing that: (l) counsel performed at a
level “below an objective standard of reasonableness” and that, (2) the deficient
performance prejudiced the defense.4 The first prong requires the defendant to show
by a preponderance of the evidence that defense counsel was not reasonably
competent, while the second prong requires the defendant to show that there is a
reasonable probability that, but for defense counsel’s unprofessional errors, the
outcome of the proceedings would have been different.5
4 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
51a'.
When a court examines a claim of ineffective assistance of counsel, it may
address either prong first; where one prong is not met, the claim may be rejected
without contemplating the other prong.6 Most germane to this case, mere allegations
of ineffectiveness will not suffice-_a defendant must make and substantiate concrete
allegations of actual prejudice7 An error by defense counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of conviction if the error
had no effect on the judgment.8
In considering post-trial attacks on counsel, Strickland cautions that trial
counsel’s performance should be viewed from his or her perspective at the time
decisions were being made.9 A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting efforts of hindsight. Second
guessing or “Monday morning quarterbacking” should be avoided. 10
6 Strickland, 466 U.S. at 697.
7 Younger v. State, 580 A.2d 552, 556 (Del. 1990).
8 Strickland, 466 U.S.at 691.
9 Ia’.
10 Id.
Analysis
The procedural requirements of Rule 61 must be addressed before considering
the merits of any argument.ll Moore’s Motion was timely filed12 and is not
repetitive, thus satisfying the requirements of Rule 6l(i)(1) and (2).13 Therefore,
Moore’s Motion should be decided on its merits.
Ground One: Based on my review of the record, there is nothing to indicate
that Moore’s guilty plea was not made knowingly, intelligently and voluntarily. All
of the guilty plea paperwork was correctly completed and Moore has offered no
specific examples of Defense Counsel’s deficient performance or any prejudice he
suffered. This claim is conclusory and should be denied.
11 See Younger, 580 A.2d at 554.
12 Per Rule 61(m)(1), Moore’s conviction did not become final until 30 days after
he was sentenced because he did not take a direct appeal.
13 Rule 61(i) Bars to relief. --
(l) Time limitation -- A motion for postconviction relief may not be filed more
than one year after the judgment of conviction is final [].
(4) Former adjudication -- Any ground for relief that was formerly adjudicated,
whether in the proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter
barred.
Ground Two: The State indicated in its Response that it is unaware of any
police reports purporting to show that the victim was the initial aggressor.14
Additionally, Moore has offered no proof beyond his conclusory allegations that any
such reports exist or that the victim was, in fact, the initial aggressor. Even if she
was however, Moore elected to pled guilty thereby waiving his right to proceed to
trial and confront his accuser. “lt is well-settled that a knowing, intelligent, and
voluntary guilty plea waives a defendant's right to challenge any errors occurring
before the entry of the plea.”15 This claim is likewise without merit.
Ground Three: Defense Counsel denies that he had any such conversation
with the victim.16 Moreover, Moore has provided no proof beyond his mere
allegation. This claim is without merit and should be denied.
Ground Four: Defense Counsel stated in his Affidavit that he was never made
aware of any witnesses that would have been helpful to Moore’s case. Moreover,
Moore has failed to identify who those witnesses were, much less what they would
have testified to at trial. Defense Counsel also denies that he failed to present
14 D.I. 67, p.8.
15 Fiela’s v. State, 2017 WL 4607424 (Del. October 12, 2017) (citing Smith v. State,
2004 WL 120530 (Del. Jan. 15, 2004) (citing Tollett v. Henderson, 411 U.S. 258,
266_67 (1973) (reaffirming the principle that “a guilty plea represents a break in
the chain of events which has preceded it in the criminal process.”))).
16 D.I. #81, Affidavit of Defense Counsel, p. 1.
mitigating evidence on Moore’s behalf. Moore has failed to identify specifically
what evidence Defense Counsel might have presented that could have resulted in a
different outcome for him. Notably, Defense Counsel did present evidence that
Moore was suffering from a mental illness at the time of the crime. This claim is
without merit and should be denied.
Ground Five: Defense Counsel denies this allegation and stated in his
Affidavit that he made More aware, based on his understanding of the law, that he
would be eligible for good time credit. Beyond this explanation, I am unclear exactly
what Moore is arguing in his Motion other than that he is unhappy with the length
of his sentence and now regrets pleading guilty. This claim is meritless and should
be denied.
Ground Six: Moore pled guilty to a lesser included offense of Attempted
Murder and Possession of Deadly Weapon During the Commission of a Felony_
both indicted charges. Moore also pled guilty to one count of Burglary Second
Degree by Attorney General’s Information. The plea agreement clearly states that
“Def waives indictment of this charge for purposes of this plea.” Based on this
record, this claim is meritless and should be denied.
Conclusion
I have carefully reviewed Moore’s Motion, as well as the submission of
Defense Counsel and the State, and I find that Moore has failed to demonstrate that
any alleged error on the part of Defense Counsel resulted in prejudice to him. As
such, I conclude that Moore’ claims of ineffective assistance of counsel are
unavailing and that his Motion should be Denied.
IT IS SO RECOMMENDED.
/ZQJ¢YVM
Commissioné/
oc: Prothonotary
cc: Defendant via first class mail, counsel via e-mail | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4132390/ | THEATTORNEYGENERAL
OF TEXAS
AURTIN. %bXAS 78711
Honorable Joe Resweber Opinion No. H-990
County Attorney
Harris County Courthouse Re: Whether Harris County
Houston, Texas 77002 may charge tolls on the
Lynchburg ferry.
Dear Mr. Resweber:
You have requested our opinion regarding whether the
commissioners court of Harris County may charge tolls for
crossings on the Lynchburg ferry.
The commissioners court has for many years operated the
Lynchburg ferry as a free ferry across the Houston Ship
Channel. Its authority to do so is derived from article
2351, V.T.C.S., which provides, in pertinent part:
Each commissioners court shall:
. . . .
2. Establish public ferries when-
ever the public interest may
require.
The commissioners court is not authorized thereby, however,
to assess tolls for ferriage. It is well established that
a county_ possesses
. only those powers specifically conferred
by the Constitution and by statute. Canales v. Laughlin, 214
S.W.Zd 451, 453 (Tex. 1948).
Two statutes, articles 6801 and 1476, V.T.C.S., authorize
a commissioners court to assess rates of ferriage. Both're-
late, however, to the imposition of tolls and charges on pri-
;;;;ly operated ferries. See V.T.C.S. arts. 6798-6812; 1474-
. In our opinion, thesestatutes furnish no basis for
concluding that a commissioners court may charge tolls on
county-operated ferries. Furthermore, a number of other statutes
clearly authorize a county to charge tolls on county-operated
bridges and tunnels. -See V.T.C.S. arts. 6795a; 6795b; 6795c.
p. 4112
Honorable Joe Resweber - page 2 (H-990)
See also Attorney General Opinion H-825 (1976). The absence
--
of any such language in article 2351, or elsewhere, authorizing
a commissioners court to assess and collect tolls on its
county-operated ferries, compels the conclusion that it may
not do so.
SUMMARY
The commissioners court of Harris County
may not charge tolls for crossings on the
county-operated Lynchburg ferry.
-Very truly yours,
/ j Attorney General of Texas
APPROVED: u
Opinion Committee
km1
p. 4113 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132391/ | THEA~TORNEYGENERAI,
OF TEXAS
The Honorable Henry Wade Opinion No. H-989
District Attorney
6th Floor, Records Building Re: Necessity of inheritance
Dallas, Texas 75202 tax receipt prior to distri-
bution of estate of ward under
section 408 of Probate Code.
Dear Mr. Wade:
You have requested our opinion concerning whether a
court may order the distribution of the estate of a deceased
ward at the closing of a guardianship without finding that
all inheritance taxes have been paid.
Sections 404 and 405 of the Probate Code provide for a
final accounting and the closing of a guardianship upon the
death of a ward. Section 408(b) provides in part:
Upon final settlement of an estate . . . the
court shall order . . . in case of a dece-
dent, that a partition and distribution be
made among the persons entitled to receive
such estate.
In Easterline v. Bean, 49 S.W.Zd 427 (Tex. 19321, the court
quoted from Young v. Gray, 60 Tex. 541 (18831, in which it
was stated:
The estate of the deceased ward should,
like the estate of any other deceased
person, be turned over as soon as possible,
by the guardian, to the administrator or
such other person or persons as by law may
be determined to be entitled to it.
Easterline v. Bean, supra at 429. Where no administration Of
a ward's estate 1s necessary, the closing of a guardianship
pursuant to section 408 results in the final distribution of
the ward's estate. You have asked whether such a final dis-
tribution may be made without a finding that all inheritance
taxes due the State have been paid.
P. 4109
The Honorable Henry Wade - page 2 (H-989)
Section 410 of the Probate Code provides in part:
[Nlo estate of a decedent shall be closed,
unless the final account shows, and the
court finds, that all inheritance taxes due
and owing to the State of Texas with respect
to all interests and properties passing
through the hands of the representative have
been paid.
Section 3(aa) of the Probate Code defines "representative" to
include guardians. We note that under some provisions of the
Code there would generally be no closing of an estate; ,the
court does not ascertain the contents of the estate or order
a specific distribution thereof. See, SS 48, 89. However,
when a guardianship is involved, section 408 requires a court
to orderthe specific distribution of the estate. When no
administration of the ward's estate is to take place, in our
view this distribution upon the closing of the guardianship
is a closing of an estate within the meaning of section 410.
Accordingly, in our opinion the final account of a guardian
of a deceased ward must show, and a court must find, that all
inheritance taxes due the State have been paid prior to the
distribution of the estate to the ward's heirs.
SUMMARY
Section 410 of the Probate Code requires
that a court find that all inheritance taxes
due the State have been paid prior to the
court's distribution of a ward's estate upon
the closing of a guardianship where the estate
will not be further administered.
Very truly yours,
APPROVED:
DAVID M. KENDALL, First Assistant
page 4110
. .
The morable Henry Wade - page 3 (H-989)
Opinion Committee
km1
p. 4111 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145164/ | A7TORNEY GENERA& OFrmnS
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https://www.courtlistener.com/api/rest/v3/opinions/4132696/ | The Honorable John M. Lawrence, III Opinion No. H- 683
President, State Bar of Texas
P. 0. Box 12487, Capitol Station Re: Whether Department of
Austin, Texas 78711 Public Safety may provide
criminal history informa-
The Honorable Wilson Speir, Director tion to State Bar and
Texas Department of Public Safety Department of Public
P. 0. Box 4087 Welfare for licensing
Austin, Texas 78173 purposes.
Dear Mr. Lawrence and Colonel Speir:
Each of you has requested our opinion as to whether the Department of
Public Safety has authority to provide criminal history record information
to certain state agencies for licensing purposes. The State Bar of Texas
seeks criminal history record information concerning applicants for admis-
sion to the Bar; the Department of Public Welfare seeks only information
concerning felony and selected misdemeanor convictions of child care
administrator applicants and licensees.
The question here is not whether this information may be relied upon
as the basis for a licensing decision. Procedural due process requires
notice and hearing and confrontation of one’s accusers. See Willner v.
Committee on Character and Fitness of New York, 373 UT 96, LO5 (1963);
Greene v. McElroy, 360 U.S. 474 (1959). The only question is whether
the Department of Public Safety may provide such information to the State
Bar and the Department of Public Welfare to assist them in their investi?
gative responsibilities,
The Department of Public Welfare has a duty to license and regulate
administrators of child-caring institutions. Eligibility for a license requires
among other qualifications evidence of “good moral character, ethical commit-
ment, and sound physical and emotional health and maturity. II V. T. C. S.
art. 695a-1, $3. Section 7 of this licensing act provider:
p. 2971
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 2
The department may revoke a child care
administrator’s license if it finds that the licensee:
(1) has been convicted of a felony;
(2) has been convicted of a misdemeanor
involving fraud or deceit. , . .
Obviously, grounds for revocation of a license constitute grounds
for denial of an initial license. We believe that this express authority
to take action on the basis of certain convictions necessarily includes
authority to investigate and obtain information concerning such convic-
tions. It is a cardinal rule of statutory construction that the’statutory grant
of an express power carries with it by necessary implication every other
power necessary and proper to the execution of the power expressly
granted. Anderson v. Brandon. 47 S. W. 2d 261, 262 (Tex. Sup. 1932);
Imperial Irr. Co. v. Jayne, 138 S. W. 575 (Tex. Sup. 1911); Terre11 v.
Sparks, 135 S. W. 519 (Tex.Sup. 1911); Brown v. Clark, 116 S. W. 360
(Tea Sup. 1909).
Thus, it is our opinion that the Department of Public Welfare has
authority to obtain information as to whether applicants for a child care
administrator license, or license holders have been convicted of a
felony or certain misdemeanors.
The Supreme Court licenses persons to practice law in Texas. V. T. C. S.
art. 306. The Board of Law Examiners is responsible for determining the
eligibility of candidates for admission to the Bar and recommending qualified
persons to the Supreme Court. V. T. C. S. art. 305. The Supreme Court
has by rule imposed a duty on the Board, the State Bar and District Com-
mittees on Admissions to investigate the qualifications of applicants for
admission to the Bar. Rules Governing Admission to the Bar, Rules III
E. H. J, R, L, M; VIIr; IX; XI1 (c),(g) (1974).
Good moral character is an essential qualification for admission to the
Bar. V. T. C. S. arts. 305. 306. 307A. 307B. 308. Rules Governing
Admission to the Bar, Rules II, III, VIII, XII.
p. 2972,
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 3
Criminal conduct of an applicant for admission to the Bar is relevant
to an investigation of the person’s qualifications. Article 311, V. T. C. S.,
absolutely bars from admission any person who has been convicted of a
felony. Upon conviction for a “felony involving moral turpitude or of
any misdemeanor involving the theft, embezzlement, or fraudulent appro-
priation of money or other property,” an attorney shall be suspended during
pendency of any appeal, and shall be disbarred upon final conviction.
V. T. C. S. art. 320a-1, 5 6. Obviously, grounds for disbarment are
grounds for denial of initial admission. See Hallinan v. Committee of Bar
Examiners of the State Bar, 421 P. Zd 76, 81 (Cal. 1966).
The State Bar’s legitimate interest in criminal history information is
not limited to convictions. “Conduct not descending to the level of guilt
of the violation of a criminal statute may well present an insuperable
obstacle to admission to the Bar if such conduct evinces a lack of that
‘character and general fitness requisite for an attorney and counsellor-
at-law. “’ Application of Cassidy, 51 N. Y. S. td 202, 206 (N. Y. App. Div.
1944), aff’d, 73 N. E. 2d 41 (N. Y. 1947). See 7 C. J.S. Attorney & Client
97, p. 713.
It is within the discretion of the Supeme Court to deny admission
to the Bar on the grounds that an applicant made materially faalse statements
in his application for admission. See Rules Governing State Bar of Texas,
art. 12 5 5 DR l-101, DR l-102. Certainly the State Bar’s investigatory
authority includes obtaining information which will verify statements
made by an applicant concerning charges of criminal conduct made
against him and their disposition.
An administrative agency with investigative duties may take steps to
inform itself on matters within its jurisdiction, such as whether there is
probable violation of the law, or just to assure itself there is none. United
States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950). We believe the
State Bar may obtain information such as that contained in crininal history
records held by another state agency in the course of its investigation. Such
information may suggest areas of further investigation. -See Application
of Levine, 397 P. 2d 205, 208 (Aria. 1964).
p. 2973
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 4
The Department of Public Safety has a duty to collect and file for
record information concerning convicted felons, well-known and habitual
criminals, the number and nature of offenses known to have been committed
in the State, of the legal steps taken in connection therewith, “and such
other information as may be useful in the study of crime and the administra-
tion of justice. ” V. T. C. S. art. 4413(14).
We believe that the general public policy of this State is that state
agencies should cooperate in the interest of efficiency and economy in the
administration of their statutory duties. See V. T. C. S. arts. 441?(23),
4413(32); 695c, $4(S).
We need not reach the question of whether some of the information
requested is excepted from general public disclosure under the Open Records
Act, article 6252-17a, V. T. C. S. In Attorney General Opinion H-242 (1974).
we said:
. . . Our office has previously recognized the need
to maintain an unrestricted flow of information
between state agencies. See Attorney General
Opinion M-713 (1970). The Open Records~ Act does
not undercut that policy. Information which is not
required to be disclosed to the public under the Act
can still be transferred between state agencies with-
out violating its confidentiality or destroying its
confidential character.
In addition we note that the Supreme Court Rules Governing Admission
to the bar expressly make information received in investigation of moral
character and fitness confidential. Rule II D.
p. 2974
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 5
We are aware of the growing concern about the misuse of incomplete,
inaccurate, or irrelevant criminal history record information. The
potential for harm to the individual concerned increases as modern tech-
nology makes such information more accessible through nationwide
criminal history record information systems. See generally, Tarlton
v. Saxbe, 507 F. 2d 1116(D. C. Cir. 1974); Menard v. Saxbe, 498 F. 2d
1017 (D. C. Cir. 1974); Menard v. Mitchell, 430 F. 2d 486 (D. C. Cir.
1970); Gregory v. Litton Systems, Inc., 316 F.Supp. 401 (C. D. Cal.
1970), modified, 472 F. 2d 631 (9th Cir. 1972); Davidson v. Dill, 503
P. 2d 157 (Colo. 1972); Henry v. Looney. 317 N. Y. S. 2d 848 (Sup. Ct. 1971);
Monroe v. Tielsch, 525 P. 2d 250 (Wash. 1974); Eddy v. Moore, 487 P. 2d
211 (Wash. App. 1971); Comment, Branded: Arrest Records of the Uncon-
victed, 44 Miss. L. J. 928 (1973); Comment, Retention and Dissemination
of Arrest Records: Judicial Response, 38 U. Chi. L. Rev. 850 (1971);
Hess & LePoole, Abuse of the Record of Arrest Not Leading to Convic-
tion, 13 Crime & Delinquency 494 (1967).
However, the Department of Public Welfare seeks only information
concerning convictions. At least as to convictions in Texas, this informa-
tion is public when held by the court clerk or other person responsible
for filing it. See Code Crim.Proc. arts. 1.24, 2.21, 42.01, 42.02, 45.13,
.45.49; V.T. Cx arts. 1200, 1899, 1945, 2383, 3930. It is not necessary
here to decide whether the public nature of this information is transformed
by virtue of the compilation of it in a centralized and vastly more accessible
form. The Department of Public Welfare is authorized to make decisions
on the basis of convictions, and we believe it is clear that it can obtain
information concerning convictions from another state agency which compiles
it.
The request of the State Bar is broader, arrl asks for all criminal
history record information which the Department of Public Safety holds
or to which it has access. This information may include notations of
convictions, indictments, informations, or other formal charges of
criminal conduct, dispositions arising from such charges such as acquittal
by reason of insanity, incompetency to stand trial, pardons, probation before
convictions, no bill, nolle prosequi, charge dismissed, and a Mriety of other
possible conclusions to criminal proceedings. It may also include information
as to arrest without any indication of further action or disposition.
p. 2975
. .
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 6
The United States Supreme Court, in Schware v. Board of Bar
Examiners, 353 U.S. 232, 241 (1957) has said:
The mere fact that a man has been arrested has
very little, if any, probative value in showing that
he has engaged in any misconduct. An arrest shows
nothing more than that someone probably suspected
the person apprehended of an offense. When formal
charges are not filed against the arrested person and
he is released without trial, whatever probative force
the arrest may have had is normally dissipated.
This language is pertinent to the Bar’s evaluation of information, but
we do not believe it can be read so as to preclude inquiry and investigation
into potentially relevant areas, reflected in official records of alleged or
proven misconduct.
While the State Bar and Department of Public Welfare have authority
to obtain this information they seek and no state law restricts the Depart-
ment of Public Safety from providing it, applicable federal statutes and
regulations do limit dissemination of criminal history information in some
instances.
As a participant in the Federal Bureau of Investigation’s National Crime
Information Center and as a recipient of Law Enforcement Assistance
Administration funds, the Department of Public Safety has certain contrac-
tual obligations and is subject to recent regulations issued by the Attorney
General of the United States pursuant to various federal statutes concerning
the dissemination of criminal history record information. 28 C. F. R. § 20.1
et seq., 40 Fed. Reg. 22114 (1975) (effective June 19, 1975).
Under these regulations, the Department of Public Safety is under a
duty to limit dissemination of criminal history record information to:
(1) Criminal justice agencies, for purposes of
the administration of criminal justice and criminal
justice agency employment:
p. 2976
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 7
(2) Such other individuals and agencies which
require criminal history record information to
implement a statute or executive order that
expressly refers to criminal conduct and contains
requirements and/or exclusions expressly based
upon such conduct;
. . . .
(6) Individuals and agencies where authorized by
court order or court rule.
28 C. F. R. 5 20.21(b).
The regulations also provide in section 20. 33 as follows:
(a) Criminal history record information contained
in any Department of Justice criminal history
record information system will be made available:
. . . .
(3) Pursuant to Public Law 92-544 (86 Stat. 115)
for use in connection with licensing or local/state
employment or for other uses only if such dis-
semination is authorized by Federal or state statutes
and approved by the Attorney General of the United
States. . . .
The Director of the Federal Bureau of Investigation has been given
authority to approve exchanges of identification records with State and local
governments for purposes of empl.oyment and licensing. 28 C. F. R. 5 0.85(j)
(1974).
It is our view that the Department of Public Welfare’s child care
administrator licensing statute brings it precisely within the terms of
28 C. F. R. $2-.21(b)(Z), in that the statute “expressly refers to criminal
conduct and contains express requirements and/or exclusions expressly
based upon such conduct. ‘I V. T. C.S. art. 695a-1, § 7.
It is apparent that the State Bar of Texas is within several categories of
those agencies to whom criminal history record information may be dis-
seminated.
p. 2977
. . .
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 8
In our opinion, the Department of Public Safety has authority to
cooperate with the Department of Public Welfare and the State Bar of
Texas by providing those agencies with the information they have
requested and which the Department of Public Safety holds.
To the extent that the federal regulations discussed are applicable to
all or part of the information you hold or to which you have access through
contractual arrangements, it is our view that the Department of Public
Welfare and the State Bar are within the categories of agencies described
in the federal regulations as those to whom dissemination is permissible.
In order to avoid questions as to applicability or possible breach of con-
tractual provisions, the Department of Public Safety should request the
Attorney General of the United States, through the Director of the Federal
Bureau of Investigation, to approve the dissemination of that criminal
history record information to which the regulations are applicable to
these agencies pursuant to 28 C. F. R. $20. 33; E 28 C. F. R. 5 0.85(j).
Upon receipt of this approval, which we believe should be forthcoming,
the Department of Public Safety may provide the requested information
to the State Bar and thenDepartment of Public Welfare under such terms
and conditions as are reasonable and necessary to accomplish such inter-
agency cooperation. See
- V. T.C.S. art. 4413(32).
Colonel Speir also asks in reference to the Department of Public
Welfare’s request, what misdemeanors involve fraud and deceit within
the meaning of section 7 of article 695a-1, V. T. C. S. In our opinion,
this refers to offenses which include fraud or deceit as an element of the
offense.
Without attempting to be exhaustive, and by way of example only,
depending upon the circumstances of the particular offense, misdemeanor
offenses such as those defined in Penal Code chapters 31 (theft), 32 (fraud),
37 (perjury and other falsification) may involve fraud and deceit.
p. 2978
-. . .
. . ’
..
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 9
SUMMARY
The Department of Public Safety may provide
criminal history information to the State Bar of Texas
and the Department of Public Welfare to assist them
in their licensing responsibilities. The approval of
the Attorney General of the United States should be
sought to disseminate criminal history record
information from the National Crime Information
Center System to these agencies.
Very truly yours,
/\
// JOHN L. HILL
u Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2979 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154100/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD FRANK FIDGE, No. 15-17000
Plaintiff-Appellant, D.C. No. 4:13-cv-05182-YGR
v.
MEMORANDUM*
LAKE COUNTY SHERIFF’S
DEPARTMENT, AKA Lake County
Sheriff’s Office; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Ronald Frank Fidge appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging constitutional claims arising out
of his arrest for trespassing. We have jurisdiction under 28 U.S.C. § 1291. We
*
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). Fidge’s requests for oral
argument, set forth in his opening and reply briefs, are denied.
review de novo. Guatay Christian Fellowship v. County of San Diego, 670 F.3d
957, 970 (9th Cir. 2011). We may affirm on any basis supported by the record.
Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
Summary judgment for Deputy Wright on Fidge’s unlawful arrest claim was
proper because Fidge failed to raise a genuine dispute of material fact as to
whether Wright arrested him without probable cause. See United States v.
Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984) (probable cause for a warrantless
arrest exists if “under the totality of the facts and circumstances known to the
arresting officer, a prudent person would have concluded that there was a fair
probability that the suspect had committed a crime”).
The district court properly granted summary judgment for Gaskell,
Hardester, and Harper on Fidge’s unlawful arrest claim because Fidge failed to
raise a genuine dispute of material fact as to whether these defendants acted under
the color of state law. See United Steelworkers of Am. v. Phelps Dodge Corp., 865
F.2d 1539, 1540 (9th Cir. 1989) (en banc) (“Private parties act under color of state
law if they willfully participate in joint action with state officials to deprive others
of constitutional rights.”); see also Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002) (to establish § 1983 liability, a plaintiff must demonstrate that an action
occurred under color of state law and resulted in the deprivation of a constitutional
right).
2 15-17000
To the extent that Fidge challenges summary judgment for Deputy Wright
on Fidge’s excessive force claim, the district court properly granted summary
judgment because Fidge failed to raise a genuine dispute of material fact as to
whether Deputy Wright’s use of less-lethal force to effectuate Fidge’s arrest
violated Fidge’s Fourth Amendment rights. See Graham v. Connor, 490 U.S. 386,
396 (1989) (explaining that the test of reasonableness under the Fourth
Amendment requires “careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, [and] whether . . . [the
arrestee] is actively resisting arrest . . . .”).
To the extent that Fidge alleges a claim under Monell v. Department of
Social Services, 436 U.S. 658 (1978), summary judgment was proper because
Fidge failed to raise a genuine dispute of material fact as to whether there was any
underlying constitutional violation or whether actions were taken pursuant to
established custom or policy. See City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) (Monell liability is unavailable “[i]f a person has suffered no
constitutional injury at the hands of the individual police officer[.]”); Henry v.
County of Shasta, 132 F.3d 512, 517 (9th Cir. 1997) (municipal defendant can only
be liable under § 1983 if actions were taken pursuant to custom or policy).
Dismissal of Fidge’s false imprisonment claim against Lake County was
proper because the district court granted summary judgment for Deputy Wright on
3 15-17000
this claim. See Cameron v. Craig, 713 F.3d 1012, 1023-24 (9th Cir. 2013) (county
is vicariously liable if a plaintiff prevails on a state law claim against a county
employee).
We reject as without merit Fidge’s contention that the district court
improperly considered hearsay evidence submitted by defendants in support of
their motions for summary judgment.
Contrary to Fidge’s contention, the record reflects that the district court
considered Fidge’s evidence submitted in opposition to summary judgment.
We reject as unsupported by the record Fidge’s contentions regarding
alleged judicial bias.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Fidge’s motion to take judicial notice of documents (Docket Entry No. 45) is
denied.
Fidge’s request for reassignment of the district court judge, set forth in his
opening brief, is denied.
AFFIRMED.
4 15-17000 | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154125/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE EDWARD COMMITTE, No. 15-35386
Plaintiff-Appellant, D.C. No. 3:13-cv-01341-ST
v.
MEMORANDUM*
OREGON STATE UNIVERSITY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Janice M. Stewart, Magistrate Judge, Presiding**
Submitted March 8, 2017***
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Bruce Edward Committe appeals pro se from the district court’s summary
judgment in his action under the Age Discrimination in Employment Act
(“ADEA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
France v. Johnson, 795 F.3d 1170, 1171 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment because Committe
failed to raise a genuine dispute of material fact as to whether Oregon State
University’s legitimate, non-discriminatory reasons for declining to hire him as a
professor were pretextual. See id. at 1173-75 (explaining burden shifting
framework for analyzing an ADEA claim on summary judgment, and setting forth
plaintiff’s burden in raising a genuine dispute of material fact as to pretext).
The district court did not abuse its discretion in denying Committe’s motion
for leave to file a second amended complaint because the proposed amendments
would have been futile. See Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051,
1055, 1057 (9th Cir. 2009) (setting forth standard of review and explaining that
“the ADEA precludes the assertion of age discrimination in employment claims,
even those seeking to vindicate constitutional rights, under § 1983”).
We do not consider matters not specifically and distinctly raised in the
opening brief, or arguments and allegations raised for the first time on appeal. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Committe’s motion for extraordinary relief (Docket Entry No. 26) is denied.
The parties’ motions requesting no oral argument (Docket Entry Nos. 19 and
22) are denied as moot.
AFFIRMED.
2 15-35386 | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145171/ | 175
OFFICE OF THE ATTORNEY GENERAL OFTEXAS
AUSTIN
Hoi?.E.A. HOdip6
county wcu.ter
#iJ.llac;sOri
caunty
w3e+y3town,E8x8a
C\
W.lrtS, plaYW8 or recorder8 Of an iEOOS;jOl=at88
city or tmrt), stall extend to any part 0r the
State and any pa08 otiioer to Who18 said war-
rant i8 directed, or into WOOS8 hands the aa~~
has b?sn transferred, shall be authorizsd to
8XeOUte th8 BEG8 i.Ilally OWZlty in tii8 StGt8."
It is al8ar, tharorore, that a aonstable baing
a *pea08 otrioer’ a8 that tcna18 a8iiDed fn mlo3.8
36, C.C.P., 0ap 8X8oute a warrantof arrest in any ooun-
ty in Taxas. It Wa8 h8lO in th8 8B88 R8XlSOnYE. State,
49 S&f. (2d) 463 that Artiole 223, supra, does not ex-
t8Ild th8 right Of a pea08 OffiO8r t0 Xi&C8 a ar8St Wt-
side of his auunty in the absaaoe oi a warlgnt, and that
an arrest nade without a warrant 18 void.
It is, therefors, the oplnlcna of'thie depart-
me+&, and you are so advised, that a aonstable haa the
lddlckity to 6X8OUt8 a W~rilllt Of alTG3St UOt O&lb in
,$mw,y preolnat within us oounty, but as well in any
county In the state, and la antitled to the rear urd
tileage provided by law thereior.
ATTORNEY GFJ.UmAL OB TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132406/ | AUUSIN. -I3 78711
April 7, 1977
The Honorable Gibson Gayle, Jr. Opinion 80. H- 974
President
State Bar of Texas Re: Whether non-lawyers
-Austin,Texas 76701 may represent corporations
aa individuals at
administrativehearings
of state boaxds aud
agencies. :.
'.
Dear Mr. Gayle:
You have requestedour opinion as to whether representation
of corporationsand individualsby non-lawyers before the
Industrial Accident Board aa the State Board of Insurance
constitutes the unauthorizedpractice of law.
It is well establishedthat the purpose of laws land
decisions prohibitingthe performance of legal services by
non-lawvexs is to protect the public from unqualifiedpersons.
Hexter Title 6 Abstract Co. v~Grievance &ttee, 179
m ~~(T~ac~ aevance thmaittee & De
S.W.Zd 126 (Tex.Civ. App. -- Austin 1945, uo =+I %iele
430a of the Penal Code, repealed in 1949, defined various
servkes as the practik o$,lqw and.prohibitednon-lawyers
from rhm3ering such services. Prior to its repeal, several
courts noted that the judiciary may have the final authority
to define -thepractice of law, but failed .torule od the
question and based their decisions,upon the statute. Hexter
Title 5 Abstract Co. v. Grievance Committee, aupra; Carr L
'Ee:al;l;iWF '310(Tex. Civ. App. --Ft. Worthm3,
In Carr, the court held that representation
of persons &f&e the RaEad Commission in Rule 37 proceedings
was not included within the definition contained in article
430a and thus did not constitute the practice of law. The
court noted the power of the judiciary under authoritiesin
other states bu'tdid not'apply any independent judicial
examination to the services involved. However, in Grievance
Committee v. bean, BUPrl).,an
90 S.W.ZdT3mex. Civ. App. --
w.0.m.), the court held that the definition of article 430a
was not exclusive and that the judiciary retained the power
to define the practice of law.
p. 4054 '
. -
c *
Y i . -- i li’ .I ” - - I. ,.. *
The Honorable Gibson Gayle, Jr..- page 2 (R-974)
Following the repeal of article 430a in 1949, the res-
ponsibilityfor defining the practice of law rested exclusively
with the judiciary,although the Legislaturecould act in aid
thereof to protect the public. Bryant v. State, 457 S.W.2a
72 (Tex. Civ. App. -- Eastlana 1970, wrE ref'd n.r.e.1. In
Southern Traffic Bureau v. Thompson, 232 S.W.Zd 742 (Tex.
Civ. App. -- San AntonioT950, writ ref'd n-r-e.), the court
dealt with the a&ions of the Bureau in presentingand
prosecutingclaims against rail carriers. The court held
that the Bureau's activities under agreementswith shippers
which gave the Bureau discretion to settle claims and accept
settlementoffers constituted the practice of law. See also
Quarles v. State Bar of Texas, 316 S.W.Zd 797 (Tex. G.-
ApT R&~l~,~.writ). Rowever, the court held
that various investigationalprocedures did not involve the
practice of law and stated:
The rule limiting the practice of law . . ;
should not be extended beyond the
requirementsof the comaongood. Southern
haffic Bureau 5 Thompson, supra at 749.
Thus, any decision concerning the definitionof the practice
of law should be based upon an analysis of the dangers apd
benefits to the public. Of course, these factors will differ
depending upon the substance and nature of particular admin-
istrative proceedings. In some instances,federal law is
relevant. See ;.&20 C.F.R. 404.971 (1976). For these
reasons, it wou impossible to answer-ageneral question
conceru5xqthe representationof persons aud corporations
before all state agencies. Accordingly,we will address
only ~+hethe specific.agenciesmentioned in your request,
the IndustrialAccident board and the State board of Insurance.
The IndustrialAccident Board was created by the
Legislatureto admgnister the State's Workmen's Compensation
V.T.C.S. arts. 8306-8309h. In Sooth v. Texas
Em i0 ers* InsuranceAssociation, 123-2r3ZZex.
"::B&liZ court explained:
[Ilt is apparent that the Industrial
Accident Board is not a court but an
adminietrativebody, that claims filed
before.it are not pleadings, and that the
presentationor hearing of claims is not
intended to be attended or governed by
rules or formalities appropriateto
trials in court.
p. 4055
I . .
The Sonorable Gibson Gayle, Jr. page 3 m-974)
. . . . .
It is important to the successful
perfonaanceof the duties of such admin-
istrativeagency and to the attainment of
the general purpose of the Workmen's
CompensationLaw that the board be per-
mittea to entertain and promptly decide
claims submitted to it, unhampered by
unnecessaryformality zna unrestrained by
the rules of pleading and evidence that
prevail in the courts. It is often desirable
that the~~injuriaemployee be able to file his
claim for compensationand submit it to ~.
the board without the assistance of'an
attorney at law. g. at326.
The court further noted that the Board was empowered to make
rules not inconsistentwith law.
Prior to 1975, article 8307, section 10(b) expressly
rewgnized that nonlawyersmight represent parties before
the IndustrialAccident Board, In the enactment of,Senate
Bill 1010 by the 64th Legislature,the language 'their-
attorneys or the duly authorized agents of the parties,' was
deleted from section 10(b). This could have been an inadvertant
omission which was beyond the scope of the conference committee's
authority, since the language was in the bill as presented
to the committee and was not a subject of disagreement
between the two houses. Senate Rule 96(a), SR4, Senate
Journal, 64th Leg., p. 4 (11475);House Rule 25, section 8,
HSR 12, Rouse Journal,Vol. 1, 64th Leg., p. 63 (11675). In
addition, the deletionwas not accomplished in accordance
with the rules pertainingto amendment of existing statutes;
that is, the phrase was not bracketed and marked through as
required by Joint Rule 22(c), SCR 17, Senate Journal, 64th
p. 979 (42575). Accordingly, in our opinion, the
%ion of this language from article 8307, section 10(b)
was not a clear indicationof an intent on the part of the
Legislature to prohibit nonlawyers from practicing before
the Board.
The IndustrialAccident Board has informed us that non-
lawyers are permitted to represent parties at prehearing
conferences and at hearings before the Board. -See Board
P- 4056
.
The Honorable Gibson Gayle, Jr. - page 4 (H-974)
Rule 5.080(b) [TexasCompensationMdnUal). They may likewise
do so before the State Board of Insurance. Rule 059.01.04.008.
(Rules of Practice and Procedure before the State Board of
Insurance and the Commissionerof Insurance,.Dec.31, 1975).
This is not to say, of course, that a non-lawyer is required
or entitled to representan individual in the same manner as
an attorney is or that he may charge a fee for such represen-
tation. This has long been the practice in this state and neither
the judiciary nor the Legislaturehas seen fit to alter it.
As previously stated, any prohibition of such representation
by non-lawyersmust result from an assessment of the public
welfare. In our view, the Legislature and the agency involved
are in the best positionto make such an assessment.
The settlementof claims by an insurance adjuster was
authorized by the Statementof Principles approved by the
State Bar in 1946. 22 Texas Bar Journal 69 (1959). Similarly,
in a meeting of members of the Unauthorized'Practiceof Law
Subcommitteeand insurancerepresentativeson November 5,
1976, a consensuswas reached that *activitiesof insurance
adjusters and persons representingclaimants at prehearing
wnfe,rencesdo not present any great problem or danger to
the . . . public at the present time" and that the appearance
of non-lawyersbefore the Industrial Accident Board and the
Insurance Commission *does not. of itself. constitute (the1
practice of law." See Carr Association, supra,
~diEctheinformal nature of Industrial Accident Board
hekings:
In the many briefs filed with this office in this
matter, there is no referenceto any detriment to the public
resulting from representationby non-lawyers before these
agencies. In our view, such a showing should be made in
order to disturb the long standing practice of the agencies.
Accordingly, in our opinion, representationof parties
before the State Board of Insurance and the Industrial
Accident.Boarddoes not constitute the unauthorizedpractice
of law so long as such representationis permitted by the
agencies and is not prohibitedby an act or decision of the
Legislatureor the courts.
We are mindful of the case law of other jurisdictions
which would in some instancespreclude representationbefore
agencies by non-lawyers. See Annot. 2 A.L.R.3d-724. However,
the decisions are not consxent; they.vary with the terms
of the various statutesand the differing views of the
p. 4057
*
c ,
The RonorableGibson Gayle, Jr. - page 5 (R-974)
public welfare on the part of the courts. See Eagle Indemnity
Co.
-- v. I.A.C. of California, 18 P.2d 341 (Calf. 1933); Denver
Bar Ass~o~v. Public Utilities Commission,(~ :9:2)467
TZlvoFFmeister v. ma, 349 s.w.za 5 . ;
Goodman -
v. Beall, 200 N.E.T7mOhio 1936).
SUMMARY
Representationof parties before the
State Board of Insurance and the Industrial
Accident Board does not constitute the
unauthorizedpractice of law so long as
such representationis permitted by the
agencies and is not prohibited by any act
or decision of the Legislature or the wurts.
Very truly yours,
Attorney General of Texas
Opinion Committee
klU1
p. 4058 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150851/ | 03/07/2017
DA 16-0214
Case Number: DA 16-0214
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 49N
IN RE THE MARRIAGE OF:
MICHAEL NOVAK,
Petitioner and Appellee,
v.
TERESA NOVAK,
Respondent and Appellee,
and
JOSEPH C. ENGEL, III P.C.,
Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDR-10-501(a)
Honorable Gregory G. Pinski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph C. Engel, III (Self-Represented), Great Falls, Montana
For Appellees:
Daniel Flaherty, Patrick Flaherty, Flaherty Law Office,
Great Falls, Montana
Jeffrey Ferguson, Attorney at Law, Great Falls, Montana
Submitted on Briefs: December 21, 2016
Decided: March 7, 2017
Filed:
__________________________________________
Clerk
2
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Michael and Teresa Novak were married in 1988. In March 2010, Teresa
sustained a serious head injury and has been unable to maintain gainful employment
since the accident. Moreover, she faces continued medical expenses as a result of her
injury. Michael sought a divorce in July 2010. The marriage was dissolved in October
2012. In response to initiation of the divorce proceeding, Teresa hired Joseph Engel as
her attorney. He represented her through her appeal to this Court. In In re Marriage of
Novak, 2014 MT 62, 374 Mont. 182, 320 P.3d 459, decided on March 11, 2014, we
reversed and remanded the matter to the Eighth Judicial District Court for evaluation of
whether Teresa was entitled to maintenance and attorney fees. We affirmed the District
Court’s valuation of Michael’s share of a business enterprise entered into during the
marriage.
¶3 On April 7, 2014, shortly after remand, Engel, on behalf of Teresa, filed a motion
to substitute the judge which the District Court denied on April 16, 2014. Shortly
thereafter, Teresa fired Engel and obtained successor counsel.
3
¶4 On July 8, 2014, Engel filed notice with the District Court that he was asserting an
Attorney’s Statutory Charging Lien and a Common Law Retaining Lien in the Novak
dissolution proceeding in the amount of his unpaid legal fees and costs totaling
$70,056.66, accrued while representing Teresa. Engel’s fees and costs originally totaled
$102,694.80 but Teresa reduced this amount by paying him $32,638.14 from an earlier
settlement he had obtained for her following her injury.
¶5 In June 2015, Engel filed a motion to intervene in the dissolution proceeding under
M. R. Civ. P. 24(a)(2) (Rule 24), attempting to assure that “the issue of attorney fees will
be properly and fully considered by the [c]ourt.” On October 29, 2015, the District Court
held an evidentiary hearing during which Michael, Teresa, and Engel testified and
submitted exhibits, including substantial documentation pertaining to Engel’s legal fees.
Michael and Teresa informed the court that they had reached an agreement on
maintenance; consequently, the only remaining issue for the District Court to resolve was
Teresa’s legal fees.
¶6 On January 5, 2016, the District Court entered its Findings of Fact, Conclusions of
Law, and Order Denying [Teresa’s] Motion for Attorney Fees. In this Order, the District
Court also denied Engel’s motion to intervene, reviewed the parties’ financial positions,
analyzed Engel’s fees and costs, reduced them after finding them unreasonable, and
ultimately denied Teresa’s motion for fees concluding that, based upon Michael’s
negative net monthly income, he could not afford to pay Teresa’s fees.
¶7 Engel appeals. We affirm.
4
¶8 The issues on appeal are as follows:
Did the District Court err by denying Engel’s motion for substitution?
Did the District Court err by denying Engel’s motion to intervene?
Did the District Court err by conducting a “reasonability” analysis of Engel’s fees
and costs, reducing them in accordance with the analysis, and thereafter refusing
to order Michael to pay the fees and costs?
¶9 Did the District Court err by denying Engel’s motion for substitution?
¶10 Section 3-1-804(12), MCA, provides in relevant part that “[w]hen a judgment or
order is reversed or modified on appeal and the cause is remanded to the district court for
a new trial . . . each adverse party is entitled to one motion for substitution of district
judge. . . . There is no other right of substitution in cases remanded by the supreme
court.” This Court addressed the right of substitution under § 3-1-804(12), MCA, in
Williams v. Williams, 2011 MT 63, 360 Mont. 46, 250 P.3d 850. In Williams, we
affirmed the district court’s denial of a motion for substitution on the grounds that we did
not contemplate or indicate that the issues should be retried upon remand; rather, we
instructed the district court to reconsider and recalculate the husband’s child support
obligation and reapportion the marital estate. Williams, ¶¶ 14-15. As in Williams, in the
case at bar, we reversed and remanded the District Court with instructions to conduct a
proper evaluation of whether Teresa is entitled to maintenance and attorney fees. Novak,
¶ 39. We review a district court’s denial of a motion to substitute a judge for correctness.
Williams, ¶ 11. The remanded proceeding did not mandate an opportunity for
substitution of the judge under § 3-1-804(12), MCA. The District Court did not err when
it denied the motion.
5
¶11 Did the District Court err by denying Engel’s motion to intervene?
¶12 Engel was replaced by successor counsel in April 2014. Engel filed a
one-sentence motion to intervene “pursuant to Rule 24(a)(2)” in June 2015. His
eight-paragraph brief in support provided no statutory or case authority to support his
argument. Additionally, Engel failed to comply with applicable (Cascade County) Local
Rule 7(b). Local Rule 7(b) requires a party to file a “notice of issue” which alerts the
presiding court of the existence of a pending motion ready for resolution. The District
Court in this case did not discover Engel’s motion until the case file was provided to the
court for hearing preparation in October 2015. In addition to noting that Engel did not
comply with the applicable local rule, the District Court reviewed the four factors set
forth in Rule 24(a)(2), as well as our discussion in Connell v. State Dep’t. of Soc. &
Rehab. Servs., 2003 MT 361, 319 Mont. 69, 81 P.3d 1279, both of which address
intervention of right, and correctly concluded that Engel’s motion satisfied none of the
factors. The court then analyzed the motion under Rule 24(b), addressing permissive
intervention, and determined that the requirements of 24(b) were not met as well. We
review a district court’s decision on intervention by right de novo and its decision on
permissive intervention for abuse of discretion. Loftis v. Loftis, 2010 MT 49, ¶ 6, 355
Mont. 316, 227 P.3d 1030. The District Court’s analysis and conclusion that Engel’s
claim did not satisfy the requirements for intervention was neither erroneous nor an abuse
its discretion.
¶13 Lastly, Engel claims on appeal that the District Court erred in relying on Connell,
arguing that the court “should have recognized [Engel’s] standing to intervene pursuant
6
to the operation of § 37-61-420, M.C.A.” As noted above, Engel’s motion to intervene
relied solely on Rule 24(a)(2). In fact, there is no mention of § 37-61-420, MCA, in his
motion or his brief. We will not put a district court in error for failing to “recognize” or
consider an argument or legal theory not presented to the court. Yecovenko v. State, 2007
MT 338, ¶ 14, 340 Mont. 251, 173 P.3d 684.
¶14 Did the District Court err by conducting a “reasonability” analysis of Engel’s
fees and costs, reducing them in accordance with the analysis, and thereafter
refusing to order Michael to pay the fees and costs?
¶15 Engel reasserts his claim that the District Court had no authority to preside over
this case after the Motion to Substitute Judge was filed and that it erred when it denied
Engel’s Motion to Intervene. He claims that had he been allowed to intervene, he would
have sought his legal fees under “the law of sanctions for discovery abuse,” as opposed to
§ 40-4-110, MCA, the statute relied upon by the District Court. Engel claims that once
the District Court ruled that Michael would not be responsible for Teresa’s legal fees, the
court should have stopped its analysis but instead it continued by “attacking” the
“reasonableness” of the fees. Engel’s argument is flawed and unpersuasive.
¶16 The District Court analyzed Engel’s legal fees claim under § 40-4-110, MCA.
Section 40-4-110, MCA, provides, in relevant part, “The court . . . after considering the
financial resources of both parties, may order a party to pay a reasonable amount for the
cost to the other party . . . and for professional fees . . . .”
¶17 Upon reversal of the District Court’s initial denial of Teresa’s request for attorney
fees, we remanded with instruction to the District Court to conduct an evaluation of
Teresa’s income in relation to her needs in order to determine if she was entitled to
7
attorney fees. We stated that the court should consider the financial resources of both
parties as required by § 40-4-110, MCA. Novak, ¶ 29. Additionally, citing In re
Marriage of Bee, 2002 MT 49, ¶ 42, 309 Mont. 34, 43 P.3d 903, we advised that the
award must be: (1) based on necessity; (2) reasonable; and (3) based on competent
evidence.
¶18 To determine whether imposing any or all of Engel’s fees on Michael would be
reasonable based upon the parties’ circumstances, the court had to determine the amount
of fees involved. For this determination, the District Court applied the well-established
guidelines for determining the reasonableness of attorney fees set forth in Plath v.
Schonrock, 2003 MT 21, ¶ 36, 314 Mont. 101, 64 P.3d 984. Upon completing a careful
assessment of Engel’s billing statements, the District Court reduced Engel’s fees and
costs from $102,694.80 to $ 44,475.55, finding the original fees and costs excessive and
unreasonable under the Plath factors and when compared to Michael’s fees for the same
litigation. After subtracting the $32,638.14 paid by Teresa, the court concluded Engel
was owed $11,837.41. The District Court was authorized to perform this assessment of
Engel’s fees and costs and did not err by doing so.
¶19 After reducing Engel’s fees and costs, the District Court nonetheless determined
that Michael was not in a financial position to pay them. The court noted that Michael
owed over $15,000 to his own attorney and that Michael experienced a negative net
monthly income whereas Teresa saw a small positive net monthly income.
¶20 We review a district court’s conclusion regarding the existence of legal authority
to award attorney fees for correctness. If legal authority exists, we review a court’s order
8
granting or denying attorney fees for an abuse of discretion. Folsom v. City of
Livingston, 2016 MT 238, ¶ 13, 385 Mont. 20, 381 P.3d 539.
¶21 Based upon the court’s acknowledgment of its legal authority to award attorney
fees and its detailed analysis of the requested fees and the parties’ respective financial
circumstances, the District Court did not abuse its discretion when it declined to order
Michael to pay Engel’s fees.
¶22 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the District Court findings of fact were not clearly erroneous, its conclusions
were not incorrect, and its ruling was not an abuse of discretion.
¶23 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE
9 | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145184/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132428/ | ~ii.
THEAITORNEYGENERAL
OF TEXAS
AUSTIN. TRXAS 78711
March 10, 1977
The Honorable Oscar B. McInnis Opinion No. H-952
Criminal District Attorney
Hidalgo County Re: Propriety of per diem
Edinburg, Texas 78539 payments to visiting
official court reporter
from another district.
Dear Mr. McInnis:
You advise that the official court reporter for the
117th District Court~in Nueces County substituted for the
official court reporter of the 206th District Court of
Hidalgo County when the judge of the 117th District Court
was temporarily assigned to hold court for the judge of the
206th District Court in Hidalgo County. You ask:
Can we . . . pay a visiting court reporter
from another d,istrict per diem?
Official court reporters are sworn officers of the
court appointed by district and criminal district judges.
V.T.C.S. art. 2321. The last paragraph of article 2326a,
V.T.C.S., states:
LWlhenever any official or deputy official
shorthand reporter is called upon to report
the proceedings of any special term of court,
or on account of the sickness of any official
shorthand reporter of any Judicial District,
necessitating the employment of a shorthand
reporter from some other county within the
state, then the shorthand reporter so employed
shall receive and be paid all actual and
necessary expenses in going to and returning
from the place where he or she may be called
on to report the proceedings of any regular
or special terms of court.
P. 3975
. -
.
The Honorable Oscar B. McInnis - page 2 (H-952)
Assuming, without deciding, that this court reporter
falls within article 2326a, we do not believe it authorizes
him to receive per diem.
Attorney General Price Daniel considered an almost
identical question from Harrison County in Attorney General
Opinion V-446 (1947). He was advised that the regular
shorthand reporter for the 71st Judicial District Court there
became ill and that the official reporter for the 4th
Judicial District in another county substituted for him.
The inquiry to Attorney General Daniel was:
If... Lthe visiting reporter] should be
paid under the last paragraph of Article
2326a, that is, his actual and necessary
expenses in going to and returning from the
place where he or she may be called on to
report the proceedings, then is he entitled
to any per diem in addition to his necessary
and actual expenses? -Id. at l-2.
After deciding that the visiting reporter should receive
actual and necesary expenses, the opinion answered:
[IJt is the opinion of this Department
that the substitute court reporter who is
the official court reporter for the 4th
Judicial District would not be entitled to
any per diem in addition to the actual and
necessary expenses. He would, of course,
continue to draw his regular salary from
the county or counties in which he is
regularly employed. -Id. at 4.
We believe the conclusion of Attorney General Opinion
V-446 is sound. --
See also Attorney General Opinion V-959
(1949).
It has been suggested article 2323 requires that per diem
in addition to expenses be paid visiting official court
reporters. That statute provides in pertinent part:
In case of illness, press of official work,
or unavoidable disability of the official
shorthand reporter to perform his duties . . .
the judge of the court may . . . authorize
P. 3976
The Honorable Oscar B. McInnis - page 3 (H-952 1
a deputy . . . _reporter
-- _to act during the
absence of said official . . . reporter, and
said deputy . . . shall receive, during the
time he acts . . . the same salary and fees
as the official . . . reporter . . . but
said official . . . reporter shall also receive
his salary in full during such temporary
disability to act. The necessity for a deputy .
official . . . reporter shall be left entirely
within the discretion of the judge of the court.
When an official court reporter of one judicial district
substitutes for an official court reporter of another judicial
district, he does not thereby become a deputy official
reporter of the judicial district in which he is substituting;
he merely performs additional duties of his own office.
Compare Bexar County v. Gazley, 172 S.W.2d 702 (Tex. Civ.
APP. -- San Antonio 1943, no writ) with Groves v. Gould, 102
S.W.2d 1114 (Tex. Civ. App. --Ft. Wx -nowrit), for
distinctions between an official reporter of a judicial
district and a deputy official reporter for the district.
We do not believe article 2323 is applicable to a sub-
stitution by the official court reporter of one judicial
district for the official court reporter of a different
judicial district. Consequently, we answer your question
in the negative.
SUMMARY.
A visiting official court reporter from
a judicial district in another county who
substitutes for the official court reporter
of the county visited is not entitled to be
paid per diem for services rendered to the
county visited in addition to expenses.
A visiting court reporter covered by article
2326a, V.T.C.S. is entitled to receive his
actual and necessary expenses and continues
to draw his regular salary from the county
or counties in which he is regularly employed.
p. 3977
The Honorable Oscar B. McInnis - page 4 (H-952)
APPROVED:
-..
DAVID G KENDALL, First Assigtant
Opinion Committee
jwb
P. 3978 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132431/ | The Honorable Fratis L. Duff Opinion No. H949
Director
Texas Department of Health Re: Rule-making power
Resources of Director of Health
1100 West 49th Street Resources.
Austin, Texas 78756
Dear Dr. Duff:
You have requested our opinion concerning the effect
of House Bill 2164 of the 64th Legislature upon the general
rule-making powers of the Department of Health Resources.
You have not presented any specific rule or regulation for
our review.
Prior to 1975, article 4418d, V.T.C.S., provided that
the State Health Officer would be the "executive head" of
the State Department of Health and that he could promulgate
"administrative rules and regulations" for the effective
performance of his duties. House Bill 2164 amended article
4418d to provide for a Director of Health Resources in the
place of the State Health Officer. In so doing, the language
regarding rules and regulations was deleted. Acts 1975,
64th Leg., ch. 323, 832 at 847.
House Bill 2164 also amended article 4418a. V.T.C.S.,
to provide:
The Texas Board of Health Resources shall:
. . . .
(3) adopt rules, not inconsistent
with law, for its own procedure . . . .
Id.
P. 3967
The Honorable Fratis L. Duff - page 2 (H-949)
The Board of Health Resources is a creation of the
Leaislature: as such it has "onlv such powers as are delesated
to>it, expressly and impliedly, by the Legislature." State
v. Jackson, 376 S.W.2d 341, 344 (Tex. 1964); Stauffer v.
m of San Antonio, 344 S.W.2d 158 (Tex. 1961). Attorney
Genera Opinion M-610 (1970). - See Attorney General Opinion
H-475 (1974).
Since the general rule-making power contained in article
4418d was deleted and since this general power is not
elsewhere provided, in our opinion the Director of Health
Resources has no general rule-making power. Of course,
the Board of Health Resources has the power to issue pro-
cedural rules under article 4418a, but this power does not
extend to substantive rules. See Kee v. Baber, 303 S.W.2d
376 (Tex. 1957). However, thislack of general rule-making
power does not affect the specific grants of rule-making
power contained in other statutes, e.g. articles 4476-7, -8,
-11, -13, -15, 4477-6, 4477-7, V.T.C.S. See V.T.C.S. art.
44189. In addition, some rules may be valid as impliedly
authorized to effectuate a power expressly granted by statute.
See Terre11 v.
- - Sparks, 135 S.W. 519 (Tex. 1911).
SUMMARY
The Department of Health Resources has
no general rule-making power. Whether a
rule is valid under some specific statutory
authorization or is impliedly authorized to
effectuate an expressly granted power would
depend upon the particular rule involved.
ery truly yours,
/
Al. J ,&T&>
/'Attorney General of Texas
,"
/,.~~,--+E?PROVED
:
c. ROBERT HEATH, Chairman
Opinion Committee
jwb
P. 3968 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132432/ | March 1, 1977
The Honorable Peyton McKnight Opinion No. H-948
Chairman
Subcommittee on Nominations Re: Status of a nomina-
Senate of the State of Texas tion on which the Senate
Austin,.Texas 78701 ' fails to act.
Dear Chairman McKnight:
You have asked our opinion regarding the effect of the
Senate's failure to act on a nomination which requires
Senate confirmation. Your question relates to the fairly
unusual situation in which the Senate neither confirms nor
rejects a nomination submitted by the Governor.
Article 4, section 12 of the Texas Constitution provides:
All vacancies in State or district offices,
except members of the Legislature, shall be
filled unless otherwise provided by law, by
appointment of the Governor, which appoint-
ment, if made during its session, shall be
with the advice and consent of two-thirds of
the Senate present. If made during the
recess of the Senate, the said appointee,
or some other person to fill such vacancy,
shall be nominated to the Senate during
the first ten days of its session. If
rejected, said office shall immediately
become vacant, and the Governor shall,
without delay, make further nominations,
until a confirmation takes place. But
should there be no confirmation during the
session of the Senate, the Governor shall
not thereafter appoint any person to fill
such vacancy who has been rejected by the
Senate: but may appoint some other person
to fill the vacancy until the next session
of the Senate or until the regular election
to said office, should it sooner occur.
Appointments to vacancies in offices
elective by the people shall only continue
until the first general election thereafter.
P. 3963
The Honorable Peyton McKnight - page 2 (H-948)
As is apparent from the provisions of article 4, section
12, there are two major categories of appointments, i.e.
those made when the Senate is in session and those made
during the recess of the Senate. We first consider those
made when the Senate is in session.
Two Attorney General Opinions have considered the Senate's
failure to act on an appointment made while the Legislature
is in session. Attorney General Opinion O-4864 (1942);
Attorney General Opinion 2797 (1930). On both occasions,
the Attorney General concluded that an appointment required
the joint action of the Governor and the Senate before
it became effective. Where the Senate failed to act on
the nomination, the appointment was never complete and the
individual'never obtained any right to assume the office.
Accordingly, we believe it is established that the Senate's
failure to confirm a nomination made while the Senate is
in session renders the appointment a nullity.
A different case is presented when the appointment is
made during the recess of the Senate. A recess appointee
may immediately take the oath and begin exercising the
duties of the office. Attorney General Opinion M-267 (1968).
Thus, unlike the instance of the individual whose nomination
is made during the session and who may not exercise the
duties of office unless and until the Senate confirms his
appointment, the recess appointee is already exercising
the responsibilities of office at the time his name is
presented to the Senate. Accordingly, it is necessary to
consider the effect of article 16, section 17 of the Texas
Constitution. That section provides:
All officers within this State shall
continue to perform the duties of their
offices until their successors shall be
duly qualified.
The relationship of article 4, section 12, and article
16, section 17, to the Senate's failure to act was discussed
in Attorney General Opinions M-267 (1968) and O-4920 (1942).
Attorney General Opinion O-4920 involved appointments to a
county conservation and reclamation district. The appoint-
ments were made during a recess of the Senate in 1939,
-and it apparently was concluded that Senate confirmation
was not required. The State Auditor questioned the lack
of confirmation in 1942, and the Attorney General indicated
P. 3964
The Honorable Peyton McKnight - page 3 (H-948)
that Senate confirmation was required. Between the time
the appointment was made and the time it was determined
that confirmation was necessary, the regular session of the
47th Legislature had met and adjourned. The nominations
were not submitted to the Senate, and of course, no action
was taken by the Senate to confirm or reject them. In
writing on the status of these appointments, Attorney General
Gerald Mann said:
[Article 4, section 12 of the Constitution]
does not purport to terminate the authority
of a recess appointee, except in the event
of a rejection by refusal to confirm. In
other words, Section 17, of Article XVI of
the Constitution, declaring that 'all
officers within the State shall continue to
perform the duties of their offices until
their successor shall be duly qualified,'
applies to recess appointees, with the
exception above mentioned -- that is, of
a rejection of confirmation by the Senate.
. . . .
It is our opinion, therefore, that the
Board members under consideration held over
under the recess appointments in virtue of
the Constitution above quoted, (Article
XVI, Section 17) until their successors
have been or will be duly appointed and
qualified. So that, their official acts
during such tenure are those of lawfully
constituted officers-~ -
Id. at 5-6.
A similar conclusion was reached in Attorney General Opinion
M-267.
The reasoning of Attorney General Opinions O-4920
and M-267 is also applicable to appointments, whether made
during the session or recess, of an individual to succeed
himself in an office to which he had previously been
nominated and confirmed. In such a case the individual
holds over even though the Senate fails to act on his
appointment. See Attorney General Opinions V-868 (1949);
Op. NO. 1809 (To Honorable Will D. Stiter, Aug. 18, 1917).
1916-1918 Tex. Att'y Gen. Rep.
P. 3965
The Honorable Peyton McKnight - page 4 (R-948)
Accordingly, it is our opinion that the Senate's
failure to confirm or reject an appointment will prevent
the appointment from becoming effective and vesting the
appointee with any right to exercise the duties of office,
if the Governor made the appointment while the Senate was
in session and if the individual was not appointed to succeed
himself in office. If the Senate fails to act on a recess
appointment or on an appointment made during the session of
an individual to succeed himself in office, the individual
can continue to exercise the duties of office pursuant to
the requirements of article 16, section 17, of the Texas
Constitution, until the Senate subsequently rejects the
nomination or until the Governor appoints another individual.
SUMMARY
The Senate's failure to either confirm
or reject a nomination will render the
nomination a nullity if it was made while
the Senate was in session. If a recess
appointee's nomination is neither
confirmed nor rejected by the Senate,
he may continue to exercise the duties
of office until his appointment is
rejected at a subsequent session of the
Senate or until the Governor makes another
appointment.
Attorney General of Texas
Opinion Committee
jwb
P. 3966 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4118520/ | J-A27038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
VIRGINIA HUMPHREYS AND BRIAN IN THE SUPERIOR COURT OF
HUMPHREYS PENNSYLVANIA
v.
WELLS FARGO BANK N.A.
APPEAL OF: BRIAN HUMPHREYS
No. 2786 EDA 2015
Appeal from the Order Entered August 13, 2015
in the Court of Common Pleas of Northampton County Civil Division
at No(s): C-48-CV-2014-12252
WELLS FARGO BANK N.A. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
VIRGINIA L. HUMPHREYS AND BRIAN C.
HUMPHREYS
APPEAL OF: BRIAN HUMPHREYS
No. 2787 EDA 2015
Appeal from the Order Entered August 13, 2015
in the Court of Common Pleas of Northampton County Civil Division
at No(s): C-48-CV-2011-3134
BEFORE: PANELLA, LAZARUS, FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 25, 2017
Pro se Appellant, Brian Humphreys, appeals from two separate orders
entered in the Northampton County Court of Common Pleas respectively
granting summary judgment in favor of Appellee, Wells Fargo Bank, in a
*
Former Justice specially assigned to the Superior Court.
J-A27038-16
foreclosure action and dismissing Appellant’s second amended complaint
against Appellee in a quiet title action.1 Appellant contends, in this
consolidated appeal, that Appellee was not the proper “note holder” in
connection with the mortgage at issue and therefore did not have the
authority to pursue a foreclosure action against him. We affirm.
We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 3/31/16, at 1-4. On April 6, 2011, Appellee2
filed a mortgage foreclosure action (“foreclosure action”) against the parties
because Appellee had not received the required monthly payments after
November 2010. On August 25, 2011, the parties filed an answer consisting
of general denials and three paragraphs of affirmative defenses. Thereafter,
on October 17, 2011, the parties filed a motion for summary judgment,
which the trial court denied on December 7, 2011. Appellee filed its own
motion for summary judgment on April 27, 2015, which the trial court
granted via an order and opinion dated August 13, 2015 (“Foreclosure
Opinion”). Appellant filed a timely notice of appeal on September 10, 2015
and a court-ordered Pa.R.A.P. 1925(b) statement on October 1, 2015. The
1
Initially, Appellant and his Mother, Virginia L. Humphreys (collectively the
“parties”) were jointly involved in both actions in this consolidated case.
After Virginia Humphreys passed away in March 2015, Appellant continued
to pursue this appeal individually.
2
We note that Appellee is the successor in interest, by way of merger, to
Wachovia Bank.
-2-
J-A27038-16
trial court filed a responsive Pa.R.A.P. 1925(a) statement, referencing the
court’s Foreclosure Opinion.
Meanwhile, on December 30, 2014, the parties initiated a quiet title
action against Appellee regarding the same property that is the subject of
the foreclosure action. Appellee filed timely preliminary objections, and the
parties filed an amended complaint on February 9, 2015. Appellee filed
additional preliminary objections on March 2, 2015, and the parties filed a
second amended complaint. On April 8, 2015, Appellee filed preliminary
objections in response to the second amended complaint. After the trial
court conducted oral argument on May 26, 2015, the court ultimately
sustained Appellee’s objections and dismissed the parties’ second amended
complaint by order and opinion, also dated August 13, 2015 (“Quiet Title
Opinion”). Appellant filed a timely notice of appeal on September 10, 2015
and a court-ordered Pa.R.A.P. 1925(b) statement on October 1, 2015. The
trial court filed a responsive Pa.R.A.P. 1925(a) statement, referencing the
court’s Quiet Title Opinion.
On November 9, 2015, this Court consolidated the two above-
referenced appeals. Appellant filed a single brief incorporating his issues
regarding both cases.
Appellant raises the following issues for our review:
On its own accord, should the Court have claimed that the
argument put forth in PHH Mortgage Corp. v. Powell,
100 A.3d 611, 619 (Pa. Super. 2014), was
“indistinguishable” from that presented in the instant case?
-3-
J-A27038-16
The Appellant’s 2011 Answer to Wells Fargo’s Foreclosure
Complaint contained general denials; most of which were
argued in great detail in later pleadings. Did the Court
unjustly presume that [Appellant’s] Answer was dishonest?
Appellant’s Brief at 3-4.3
The crux of Appellant’s issues is his contention that Appellee was not
legally permitted to pursue a foreclosure action against him because
Appellee was not the legal “note holder” in connection with the mortgage at
issue. No relief is due.
Regarding summary judgment, our review is guided by the following
principles:
The standards which govern summary judgment are well
settled. When a party seeks summary judgment, a court
shall enter judgment whenever there is no genuine issue of
any material fact as to a necessary element of the cause of
action or defense that could be established by additional
discovery. A motion for summary judgment is based on an
evidentiary record that entitles the moving party to a
3
Appellant initially raised seventeen issues. Appellant’s Brief at 2-9.
However, in his reply brief, Appellant indicated his intention to abandon all
but two issues for purposes of appellate review. Appellant’s Reply Brief at 1.
As set forth by Appellant, his “core issues” are encapsulated within his two
remaining issues. Id. We note that on December 14, 2015, Appellee filed a
motion to quash Appellant’s appeal based upon the many “material” defects
within Appellant’s Brief. We note that Appellant’s pro se arguments are
difficult to discern. We remind Appellant that his pro se status does not
relieve him of his obligation to raise and develop his appellate claims
properly and this court will not act as appellate counsel. Smathers v.
Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996). However, Appellant’s
brief does provide argument and citation to legal authority regarding his two
remaining issues. See Pa.R.A.P. 2119. Therefore, we decline to quash his
appeal.
-4-
J-A27038-16
judgment as a matter of law. In considering the merits of
a motion for summary judgment, a court views the record
in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Finally, the court may grant summary judgment only when
the right to such a judgment is clear and free from doubt.
An appellate court may reverse the granting of a motion
for summary judgment if there has been an error of law or
an abuse of discretion. . . .
Varner-Mort v. Kapfhammer, 109 A.3d 244, 246-47 (Pa. Super. 2015)
(citation omitted).
This Court’s standard of review of orders sustaining preliminary
objections in the nature of a demurrer is well-settled:
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine
the averments in the complaint, together with the
documents and exhibits attached thereto, in order to
evaluate the sufficiency of the facts averred. The impetus
of our inquiry is to determine the legal sufficiency of the
complaint and whether the pleading would permit recovery
if ultimately proven. This Court will reverse the trial
court's decision regarding preliminary objections only
where there has been an error of law or abuse of
discretion. When sustaining the trial court's ruling will
result in the denial of claim or dismissal of suit, preliminary
objections will be sustained only where the case is free and
clear of doubt.
Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 100 (Pa. Super. 2016)
(citation omitted). The trial court’s decision to grant or deny a demurrer
involves a matter of law; therefore, “our scope of review is plenary, allowing
us to review the whole record.” Mistick, Inc. v. Northwestern Nat. Cas.
Co., 806 A.2d 39, 42 (Pa. Super. 2002) (citation omitted).
-5-
J-A27038-16
Integral to this case is the legal precept that “[o]wnership of [a] Note
is irrelevant to the determination of whether [an entity] is entitled to enforce
the Note.” PHH Mort. Corp. v. Powell, 100 A.3d 611, 621 (Pa. Super.
2014) (quotation marks and citation omitted) (holding that holder of
promissory note had standing to enforce the attendant mortgage regardless
of petitioner’s claim that another entity, Fannie Mae, owned the note).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Anthony S.
Beltrami, we conclude Appellant’s issues merit no relief. The trial court’s
opinions comprehensively discuss and properly dispose of the questions
presented. See Foreclosure Opinion at 6-14; Quiet Title Opinion at 3-6;
(finding that Appellee had proper standing to pursue a foreclosure action
against Appellant and, accordingly, Appellant’s quiet title action was legally
insufficient). Accordingly, we affirm on the basis of the trial court’s opinions.
Orders affirmed. Motion to quash denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
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IN THE COURT OF COMMON PLEAS OF •• • T ......- -· ~
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NORTHAMPTON COUNTY, PENNSYLVANIA .
I
·~
CIVIL ACTION • ...!..")
VIRGINIA L. HUMPHREYS and )
BRIAN C. HUMPHREYS, ) No.C-48-CV-2014-12252
Plaintiffs )
)
v. )
)
WEL'-S FARGO BANK, N.A., )
Defendant )
OPINION OF THE COURT
This matter is before the Court on "Defendant's Preliminary Objections
to Plaintiffs1 Second Amended Cornplalnt." Plaintiffs initiated this action to
quiet title against Defendant by filing a Complaint on December 30, 2014.
The Complaint was met with "Defendant's Preliminary Objections to
Plaintiff's Complaint," which were filed on January 20, 2015. Rather than
respond to those objections, Plaintiffs filed an Amended Complaint on
February 9, 2015. Defendant filed Preliminary Objections to the Amended
Complaint on March 2, 2015. Again, rather than rebut the objections,
1
Iu
Plaintiffs filed a Second Amended Complaint on March 19, 2015.1 On April 8,
2015, Defendant filed the instant Preliminary Objections. On April 28, 2015,
Defendant filed a Brief in support of its Preliminary Objections. On May 20,
2015, Plaintiffs filed a Brief in opposition to the same. Oral argument was
heard on May 26, 2015, and the matter is now ready for disposition.
Defendant's first objection is a demurrer in which Defendant argues
that Plaintiffs' Second Amended Complaint fails to state a valid action to
quiet title. In the Second Amended Complaint, Pia intiffs aver that Plaintiff
Virginia L. Humphreys owned real estate located at 2253 Linden Street, in
Bethlehem, Northampton County, Pennsylvania (the "Property"). (Second
Am. Campi. ,i 2.) Plaintiffs further aver that although "Defendant claims a
lien against said [P]roperty adverse to Plaintiff[s,] Defendant's claim is
without any right whatsoever, and Defendant has no estate, right, title, lien,
or interest whatsoever in or to said [P] roperty." (Id. ,i 3.) Plaintiffs allege
that Defendant's claimed interest in the Property is based on two mortgages
executed by Plaintiffs on April 16, 2007. (Id. ,i 4.) Plaintiffs go on to aver,
in their own pleading, that the first mortgage was recorded on May 8, 2007,
in the Northampton County Recorder of Deeds Office at Book 2007-1, page
170260 and that the second mortgage was recorded on the same date in the
same book at page 170279. (Id. ,i 4(a)-(b).) Plaintiffs then claim that the
The Second Amended Complaint states that Plaintiff Virginia L. Humphreys passed
away on March 61 2015. (Second Arn. Cornpl. at 1.) The Court will continue to refer to
"Plaintiffs" in the plural, in accordance with the caption.
2
mortgages are invalid because "Defendant transferred its enforcement rights
to others ... and has since acted only in the capacity of servicer of the"
mortgage accounts. (Id. 11 5.) In their Second Amended Complaint,
Plaintiffs attempt to establish an action to quiet title by alleging that
"Defendant is in a position neither to perform its eventual obligation to clear
the Plaintiff's title to her property, nor to enforce the applicable mortgages."
(Id. at 1-2.) The Second Amended Complaint spans thirty pages and
suggests myriad reasons why, in Plaintiffs' opinion, Defendant is not the
proper entity to enforce the aforementioned mortgages.
The question presented by a demurrer is whether, on the facts
pleaded, the law says, with certainty, that no recovery is possible. Orange
Stones Co. v. City of Reading, 87 A.3d 1014, 1021 n.7 (Pa. Commw. 2014).
The Court must resolve a demurrer solely on the basis of the pleadings,
without reference to testimony or other outside evidence. Hill v. Ofalt, 85
A.3d 540, 546 (Pa. Super. 2014). However, in a case such as this, the Court
can take judicial notice of public documents, such as recorded mortgages,
when ruling on a demurrer. See Solomon v. U.S. Healthcare Sys. of Pa.,
Inc., 797 A.2d 346, 352 (Pa. Super. 2002). When considering a demurrer,
the Court must accept, as true, all material facts averred in the challenged
pleading, as well as all inferences that can be reasonably deduced
therefrom. Schemberg v. Smicherko, 85 A.3d 1071, 1073 (Pa. Super.
2014).
3
Preliminary objections which seek the dismissal of a cause of
action should be sustained only in cases in which it is clear and
free from doubt that the pleader will be unable to prove facts
legally sufficient to establish the right to relief. If any doubt
exists as to whether a demurrer should be sustained, it should
be resolved in favor of overruling the preliminary objections.
Id.
An action to quiet title may be brought, inter alia, "to determine any
right, lien, title or interest in the land or determine the validity or discharge
of any document, obligation or deed affecting any right, lien, title or interest
in land" or "to compel an adverse party to flle, record, cancel, surrender or
satisfy of record, or admit the validity, invalidity or discharge of, any
document, obligation or deed affecting any right, lien, title or interest in
land." Pa.R.C.P. No. 1061(b)(2)-(3). "The purpose of an action to quiet title
is to resolve a conflict over an interest in property." Nat'/ Christian
Conference Ctr. v. Schuylkill Twp., 597 A.2d 248, 250 (Pa. Commw. 1991).
"In Pennsylvania[,] a mortgage duly executed will be presumed to be valid
until the contrary is shown, and the burden is on the party attacking the
mortgage to prove its invalidity.'' Pitti v. Pocono Bus. Furniture, Inc., 859
A.2d 523, 526 n.3 (Pa. Commw. 2004). A mortgage is valid, on its face, if it
dearly states that it is a mortgage, describes the property to be mortgaged,
is signed by the mortgagor, is notarized, and is duly recorded within six
months of execution. See In re Berry, 11 B.R. 886, 891 (W.D. Pa. 1981);
21 P.S. § 621.
4
In their Second Amended Complaint, Plaintiffs specifically identify the
two mortgages that were executed in Defendant's favor, and Defendant has
attached copies of the same to its Preliminary Objections. (Second Am.
Compl. 11 4(a)-(b); Prelim. Objections Exs. E, G.) The mortgages were
originally executed in favor of Wachovia Bank, National Association, to which
Defendant is the successor in interest by way of merger, a succession
Plaintiffs concede. (Second Am. Compl. ,1 8; Prelim. Objections Exs. E, G,
H .) Upon inspection, the mortgages are plainly valid, as they clearly state
that they are mortgages, describe the Property mortgaged, bear Plaintiffs'
signatures, which are notarized, and were duly recorded within six months of
execution in a manner consistent with that described in the Second
Amended Complaint. Moreover, there are no facts pleaded in the Second
Amended Complaint that can be fairly characterized as an attack on the
validity of the mortgages. In fact, Plaintiffs do not really dispute the validity
of the mortgages. Rather, Plaintiffs' allegations primarily concern
Defendant's purported lack of authority and/or standing to enforce the
mortgages. For a discussion of why this argument has no merit, see Wells
Fargo Bank, N.A, s/i/i/t/ Wachovia Bank v. Humphreys, No. C-48-CV-2011-
3134, slip op. (C.P. of Northampton Cnty. Aug. *, 2015), an opinion that is
being filed contemporaneously with this Opinion and that grants summary
judgment in the related mortgage foreclosure action involving the same
parties and the first mortgage described above.
5
Because Plaintiffs have pleaded no facts to rebut the presumptively
valid mortgages, the Second Amended Complaint creates no "conflict over
an interest in property." Nat'/ Christian, 597 A.2d at 250. Thus, the action
to quiet title is legally insufficient, and Defendant's demurrer will be
sustained.2 Finally, because the Court cannot discern any way in which an
additional pleading in this matter will vault Plaintiff's purported claims into a
place of legal sufficiency, and in light of the Court's opinion granting
summary judgment in the related mortgage foreclosure action, the Court will
dismiss Plaintiffs' Second Amended Complaint with prejudice and will not
grant leave to file any further amended complaints.3 See Hill, 85 A.3d at
557 (leave to amend following sustaining of demurrer may be refused where
there is no reasonable probability that amendment will cure defect).
WHEREFORE, the Court enters the following:
2
For this reason, the Court need not reach Defendant's second objection asserting the
pendency of a prior action.
3
It should be noted that Plaintiffs filed an almost identical action at docket number C-
48-CV-2014-1703. In an Order filed on October 22, 2014, in response to preliminary
objections, the Honorable Stephen G. Baratta, President Judge, dismissed Plaintiffs'
Complaint without prejudice. Plaintiffs did not file an amended complaint within twenty
days in that action, as required by Pennsylvania Rule of Civil Procedure 1028(e). Rather,
Plaintiffs filed the instant action. Thus, Plaintiffs may not file an amended complaint at
either docket number.
6
IN THE COURT OF COM MON PLEAS OF
NORTHAMPTON COUNTY, PENNSYLVANIA
CIVIL ACTION
VIRGINIA L. HUMPHREYS and )
BRIAN C. HUMPHREYS, )
Plaintiffs )
)
v. )
)
WELLS FARGO BANK, N.A., )
Defendant )
ORDER OF COURT
AND NOW, this 13th day of August, 2015, "Defendant's Preliminary
Objections to Plaintiffs' Second Amended Complaint," filed on April 8, 2015,
are hereby SUSTAINED. Plaintiffs' Second Amended Complaint, filed on
March 19, 2015, is hereby DISMISSED, with prejudice.
BY THE COURT:
J.
1
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IN THE COURT OF COMMON PLEAS OF .
NORTHAMPTON COUNTY, PENNSYLVANIA ~· .: .: •. ~. ",
,:.:.·i
CIVIL ACTION
WELLS FARGO BANK, N.A. s/i/i/t/ )
WACHOVIA BANK, N.A., ) No. C-48-CV-2011-3134
Plaintiff )
)
v. )
)
BRIAN C. HUMPHREYS and )
VIRGINIA L. HUMPHREYS, )
Defendants )
OPINION OF THE COURT
This matter is before the Court on Plaintiffs Motion for Summary
Judgment. Briefs have been filed, oral argument was heard on May 26,
2015, and the matter is ready for disposition. For the reasons that follow,
Plaintiff's Motion will be granted.
On April 6, 2011, Plaintiff filed a Mortgage Foreclosure Complaint that
alleges the following facts. On April 16, 2007, Defendants executed and
delivered a mortgage ("Mortgage") to Wachovia Bank, N .A.1 on property
located at 2253 Linden Street, in Bethlehem, Northampton County,
As discussed infra, Wachovia Bank, N.A. merged into Plaintiff and no longer exists.
1
Pennsylvania. (Comp!. Defendants' Motion for Summary Judgment on November 25, 2011. In an
Order of Court with Statement of Reasons filed on December 7, 2011, the
undersigned denied Defendants' Motion for Summary Judgment, without
prejudice.
Plaintiff filed their instant Motion for Summary Judgment ("Motion'') on
April 27, 2015. On May 20, 2015, Defendants filed a Response to Plaintiff's
Motion ("Response"). Attached to Plaintiff's Motion, as Exhibit A, is a copy of
the promissory note ("Note") that Defendants signed simultaneously with
the execution of the Mortgage. In the Note, Defendants promise to repay
the debt secured by the Mortgage and agree that "[t]he Lender or anyone
who takes [the] Note and who is entitled to receive payments under [the]
Note will be called the 'Note Holder."' (Mot. ~ 2, Ex. A at 1.) Plaintiff is in
possession of the original Note, which passed to it as a result of the merger
of Wachovia Bank, N.A. into Plaintiff. (Mot. ,i,i 5-6.) Also attached to
Plaintiff's Motion, as Exhibit F, is Plaintiff's Affidavit in Support of its Motion
("Plaintiff's Affidavit"), wherein Plaintiff's Vice President of Loan
Documentation, Stephanie Casarez, states that Plaintiff is in possession of
the Note, that Defendants' Mortgage is in default as of November 15, 2010,
and that Defendants have failed to cure the default. (Id. ,i 14, Ex. F.)
3
3
Defendants, in their Response, include their own "Statement of
Facts," in which they admit that they executed the Mortgage.4 (Resp.,
Statement of Facts 'fl'fl 1, 9.-) Defendants further admit that they stopped
making payments on the Mortgage after October 15, 2010, (Id. 'fl 8.)
However, Defendants raise concerns about the relationship between the
Note and Mortgage and the Federal National Mortgage Association ("Fannie
Mae"). Defendants claim that Plaintiff has informed them via telephone that
the Mortgage. has been "transferred" to Fannie Mae. (See id. ,i,i 5-6.)
Defendants also claim that they are "in receipt of a letter, dated October 9,
2012, from [Fannie Mae] stating that [Fannie Mae] now owns the
mortgage." (Id. ,i 14.)
Defendants' Response also includes a section entitled "Factual
Allegations." However, upon further review, this section is actually identical
to Defendants' Brief. Nevertheless, Defendants concede therein that
"[s]uccession of [Defendants'] Note from Wachovia Bank, N.A. (Wachovia)
to [Plaintiff] is not an issue in this case." (Resp., Factual Allegations ,i 1.)
In addition, Defendants assert that an "Experian credit report Exhibited in
the Complaint is intended to offer evidence that [Plaintiff] transferred
3
Throughout their Response, Defendants often mislabel themselves as "the Plaintiffs."
This is likely due to Defendants' status as the plaintiffs in Humphreys v, Wells Fargo Bank,
N.A., an action to quiet title docketed in Northampton County at No. C-48-CV-2014-12252
(the "Action to Quiet Title"). An Opinion and Order are being filed in that case
contemporaneously with the flling of the instant Opinion.
4
Although the Response includes a "Statement of Facts," it does not contain a
verification or notice to plead.
4
[Defendants'] Equity Account to another lender, and no-longer holds the
Account. If (Id. 'fl 2.)
Neither the letter from Fannie Mae informing Defendants that Fannie
Mae owns the Mortgage nor the Experian credit report appear in the instant
record, but they are attached to Defendants' Second Amended Complaint in
the Action to Quiet Title. "[A] court may not ordinarily take judicial notice in
one case of the records of another case." Gulentz v. Schanno Trensp., Inc.,
513 A.2d 440, 443 (Pa. Super. 1986). Nevertheless, even if the Court could
consider these materials, they would not be helpful to Defendants in
opposing summary judgment.
The letter from Fannie Mae, which is attached to the Second Amended
Complaint in the Action to Quiet Title as Exhibit E, does confirm that Fannie
Mae owns/invests in the Mortgage and that Plaintiff is the servicer.
However, as will be discussed in greater detail infra, this does nothing to
inhibit Plaintiff's ability to enforce the Mortgage through foreclosure
proceedings. As for the Experian credit report, which is attached to the
Second Amended Complaint in the Action to Quiet Title as Exhibit G,
Defendants contend that said report indicates that Plaintiff "reported to
Experian that it had transferred the Account, making it obvious, if correct,
that [ Plaintiff] is not in a position to litigate over the Account, which they
apparently admittedly no-longer own." (Resp. Factual Allegations ~ 2.)
Again, Defendants conflate the concepts of ownership of the Mortgage and
5
the right to enforce the same through foreclosure, a distinction that, as will
be shown infra, is fatal to Defendants' argument.
Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard
of review for a motion for summary judgment as follows:
After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the cause of
action or defense which could be established by additional
discovery or expert report, or
(2) if, after the completion of discovery relevant to
the motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of
action or defense which in a jury trial would require the
issues to be submitted to a jury.
Pa.R.C.P. No. 1035.2. These two prongs represent the
two main avenues per which summary relief may be granted.
Employing the first of these, a movant may rely on
uncontroverted facts, and/or allow that the factual allegations
made by the non-moving party could be true, while contending
that, even accepting such facts, judgment should be rendered
for the movant as a matter of law. See Pa.R.C.P. No. 1035.2(1).
Alternatively, after discovery, a party may challenge the ability
of the non-moving party to adduce evidence of facts material to
establishing a claim or defense. See id. No. 1035.2(2).
Lance v. Wyeth, 85 A.3d 434, 449-450 (Pa. 2014).
Under either avenue, summary judgment may only be granted when
the record clearly shows that no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Summers v,
6
Certainteed Cotp., 997 A.2d 1152, 1159 (Pa. 2010). The moving party
bears the burden of proving that no genuine issue of material fact
exists. Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007). In
deciding a motion for summary judgment, the record must be viewed in the
light most favorable to the non-moving party, and any doubt as to the
existence of a genuine issue of material fact must be resolved against the
moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009).
Even where the facts are agreed upon, summary judgment cannot be
entered if the facts can support conflicting inferences. Washington v.
Baxter, 719 A.2d 733, 740 n.10 (Pa. 1998).
The party opposing a motion for summary judgment
may not rest upon the mere allegations or denials of the
pleadings but must file a response within thirty days after
service of the motion identifying
(1) one or more issues of fact arising from
evidence in the record controverting the evidence
cited in support of the motion or from a challenge to
the credibility of one or more witnesses testifying in
support of the motion, or
(2) evidence in the record establishing the facts
essential to the cause of action or defense which the
motion cites as not having been produced.
Pa.R.C.P. No. 1035.3(a)(1)-(2). In other words, the "[f]ailure of a non-
moving party to adduce sufficient evidence on an issue essential to its case
and on which it bears the burden of proof such that a jury could return a
verdict in its favor establishes the entitlement of the moving party to
7
judgment as a matter of law." Young v. Commonwealth, Dep 't of Transp.,
744 A.2d 1276, 1277 (Pa. 2000). In deciding a motion for summary
judgment, the "record" available for the court's examination includes the
pleadings, discovery materials, affidavits, and expert reports. Pa.R.C.P. No.
1035.1.
In a mortgage foreclosure action, summary judgment is
appropriate if the mortgagors "admit that the mortgage is in
default, that they have failed to pay interest on the obligation,
and that the recorded mortgage is in the specified amount."
Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. Ct.
1998) (citing Landau v. W. Pa. Nat'/ Bank, 445 Pa. 217, 282
A. 2d 335, 340 (Pa. 1971) ). Summary judgment may be granted
"even if the mortgagors have not admitted the total amount of
the indebtedness in their pleadings." Id.
U.S. Bank, Nat. Ass'n v. Zimmer, No. 3: 12-CV-644, 2015 WL 412389, at *2
(M.D. Pa. Jan. 30, 2015). In the instant case, Defendants admit these
requisite elements, because the general denials contained in their Answer
act as admissions to all of the relevant allegations in Plaintiff's Complaint.5
As a result, there is no dispute that Defendants executed the Mortgage in
favor of Wachovia Bank, to which Plaintiff is the successor in interest by way
of merger, and that the Mortgage is in default. In addition to the deemed
5
"Averments in a pleading to which a responsive pleading is required are admitted
when not denied specifically or by necessary implication. A general denial or a demand for
proof ... shall have the effect of an admission." Pa.R.C.P. No. 1029(b). Generally
speaking, "for a denial to be specific, it must deny what is averred and then must
affirmatively aver what did occur in place of the facts that are denied." 5 STANDARD
PENNSYLVANIA PRACTICE 2d § 26:41. General denials by mortgagors in a foreclosure action,
"as to the principal and interest owing[,] must be considered an admission of those facts."
First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995). In this case,
Defendants' Answer simply states "the allegation ... is denied" in response to each relevant
averment contained in Plaintiff's Complaint. (Answer ,i,i 5-11.) Thus, paragraphs five
through eleven of Plaintiff's Complaint are deemed admitted.
8
admissions, Defendants affirmatively admit the relevant allegations of
Plaintiff in their Response. (Resp., Statement of Facts ~«Jl 1, 8, 9.) Despite
this, Defendants oppose the entry of summary judgment on a ground that is
quickly becoming a tired one in this Commonwealth-that Plaintiff is not
entitled to enforce the Mortgage and/or is not the real party in interest.
To begin with, this argument is, in essence, a claim that Plaintiff lacks
the capacity to sue. "[P]reliminary objections [are] the appropriate method
by which to challenge a [plaintiff's] capacity to sue. 11 In re Adoption of
S.P. T., 783 A.2d 779, 782 (Pa. Super. 2001); Pa.R.C.P. No. 1028(a)(S).
"Lack of capacity to sue is waived if not raised on preliminary objections. 11
Carroll v. Exeter Twp., No. 1580 C.D.2013, 2014 WL 3812323, at *6 n. 18
(Pa. Commw. Aug. 4, 2014). Defendants did not file preliminary objections.
Thus, Defendants have waived this argument.
Even if this argument had not been waived, it is without merit.
Initially, the Court notes that there are no facts pleaded in Defendants'
response to Plaintiff's Complaint to support this argument. Further,
Defendants have adduced no evidence in response to Plaintiff's Motion to
support this argument. Rather, Defendants reply upon bald assertions in
their unverified Response to the Motion and documents contained in the
record of the Action to Quiet Title which suggest that Fannie Mae has
invested in or owns the Note. As noted above, a party opposing a motion
for summary judgment may not rest upon the mere allegations or denials of
9
the pleadings, nor the record in a collateral case, but must identify evidence
in the record which establishes an issue of material fact or supports a valid
defense. Defendants have done neither.
Finally, even if the Court accepted Defendants' bald assertions as true
and substantively considered the record in the Action to Quiet Title,
Defendants' argument lacks merit. Defendants' argument is focused on an
allegation that Fannie Mae is the true owner of the Note and, thus, must be
the one to enforce it. However, a similar argument was recently rejected by
the Superior Court. In PHH Mortgage Corp. v. Powell, 100 A.3d 611, 619
(Pa. Super. 2014), the appellant mortgagors "insist[ed] that the document
in [the appellee mortgage company]'s possession [could not] be the original
Note because they ha[d] presented evidence that the original Note must
instead [have] be[en] in the possession of Fannie Mae." A recitation of the
court's response to this argument is necessary and is as follows:
The Powells' claim that PHH does not possess the original
Note and Allonge is based solely on their insistence that the
documents in PHH's possession cannot be the originals because
they produced evidence showing that Fannie Mae possesses the
originals. Specifically, the Powells attached to their response to
PHH's second motion for summary judgment an affidavit from
Mary Gutowski ("Gutowski"), in which she represents that she
has expertise in searching for, obtaining, and understanding
business and corporate records. According to Gutowski, two
documents (one obtained from the office of Congressman Mike
Kelly and another from a search of a Fannie Mae database)
describe Fannie Mae as the "investor" and "owner" of the
Powells' loan. Gutowski concludes that these documents call into
question PH H's "claim of ownership" of the Powells' Note.
10
PHH, however, does not claim to be the "owner" of the
Note, but rather avers that it is a "person entitled to enforce" the
Note because it is the holder in due course based upon its
possession of the original Note and Allonge. Ownership of the
Note is irrelevant to the determination of whether PHH is a
"person entitled to enforce" the Note, as the Comment to section
3203 of the PUCC makes clear:
The right to enforce an instrument and ownership of
the instrument are two different concepts. A thief
who steals a check payable to bearer becomes the
holder of the check and a person entitled to enforce
it, but does not become the owner of the check ....
Ownership rights in instruments may be determined
by principles of the law of property, independent of
Article 3, which do not depend upon whether the
instrument was transferred under Section 3-203.
Moreover, a person who has an ownership right in an
instrument might not be a person entitled to enforce
the instrument. ... · Although [a] document may be
effective to give Y a claim to ownership of the
instrument, Y is not a person entitled to enforce the
instrument until Y obtains possession of the
instrument.
13 Pa.C.S.A. § 3203 Comment.
In its Second Motion for Summary Judgment, including its
affidavits and other exhibits (e.g., the Note, Allonge, Mortgage,
and Assignment), PHH has established as a matter of law that it
is a holder in due course of the Powells' Note and thus is
"entitled to enforce" it pursuant to section 3301 of the PUCC.
Evidence that some other entity may be the "owner" or an
"investor" in the Note is not relevant to this determination, as
the entity with the right to enforce the Note may well not be the
entity entitled to receive the economic benefits from payments
received thereon. The Powells have produced no evidence that
creates a genuine issue of material fact with respect to PHH's
claim of entitlement to enforce the Note, including no evidence
that Fannie Mae (rather than PHH) has possession of the original
Note.
Powell, 100 A.3d at 620-21 (citations omitted) (emphasis added).
11
The Powell court went 011 to affirm the trial court's entry of summary
judgment in favor of the appellee mortgage company. Id. at 621. Here, like
the Powells, Defendants argue that "[t] he facts in the record prove that
Wachovia transferred [Defendants'] Note to [Fannie Mae] before Wachovia's
merger with [Plaintiff]." (Defs.' Br. at 4.) But the instant record does not
reveal any evidence in support of that contention, and Defendants have
produced none. Continuing on, Defendants argue that the proper parties to
enforce the Note may well be the "investors who purchased shares of Fannie
Mae." (Id. at 5.) In line with Powell, this argument is meritless.
Defendants additionally argue, "The [Uniform Commercial] Code is clear: A
person either owns the instrument, with all of its associated rights, or does
not own the instrument, and has none of the associated rights." (Id. at 7.)
Again, even assuming, arguendo, that Fannie Mae is the true owner of the
Note/debt, Powell makes clear that the concepts of ownership and
enforcement rights are wholly distinct. That is, an entity can enforce a
mortgage debt without owning it, and vice versa. As Defendants' array of
arguments and sub-arguments continue, they begin to trip themselves up by
acknowledging that "there is nothing in the record to indicate that the Note
was ever held by any singular entity other than [Plaintiff]." (Id. at 8.)
Defendants are correct in at least that respect. The Note is payable to
Plaintiff's predecessor by merger, as the original lender, and has not been
assigned to another servicer as in Powell, making this an even stronger case
12
than Powell when it comes to any a_lleged claim that Fannie Mae must be the
one to enforce the Note.
Quite simply, Plaintiff has attached a copy of the Note to its Motion,
and the Note is clearly signed by Defendants. The fact that the section of
the Note labeled "Endorsement" is completely blank is irrelevant because
there is no evidence that anyone other than Pia inti ff or its predecessor by
merger ever held the Note. Furthermore, the Court sees no material
difference between Powell, where the mortgagee produced the original note,
and this case, where Plaintiff has produced a copy bearing Defendants'
signatures and an affidavit stating that it possesses the original, especially
when there are no issues in this case, as there were in Powell, concerning
any assignments, transfers, or endorsements of payment rights to any entity
other than the original lender. Keeping in mind that Defendants, in opposing
a motion for summary judgment, bear the burden of coming forward with
evidence that rebuts the evidence in support of Plaintiff's Motion, it is clear
that the instant case is indistinguishable from Powell, as well as an ever-
growing list of similar cases where mortgage debtors fail to deny the prime
facie elements of a mortgage foreclosure action yet oppose the entry of
judgment due to an allegedly faulty chain of possession of the pertinent
mortgage documentation. See Bank of America, N.A. v. Gibson, 102 A.3d
462 (Pa. Super. 2014); see also Jobe v. Wells Fargo Bank, N.A., Civil Action
No. 3:10-1710 2014 WL 271654 (M.D. Pa. Jan. 23, 2014); Nationstar
13
Mortgage LLC v. Masucci, No. 201303627 2014 WL 7896604 (C.P. of
Montgomery Cnty. Feb. 3, 2014); BAC Home Loans Servicing, L.P. v. Viola,
No. 00101 2014 WL 786387 (C.P. of Phila. Cnty. Jan. 28, 2014). For all of
the above reasons, even if the issue Defendants now raise had not been
waived, it would not assist Defendants in demonstrating that Plaintiff is not
entitled to judgment as a matter of law.
As all of the elements of Plaintiff's claim have been established, and
since Defendants have not identified any genuine issue of material fact
arising from evidence in the record, Plaintiff is entitled to judgment as a
matter of law.
WHEREFORE, the Court enters the following:
14
IN THE COURT OF COMMON PLEAS OF
NORTHAMPTON COUNTY, PENNSYLVANIA
CIVIL ACTION
WELLS FARGO BANK, N,A. s/i/i/t/ )
WACHOVIA BANK, N.A., ) No.C-48-CV-2011-3134
Plaintiff )
)
r--'
v. ) C::::>
)
BRIAN C. HUMPHltEYS and )
VIRGINIA L. HUMPHREYS, )
Defendants )
ORDER OF COURT
Summary Judgment is hereby GRANTED. An in rem judgment is hereby
entered in favor of Plaintiff and against Defendants in the amount of
$137,770.28, plus costs and interest, at the per diem rate of $17.67, from
December 8, 2014, and for foreclosure and sale of the mortgaged premises.
BY THE COURT:
],
1 | 01-03-2023 | 01-25-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4118533/ | J. S82024/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
BRADLEY ERCIL JAE BURGESS, :
:
Appellant : No. 366 MDA 2016
Appeal from the Judgment of Sentence January 22, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003452-2014
BEFORE: OTT, DUBOW AND PLATT, JJ.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 25, 2017
Appellant, Bradley Ercil Jae Burgess, appeals from the January 22,
2016 Judgment of Sentence entered in the Luzerne County Court of
Common Pleas. After careful review, we affirm, in part on the basis of the
trial court’s Opinion.
The trial court summarized the factual and procedural history as
follows:
On November 19, 2014, the Luzerne County District Attorney
filed a Criminal Information charging [Appellant] with possession
of heroin with intent to deliver and DUI stemming from an
August 20, 2014 traffic stop of a vehicle driven by [Appellant].
[Appellant] pleaded not guilty and a jury trial was scheduled. On
January 9, 2015, represented by the Public Defender's Office,
[Appellant] filed a counseled pre-trial motion to suppress
statements made by [Appellant] and physical evidence seized.
*
Retired Senior Judge Assigned to the Superior Court.
J.S82024/16
A suppression hearing was held on July 28, 2015. The
Commonwealth presented the testimony of Wilkes-Barre Police
Officer David Balchun, and introduced [Appellant’s] driving
record and two lab reports into evidence. Officer Balchun
testified that on August 20, 2014, he observed a vehicle make a
right hand turn from North Empire Court Street onto Coal Street
without using its turn signal. Additionally, Officer Balchun
testified that he smelled a strong odor of marijuana smoke
coming from the vehicle. Officer Balchun initiated a traffic stop
of the vehicle, and when he approached the driver's side door
the odor of marijuana got stronger. Officer Balchun observed
[Appellant] in the driver's seat, and asked him for his license and
registration information, which [Appellant] provided. Officer
Balchun then asked [Appellant] if he had any marijuana in the
vehicle because he could smell a strong order of marijuana
coming from it. Officer Balchun testified that [Appellant]
responded that he had a little marijuana in his vehicle and then
handed the officer a cigar wrapper with a small baggie of
marijuana inside it. After being handed the marijuana, Officer
Balchun advised [Appellant] that he was going to search
[Appellant’s] vehicle for any other narcotics. Before the search
could be conducted, however, [Appellant] fled in the vehicle.
Officer Balchun pursued [Appellant] with his lights and siren
activated, but [Appellant] refused to stop and instead ran
several stop signs at a high rate of speed, travelled the wrong
way down a one way street, and nearly hit a pedestrian. While
pursuing [Appellant], Officer Balchun observed him throw
several objects out the vehicle's window. [Appellant] was
eventually apprehended and placed into custody after he pulled
his vehicle into a driveway and jumped out while the vehicle was
still rolling. When Officer Balchun returned to the area where he
had observed [Appellant] throw the items out of the vehicle the
officer found bundles of packaged heroin, totaling 250 packets.
Based on [Appellant’s] careless and reckless driving, and a
statement he made after being taken into custody that he had
smoked marijuana prior to being pulled over by Officer Balchun,
[Appellant] was taken for blood work. He tested positive for
marijuana. Officer Balchun also testified that as the result of his
check on [Appellant’s] driver's license, he learned that the
license was suspended. At the conclusion of the suppression
hearing, the Court denied [Appellant’s] suppression motion.
An Amended Information was subsequently filed setting forth
twenty-nine (29) counts against [Appellant] relating to the
-2-
J.S82024/16
events of August 20, 2014. Following a September 16, 2015
jury trial [Appellant] was found guilty of twenty-seven (27) of
the twenty-nine (29) counts. A Pre-Sentence Investigation (PSI)
was ordered to be completed by the Luzerne County Adult
Probation and Parole Department, and sentencing was scheduled
for November 23, 2015. [Appellant] failed to appear on that
date, however, and sentencing was continued until January 22,
2016.
Following review and consideration of the recommendations of
counsel and review of the PSI, [the trial court] sentenced
[Appellant] to an aggregate term of incarceration of seven and
one half (7½) to fifteen (15) years in a state correctional
institution.
Trial Court Opinion, filed 6/30/16, at 1-3.
Appellant, still represented by the Public Defender’s Office, filed a
Motion for Modification of Sentence on January 28, 2016. Before the trial
court ruled on the Motion, Appellant retained private counsel, who filed a
Notice of Appeal with this Court on February 22, 2016. On March 1, 2016,
the trial court denied Appellant’s Post-Sentence Motion.1
1
As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007)
(quotation marks and citation omitted). If a defendant in a criminal case
files a timely post-sentence motion, the judgment of sentence does not
become final for the purposes of an appeal until the trial court disposes of
the motions or the motions are denied by operation of law.
Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa. Super. 1997). The
denial of a timely post-sentence motion becomes the triggering event for
filing a notice of appeal. Pa.R.Crim.P. 720(A)(2). When an appellant files a
notice of appeal before the court has ruled on his post-sentence motions, the
judgment of sentence has not become “final,” and any purported appeal will
be interlocutory and unreviewable. Borrero, supra. In those
circumstances, the proper remedy is to quash the appeal, relinquish
Footnote continued on the following page.
-3-
J.S82024/16
Appellant raises five issues on appeal.
1. Whether the trial court erred in ruling that there was probable
cause to initiate a lawful traffic stop of the vehicle that was being
driven by the Appellant?
2. Whether the trial court erred in ruling that the statements
made by the Appellant during the traffic stop were admissible at
trial, given that they were the result of a custodial interrogation
in which the Appellant was not read his Miranda rights?
3. Whether the trial court erred in ruling that the items of
purported marijuana and heroin that were seized from the
Appellant and taken into evidence were admissible at trial, given
that they were fruits of inadmissible statements given by the
Appellant to Officer Balchun?
4. Whether the Appellant was provided with effective assistance
of counsel throughout the duration of his case?
5. Whether the sentence imposed by the Honorable Judge David
W. Lupas of the Luzerne County Court of Common Pleas on
January 22, 2016, was too excessive, given that a lesser
sentence would not depreciate the seriousness of the offenses
and it would still adequately punish the Appellant.
Appellant’s Brief at 3 (re-ordered for ease of disposition).
jurisdiction, and remand for the trial court to consider the post-sentence
motions nunc pro tunc. Id. at 161. Nevertheless, if the court subsequently
denies an appellant’s post-sentence motions, “[this Court] will treat [an]
appellant’s premature notice of appeal as having been filed after entry of
[an] order denying post-sentence motions.” See Commonwealth v.
Ratushny, 17 A.3d 1269, 1271 n. 4 (Pa. Super. 2011). Instantly, because
the trial court subsequently denied Appellant’s post-sentence motion on
March 1, 2016, we will relate Appellant’s premature notice of appeal forward
to March 1, 2016, to resolve any jurisdictional impediments. See id.
-4-
J.S82024/16
Motion to Suppress
Appellant’s first three issues challenge the trial court’s denial of his
Motion to Suppress. Our well-settled standard of review in an appeal from
an order denying a Motion to Suppress is as follows:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation
omitted).
With our standard of review in mind, we address each of Appellant’s
sub-arguments in turn.
The Traffic Stop
At the hearing on Appellant’s Motion to Supress, Officer Balchun
testified that prior to effectuating the traffic stop, he personally observed
Appellant turn without properly signaling, and smelled a strong odor of
marijuana emanating from Appellant’s vehicle. The trial court found Officer
Balchun’s testimony credible, and found that Officer Balchun had probable
cause to stop Appellant. On appeal, Appellant avers that the trial court
erred in finding that Officer Balchun had probable cause to stop Appellant’s
-5-
J.S82024/16
vehicle because there was “no smoke or any visible signs of smoke billowing
from the windows of [Appellant’s] vehicle.” Appellant’s Brief at 8.
The Honorable David W. Lupas has authored a comprehensive,
thorough, and well-reasoned Opinion, citing to the record and relevant case
law in addressing Appellant’s claim. After careful review of the parties’
arguments, and the record, we affirm on the basis of the trial court’s well
written Opinion, which found that (i) Officer Balchun’s credible testimony
that he personally witnessed Appellant turn without properly signaling was a
violation of 75 Pa.C.S. § 3334; and (ii) Appellant’s violation of Section 3334
provided sufficient probable cause to justify the traffic stop. Trial Court
Opinion, at 6-7.
Appellant’s Traffic Stop Statements
Appellant next avers that his initial traffic stop and the single question
posed therein constituted a custodial interrogation. He argues that, because
he was not given his Miranda2 warnings, the statements he made during his
traffic stop should have been suppressed.
Judge Lupas has again authored a comprehensive, thorough, and well-
reasoned Opinion, citing to the record and relevant case law in addressing
Appellant’s claim. After careful review of the parties’ arguments, and the
record, we affirm on the basis of the trial court’s well written Opinion, which
found that (i) under our jurisprudence, Appellant was subject to an
2
Miranda v. Arizona, 384 U.S. 436 (1966).
-6-
J.S82024/16
investigatory detention, not under arrest, and “the dictates of Miranda do
not attach during an investigatory detention[;]” and (ii) Officer Balchun’s
single question, whether Appellant had marijuana, was a permissible
question designed to “confirm[] or dispel[] the officer’s suspicions” that
criminal activity was afoot. See Trial Court Opinion at 9 (citing
Commonwealth v. Chase, 960 A.2d 108, [120] (Pa. 2008), and
Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007)).
The Seizure of Marijuana and Heroin
Appellant avers, in a single paragraph, that the trial court erred in
denying his Motion to Suppress because the drugs that were seized “were
fruits of the inadmissible statements made by [Appellant].” Appellant’s Brief
at 11.
As discussed supra, Appellant’s statement that there was marijuana in
the car was not inadmissible or obtained in violation of Miranda. Because
Appellant’s scant argument is premised on his averment that the statement
should have been suppressed, we conclude that this argument is without
merit.
Effective Assistance of Counsel
In his fourth issue, Appellant raises an ineffective assistance of counsel
claim, averring that trial counsel failed to adequately cross-examine Officer
Balchun at trial. Appellant’s Brief at 12.
-7-
J.S82024/16
Litigation of ineffectiveness claims is not generally a proper component
of a defendant’s direct appeal, and is presumptively deferred for collateral
attack under the PCRA. See Commonwealth v. Holmes, 79 A.3d 562, 576
(Pa. 2013) (establishing a deferral rule for ineffectiveness claims litigated
after its decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)).
However, the Pennsylvania Supreme Court has recognized two exceptions to
the rule that ineffectiveness claims should be deferred until collateral review,
both falling within the discretion of the trial court:
First, we held that trial courts retain discretion, in extraordinary
circumstances, to entertain a discrete claim of trial counsel
ineffectiveness if the claim is both apparent from the record and
meritorious, such that immediate consideration best serves the
interest of justice. Second, we held that trial courts also have
discretion to entertain prolix claims of ineffectiveness if there is a
good cause shown and the unitary review thus permitted is
accompanied by a knowing and express waiver by the defendant
of the right to pursue a first PCRA petition.
Commonwealth v. Arrington, 86 A.3d 831, 856-57 (Pa. 2014).
Here, the trial court chose not the exercise its discretion to entertain
Appellant’s ineffectiveness claim. We agree with the trial court’s denial of
relief because neither of the specified exceptions to the rule are present in
this matter. It is not clear from the record whether Appellant’s claim is
meritorious or whether trial counsel may have had a reasonable trial
strategy for cross-examining Officer Balchun as he did. Nor was good cause
or “a knowing and express waiver” of Appellant’s right to his first PCRA
-8-
J.S82024/16
Petition shown. Id. Accordingly, we decline to address Appellant’s
ineffective assistance of counsel claims in this direct appeal.
Discretionary Aspects of Sentence
Finally, Appellant challenges the discretionary aspects of his sentence.
A challenge to the discretionary aspects of sentencing is not automatically
reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d
1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
We conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see [Pa.R.Crim.P. 720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
In the instant case, Appellant filed a timely Post-Sentence Motion and
Notice of Appeal. Although Appellant did not include in his brief a separate
Rule 2119(f) Statement, the Commonwealth has not objected to this defect
and, thus, we decline to find that the defect is fatal.3 As to whether
Appellant has presented a substantial question, we note:
3
This Court may overlook an appellant’s failure to comply with Rule 2119(f)
where the Commonwealth fails to object to the omission and a substantial
Footnote continued on the following page.
-9-
J.S82024/16
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation omitted).
Here, Appellant complains that “the sentences imposed [were] on the
higher end of [Appellant’s] applicable sentencing guidelines[,]” and that “the
trial court failed to properly take into consideration [Appellant’s] history and
characteristics when imposing [Appellant’s] sentences for his offenses.”
Appellant’s Brief at 14-15. In particular, Appellant avers that the trial court
“failed to take into consideration” that Appellant’s prior record score of five
was due in large part to “a manslaughter charge brought against [Appellant]
when he was sixteen years old[.]” Id. at 14.
An argument that the sentencing court failed to consider mitigating
factors in favor of a lesser sentence does not present a substantial question
appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254,
1257-58 (Pa. Super. 2004). See also Commonwealth v. Griffin, 804
A.2d 1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d
1385, 1388 (Pa. Super. 1989) (en banc) (an allegation that the sentencing
question is obvious from the appellant’s brief. Commonwealth v. Kneller,
999 A.2d 608, 614 (Pa. Super. 2010).
- 10 -
J.S82024/16
court did not adequately consider various factors is, in effect, a request that
this court substitute its judgment for that of the lower court in fashioning a
defendant’s sentence)).
Moreover, we note that Appellant does not allege that his 7½ to 15
year sentence is in the aggravated range of the sentencing guidelines or
outside of the statutory maximum sentence. Nor does Appellant point to
any specific provision of the Sentencing Code that the sentencing court
ostensibly violated. Appellant’s bald assertion that his sentence is excessive
does not raise a substantial question. See Commonwealth v. Trippett,
932 A.2d 188, 201-03 (Pa. Super. 2007) (bald allegations of excessiveness
insufficient to permit discretionary review).
Because we conclude that Appellant has failed to raise a substantial
question as to the appropriateness of his sentence, we will not address the
merits of Appellant’s sentencing claim.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
- 11 -
Circulated 12/28/2016 11:31 AM
11T!-I JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
v.
CRIMINAL DIVISION
BRADLEY ERCIL BURGESS
Defendant I Appellant N0.3452 OF 2014
OPINION
BY: THE HONORABLE DAVID W. LUPAS
I. FACTS AND PROCEDURAL HISTORY:
On November 1°9, 2014, the Luzerne County District Attorney filed a Criminal
Information charging the above named Defendant with possession of heroin with intent
to deliver1 and DUl2 stemming from an August 20, 2014 traffic stop of a vehicle driven
by the Defendant. The Defendant pleaded not guilty and a jury trial was scheduled. On
January 9, 2015, represented by the Public Defender's Office, the Defendant filed a
counseled pre-trial motion to suppress statements made by the Defendant and physical
evidence seized.
A suppression hearing was held · on July 28, 2015. The Commonwealth
presented the testimony of Wilkes-Barre Police Officer David Balchun, and introduced
the Defendant's driving record and two lab reports into evidence.3 Officer Balchun
testified that on August 20, 2014, he observed a vehicle make a right hand turn from
1
35 P.S. § 780-113(a)(30).
2 75 Pa.C.S.A. § 3802(d)(1).
3
The Defendant presented no testimony or evidence.
I
North Empire Court Street onto Coal Street without using its turn signal. N.T. 7/28/15 at
5. Additionally, Officer Balchun testified that he smelled a strong odor of marijuana
smoke coming from the vehicle. Id. at 6, 15. Officer Balchun initiated a traffic stop of
the vehicle, and when he approached the driver's side door the odor of marijuana got
stronger. Id. at 16. Officer Balchun observed the Defendant in the driver's seat, and
asked him for his license and registration information, which the Defendant provided.
!Q. at 6, 16. Officer Balchun then asked the Defendant if he had any marijuana in the
vehicle because he could smell a strong order of marijuana coming from it. Id. at 6-7,
17. Officer Balchun testified that Defendant responded that he had a little marijuana in
his vehicle and then handed the officer a cigar wrapper with a small baggie of marijuana
inside it. Id. at 7. After being handed the marijuana, Officer Balchun advised the
Defendant that he was going to search the Defendant's vehicle for any other narcotics.
Id. Before the search could be conducted, however, the Defendant fled in the vehicle.
Id. at 8. Officer Balchun pursued the Defendant with his lights and siren activated, but
the Defendant refused to stop and instead ran several stop signs at a high rate of
speed, travelled the wrong way down a one way street, and nearly hit a pedestrian. Id.
at 9, 19. While pursuing the Defendant, Officer Balchun observed him throw several
objects out the vehicle's window. Id. at 9-10. The Defendant was eventually
apprehended and placed into custody after he pulled his vehicle into a driveway and
jumped out while the vehicle was still rolling. Id. at 10-11. When Officer Balchun
returned to the area where he had observed the Defendant throw the items out of the
vehicle the officer found bundles of packaged heroin, totaling 250 packets. Id. at 11-12.
Based on the Defendant's careless and reckless driving, and a statement he made after
2
being taken into custody that he had smoked marijuana prior to being pulled over by
Officer Balchun, the Defendant was taken for blood work. Id. at 12. He tested positive
for marijuana. Id. Officer Balchun also testified that as the result of his check on the
Defendant's driver's license, he learned that the license was suspended. ld. at 8. At
the conclusion of the suppression hearing, the Court denied the Defendant's
suppression motion. Id. at 33.
An Amended Information was subsequently filed setting forth twenty-nine (29)
counts against the Defendant relating to the events of August 20, 2014. Following a
September 16, 2015 jury trial the Defendant was found guilty of twenty-seven (27) of the
twenty-nine (29) counts.4 A Pre-Sentence Investigation (PSI) was ordered to be
completed by the Luzerne County Adult Probation and Parole Department, and
sentencing was scheduled for November 23, 2015. The Defendant failed to appear on
that date, however, and sentencing was continued until January 22, 2016.
Following review and consideration of the recommendations of counsel and
review of the PSI, this Court sentenced the Defendant to an aggregate term of
incarceration of seven and one half (7 Yi) to fifteen (15) years in a state correctional
institution.5 N.T. 1/22/16 at 8-11. The Defendant was advised by this Court of his post-
sentence rights before the hearing concluded. Id. at 12-13.
4
Although the Defendant was present during the trial, after the jury concluded its
deliberations and the parties were reassembled for the reading of the verdict the
Defendant did not return to the courtroom and could not be located. The verdict was
thus read in his absence. N.T. 9/16/15 at 186.
5
Each of the individual sentences imposed upon the Defendant fell within the standard
sentencing guideline ranges. The specific charges and sentences were as follows:
Count 1 - Possession with intent to deliver controlledsubstance (heroin), 35 P.S.
§ 780-113(a)(30): thirty-three (33) to sixty-six (66) months incarceration in a state
correctional institution;
3
Still represented by the Public Defender's Office, the Defendant filed a timely
counseled motion to modify his sentence on January 28, 2016, asserting that it was too
harsh, and that a lesser sentence would not depreciate the seriousness of the offenses
and would still adequately punish the Defendant. Before the Court decided the motion,
however, the Defendant (by that time represented by private counsel) filed a Notice of
Count 2 - Possession of a Controlled Substance (heroin), 35 P.S. § 780-113(a)(16):
merged with Count 1 for sentencing purposes;
Count 3 - Possession of a Small Amount of Marijuana, 35 P.S. § 780-113(31)(i):
fifteen (15) to thirty (30) days incarceration, to run concurrently to the previously
imposed sentence;
Count 4 - Fleeing or Attempting to Elude an Officer, 75 Pa.C.S.A. § 3733(a):
eighteen (18) to thirty-six (36) months incarceration, to run consecutively to the
previously imposed sentences;
Count 6 - Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705: twelve
(12) to twenty-four (24) months incarceration, to run consecutively to the previously
imposed sentence;
Count 8 - DUI (1st Offense), 75 Pa.C.S.A. § 3802(d)(1 ): seventy-two (72) hours to six
(6) months incarceration; to run concurrently to the previously imposed sentences;
Count 9 - Flight to Avoid Apprehension, 18 Pa.C.S.A. 5126(a): eighteen (18) to
thirty-six (36) months incarceration, to run consecutively to the previously imposed
sentences;
Count 10 - Defiant Trespass, 18 Pa.C.S.A. 3503(b)(1)(ii): $25.00 fine plus costs;
Count 11 - Resisting Arrest, 18 Pa.C.S.A. § 5104: nine (9) to eighteen (18) months
incarceration to run consecutively to the previously imposed sentences;
Count 12 - Driving Without a License, 75 Pa.C.S.A. § 1501(a): $25.00 fine plus costs;
Count 13 - Driving While Operating Privileges are Suspended, 75 Pa.C.S.A. §
1543(a): $200.00 fine plus costs;
Counts 14, 23-29 - Duties at a Stop Sign, 75 Pa.C.S.A. § 3323(b): $25.00 fine plus
costs on each count;
Count 15, 16 - Driving the Wrong Way, 75 Pa.C.S.A. § 3308(b): $25.00 fine plus
costs on each count;
Count 17 - Limitations on overtaking on the left, 75 Pa.C.S.A. § 3305: $25.00 fine
plus costs;
Count 18 - Turning Movements and Required Turning Signals, 75 Pa.C.S.A. §
3334(a): $25.00 fine plus costs
.count 19 - Driving at Safe Speed: $25.00 fine plus costs
Count 20 - Exceeding 35 mph in Urban District, 75 Pa.C.S.A. § 3362(A 1-25): $25.00
fine plus costs;
Count 21 - Careless Driving, 75 Pa.C.S.A. § 3714(a): $25.00 fine plus costs;
Count 22 - Reckless Driving, 75 Pa.C.S.A. § 3736: $200.00 fine plus costs.
4
Appeal of his January 22, 2016 sentence. On March 1, 2016, we denied the
Defendant's motion to modify his sentence and again advised him of his appellate
rights. Also on March 1, 2016, the Defendant was directed to file a Concise Statement
of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) and the
Commonwealth was requested to respond thereto. The Defendant's Rule 1925(b)
Statement was submitted on March 16, 2016, and the Commonwealth filed its response
on April 29, 2016.
This matter is now ripe for an Opinion addressing the alleged errors raised by the
Defendant. For the reasons set forth below, we believe the verdict and judgment of
sentence should be affirmed.
II. LAW AND DISCUSSION:
The Defendant's Concise Statement of Errors Complained of on Appeal asserts
that this Court abused its discretion and committed errors of law as follows:
a. In finding that there was probable cause to initiate a lawful traffic stop of
the vehicle that was being driven by the Defendant, which eventually led
to his arrest;
b. In finding that the items of purported marijuana and heroin that were
seized from the Defendant and .taken into evidence were admissible at
trial, given that they were fruits of inadmissible statements made by the
Appellant to Officer Balchune [sic];
c. In finding that the statements made by the Defendant during the traffic
stop were admissible during trial, given that they were the result of a
custodial interrogation in which the Defendant was not read his Miranda
rights;
d. That the Defendant was provided with effective assistance of counsel
throughout the duration of the case;
e. In imposing a sentence upon the Defendant that was too excessive
.
given that a lesser sentence would not depreciate the seriousness of the
'
offenses and it would still adequately punish the Defendant.
5
Pa. RA.P. 1925(b) Statement of Errors Complained of on Appeal filed 3/16/16.
We first address the Defendant's assertion that this Court erred in finding that
Officer Balchun had probable cause to stop the Defendant's vehicle. Section 6308(b) of
the Motor Vehicle Code provides that:
Whenever a police officer ... has reasonable suspicion that a violation of
this title is occurring or has occurred, he may stop a vehicle, upon request
or signal, for the purpose of checking the vehicle's registration, proof of
financial responsibility, vehicle identification number or engine number or
the driver's license, or to secure such other information as the officer may
reasonably believe to be necessary to enforce the provisions of this title.
75 Pa.C.S.A. § 6308(b). "Although subsection 6308(b) delineates the general rule, it
does not apply in all instances because ... not all vehicle offenses require further
investigation to determine whether a motorist has committed that offense."
Commonwealth v. Ibrahim, 127 A.3d 819, 823 (Pa. Super. 2015). When the driver's
detention cannot serve an investigatory purpose relevant to the suspected violation, the
detaining officer must "articulate specific facts possessed by him, at the time of the
questioned stop, which would provide probable cause to believe that the vehicle or the
driver was in violation of some provision of the Code." Id. (citing Commonwealth v.
Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en bane), appeal denied, 25 A.3d 397
(Pa. 2011).
With regard to probable cause, the courts of this Commonwealth have
recognized that "[t]he police have probable cause where the facts and circumstances
within the officer's knowledge are sufficient to warrant a person of reasonable caution in
the belief that an offense has been or is being committed." Commonwealth v. Brown,
64 A.3d 1101, 1105 (Pa. Super. 2013) (citing Commonwealth v. Hernandez, 594 Pa.
6
319, 935 A.2d 1275, 1284 (2007) (quotation and citations omitted)). Probable cause is
evaluated by considering all relevant facts under a totality of circumstances analysis.
Brown, supra.
Here, the Defendant's vehicle was stopped for failing to use a turn signal, in
violation of 75 Pa.C.S.A. § 3334, which provides in pertinent part as follows.
§ 3334. Turning movements and required signals
(a) General rule.-Upon a roadway no person shall turn a vehicle or
move from one traffic lane to another or enter the traffic stream from a
parked position unless and until the movement can be made with
reasonable safety nor without giving an appropriate signal in the manner
provided in this section.
(b) Signals on turning and starting.-At speeds of less than 35 miles
per hour, an appropriate signal of intention to turn right or left shall be
given continuously during not less than the last 100 feet traveled by the
vehicle before turning. The signal shall be given during not less than the
last 300 feet at speeds in excess of 35 miles per hour. The signal shall
also be given prior to entry of the vehicle into the traffic stream from a
parked position.
75 Pa.C.S.A. § 3334(a)-(b). This Court found that the testimony of Officer Balchun
supported a finding that the officer had probable cause to believe that the Defendant's
conduct violated 75 Pa.C.S.A. § 3334. Specifically, Officer Balchun testified that he
personally observed the Defendant's vehicle make a right-hand turn from North Empire
Court Street onto Coal Street without using a turn signal. N.T. 7/28/15 at 5. This Court
finds Officer Balchun's testimony of his observations to be credible, and that Officer
Balchun articulated specific facts possessed by him, at the time of the questioned stop,
which provided probable cause to believe that the Defendant was committing an
offense.
The Defendant next asserts that his statement to Officer Balchun should have
been suppressed because it was given during a custodial interrogation and without
7
Miranda warnings, and further, that the marijuana surrendered by him and the heroin
recovered after he threw it from the vehicle should have been suppressed because they
were fruits of the inadmissible statement. An examination of the circumstances,
however, as testified to by Officer Balchun and uncontradicted by the Defendant,
supports the conclusion that both the statement and the evidence were properly ruled
admissible. As explained, Officer Balchun had probable cause to lawfully stop the
Defendant's vehicle for the motor vehicle code violation. When the officer performed
the traffic stop and approached the Defendant's vehicle, however, he smelled a strong
odor of marijuana coming from it. At this point, Officer Balchun was well within his
authority to conduct an investigation detention and to search the vehicle.
To maintain constitutional validity, an investigative detention must be supported
by a reasonable and articulable suspicion that the person seized is engaged in criminal
activity and may continue only so long as is necessary to confirm or dispel such
suspicion." Commonwealth v. Strickler, 563 Pa. 47, 58, 757 A.2d 884, 889 (2000). See
also Commonwealth v. Parker, 619 A.2d 735, 738 (Pa. Super.1993). The determination
· of whether an officer had reasonable suspicion is an objective one which must be
considered in light of the totality of the circumstances. Commonwealth v. Kemp, 961
A.2d 1247, 1258 (Pa. Super. 2008). A stop focusing upon one violation may, in
appropriate circumstances, be extended for purposes of pursuit of a separate suspected
violation. Commonwealth v. Freeman, 563 Pa. 82, 89-90, 757 A.2d 903, 907-08 (2000).
The smell of marijuana emanating from a person's vehicle is a specific and articulable
fact reasonably warranting a belief that criminal activity is afoot. Commonwealth v.
Trenge, 451 A.2d 701, 708 (Pa. Super. 1982). Here, the evidence supports a finding
8
that during the lawful traffic stop for the motor vehicle violation, Officer Balchun had
reasonable suspicion to believe that additional criminal activity was afoot, justifying an
investigative detention to pursue that suspected activity.6
During the investigative detention prompted by the smell of marijuana coming
from the Defendant's vehicle, Officer Balchun asked the Defendant if there was
marijuana in it. The record does not suggest that in asking this question Officer Balchun
threatened the Defendant in any way or used force against him in order to obtain a
statement. Regarding the propriety of Officer Balchun's inquiry, we note that police may
ask a detainee a moderate number of questions to try to obtain information confirming
or dispelling the officer's suspicions of criminal activity. Commonwealth v. Chase, 599
Pa. 80, 960 A.2d 108, 115-16 (2008). The Defendant could have refused to answer
questions, but that does not obviate the officer's right to ask them. Further, "[i]t is well-
established that 'the dictates of Miranda do not attach during an investigatory
detention."' Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007) (citing
Commonwealth v. Kondash, 808 A.2d 94.3, 948 (Pa. Super. 2002) (finding that the
defendant was the subject of an investigatory detention. not under arrest. when an
officer asked him why he had a gun in his car, thus Miranda warning were not required).
Because Officer Balchun asked the Defendant a single question, designed specifically
to confirm or dispel the officer's suspicions that the Defendant was engaged in criminal
6
Indeed, as we will discuss, the smell of marijuana coming from the vehicle provided
probable cause to search the Defendant's vehicle regardless of further investigation or
questioning. See Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (2014) (plurality)
(not.ing that the smell of marijuana emanating from inside the vehicle provided
undisputed probable cause to search); Commonwealth v. Stoner, 344 A.2d 633, 635
(Pa. Super. 1975) (holding that the smell of marijuana provides probable cause to
search).
9
activity, we f!nd that the question was properly posed pursuant to, and in furtherance of,
a legal investigatory detention. As such, the Defendant's motion to suppress his
statement was properly denied.
In response to the question asked by Officer Balchun, the Defendant indicated
that he had marijuana in the vehicle, and then immediately handed a baggie of it to the
officer. N.T. 7/28/15 at 7. Since Officer Balchun was conducting a lawful investigative
detention at the time the Defendant handed him the marijuana, the Defendant's request
to suppress it was properly denied. Further, regardless of the propriety of his question
to the Defendant and the Defendant's response thereto, Officer Balchun already had
probable cause to search the vehicle, based on the smell of marijuana coming from it,
and that search would have revealed the marijuana and heroin.
"In this Commonwealth, the law governing warrantless searches of motor
vehicles is coextensive with federal law under the Fourth Amendment. The prerequisite
for a warrantless search of a motor vehicle is probable cause to search; no exigency
beyond the inherent mobility of a motor vehicle is required." Commonwealth v. Gary,
625 Pa. 183, 242. 91 A.3d 102. 138 (2014) (plurality). Thus, the smell of marijuana
coming from the Defendant's vehicle, alone, would have provided grounds to search it.
See Gary, supra;7 Commonwealth v. Caban, 60 A.3d 120, 132 (Pa. Super. 2012)
7
The factual circumstances of~ are very similar to the instant case. Therein, police
stopped a car for a suspected Motor Vehicle Code violation, then noticed the smell of
marijuana coming from it When they approached. Commonwealth v. Gary, 29 A.3d 804,
806 (Pa. Super. 2011). An officer asked the defendant if "there was anything in the
vehicle that the officers 'needjedj'to be worried about"' and the defendant replied that
"there was some 'weed' in the car." Id. The defendant was removed from the car and
placed in a police cruiser, and a canine sniff of his car began. Id. During the canine
sniff, the defendant got out of the police cruiser and fled. Id. He was apprehended and
returned to the cruiser. Id. Marijuana was discovered in the car. Id.
10
(probable cause existed where troopers clearly smelled the odor of raw marijuana
emanating from the trunk of the vehicle); Commonwealth v. Copeland, 955 A.2d 396,
401, 402-403 (Pa. Super. 2008) (the odor of marijuana provided probable cause to
believe that marijuana was inside the vehicle and to support a search of that vehicle)
( citing Commonwealth v. Stoner, 344 A.2q 633, 635 (Pa. Super.1975) (analogizing a
"plain smell" concept with that of plain view, and holding that where an officer is justified
in being where he is, his detection of the odor of marijuana is sufficient to establish
probable cause to search)).
As the record reflects, Officer Balchun did not have the opportunity to search the
vehicle because the Defendant handed him the marijuana, then drove away. While
fleeing, the Defendant threw the heroin out the window of the vehicle. The Defendant's
request to suppress the heroin was properly denied, as that evidence would have been
discovered during the lawful search of the vehicle had the Defendant not fled, and can
The trial court refused to suppress the marijuana, but the Superior Court
reversed, finding that the defendant was in police custody prior to the search and there
was no imperative need for prompt police action, thus, exigent circumstances were not
present to justify the warrantless search and the evidence obtained from that search
should have been suppressed. Id., 29 A.3d at 808.
Granting the Commonwealth's Petition for Allowance of Appeal, the
Pennsylvania Supreme Court agreed to address the following two issues:
a. Were the police permitted to conduct a warrantless search of
defendant's SUV for marijuana where, during a traffic stop, they could
smell marijuana emanating from the vehicle, defendant informed police
that he had marijuana in the SUV, and the officers had not had the
opportunity to obtain a warrant prior to stopping the vehicle?
b. Should this Court adopt the federal automobile exception to the warrant
requirement?
Commonwealth v. Gary, 615 Pa. 610, 44 A.3d 1146 (2012). The Supreme Court
subsequently vacated the order of the Superior Court and reinstated the defendant's
judgment of sentence, finding that "there is no dispute that probable cause existed to
search Appellee's motor vehicle. Nothing more is required." Q_fily, 625 Pa. at 242, 91
A.3d at 138.
11
additionally be viewed as being abandoned by the Defendant. The Pennsylvania
Supreme Court set forth the following test for ascertaining whether a defendant
abandoned property:
The theory of abandonment is predicated upon the clear intent of
an individual to relinquish control of the property he possesses.
Abandonment is primarily a question of intent, and intent
may be inferred from words spoken, acts done, and other
objective tacts. All relevant circumstances existing at the
time of the · alleged abandonment should be considered.
Police pursuitor the existence of a police investigation
does not of itself render abandonment involuntary . The
issue is not abandonment in the strict property-right sense,
but whether the person prejudiced by the search had
voluntarily discarded, left behind, or otherwise relinquished
his interest in the property in question so that he could no
longer retain a reasonable expectation of privacy with regard
to it at the time of the search.
Moreover, it is well settled that no one has standing to complain of a
search or seizure of property that he has voluntarily abandoned. This
Commonwealth has adopted the theory of abandonment of property only
when it is shown that the seized evidence was not discarded as a result of
unlawful police coercion.
Although abandoned property may normally be obtained and used
for evidentiary purposes by the police, such property may not be utilized
where the abandonment is coerced by unlawful police action.
Commonwealth v.. Shoatz, 366 A.2d 1216, 1219-1220 (Pa. 1976) (emphasis added,
citations omitted). Here, because the police lawfully conducted a traffic stop for the
Motor Vehicle Code violation (which escalated into an investigative detention based on
the odor of marijuana, during which the Defendant admitted having marijuana and
handed it to police) they had probable cause to search the vehicle and the Defendant's
subsequent flight and abandonment of the heroin was not coerced by unlawful police
action.
12
For the foregoing reasons, the marijuana and heroin were lawfully obtained and
used for evidentiary purposes by the police, and the Defendant's request to suppress
that evidence was properly denied.
The Defendant additionally alleges that he was provided with ineffective
assistance of counsel throughout the duration of the case. Pursuant to Commonwealth
v. Grant, 813 A.2d 726 (Pa. 2002), defendants should not raise claims of ineffective
assistance of counsel on direct appeal, but should defer them for collateral review. In
accordance with this rule, the Defendant's claims regarding ineffective assistance of
counsel should be dismissed without prejudice. See also Commonwealth v. Holmes,
621 Pa. 595, 631, 79 A.3d 562, 583 (2013) (claims of ineffective assistance of trial
counsel in Pennsylvania generally are deferred to PCRA review and generally are not
available on direct appeal).
Finally, the Defendant challenges the sentences impose following his
convictions.
Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest
abuse of discretion. To constitute an abuse of discretion, the sentence
imposed must either exceed the statutory limits or be manifestly
excessive. In this context, an abuse of discretion is not shown merely by
an error in judgment. Rather, the appellant must establish, by reference to
the record, that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Perry, 883 A.2d 599, 602-03 (Pa. Super. 2005) (citing
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). (internal citations
and quotation marks omitted).
"'(\then imposing a sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant."
13
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002), appeal
denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert. denied, 545 U.S. 1148,
125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). "In particular, the court should
refer to the defendant's prior criminal record, his age, personal
characteristics and his potential for rehabilitation." Id. Where the
sentencing court had the benefit of a presentence investigation report
("PSI"), we can assume the sentencing court "was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigatfng statutory factors." Commonwealth v.
Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005) (stating if
sentencing court has benefit of PSI, law expects court was aware of
relevant information regarding defendant's character and weighed those
considerations alonq with any mitigating factors). Further, where a
sentence is within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the Sentencing Code. See
Commonwealth v. · Cruz-Centeno, 447 Pa. Super. 98, 668 A.2d 536
(1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating
combination of PSI and standard range sentence, absent more, cannot be
considered excessive or unreasonable).
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Here, the Defendant specifically asserts that his standard ranges sentences were
excessive because "a lesser sentence would not depreciate the seriousness of the
offenses and it would still adequately punish the Defendant." Rule 1925(b) Statement at
,r e. As noted above, the Defendant's sentences were imposed with the benefit of a
pre-sentence investigation, and this Court specifically recognized the Defendant's
lengthy criminal history, Which included manslaughter while the Defendant was a
juvenile, weapons offenses, and drug trafficking offenses. N.T. 1/22/16 at 7. We further
recognized the Defendant's failure to take advantage of the opportunities provided him
to reform his ways, as well as the serious nature of his current offenses, and the danger
the Defendant posed to the public while committing the offenses. Id. at 7, 12. Thus the
sentences imposed were not excessive, and were imposed so as to not diminish the
serious nature of the offenses. Id. at 7.
14
For the foregoing reasons, the Defendant's appeal should be denied in its
entirety, and the verdict and judgment of sentence affirmed.
END OF OPINION
15 | 01-03-2023 | 01-25-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145218/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
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APPES""'AUG 10, 1939 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132435/ | THEAITORNEYGENERAL
OF TEXAS
AUSTIN. TEXAS 78711
February 18, 1977
The Honorable Leonard Prewitt Opinion No. H-945
Executive Secretary
Teacher Retirement System of Texas Re: Purchase of Teacher
1001 Trinity Street Retirement credit for
Austin, Texas 78701 service as a teacher in
the armed forces.
Dear Mr. Prewitt:
You have presented several questions for our considera-
tion concerning the ability of a member of the Teacher
Retirement System to purchase out-of-state teaching credit
for teaching while such person was a member of the United
States Armed Forces. In this regard, you first ask:
Does teaching at a United States military
service academy or teaching as an instructor
in any Reserve Officers Training Corps
program while a member of the United States
Armed Forces qualify for purchase as out-
of-state teaching service under Section
3.26 of the Texas Education Code?
Section 3.26 of the Texas Education Code states:
(a) Any member of the retirement system
who has been employed as a teacher or as
an auxiliary employee in any public school
system maintained in whole or in part by
any other state or territory of the United
States or by the United States for children
of United States citizens may purchase
equivalent membership service credits under
this retirement system for such service.
P. 3949
The Honorable Leonard Prewitt - page 2 (H-945)
Certainly, there are numerous types of fact situations
which are encompassed in your questions, and the determination
of whether a particular situation falls within the statute
involves a determination of fact. The Legislature, in this
case, has specifically delegated the authority to make such
fact determinations to the State Board of Trustees of the
Teacher Retirement System in section 3.23, which reads, in
pertinent part:
(a) Under such rules and regulations as
the State Board of Trustees may adopt a-
memberan xlowed membershipservice
credit for each year of service rendered in
accordance with the provisions of this
chapter if he has made and maintained with
the retirement system all deposits and
payments required by this chapter or prior
existing laws. (Emphasis added).
In view of the foregoing, we cannot say as a matter of law that
a member of the military employed as a teacher in a United
States Armed Forces service academy or as an instructor in
a Reserve Officers Training Corps program in a public school,
is or is not eligible under 3.26 to purchase membership
service credits.
Although your remaining questions are conditioned on an
affirmative answer to the first question, we will nevertheless
consider them on the assumption that should the State Board
of Trustees of the Teacher Retirement System reach an
affirmative conclusion on the issue presented by your first
question, these questions will become relevant. The remaining
questions are as follows:
[M]ay such service be purchased, at
the option of the member of the Retirement
System, under either Section 3.26 of the
Code as out-of-state teaching service,
or under Sections 3.23 and 3.24 of the
Code as military service?
[Mlay such service be purchased twice
by the member of the Retirement System
under both Section 3.26 of the Code as
out-of-state teaching service and Sections
3.23 and 3.24 of the Code as military
service?
P. 3950
; .
The Honorable Leonard Prewitt - page 3 (H-945)
[M]ay such service be purchased by the
member of the Retirement System as out-
of-state teaching service under Section 3.26
of the Code when the member has the maximum
military service permissible under Section
3.23 of the Code?
Section 3.26(a) (quoted above) permits any member of
the retirement system who has been employed as a teacher or
auxiliary employee in an out-of-state public school system
to purchase equivalent membership service credits for such
service. Section 3.26(c) goes on to provide that:
(c) For each year that deposits are made,
the member shall be granted immediately
upon payment of the required deposit one
year's membership service credit subject,
however, to the special conditions which
are:
(1) No person shall be allowed to
acquire credits on the basis of
employment as a teacher or auxiliary
employee outside this state in excess
of one year for each one year of
service in Texas..
. . . .
(3) No more than 10 years' total
credit can be purchased under the
provisions of this section.
Section 3.23 provides that:
(b) Any member who performed one or more
years of military duty while a member of
the retirement system shall be permitted to
deposit to his individual account in the
member savings account for each year of
duty an amount equal to his deposits made
with the retirement system during the last
preceding full year of service as a teacher
or auxiliary employee. He shall then be
entitled to one year of membership service
credit for each year of military duty.
P. 3951
The Honorable Leonard Prewitt - page 4 (H-945)
(c) Any member who performed one or more
years of military duty prior to becoming
a member of the retirement syxem shall be
permitted to deposit to his individual
account in the member savinas account for
each year of such military duty, but not to
exceed five years, an amount equalohis-
deposits made with the retirement system
during the first full year of service as a
teacher or auxiliary employee after becoming
a member of the retirement system. He shall
then be entitled to one year of membership
service credit for each year of military duty.
(Emphasis added).
If a member of the retirement system has performed such service
so as to fall within either of these categories, we can
determine no statutory basis for precluding that member
from choosing the category under which he wishes to purchase
membership service credits.
We note that section 3.24 contains no provision for
urchase of membership service credit. Instead section 3.24
!kr---
ows a member who has performed military duty to count
years of military service for the purpose of determining
el;gi;ility for retirement but not for the purpose of
ca cu sting the amount of benefits payable to the member on
retirement. A person who has performed military service but
who fails to make deposits entitling him to membership service
credits under either section 3.26 or 3.23, may still be
granted military leave credits under section 3.24.
Therefore, we answer your second question in the
affirmative: a person eligible to purchase membership service
credits under both sections 3.26 and 3.23 has the option of
choosing the section under which he will purchase membership
service credits. If membership service credits have not been
purchased the person may receive military leave credits for
time served on military duty.
Your third question concerns whether a member who
qualifies to purchase membership service credits under both
sections 3.26 and 3.23 may purchase double credits for the
same period of time, i.e. may purchase ten years' membership
service credit for fiveears of service as a member of the
military and as a teacher in an out-of-state public school
system. Section 3.21 provides:
P. 3952
* .
The Honorable Leonard Prewitt - page 5 (H-945)
(a) The State Board of Trustees shall
determine, by appropriate rules and regulations
how much service in any _ vear
_ is equivalent to
one creditable year of service, --- but in no case
shall more - than -one creditable year
- of
- service
be
- givenor-_ all service inone
---- school year.
(b) Years of creditable service at retire-
ment . . . shall consist of the number of years
of membership service credits . . . and military
leave credits to which [a member] is entitled.
(Emphasis added).
The language of this section clearly prohibits the purchase
of double membership service credits for one year of service.
Additionally, we believe this section and section 3.24
prohibit receiving unpurchased military leave credit for the
same time period for which a member has purchased membership
service credits. Therefore, your third question is answered
in the negative.
Your final question concerns whether a person who has
received maximum military membership service credits under
section 3.23 may purchase additional membership service
credits under section 3.26.
Under section 3.23(b) no maximum is placed on the number
of years of service credit which may be purchased by a member
of the retirement system who "performed one or more years
of military duty while a member of the retirement system."
Section 3.23(c) specifies that a member who performed his
military duty prior to becoming a member of the retirement
system is limited to a purchase of five years of membership
service credits for performance of military duty. If a
person has been determined to be eligible under both sections
3.23 and 3.26, we can find no intention, embodied in
affirmative legislation, to prohibit purchase of additional
years of service credit under section 3.26 beyond the
maximum provided in section 3.23(c), as long as double credit
is not received for any one year. Cf. State v. Rapport, 69
A.2d 645, 648 (Conn. 1949). We believe such a?i interpretation
does not contravene the purpose of the Teacher Retirement
System statutes as expressed by the court in Teacher Retirement
System v. Duckworth, 260 S.W.Zd 632, 636 (Tex. Civ. App. --
Fort Wozh 1953) aff'd, 264 S.W.Zd 98 (Tex. 1954):
P. 3953
. I
The Honorable Leonard Prewitt - page 6 (B-945)
[T]he principal purpose of our teacher
retirement statute is to provide support
for teachers after their teaching days
are over, and courts should give such a
statute a liberal construction in order
to effectuate the purpose intended.
Therefore, your final question is also answered in the
affirmative with the caveat that more than one year
of credit may not be received for any one year of service.
SUMMARY
If the Board of Trustees of the Teachers
Retirement System should determine that a
member of the military who has taught at
a United States military service academy
or as an instructor in a Reserve Officers
Training Corps program is eligible to
purchase out-of-state teaching service
credits under section 3.26 of the Texas
Education Code, that person may choose
to purchase membership service credits
under either section 3.26 or 3.23. A person
may not receive more than one year of
creditable service for time served in any
one school year and therefore may not purchase
double service credits under both sections.
However, a person who qualifies to purchase
membership service credits under both sections
may purchase credits beyond the maximum
allowed by section 3.23(c) if he purchases
the additional credits under section 3.26 and
he does not receive more than one year
of creditable service for service performed
in any one school year.
Attoney General of Texas
P. 3954
I .
The Honorable Leonard Prewitt - page 7 (H-945)
APPROVED:
Assistant
Opinion Committee
jwb
P. 3955 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132436/ | TI-SEATI-ORSEY GEXERAL
OF TESAS
AUSITXS. TR~LI~
78711
February 17, 1977
The Ronorable Ii.Q. Sibley Opinion No. U-944
Executive Director
Texas Animal Health Commission Re: Whether the Texas
.1020 Sam Rouston State Office Animal Xealth Commission
Building may purchase uniforms for
Austin, Texas 78701 inspectors.
Rear Dr. Sibley:
You have asked whether the Texas Animal Realth Commis-
sion has authority to purchase uniforms for employees who-
stop and inspect livestock shipments pursuant to article
70146, V.T.C.S. You also ask whether hats and boots constitute
parts of the uniforms. You inform us that you purchased
uniforms in 1975 and 1976. The Board of Control approved
these items and the Comptroller made payment, but the State
Auditor questioned the purchase.
The Legislature may not appropriate money for uniforms
for the inspectors unless preexisting law authorizes the
purchase. Tex. Const. art. 3, 9 44; Austin National Rank
v- Sheppard, 71 S.W.Zd 242 (Tex. 1934).
Article 70146, pursuant to which the inspections take
place, provides:
Section 1. Agents of,the Texas Animal
Health Commission shall have the right to
stop and inspect all shipments of livestock
or livestock products being transPorted into
or through the State of Texas at any point or
- _
place en-route in order to determine that
shiuments. _ _ _
p. 3944
. .’
The Honorable H. Q. Sibley -'page 2 (El-944)
Sec. 2. If any shipment of livestock or
products thereof is being transported contrary
to prescribed laws, rules, or regulations, it
may be detained until compliance is obtained.
This may include unloading said shipment from
transporting vehicle . . . . (Emphasis added).
Article 7014d does not expressly permit the purchase of
uniforms for inspectors or authorize the Commission to make
rules to carry out its provisions. It merely grants a power
that inspectors can exercise to enforce any laws, rules, and
regulations applicable to the shipments. However, the
provisions that the inspectors enforce may provide preexisting
authority for the purchase of uniforms. For example, the
Commission is required to adopt regulations relating to
movement out of livestock markets to protect against the
spread of disease. V.T.C.S. art. 7014c, S 2. It has the
duty to protect livestock from a number of diseases and to
establish quarantines. V.T.C.S. art. 7014f-1, 9 1. The
Commission also must adopt rules for moving livestock into
and out of Tick Eradication Areas. V.T.C.S. art. 70149-1, 99
1, 27. The roadside inspections carried out under article
7014d contribute to the performance of these duties. The
Commission may adopt rules and regulations to carry out its
statutory duties. V.T.C.S. arts. 7014c, 9 2; 7014f-1. 9 1;
7014g-1, SS 1, 27. We believe the Commission has sufficient
authority to equip its inspectors with.articles necessary to
their performance of duties under article 7014d. If the
Commission determines that uniforms are necessary to the
efficient performance of the inspection duties, it may
purchase them, provided an appropriation is available. See
Attorney General Opinions H-289 (19741; C-294 (19641; WWx5
(1960); O-6903 (19451. We cannot say that the provision of
uniforms would not further the legislative purpose of controlling
various animal diseases by inspecting livestock shipments.
Uniformed inspectors may elicit greater cooperation from
drivers than non-uniformed inspectors, particularly when
they detain and unload vehicles under section 2 of article
7014d. We believe that there is sufficient preexisting law
on which theme
Legislature could base an appropriation for
uniforms.
The Legislature may appropriate money for uniforms to
be worn by Inspectors, if doing so would serve a proper
public purpose. -See Tex: Const. art. 3, S 51; State -
v.
p. 3945
The Honorable 8. Q. Sibley '- Page 3 (H-944)
city of Austin,331 S.W.Zd 737 (Tex. 1960); Attorney
Generx Opinion H-289 (1974). The uniforms remain the
property of the state, and although individuals may derive
some benefit from the expenditure, this does not make it one
for a private purpose. Attorney General Opinion WW-865'
(1960).
There must be a specific appropriation for the purchase.
.Tex. Const. art. 8, 9 6; see National Biscuit Corn
.+i an v-
State, 135 S.W.2d 687 (Tex.1340). Thm1 ea t
Coaunissionappropriation for 1974-75 provides in pertinent
part:
including bacterioloq&hl, ierological,
toxicological and pathological examination
by interagency or commercial contract.
General Appropriations Act, Acts 1973, -. .
63rd Leg., ch. 659, art. 3i at 1911-12.
(Emphasis added).
The current appropriations bill provides money for the following
purposes:
I., Central Operations:
. . . .
d. General Administration -
and Support
. . . .
2. Eradication and
- Control:
a. General Inspections
. . . .
General Appropriations Act, Acts 1975, 64th
Leg., art. 5, ch. 743 at 2550. (Emphasis added).
p. 3946
The Honorable Ii.Q.,Sibley k page 4 (E-944)
We believe that the underlined language of these two provisions
is sufficient to satisfy article 8, section 6. See Bullock
v. Calvert, 480 S.W.2d 367 (Tex. 1972); Attorney-n-
Ginion M-1105 (1972). We also believe that the Legislature
has indicated its intent to permit the purchase of uniforms.
The appropriations act contains the following provision:
LIMITATIONS ON USE OF APPROPRIATED FUNDS.
Funds appropriated in articles I, II, and III
of this Act . . . shall be expended only for
items set out in the Comptroller's Wanual of
Accounts, Expenditure Classificatiomexive
November 1, 1965, as amended, insofar that
agencies expending said appropriated funds
shall have existing statutory authority for
such expenditures and that such expenditures
are not limited or prohibited elsewhere in
this Act. Acts 1975, 64th Leg., ch. 743, art.
5, S 10 at 2852.
See Acts
- 1973, 63rd Leg., ch. 659, art. 5, S 10 at 2202. -
This section permits expenditures for items listed in'
the Comptroller's Manual of Accounts, if the agency has
statutory authority for the purchase and if the Act does not
elsewhere limit the expenditure. The Comptroller's Manual,
Expenditure Classification 013, includes clothing anh--
uniforms along with other items. We have determined that
the Commission has statutory authority for the purchase, and
we find no limitation or prohibition on the expenditure
in the appropriations bill. In fact, the Legislature has
acquiesed in agency decisions to buy parts of uniforms.
In Attorney General Opinion WW-865 (1960), this office
determined that the Texas Youth Council could buy uniforms
from an "operating expenses" item. We have discerned no
legislative effort to overturn that decision or to prohibit
the purchase of uniforms unless the appropriations bill
expressly mentions them. The Animal Health .Commission
informs us that it has in the past bought coveralls, badges,
and rubber boots without legislative objection. We believe
that the Legislature's acquiesence iiisuch purchases h&
indicated its intent to permit the purchase of uniforms
from its appropriation to the Animal Health Commission.
See Jes~senAssociates v. Bullock, 531 S.W.Zd 593 (Tex. 1976).
Kc-e that the A?&mth Commission could DurChaSe
uniforms for inspectors from both its 1973 and 1974 appropriation
and its current appropriation..
p. 3947 .
-.
The Honorable H. Q. Sibley A page 5 (H-944)
Your second question concerns the items which constitute
the uniforms. The answer to this question depends on
an evaluation of the circumstances of employment, including
the inspectors' duties and working conditions and the purpose
served by the item, and requires the investigation and
resolution of fact questions. Since we have no authority
to resolve questions of fact, we cannot answer your second
question. The decision as to the composition of the uniform
lies within the agency's discretion to be exercised in good
faith, in light of the principles of law we have outlined,
and in awareness of the constitutional prohibition against
granting benefits to individuals without a proper public :
'purpose. Tex. Const. art. 3, 9 51.
SUMMARY
The Animal Health Commission is authorized
to purchase uniforms for inspectors in its
Compliance and Enforcement Division. Whether
particular items form parts of the uniforms
depends on the resolution.of fact questions
and therefore cannot be determined through
the opinion process.
APPROVED: 'J
Opinion Committee
jwb
p. 3948 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132441/ | TRE A-ITORNEY GENERAL
OFTEXAS
AUWKXN. TRNAXB 78711
February 4, 1977
The Honorable Joe Resweber Opinion No. H-939
Harris County Attorney
Harris County Courthouse Re: Issuance of marriage
Houston. Texas 17002 licenses to recently
divorced parties.
Dear Mr. Resweber:
You ask two questions about the authority of the county
clerk to issue a marriage license to a recently divorced
person. You describe a situation where the judge has
granted one marriage license applicant a divorce more than
thirty days prior to his application by announcing the
decision in open court and noting it on the docket sheet,
but has signed the divorce decree less than thirty days
previously. Neither party to a divorce may marry a third
party for thirty days following the date the divorce is
decreed, and the county clerk may not issue a marriage
license if either applicant indicates-that he or she has
been divorced within the last thirty days. Family Code 99
1.07(a) (7) and 3.66. you ask whether the thirty day period
begins with the judge's oral grant of the divorce, or with
his later signing of the judgment.
The court’s pronouncement of its decision of law is its
judgment, while entry of judgment is the ministerial act
which provides documentary evidence of that act. Coleman v.
a, 151 S.W. 1040 (Tex. 1912). Thus, a divorce is&ive
as soon as the judge announces his final decision to grant
it, even though the written judgment is not signed until
some days later. Dunn v. Dunn, 439 S.W.Zd 830 (Tcx. 1969);
, 4OmxdTbg (Tex. Crim. App. 1966).
The date of signing is deemed to be the date the
judgment is rendered for the purpose of determining the time
periods within which various steps toward an appeal must
be taken. ~T.R.C.P. 306a. However, this rule does not
determine what constitutes rendition of judgment for other
p. 3921
The Honorable Joe Resweber - page 2 (H-939)
Id. See Leatherwood v. Holland, 375 S.W.Zd 517
purposes. --
(Tex. Civ. APP. -- port Worth lVd4, writ ref'd n.r.e.1.
Therefore, we-believe that the thirty day waiting period
prescribed in sections 1.07(a)(7) and 3.66 of the Family
Code begins with the judge's announcement of his final
decision in court.
We note that the judge of a district or county court
has authority to set aside, modify, or amend his final
judgment for thirty days after rendition. T.R.C.P. 329b.
This thirty day period during which the court may change
its judgment begins with the signing of the judgment and
not the oral rendition. Ex parte Godeke, 355 S.W.Zd 701
(Tex. 1962); Rector v. Rector, 454 S.W.Zd 229 (Tex. Civ.
APP. -- Tyler- K 'm See T.R.C.P. 306a and 329b.
Therefore, an oral decree of divorce, valid thirtydays
after it is announced, may subsequently be set aside, a new
trial granted, and a written order embodying the later
decision entered. See Louwien v. Dowell, 534 S.W.Zd 421
(Tex. Civ. App. -- EXl~,Yio~. Cases may arise
in which parties marry in reliance on a divorce decree later
set aside by the court. ,The second marriage will be void
because one party was already married. Family Code 9 2.22.
See Miller v. Miller, 487 S.W.Zd 382 (Tex. Civ. App. --
Fort Worth n72, writ ref'd n.r.e.1. However, the Family
Code does not make the county clerk responsible for pre-
venting such occurrences. The applicant for a marriage
license must indicate his marital status, and he has better
access than the clerk to the information that his divorce
might be set aside on a motion for a new trial. Therefore,
the county clerk may issue a marriage license when one
applicant has been divorced by the judge's pronouncement
more than thirty days previously, even though the judge
signed the decree less than thirty days previously.
You also ask whether the county clerk may issue a
marriage license under the facts stated in your first question
where the two applicants were divorced by the decree and are
seeking to remarry. The thirty day waiting period of
section 3.66 does not extend to couples who have recently
been divorced from each other; in fact "the parties divorced
may marry each other at any time.“ (Rmphasis added).
However, in its 1975 amendment to the provision on issuance
of a marriage license, the Legislature has declared that
"[tlhe county clerk may not issue a license to the applicant9
if . . . either applicant indicates that he or she has been
p. 3928
The Honorable Joe Resweber page 3 (H-939)
divorced by a decree of a court of this state within the
last 30 days." Family Code S 1.07(a)(7).
The aim of statutory construction is to ascertain the
legislative intent. State v. Jackson, 376 S.W.Zd 341 (Tex.
1964). Section 3.66 expresses-tent that divorced
couples may remarry one another during the thirty days after
the divorce decree. Section 1.07(a) (7), which denies a
marriage license to applicants divorced within the last
thirty days, must be construed with reference to the system
of legislation of which it is part. Code Construction Act,
V.T.C.S. art. 5429b-2, 9 3.01(2) and (3). We believe that
the legislative intent expressed in section 3.66 will be
frustrated if a divorced couple may not obtain a license to
remarry within the thirty days after their divorce and must
instead attempt to establish an informal marriage under
sections 1.91 and 1.92 of the Family Code. We do not believe
that the Legislature, in enacting section 1.07(a)(7) intended
it to apply to applicants recently divorced from one another.
The provision refers to "either applicant," indicating that
the Legislature did not have in mind a case where the two
applicants are divorced from one another. We believe that
section 1.07(a) (7) was'enacted to change the law as interpreted
by Attorney General Opinion H-581 (19751, which found that
the county clerk had authority to issue licenses to applicants
divorced in the last thirty days. In H-581, we did not deal
with the divorced couple seeking to remarry, and we do not believe
that the legislation inspired by H-581,applies to that case.
The process of statutory construction may properly include
consideration of the conditions to be remedied. Code
Construction Act, V.T.C.S. art. 5429b-2, S 3.03(l). The
county clerk may issue a marriage license to applicants
divorced from one another within the last thirty days.
SUMMARY
The county clerk may issue a marriage
license where one applicant has been
divorced by oral pronouncement of the
court more than thirty days previously,
even though thirty days have not elapsed
since the signing of the judgment. The
P. 3929
I
The Honorable Joe Resweber - page 4 (H-939)
clerk may issue a marriage license to
applicants who have been divorced from
one another within the last thirty days.
Very truly yours,
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
p. 3930 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4118536/ | Affirmed as Modified and Opinion Filed January 24, 2017
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00338-CR
RONDRAE TRAMAINE ROBERTS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F-1370469-H
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Stoddart
Opinion by Justice Francis
Rondrae Tramaine Roberts appeals the trial court’s judgment adjudicating him guilty and
sentencing him to ten years in prison. In two issues, appellant challenges the admission of a
probation officer’s testimony and the sufficiency of the evidence to show he violated conditions
of his community supervision. For reasons discussed below, we conclude both issues are
without merit. On our own motion, we modify the trial court’s judgment to reflect appellant
pleaded not true to the allegations in the motion to adjudicate. We affirm the judgment as
modified.
Appellant was indicted on a charge of aggravated robbery with a deadly weapon. He
waived his right to a jury trial, pleaded guilty, and judicially confessed to the offense. The trial
court deferred a finding of guilt and placed appellant on community supervision for ten years.
Fifteen months later, the State filed a motion to revoke probation or proceed with an adjudication
of guilt, alleging appellant had violated seven conditions of his community supervision,
including failure to report in November 2014, December 2014, and January 2015.
A contested revocation hearing was held. Appellant pleaded not true to the allegations in
the State’s motion. To prove the allegations, the State presented the testimony of Jennifer
Vavrick, a Dallas County probation officer assigned to Criminal District Court No. 1. Vavrick
testified she was record custodian and had access to the information contained in appellant’s
probation record. She did not, however, have personal knowledge of the data entries. Appellant
objected to Vavrick testifying about the contents of the records on hearsay, confrontation, and
personal knowledge grounds. The trial court overruled the confrontation objection and granted a
running objection on that issue, but sustained the hearsay objection for failure to lay a proper
predicate.
The State then asked Vavrick questions to establish the business records exception to the
hearsay rule. She testified that a probation record includes a person’s conditions of probation
and the documentation regarding the case. The entries are made into the probation department’s
computer system by probation department employees at the time of and with actual knowledge
of the events, and these records are kept in the regular course of business. Finally, she testified
the department relies on the records, and access to their contents is limited by security controls.
The trial overruled appellant’s hearsay and personal knowledge objections and granted running
objections on those complaints as well.
In addition to other violations, Vavrick testified the notes showed appellant had not
reported from November 2014 through all of 2015. Vavrick testified appellant’s probation
supervision was transferred to Collin County and, at some point, he told his Collin County
probation officer he was moving to Denton County; appellant was instructed to inform Dallas
–2–
County that he was moving, but he failed to do so; a letter, giving him reporting instructions, was
mailed to his last known address; and appellant failed to report during the year 2015.
On cross-examination, Vavrick testified to much of the same information, including that
appellant began reporting in Collin County in June 2014 and the last progress report from that
county was October 29, 2014; in November, Dallas County received a letter from Collin County
stating they were closing appellant’s case because he had moved to Denton County; the letter
provided the address and phone numbers given by appellant; after receiving the closure letter,
Juan Mendoza, a transfer officer with the Dallas County probation department, attempted to
contact appellant by phone; and Dallas County then sent appellant a letter dated December 17,
2014 instructing him to report on December 30, 2014. Additionally, Vavrick testified that
appellant was told by his Collin County probation officer that he needed to contact Dallas
County about the transfer to Denton, although she did not know exactly what he was told.
At the conclusion of Vavrick’s testimony, the trial court found the failure to report
allegation true, granted the State’s motion, and found appellant guilty. Before assessing
punishment, the trial court heard testimony from appellant, his wife, his mother’s best friend, and
two Dallas County probation officers involved in appellant’s case. The testimony generally
related to appellant’s efforts to follow his probation conditions and, in particular, to contact
Mendoza after he moved from Collin County.
In his first issue, appellant contends the trial court violated his Sixth Amendment right to
confrontation as set out in Crawford v. Washington, 541 U.S. 36 (2004), by allowing Vavrick to
testify to the contents of appellant’s probation record.
The Confrontation Clause of the Sixth Amendment to the United States Constitution
provides “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” U.S. CONST. Amend. VI. In Crawford, the Supreme Court
–3–
held the admission of a hearsay statement made by a non-testifying declarant violates the Sixth
Amendment if the statement was testimonial and the defendant did not have a prior opportunity
to cross-examine the witness. Crawford, 541 U.S. at 68; Wall v. State, 184 S.W.3d 730, 734
(Tex. Crim. App. 2006).
In a line of unpublished cases, beginning with Gutierrez v. State, No. 05-11-01380-CR,
2013 WL 3533549, at *1 (Tex. App.—Dallas July 12, 2013, pet. ref’d) (mem. op., not designated
for publication), this Court has previously concluded that the right to confrontation under the
Sixth Amendment does not apply during revocation proceedings. See Preston v. State, No. 05-
14-01131-CR, 2015 WL 4241406, at *2 (Tex. App.—Dallas July 14, 2015, no pet.) (mem. op.,
not designated for publication); Riley v. State, No. 05-13-00900-CR, 2014 WL 1856845, at*3
(Tex. App.—Dallas May 8, 2014, pet. ref’d) (mem. op., not designated for publication).
As we said in Gutierrez, the Confrontation Clause, by its own terms, applies only to
criminal prosecutions, and a probation revocation is not a stage of “criminal prosecutions.” See
Gutierrez, 2013 WL 3533549, at *1 (citing Wisser v. State, 350 S.W.3d 161, 164 (Tex. App.—
San Antonio 2011, no pet.); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—Houston [14th
Dist. 2007, no pet.); Smart v. State, 153 S.W.3d 118, 121 (Tex. App.—Beaumont 2004, pet.
ref’d)). This is true whether revocation follows “regular” probation or deferred adjudication
probation. Id.
Appellant asserts the underlying rationale of these opinions has been undermined by Ex
parte Doan, 369 S.W.3d 205, 212 (Tex. Crim. App. 2012), which held community supervision
revocation hearings are judicial proceedings subject to the rules governing judicial proceedings
and not, as prior cases held, merely administrative proceedings. From this, appellant seems to
suggest that because probation revocation proceedings are judicial proceedings, they must
–4–
likewise be “criminal prosecutions” as contemplated by the Sixth Amendment. But Doan made
no such pronouncement.
In Doan, the court considered whether double jeopardy precluded the State from
prosecuting a defendant for an offense in one county when the offense was used as the basis for a
motion to revoke probation denied by a trial court in another county. Doan, 369 S.W.3d at 206.
As part of its analysis, the court reviewed prior case law regarding the nature of revocation
hearings and ultimately disavowed prior cases characterizing such hearings as administrative. In
reaching its conclusion, the court noted there are “few procedural differences between a Texas
criminal trial and a Texas community-supervision revocation proceeding,” but the court did not
go so far as to say a revocation proceeding is a criminal prosecution. Id. at 210. More
importantly, the court did not state, nor even address, whether such a proceeding is a “criminal
prosecution” under the Sixth Amendment. Rather, the court reversed the appellate court after
determining “as a matter of state law, a prosecuting authority who alleges a criminal offense in a
community supervision revocation hearing represents the same interests as a prosecuting
authority who later alleges the same criminal offense in a trial” and the court of appeals “erred in
holding that two prosecuting authorities could not be the same party for res judicata purposes.”
Id. at 212–13.
Because we have previously concluded deferred adjudication revocation proceedings are
not a phase of criminal prosecution under the Sixth Amendment, we conclude the trial court did
not err in overruling appellant’s objection and admitting Vavrick’s testimony.1 We overrule the
first issue.
1
This conclusion should not be read to mean a defendant has no rights to confrontation in a revocation proceeding; a defendant does have
certain rights of cross-examination under the Due Process Clause of the Fourteenth Amendment. See Gutierrez, 2013 WL 3533549, at *3 n.1
(citing Black v. Romano, 471 U.S. 606, 612 (1985)); see e.g. Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012) (“Revocation
involves the loss of liberty and therefore implicates due process.”). Appellant, however, has not brought a due process complaint.
–5–
In his second issue, appellant contends the evidence is insufficient to support the trial
court’s finding he violated the conditions of his community supervision.
The decision to proceed to an adjudication of guilt and revoke deferred adjudication
community supervision is reviewable in the same manner as a revocation of ordinary community
supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2016). We review an
order revoking community supervision under an abuse of discretion standard. Rickels v. State,
202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cantu v. State, 339 S.W.3d 688, 691 (Tex.
App.—Fort Worth 2011, no pet.). In a revocation proceeding, the State must prove by a
preponderance of the evidence that the defendant violated the terms and conditions of
community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Proof by
a preponderance of the evidence of any one of the alleged violations of the conditions of
community supervision is sufficient to support a revocation order. Cantu, 339 S.W.3d at 691–
92.
The State’s motion to revoke alleged he violated seven grounds: (d) failure to report to
the community supervision office for the months of November 2014, December 2014, and
January 2015; (h) failure to pay court costs; (j) failure to pay community supervision fees; (m)
failure to complete community service hours; (q) failure to complete Thinking for Change; (t)
failure to pay restitution; and (w) failure to complete IOP.
At the conclusion of the testimony on the revocation/adjudication portion of the hearing,
the State withdrew allegation (q), Thinking for Change, and argued the evidence, at the “very
minimum,” supported a true finding to failure to report. The trial court then found “Allegation B
to be true” and granted the State’s motion and found appellant guilty as charged.
–6–
Appellant argues the State’s motion did not allege a violation of condition (b) and there is
no evidence to show he violated condition (b); thus, he contends the trial court abused its
discretion in revoking his community supervision.
We acknowledge the reporter’s record shows the trial judge found condition “(b)” true.
But, later, while hearing punishment evidence, the trial judge specifically stated he had “found
true the violations in November 2014, December of 2014 and January of 2015, the
nonreporting.” Whether the conflict in the record is due to a mistake by the court reporter in
reporting “b” instead of “d” or is due to the trial court “misspeaking,” reversal is not required.
Considering the record as a whole, it is clear the parties and the court understood appellant had
been revoked for nonreporting, which was consistent with allegation (d) in the State’s motion,
the evidence presented, and the State’s closing argument. We overrule the second issue.
Finally, although neither party has raised the issue, our review of the record reveals an
error in the judgment. The judgment states appellant pleaded true to the allegations in the State’s
motion to adjudicate, but the reporter’s record shows appellant pleaded not true to the
allegations. We have authority to correct a judgment below to make the record “speak the truth”
when we have the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526,
529 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we modify the judgment to reflect
appellant pleaded not true to the allegations in the motion to adjudicate.
We affirm the trial court’s judgment as modified.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
160338F.U05
–7–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RONDRAE TRAMAINE ROBERTS, On Appeal from the Criminal District Court
Appellant No. 1, Dallas County, Texas
Trial Court Cause No. F-1370469-H.
No. 05-16-00338-CR V. Opinion delivered by Justice Francis;
Justices Fillmore and Stoddart participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
To reflect appellant pleaded Not True to the Motion to Adjudicate.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered January 24, 2017.
–8– | 01-03-2023 | 01-25-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132448/ | The Honorable Joe Hubenak Opinion No. Ii-932
Chairman
Committee on Agriculture & Re: Application of sales
Livestock tax exemption to machinery
Texas House of Representatives and equipment used by an
State Capitol agricultural cooperative.
Austin, Texas 70767
Dear Chairman Hubenak:
you have requested our opinion whether the sales tax
exemption described in article 20.04(N) (6), Taxation-General,
applies to machinery and equipment used by an agricultural
cooperative association organized pursuant to articles 5737-
5764, V.T.C.S. We assume in answering your inquiry that
you are referring to an agricultural cooperative which
handles, processes or markets the goods grown by its members.
The sales tax exemption of article 20.04(N)(6) applies to:
Machinery or equipment exclusively used or
employed on farms or ranches in the pro-
duction of food for human consumption,
production of grass, the building or
maintaining of roads and water facilities,
feed for any form of animal life, or other
agricultural products to be sold in the
regular course of business, and machinery,
ooseneck trailers exclusive1
p. 3894
The Honorable Joe Hubenak - page 2 (H-932)
As you note, the underscored portion of subsection 6 was
added to the statute by House Bill 2195, 64th Legislature.
The Comptroller of Public Accounts, in Ruling .016,
effective July 20, 1976, has interpreted subsection 6 to
exempt machinery and equipment used by agricultural cooperatives
in the processing, packing and marketing of agricultural
products. As an author and sponsor of the bill and as
chairman of the committee which favorably reported House
Bill 2195, you state that the bill was intended merely to
clarify the statutory sales tax exemption available to a
farmer purchasing equipment for use on his farm or for use
at a location elsewhere for processing his own agricultural
commodities, and was not intended to apply to machinery
purchased by cooperative associations.
The legislative history of House Bill 2195 appears to
support your position. The bill analysis distributed in
connection with House Bill 2195 noted that under existing
law, machinery or equipment used in the production of
agricultural products was exempt from the sales tax, but
that machinery and equipment used in processing, packaging
or marketing of these products was not exempt. The
analysis stated that House Bill 2195:
Clarifies farm machinery and equipment
exempt from sales tax. State Comptroller
asked that this legislation be enacted to
clarify the statutes to conform with the
farm usage of machinery and equipment.
The fiscal note regarding House Bill 2195 stated:
No fiscal implication or additional cost
to the State attributable to the bill,
should it be enacted, is anticipated.
Thus, it seems clear to us that the Legislature, in enacting
House Bill 2195, contemplated no major extension of existing
exemptions to the sales tax.
The exemption of machinery or equipment purchased by
agricultural cooperatives from the sales tax could hardly
be said to have "no fiscal implications." The University
of Texas Natural Fibers Economic Research Division's Cotton
Ginning Cost Study for the 1974-75 Season reported that the
p. 3895
The Honorable Joe Hubenak - page 3 (H-932)
cost of new gins being built at that time was in the "one-
half million dollar range or more." Id. at 37.. The 1975-76 Texas
Cooperative Handbook lists over 200 cooperative ginners in
Texas, and over 200 other cooperative associations of various
types, including grain elevator associations, food locker
associations, and feed and supply associations. The exemp-
tion of industry segments of this size from the sales taxi
would appear to have some fiscal implications to the State.
We likewise find difficulty in concluding that the
express language of the statute lends itself to an interpretation
exempting machinery used by cooperatives. The exemption
applies specifically to machinery
exclusively used . . . by the orginal
producer at a location operated by the
original producer exclusively for . . ..
his own products. Tax.- Gen. art. 20.04(W) (6).
While agricultural products delivered by a producer to a third
party. including a cooperative, for storage and ultimate
sale remain "in the hands of the producer" for purposes of
ad valorem taxation, Attorney General Opinions M-632 ~(1970)
E2, V-511 (1948) at 3, O-5405 (1943) at 7, thatis not to
say that cooperative associations are operated by the original
producer exclusively for processing, packing or marketing
his own products.
We think that machinery and equipment utilized by an
agricultural cooperative association to process, pack or
market its members' products is neither "operated by the
original producer" nor used "exclusively for . . . his own
products," and is not, therefore, within the sales tax
exemption of article 20.04(N) (6), Taxation-General. Our
view is reinforced by the "well settled [rule] that exemptions
from taxation . . .. should be strictly construed." city of
Amarillo v. e, 356 S.W.2d 325, 328 (Tex. Civ. App. --
Amarillo m62, writ ref'd n.r.e.).
SUMMARY
The exemption from the sales tax of
machinery and equipment exclusively used
in the processing, packing or marketing
of agricultural products by the original
p. 3896
The Honorable Joe Hubenak - page 4 (H-932)
producer does not extend to inachineryand
equipment utilized by an agricultural
cooperative association to process, pack
or market its members' products.
Very truly yours,
jwb
p. 3897 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125100/ | IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
BREVARD COUNTY SHERIFF'S OFFICE,
Appellant,
v. Case No. 5D15-3390
KEVIN CHARLES BROWN,
Appellee.
________________________________/
Opinion filed February 3, 2017
Appeal from the Circuit Court
for Brevard County,
George W. Maxwell III, Judge.
Jason M. Gordon and Robin M.L. Cornell,
of Gordon & Cornell, Cocoa Beach, for
Appellant.
Reed C. Cary, of Law Office of Reed C.
Cary, Melbourne, for Appellee.
BERGER, J.
During the execution of a search warrant, members of the Brevard County Sheriff’s
Office (Brevard) located a glass pipe containing methamphetamine residue inside Kevin
Brown’s 1997 Chevrolet Corvette.1 Thereafter, Brevard sought forfeiture of Brown’s
1 The following additional items of contraband were found in and around Brown’s
home: nine grams of ecstasy, forty-three packages of pseudoephedrine, lithium batteries,
coffee filters, methamphetamine, two digital scales, cannabis, small plastic baggies, one
Corvette under the Florida Contraband Forfeiture Act (FCFA). See §§ 932.701-.706, Fla.
Stat. (2015). At the adversarial preliminary hearing, the trial court dismissed Brevard’s
complaint, with prejudice, after concluding possession of the pipe was insufficient to
establish that the Corvette was used in committing or aiding and abetting the commission
of a felony. Brevard argues this was error. It insists that possession of the pipe
constitutes a felony offense, regardless of how it was charged, because the pipe field-
tested positive for methamphetamine and, further, that because it was unlawful for Brown
to conceal the pipe in the Corvette, the Corvette was subject to forfeiture under the FCFA.
We agree and reverse.
As we have previously recognized, forfeiture proceedings involve a two-step
process. Patel v. State, 141 So. 3d 1239, 1244 (Fla. 5th DCA 2014) (citing Gomez v. Vill.
of Pinecrest, 41 So. 3d 180, 184 (Fla. 2010)). The first stage, outlined in section
932.703(2), Florida Statutes (2015), involves the seizure of property. The second stage
involves the actual forfeiture of property. See id. Adversarial preliminary hearings, such
as the one at issue in this case, occur during the first stage of the proceedings. See §
932.703(2), Fla. Stat. (2015). The purpose of an adversarial preliminary hearing is "to
determine whether probable cause exists to believe that the property was used in violation
of the FCFA." Patel, 141 So. 3d at 1242; see also §§ 932.701(2)(a)12.(f), 932.703(2)(a),
Fla. Stat. (2015). Only if the trial court determines probable cause exists for the seizure
may the forfeiture proceed. § 932.703(2)(c), Fla. Stat. (2015).
pipe that tested positive for methamphetamine, and three glass pipes that tested positive
for cocaine.
2
It is unlawful to use any motor vehicle to facilitate the concealment or possession
of any contraband article. § 932.702(3), (4), Fla. Stat. (2015). Section 932.701(2)(a)
defines a contraband article as:
1. Any controlled substance as defined in chapter 893 or any
substance, device, paraphernalia, or currency or other means
of exchange that was used, was attempted to be used, or was
intended to be used in violation of any provision of chapter
893, if the totality of the facts presented by the state is clearly
sufficient to meet the state’s burden of establishing probable
cause to believe that a nexus exists between the article seized
and the narcotics activity, whether or not the use of the
contraband article can be traced to a specific narcotics
transaction.
§ 932.701(2)(a)1., Fla. Stat. (2015). Methamphetamine is a controlled substance. See
§ 893.03(2)(c)4., Fla. Stat. (2015). A pipe containing it is paraphernalia. See §
893.145(12), Fla. Stat. (2015). Both are contraband articles under the FCFA. See §
932.701(2)(a), Fla. Stat. (2015). Because possession of methamphetamine is a felony,
any motor vehicle containing the drug is subject to forfeiture. See § 932.703(4), Fla. Stat.
(2015).
Specifically, section 932.703(4) provides:
(4) In any incident in which possession of any contraband
article defined in s. 932.701(2)(a) constitutes a felony, the
vessel, motor vehicle, aircraft, other personal property, or real
property in or on which such contraband article is located at
the time of seizure shall be contraband subject to forfeiture. It
shall be presumed in the manner provided in s. 90.302(2) that
the vessel, motor vehicle, aircraft, other personal property, or
real property in which or on which such contraband article is
located at the time of seizure is being used or was attempted
or intended to be used in a manner to facilitate the
transportation, carriage, conveyance, concealment, receipt,
possession, purchase, sale, barter, exchange, or giving away
of a contraband article defined in s. 932.701(2).
3
§ 932.703(4), Fla. Stat. (2015) (emphasis added). Here, because the pipe located in
Brown’s Corvette tested positive for methamphetamine and possession of
methamphetamine is a felony, Brown’s Corvette is subject to forfeiture. See id. It does
not matter whether the Corvette was used to actually transport the methamphetamine, it
is subject to forfeiture if it merely "possesses" the illegal substance. See State v.
Crenshaw, 548 So. 2d 223, 226 (Fla. 1989) ("[P]ossessing drugs, even solely for personal
use, subjects individuals not only to criminal penalties but also to forfeiture of the vehicle,
boat, or aircraft in which the drugs are found. It makes no difference whether the drugs
are on the seat, in the console, or in the occupant's pocket."); In re Forfeiture of 1987
Cadillac, Serial No. 1G6CD5186H4292327, 576 So. 2d 900, 900 (Fla. 1st DCA 1991)
(finding that claimant’s possession of cocaine while he was in his vehicle supports and
requires forfeiture of the vehicle pursuant to section 932.703); accord United States v.
One (1) 1983, Fifty-Seven Foot (57') Gulfstream Vessel, M/V Christy Lee, Official
Documentation No. 643659, 640 F. Supp. 667, 672 (S.D. Fla. 1986) ("[A] vessel is subject
to forfeiture if it merely 'possesses' the marijuana."). Furthermore, "[t]he courts have
uniformly held that a vehicle is subject to forfeiture no matter how small the quantity of
contraband found." United States v. One (1) 1982 28' Int'l Vessel, 741 F.2d 1319, 1322
(11th Cir. 1984) (citing United States v. One 1976 Porsche 911S, VIN 911-6200323, Cal.
License 090 NXC, 670 F.2d 810, 812 (9th Cir. 1979) (affirming forfeiture of automobile
where .226 grams of marijuana was found in the trunk of the automobile and rejecting
argument that forfeiture statute did not reach small amounts of contraband); see also One
(1) 1982 28' Int'l Vessel, 741 F.2d at 1322 (explaining that "[t]he very fact that a sufficient
quantity of marijuana was present to permit testing defeats appellant's suggestion that
4
the amount involved was immeasurable.")); One (1) 1983, Fifty-Seven Foot (57')
Gulfstream Vessel, 640 F. Supp. at 673 (same).
In dismissing Brevard’s forfeiture complaint, the trial court determined:
[T]he misdemeanor possession of drug paraphernalia is
insufficient to establish that the Corvette was used in either
committing or aiding and abetting the commission of a felony.
The substance in the paraphernalia field tested positive for
either methamphetamine or cocaine. Possession of either
cocaine or methamphetamine is a third degree felony.
However, Petitioner has failed to establish that a possessory
offense has occurred.
This was error. See Jones v. State, 589 So. 2d 1001, 1002 (Fla. 3d DCA 1991) (holding
that quantity of the controlled substance does not have to be measurable to support a
conviction for possession of such controlled substance particularly when the
immeasurable amount of the substance is found on an implement used to consume the
substance); see also Peterson v. State, 841 So. 2d 661 (Fla. 4th DCA 2003) (finding pipe
which exhibited blue colored residue resulting from positive lab test that had consumed
remaining cocaine was sufficient to sustain conviction for possession of cocaine); Lupper
v. State, 663 So. 2d 1337, 1339 (Fla. 4th DCA 1994) (holding that trace amount of burnt
cocaine residue found on altered beer can sufficient to support possession conviction).
Moreover, "[f]or purposes of forefeiture, positive results in a field test furnish sufficient
proof as to the existence of contraband." One (1) 1982 28' Int'l Vessel, 741 F.2d at 1322
(citing United States v. One Wood, 19' Custom Boat, 501 F.2d 1327, 1329-30 (5th Cir.
1974)).
"The probable cause standard applicable at the seizure stage requires only 'a
showing of a "sufficient probability to warrant a reasonable belief" that the property was
used in violation of the . . . Forfeiture Act.'" In re Forfeiture of 1994 Ford Explorer,
5
Identification No. 1FMCU22XXRUC62178, 203 So. 3d 992, 993-94 (Fla. 2d DCA 2016)
(emphasis omitted) (quoting In re Forfeiture of Forty–Seven Video Redemption Games,
799 So. 2d 221, 222 (Fla. 2d DCA 2001). Because Brevard presented sufficient evidence
to establish probable cause that there was methamphetamine in the Corvette, it is entitled
to the presumption found in section 932.703(4). The presumption states in relevant part:
It shall be presumed in the manner provided in s. 90.302(2)
that the . . . motor vehicle, . . . in which or on which such
contraband article is located at the time of seizure is being
used or was attempted or intended to be used in a manner to
facilitate the transportation, . . . concealment, . . . possession,
. . . of a contraband article defined in s. 932.701(2).
§ 932.703(4), Fla. Stat. (2015). Thus, Brevard adequately established probable cause to
seize the vehicle.
Accordingly, we reverse the trial court's final order dismissing the forfeiture
complaint. On remand, the trial court shall reinstate the complaint, enter a finding of
probable cause to support the seizure, and proceed to the next stage of the forfeiture
proceedings.2
REVERSED; REMANDED with instructions.
CRAGGS, A.M., Associate Judge, concurs.
ORFINGER, J., concurring specially with opinion.
2 We decline to comment on whether Brevard can sustain its burden of proof at the
forfeiture trial.
6
ORFINGER, J., concurring specially. 5D15-3390
Because possession of even the smallest amount of a controlled substance, or the
residue of a controlled substance, can be a felony, I concur with the majority opinion,
albeit reluctantly. See Peterson v. State, 841 So. 2d 661, 662-63 (Fla. 4th DCA 2003);
Gilchrist v. State, 784 So. 2d 624 (Fla. 3d DCA 2001).
7 | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125102/ | IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ZAMEENA ZEENAT BARSIS,
Appellant,
v. Case No. 5D16-2768
EL HOUCINE BARSIS,
Appellee.
________________________________/
Opinion filed February 3, 2017
Appeal from the Circuit Court
for Orange County,
Bob LeBlanc, Judge.
Andrew F. Nickolaou, of Bernal-Mora
& Nickolaou, Winter Park, for Appellant.
El Houcine Barsis, Orlando, pro se.
LAMBERT, J.
Zameena Zeenat Barsis (“Former Wife”) appeals a nonfinal “Order Regarding
Custody and Support.” Concluding that this order was entered in violation of Former
Wife’s right to due process, we reverse.
In July 2015, a final judgment was entered dissolving the marriage between
Former Wife and El Houcine Barsis (“Former Husband”). The judgment ratified an agreed
parenting plan submitted by the parties, which provided that they share the parental
responsibility for all major decisions involving their three minor children. The parties
agreed to an equal division of timesharing with their children, with the exchange of the
children taking place each Sunday. Former Husband was also ordered to pay Former
Wife $367 per month in child support.
In March 2016, Former Husband filed a motion asking the trial court to designate
a specific location where the parties would exchange their children for timesharing.
Former Husband alleged that the parenting plan did not specify the location of the parties’
exchange of their minor children, and due to a recent incident, he requested that the court
enter an order directing that all future timesharing exchanges occur at the Family Ties, a
facility that provides a monitored program for such exchanges. Former Husband set his
motion for hearing, providing proper notice to Former Wife.
For reasons irrelevant to the resolution of this appeal, Former Wife failed to attend
this hearing. The trial court thereafter entered the order on appeal, in which the court,
upon its own motion, awarded Former Husband sole timesharing of the parties’ children
and limited Former Wife’s contact with the children to “as allowed” by Former Husband.
The court also abated Former Husband’s monthly child support obligation. Following the
trial court’s denial of Former Wife’s motion for rehearing, this appeal ensued.
Former Wife argues that the trial court’s order violated her due process rights by
significantly modifying her timesharing with her children when the only matter scheduled
to be addressed at the hearing was the location for the timesharing exchange. We agree.
“It is well settled that an order adjudicating issues not presented by the pleadings, noticed
to the parties, or litigated below denies fundamental due process.” Golden v. Bass, 194
So. 3d 1080, 1082 (Fla. 1st DCA 2016) (quoting Neumann v. Neumann, 857 So. 2d 372,
2
373 (Fla. 1st DCA 2003)). “A court violates due process when it ‘modifies visitation,
changes primary residence, or alters child support when the notice of hearing does not
include this issue.’” Id. (quoting Moody v. Moody, 721 So. 2d 731, 734 (Fla. 1st DCA
1998)). Furthermore, no emergency was alleged by Former Husband in his motion
necessitating the action taken by the trial court.
Accordingly, we reverse the order on appeal and remand this case to the trial court
for further proceedings.
REVERSED and REMANDED.
TORPY and EDWARDS, JJ., concur.
3 | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150847/ | 03/07/2017
DA 15-0738
Case Number: DA 15-0738
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 45
IN THE MATTER OF:
K.J.R.
A Youth.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Toole, Cause No. DJ 12-05
Honorable Robert G. Olson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, James Reavis, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana,
Merle Raph, Toole County Attorney, Shelby, Montana
Submitted on Briefs: January 18, 2017
Decided: March 7, 2017
Filed:
__________________________________________
Clerk
Justice Dirk M. Sandefur delivered the Opinion of the Court.
¶1 K.J.R. challenges the legality of a Youth Court order that committed him to the
Department of Corrections for placement at the Pine Hills Youth Correctional Facility.
We affirm.
ISSUES
¶2 We reframe the issues on appeal as follows:
1. Did the Youth Court err by revoking the youth’s previously imposed youth
court commitment and committing him to the Department of Corrections for
placement at a state youth correctional facility?
2. Did counsel for K.J.R. provide ineffective assistance by failing to object to
revocation proceedings in the absence of previously imposed probationary
conditions?
BACKGROUND
¶3 By petition filed June 20, 2012, the State charged twelve-year-old K.J.R. with
seven felony and misdemeanor offenses including theft of a motor vehicle, theft of a .40
caliber handgun, criminal mischief in the shooting of a calf, criminal trespass, and
accountability to theft of a motor scooter in Toole County, Montana. Upon K.J.R.’s
admission that he committed “an act which, if committed by an adult, would constitute a
criminal act,” the Ninth Judicial District Youth Court adjudicated K.J.R. to be a
“delinquent youth,” as defined by § 41-5-103(11)(a), MCA.
¶4 At the time of the original dispositional hearing on July 12, 2012, K.J.R.’s parents
were both incarcerated on drug-related offenses and unavailable to parent him. The
Youth Court committed K.J.R. “to the supervision” of the Youth Court until age
2
eighteen, or sooner released, for placement at a specific therapeutic group home in
Billings. The dispositional order further provided that the “Youth Court Officer shall
have the ability to find an alternative suitable placement” if the specified placement was
“not attainable.”
¶5 For reasons not of record on appeal, the supervising juvenile probation officer
initially placed the youth at a non-therapeutic group home in Great Falls. Over the next
three years, the juvenile probation officer moved K.J.R. in and out of a sequence of
juvenile facilities and foster care homes. Between placements, K.J.R. spent considerable
time in juvenile detention until his probation officer could secure the next placement.
¶6 K.J.R.’s first placement at the Missouri River Group Home in Great Falls lasted
only a few months before the facility requested his removal for disruptive behavior and
violations of house rules. The probation officer next placed K.J.R. at the Youth Christian
Ranch in Roundup, which lasted two years before the facility requested his removal due
to disorderly conduct, truancy, and marijuana use. The next placement at the North
Skyline Youth Home in Great Falls ended within a few weeks after K.J.R. fought with
other boys and violated house rules.
¶7 Violations of house rules similarly triggered K.J.R.’s removal from his fourth
placement at a therapeutic foster care home in Shelby. His juvenile probation officer
then arranged for a kinship placement with an aunt in Shelby in anticipation of the return
of K.J.R.’s mother upon her completion of a prerelease program in Great Falls.
¶8 On September 8, 2015, based on new allegations that fifteen-year-old K.J.R. had
recently been truant, insubordinate at school, involved in an assault, and failed to timely
3
return to Shelby from Great Falls, the State filed a petition to revoke K.J.R.’s Youth
Court probation. At the adjudicatory hearing on September 30, 2015, the Youth Court
adjudicated the alleged probation violations as true.
¶9 The Youth Court continued the dispositional hearing four times to allow K.J.R.’s
counsel time to find an alternative therapeutic placement. At the hearing on October 29,
2015, counsel reported that his efforts to secure placement for K.J.R. failed because
K.J.R. lacked an up-to-date psychiatric evaluation. A contemplated out-of-state
therapeutic placement required Medicaid funding, which was not available without a
current psychiatric evaluation.1
¶10 At the close of the dispositional hearing, the Youth Court revoked K.J.R.’s
original commitment to the Youth Court for private, out-of-home placement. Pursuant to
the recommendations of the juvenile probation officer and the youth placement
committee, the Court committed K.J.R. to the supervision of the Montana Department of
Corrections (DOC) for placement at the Pine Hills Youth Correctional Facility until age
eighteen or sooner released. The Court also ordered K.J.R. to complete a chemical
dependency program at Pine Hills.
STANDARDS OF REVIEW
¶11 We review a youth court’s application and interpretation of the Youth Court Act
de novo for correctness. In re K.J., 2010 MT 41, ¶ 13, 355 Mont. 257, 231 P.3d 75
1
Counsel for K.J.R. argued that the Youth Court’s options for disposition were impacted by a
2012 neuropsychological evaluation, which indicated the youth suffered from a mental disorder.
However, a mental health evaluation completed at the Cascade County Juvenile Detention
Center in 2015 disputed the earlier report. The more recent mental health evaluator stated that
K.J.R.’s earlier diagnosis of mental disorder had been ruled out by a clinician in 2012.
4
(citing In re G.T.M., 2009 MT 443, ¶ 9, 354 Mont. 197, 222 P.3d 626). Whether a person
has been denied the right to due process is a question of constitutional law and our review
is plenary. In re A.S., 2004 MT 62, ¶ 9, 320 Mont. 268, 87 P.3d 408.
¶12 The standard of review of a youth court’s modification of a prior order under
§ 41-5-1422, MCA, is for an abuse of discretion. In re C.D.H., 2009 MT 8, ¶ 21, 349
Mont. 1, 201 P.3d 126 (citing Matter of B.L.T., 258 Mont. 468, 470, 853 P.2d 1226, 1227
(1993)). The test for an abuse of discretion is “whether the trial court acted arbitrarily,
without employment of conscientious judgment, or exceeded the bounds of reason
resulting in substantial injustice.” C.D.H., ¶ 21 (citing A.S., ¶ 24).
DISCUSSION
¶13 1. Did the Youth Court err by revoking the youth’s previously imposed youth
court commitment and committing him to the Department of Corrections for placement at
a state youth correctional facility?
¶14 K.J.R. contends the Youth Court unlawfully revoked his probation and prior
Youth Court disposition because his original Youth Court commitment was not subject to
any specific court-imposed probationary conditions. Because the court could not legally
determine the youth to have violated nonexistent terms of probation, K.J.R. asserts the
court’s probation revocation and resulting DOC commitment order were unlawful.
¶15 For its part, the State argues on appeal that K.J.R. waived the issue of the validity
of the subject orders by failing to timely object below. Inattentive to the original
disposition in this matter, the State further attempts to rebrand various detention release
conditions imposed by the Youth Court in July and August 2015 as subsequently-
imposed conditions of K.J.R.’s underlying probation.
5
¶16 This Court generally will not review an issue not raised below. In re K.M.G.,
2010 MT 81, ¶ 19, 356 Mont. 91, 229 P.3d 1227 (citing State v. Kotwicki, 2007 MT 17,
¶ 8, 335 Mont. 344, 151 P.3d 892). The objecting party must first give the trial court the
opportunity to address and correct any perceived errors. K.M.G., ¶ 36. As an exception
to the general rule, we will review a final disposition alleged to be illegal or in excess of
statutory mandates even if the defendant failed to raise the issue in the trial court.
K.M.G., ¶ 19 (citing Kotwicki, ¶ 8; State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997,
1000 (1979)).
¶17 Because K.J.R. claims the Youth Court unlawfully revoked his prior disposition
and, thus, lacked the subsequent authority to commit him to DOC for placement at Pine
Hills, the gravamen of his appeal is a challenge to the legality of his second Youth Court
disposition. We conclude the claim qualifies for review on appeal despite the lack of a
lower court objection.
¶18 Upon adjudication of a “delinquent youth,” the Youth Court Act authorizes
various final dispositions in the discretion of the court including, inter alia:
(1) placing “the youth on probation” under the continuing jurisdiction of the
youth court pursuant to §§ 41-5-1513(1)(a) and -1512(1)(a), MCA;
(2) committing “the youth to the youth court” for placement in a private, out-
of-home facility pursuant to §§ 41-5-1513(1)(a) and -1512(1)(c), MCA; or
(3) committing “the youth to the department” for placement in a state youth
correctional facility until age 18 or sooner released pursuant to
§ 41-5-1513(1)(b), MCA.
6
The youth court may impose any authorized disposition following a formal hearing and
consideration of a predisposition report or assessment filed and served by a juvenile
probation officer. Section 41-5-1511(2) through (4), MCA.
¶19 Because the Youth Court Act does not define “probation,” we turn to other parts
of the Montana Code to determine the meaning of the term. See § 1-2-107, MCA (a word
or phrase defined by one part of the code is applicable to the same word or phrase in
other parts of the code except where a contrary intention plainly appears). In the context
of a juvenile sex crime, the law defines probation as the “supervision of the juvenile by a
youth court pursuant to Title 41, chapter 5.” Section 45-5-501(3)(b)(ii), MCA. The
Interstate Compact on Juveniles defines the term as “any kind of supervision or
conditional release of juveniles authorized under the laws of the compacting states.”
Section 41-6-101, MCA. Title 46 similarly defines the term as “release by the court
without imprisonment of a defendant found guilty of a crime . . . subject to supervision
by the department of corrections upon direction of the court.” Section 46-1-202(21),
MCA; accord § 46-23-1001(4), MCA. Thus, for purposes of the Act, probation
generally means the court-ordered release of a youth, subject to supervision under
court-ordered terms and conditions. The youth court has the exclusive authority
to impose or modify the terms and conditions of probation. See §§ 41-5-103(18), -1422,
-1511, -1512(1)(a), (i), -1513(1)(a), MCA (adjudication and disposition of delinquent
youth and court authority to modify youth court orders); compare § 41-5-1703(1)(c), (2),
MCA (juvenile probation officer duty to supervise youth court probationers and enforce
probation conditions).
7
¶20 Upon formal petition and hearing, the court may revoke a youth’s previously
imposed probation upon a finding that the youth “violated a term of probation.” Section
41-5-1431(1), (2), MCA. The petition “must state the terms of probation alleged to have
been violated and the factual basis” for the alleged violations. Section 41-5-1431(2),
MCA. Upon adjudication of the violation of “a term of probation, the youth court may
make any judgment of disposition that could have been made in the original case.”
Section 41-5-1431(3), MCA.
¶21 In contrast, without reference to probation or probation conditions, a commitment
to the youth court for private, out-of-home placement references only certain conditions
of placement.2 By its express and limited references to “probation” and “term of
probation,” the probation revocation procedure specified by § 41-5-1431, MCA, does not
apply to a revision or revocation of a commitment for private, out-of-home placement.
See §§ 41-5-1431, -1512(1)(a), MCA (probation disposition and probation revocation);
compare § 41-5-1512(1)(c), MCA (commitment to youth court for private, out-of-home
placement).
¶22 Though not technically on probation, a youth committed for private, out-of-home
placement under § 41-5-1512(1)(c), MCA, is nonetheless subject to mandatory
supervision by the juvenile probation officer. Section 41-5-1523(2), MCA. Akin to
probation conditions, the youth court may impose terms and conditions of supervision
incident to a commitment for private, out-of-home placement under § 41-5-1512(1)(c),
2
Incorporated by reference to statutory limitations on state youth correctional facility
placements. See §§ 41-5-1512(1)(c), -1522, MCA.
8
MCA. See, e.g., § 41-5-1512(1)(i), MCA (discretion to order “further care, treatment,
evaluation, or relief” beneficial to the youth and community). As with probation
conditions, juvenile probation officers have no authority to impose terms and conditions
of supervision under a § 41-5-1512(1)(c), MCA, commitment for private, out-of-home
placement. See §§ 41-5-1523(2), (3), -1703(1), (2), MCA (probation officer supervision
and case management duties related to private, out-of-home placement).
¶23 Though the Act does not mandate a structured procedure for revision or revocation
of commitments to the youth court under § 41-5-1512(1)(c), MCA, the Act nonetheless
vests the youth court with broad discretion to “modify” youth court orders “at any time.”
Section 41-5-1422(1), MCA. Commitment to the youth court under § 41-5-1512(1)(c),
MCA, and commitment to DOC for placement at a state youth correctional facility under
§ 41-5-1513(1)(b), MCA, are both dispositions available to the youth court upon the
original adjudication of a delinquent youth. Therefore, a youth court has continuing
jurisdiction and authority pursuant to § 41-5-1422(1), MCA, to revoke a commitment to
the youth court under § 41-5-1512(1)(c), MCA, and then to recommit the youth to DOC
for placement at a state youth correctional facility pursuant to § 41-5-1513(1)(b), MCA.
Exercise of that discretion necessarily requires non-arbitrary findings of fact and
conclusions of law warranting the change of disposition under the relevant statutory
criteria that would have governed a DOC commitment in the first instance.
¶24 In this case, without citation to a particular dispositional subsection of
§ 41-5-1513, MCA, the Youth Court originally committed K.J.R. “to the supervision of
the Montana Ninth Judicial District Youth Court” until age of eighteen or “sooner
9
released.” If the specified therapeutic group home placement was “not attainable,” the
court authorized the juvenile probation officer to “find an alternative placement.” The
court’s dispositional order did not reference the term “probation” or impose any
probation conditions. In contrast to a probationary disposition under §§ 41-5-1513(1)(a)
and -1512(1)(a), MCA, the original disposition in this case was, as a matter of law, a
commitment to the youth court for private, out-of-home placement pursuant to
§§ 41-5-1513(1)(a) and -1512(1)(c), MCA. Because he was never on probation, K.J.R.
was not subject to a probation revocation under § 41-5-1431, MCA.
¶25 Nonetheless, the Youth Court retained broad discretion under § 41-5-1422(1),
MCA, to revoke K.J.R.’s original youth court commitment under § 41-5-1512(1)(c),
MCA, and then to recommit him to DOC for placement in a youth correctional facility
pursuant to § 41-5-1513(1)(b), MCA. Though the parties led it down the wrong
procedural path, the court’s oral and written findings and conclusions, as well as the
underlying record, manifest that the Youth Court and supervising juvenile probation
officer afforded K.J.R. every reasonable opportunity to succeed on supervision under his
originally imposed court commitment for private, out-of-home placement. The record
further shows that the probation officer, statutory youth court placement committee, and
ultimately the Youth Court resorted to a state youth correctional facility placement only
after K.J.R. demonstrated he was not amenable to supervision in the community over a
period of years and multiple alternative placements.
¶26 Though proceeding under the mistaken belief that this case involved a probation
disposition subject to probation revocation proceedings under § 41-5-1431, MCA, the
10
Youth Court clearly had continuing discretionary authority under § 41-5-1422(1), MCA,
to revoke K.J.R.’s original commitment to the Youth Court and to recommit him to DOC
for placement at a state youth correctional facility. Aside from correctly pointing out the
mistaken procedural characterization, K.J.R. has made no particularized showing that any
of the court’s substantive findings of fact or factual considerations were clearly
erroneous. K.J.R. similarly has made no showing of prejudice resulting from the mere
fact that the court mistakenly characterized the proceeding as a probation revocation
proceeding rather than an exercise of its ongoing discretion to modify youth court orders
at any time. To the contrary, the record and the court’s orders clearly show that the youth
received due notice and opportunity to be heard in opposition to the State’s revocation
petition and that the court made a lawful, non-arbitrary decision based on substantial
credible evidence.
¶27 This Court will affirm the lower court when it reaches a legally correct result even
if it reached the right result for the wrong reason. State v. Ellison, 2012 MT 50, ¶ 8, 364
Mont. 276, 272 P.3d 646 (citation omitted). Therefore, we hold that the Youth Court
acted within its lawful authority without abuse of discretion or factual or legal error when
it revoked K.J.R.’s original § 41-5-1512(1)(c), MCA, youth court commitment and
recommitted him to DOC for placement at a state youth correctional facility.
¶28 2. Did counsel for K.J.R. provide ineffective assistance by failing to object to
revocation proceedings in the absence of previously imposed probationary conditions?
¶29 As a matter of Fourteenth Amendment Due Process, a youth has the right to the
assistance of counsel during delinquency proceedings when such proceedings may result
11
in commitment to an institution or other curtailment of the youth’s freedom. In re Gault,
387 U.S. 1, 41, 87 S. Ct. 1428, 1451 (1967). A youth also has a Montana statutory right
to counsel in all youth court proceedings. Section 41-5-1413, MCA. The right to counsel
necessarily includes the right to effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984) (by implication from the
Sixth Amendment in adult criminal proceedings); A.S., ¶ 20 (as function of due process in
child abuse and neglect proceedings).
¶30 Here, the parties ask the Court to evaluate K.J.R.’s ineffective assistance of
counsel claim under the two-part test announced in Strickland, which requires the
defendant to show that counsel’s performance was objectively deficient and resulted in
actual prejudice. State v. Notti, 2003 MT 296, ¶ 6, 318 Mont. 146, 79 P.3d 289. Based
on its presumption of adequate performance, the Strickland test imposes a heavy burden
on the defendant to show that counsel’s performance was deficient. Strickland, 466 U.S.
at 690, 104 S. Ct. at 2066.
¶31 An adult criminal defendant’s right to effective assistance of counsel derives from
the express federal and Montana constitutional rights to counsel in criminal proceedings.
Because a youth court proceeding is a remedial civil proceeding rather than a criminal
proceeding, see §§ 41-5-102, -103(11)(a), and -106, MCA, a youth court defendant’s
right to effective assistance of counsel derives from the federal and Montana
constitutional rights to due process. See Gault, 387 U.S. at 41, 87 S. Ct. at 1451. To
date, this Court has adopted no specific criteria for evaluating youth court ineffective
assistance of counsel claims.
12
¶32 While the Strickland test continues to be appropriate for adult criminal
proceedings, we have previously determined that its highly deferential standard is
insufficient to protect the fundamental liberty interests at stake in special civil
proceedings that, though analogous to criminal proceedings, involve protective or
remedial considerations not present in criminal proceedings. In re Mental Health of
K.G.F., 2001 MT 140, ¶¶ 62-65, 306 Mont. 1, 29 P.3d 485 (involuntary mental health
commitment proceedings); In re A.S., ¶¶ 23-25 (child abuse and neglect parental rights
termination proceedings). In K.G.F., based on pertinent published guidelines,3 we
adopted five non-exclusive evaluation criteria for ineffective assistance of counsel claims
in involuntary mental health commitment proceedings. K.G.F., ¶¶ 70-89. In A.S.,
similarly based on pertinent published guidelines,4 we adopted two non-exclusive
evaluation criteria for ineffective assistance of counsel claims in child abuse and neglect
termination proceedings. A.S., ¶¶ 26-28. More demanding than the Strickland standard
but “more direct” than the K.G.F. criteria, the A.S. criteria focused on:
(1) . . . whether counsel has experience and training in representing parents in
[child abuse and neglect proceedings] . . . and whether counsel has a
verifiably competent understanding of the statutory and case law involving
[child abuse and neglect proceedings including parental rights termination
proceedings]; and
(2) . . . whether counsel has adequately investigated the case; whether counsel
has timely and sufficiently met with the parent and has researched the
3
National Center for State Courts Institute on Mental Disability and the Law, Guidelines for
Involuntary Civil Commitment; 10 Mental and Physical Disability Law Reporter, no. 5, 409-514
(1986).
4
National Council of Juvenile and Family Court Judges, Resource Guidelines: Improving Court
Practice in Child Abuse & Neglect Cases, 22–23 (1995).
13
applicable law; whether counsel has prepared for the termination hearing by
interviewing the State’s witnesses and by discovering and reviewing
documentary evidence that might be introduced; and whether counsel has
demonstrated that he or she possesses trial skills, including making
appropriate objections, producing evidence and calling and cross-
examining witnesses and experts.
A.S., ¶ 26.
¶33 In contrast to a criminal proceeding, youth court proceedings are special, remedial,
civil proceedings that affect the development and fundamental liberty interests of youth.
See §§ 41-5-102, -103(11)(a), -106, MCA (nature of youth court proceedings). Under
Montana law, youth have the same fundamental Montana constitutional rights as adults.
Mont. Const., art. II, § 15. Although analogous, youth court proceedings involve special
considerations and present special challenges to effective representation not present in
adult criminal proceedings.5 Consequently, we decline to adopt the Strickland test to
evaluate youth court ineffective assistance of counsel claims. Moreover, while
something similar to our A.S. standard may ultimately be a good fit, we are not inclined
to adopt a particular standard for youth court ineffective assistance of counsel claims in
this case because the parties have not raised or briefed the issue and the unique facts of
this case are amenable to disposition under any objective standard.
5
Logic and pertinent national and Montana sources similarly indicate that counsel must have
specialized knowledge, skills, and experience in the areas of youth court procedure, substantive
youth court law, and in communicating with and counselling the youth. In addition to age-
related deficiencies and challenges, youth court defendants often present with particular
disabilities and traumas. Effective advocacy always requires investigation and preparation of the
case. See, e.g., National Juvenile Defender Center, National Juvenile Defense Standards
(Patricia Puritz, et al., 2012) (standards for best practices in juvenile defense) and Montana
Public Defender Commission, Practice Standards for Counsel Representing Individuals
Pursuant to the Montana Public Defender Act (updated 2012) 55-61 (standards for
representation of youth in Montana youth courts).
14
¶34 K.J.R. asserts that counsel performed deficiently by failing to object to the State’s
revocation petition on the ground that the youth could not violate probation conditions
not imposed by the court. He further asserts counsel’s omission prejudiced him by
resulting in revocation of his community placement and ultimate commitment to DOC for
placement in a state youth correctional facility. K.J.R.’s claim is a record-based claim
amenable to review on the district court record.
¶35 The record shows counsel for K.J.R. did not object to the State’s incorrectly
framed petition. A timely objection may very well have alerted the Youth Court to the
correct procedural posture and correspondingly correct characterization of the process
and its revocation judgment.
¶36 However, as previously noted, K.J.R. has made no particularized showing that
any substantive Youth Court finding of fact or factual consideration was clearly
erroneous. K.J.R. has similarly made no showing of any substantial prejudice resulting
from the fact that the court mistakenly characterized this matter as a probation revocation
matter rather than a consideration of whether to modify K.J.R.’s original Youth Court
placement under the court’s continuing modification authority pursuant to
§ 41-5-1422(1), MCA. As previously held, the court acted within its lawful authority
without abuse of discretion or factual or legal error when it revoked K.J.R.’s original
Youth Court commitment and recommitted him to DOC for placement at a state youth
correctional facility. Regardless of the alleged deficient performance, K.J.R. has failed to
show that counsel’s failure to object to the erroneous characterization of the procedure
15
would have resulted in a different outcome or otherwise prejudiced K.J.R. in any regard.
We hold that K.J.R.’s ineffective assistance of counsel claim is without merit.
CONCLUSION
¶37 Regardless of the mistaken characterization of the proceeding as a probation
revocation matter, the court acted lawfully without error when it revoked K.J.R.’s
original Youth Court commitment and recommitted him to DOC for placement at a state
youth correctional facility. K.J.R.’s claim of ineffective assistance of counsel is without
merit. We affirm.
/S/ DIRK M. SANDEFUR
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE
16 | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145176/ | _..
TE~TE ATTORNEYGENEFCAL
OF %=EXAS
Hon. B66oam Gil66, Cormnissioner
General Land Office
aU6tin, T6las
Dear Sirs Opinion NC. O-1255
R68 Construotioa of a lea66 by
th0 CCarmi66iOn6rOf th6
General L+nd Offioe on public
6ehool land-to Reawar Oil
Corporation.
Thi6 till .6okacrledg6
_ . _r6eoipt~cf your 16ttsr of Deosmber 8, 1939,
~qU66ting 6ll OpdniCn Ofthi a6pPrtmsnt On C6rt6m qU66tiCU6 6ri6i6,g i,,
oonn6otica with b666 No. 22990, 6xeoutrd by V. El.MoDcndld, Land &",,iS-
siowr, on lbwmber 6, 1937, covering 180 soms in Kleberg landKennedy
County to R-r Oil Corpcratioa. You eaolosod with your request a pho-
toatatic copy of the application for th6 16a66 by Benmar O$l I%rporaticn
dat6d 86pt6mb6r 7, 1937, a photorrtatiqaopy Of the 16a66 and,a photostatio
ocpy of a bond which is not d+ted tit ha6 the 6t6mp of youi~offio? mark6d
6Raooiv6d Xcvembor 6, 1937' on 66~~6,signed by R6nnar Oil Ccrporaticn,
FrinoQnl, Roman S. Bond and S. F. EMbut, Sur6ti66. The 166qs hrs th6
following provisions6
"HOW, THEREFORE, I VU. II.MCEORALD, Ccmmissioaer of
ths General Land Office of the Stat6 of Texa6, by virtue
cf the authority vested in me, do hereby leas?~aad grant
unto REwiAR OIL CORF.. COFWJ8 QZ+ISTI, TBXA8 ths 6xclus-
iv6 right to prospect for, produo and take cut of th6
lfor66aid ar6a for a period of FIVE YW and as long
th6rsaftsr 6s any miner6Js 6cv6red hereby ar6 prcducad
therefrom in oamnercial.quantitio.6,act to oxo66d TWWl!Y
FIVE YEARS, 611 oil and g66 upd oth6r miwrals, axc6pt
geld, silar, platinum, cinnabar and ot$or metals ssd
prsciou6 stones that may.be therein, upon the follovdng
ocnditions, to-witr
"1. If none of such mineral6 be producsd in ccnm6r-
oial.quantiti6s within,fiYe year6 this I6666 shall term-
inat..
u2. The caner h6r6of shall pay to the Commiesioner
Of th6 Goaaral Land Offi at b6tlll, T6Xa6, for tne "66
and bsn*rit 0r tn6 State of Tex66, annually m ww6noe
Honorable Basoam Gil.6 (O-1256) Page 2
25+ per *cr. during th. life hereof, 60 long a6 the
area may b6 imld undmulopsd, md not to 8xoo.d fiv.
years without prcauctica.
*3. Rhea prcauoticn of oil, gas or other miaemla
ecver6a hy this leas. ia sscured the owner snail pay
to th.~Com6i66icn6r of th. General Land Oftic., at
liustin,hXa6, for th. U6. and benefit ofth. Stat. of
T.x.6, l/8 of th. ml". of th. grcrs oduotioa of oil,
l/8 cfth. grO66prOdUCtiCn of'gas, 18p" of the grcrs
productian of aulphur, and 1.8 of th. vmlu. of other
minsrals, thatmay b. prcducrd from 6aid area.
#520,000.00 out oi the 3/64 of th. 7.8 and a6 6nd if
pmduo6d. Ih lgr.o to owmno. cpwaticns for tb
drilliag of a ~6~11in a.aroh of oil and/or gar on or
kforo 330 day6 fran the dat6 of the drlivwy of thi6
l.aso 6ndto continu6 th. drilling th.r.of with duo
dilig.nos until th. d.pth of 7000 fo.t h66 bon r.aohod
or oil and/or gar in paying quaatiti.6 ha6 b6.n produe-
.d th.r.from. Failur. to oom6waoa raid 11.11a6 afcn-
6aid 6h.ll r.nd.r thi6 1.a60 null rod void to both
IWti.6,"
ThS Rb‘N6 proPi6iCn6 Of tb 1.a6. arOth. 6a6,.a6 6.t Cut iath.
minwal lea68 6pplioaticn or bid byR.nw6r Oil Corporation. Th. bead r.-
OSSS th. l.a6., aad th. agr66maat t0 drill aontaimd th.r6i8 and i6 cca-
ditit&d.on thi drilliag 66 prcvid.d in said leai. inthi p.n61 61~6of
#4;60&00 in.fav&of th. Caimi6ii~au bft h. &G.imi~&ad Offi& of'-
T0X.i aid hi6 ‘SUOOO66Cr6’ ia Offih6. h YOW htkr'yh8 6tat. that,Cn
Di6rmbir~6, 1939, ti compliano6.iith th. demandof~$our d.pwtmat; th4
~,SOO.OO p.n6ltg ih said bard m6 paid to.y&. YOU a166 6tat.d in your
1ott.r that the R.nnr 011 Ccrporatica'plid‘tho ourront y.U'6 tintal
bgianiag Hmb.r 6, 1939 on 4ugust 5,'~1939. Th. lpplicatica ud bond
hav. be6a endcrsod on thm th6 following:
*Deo6m%6r 8, 1938*
"The period of tim. al1ow.d in the drilliag obliga-
tics i6 h.nby ixtmndmd for oa6 year aft.r it6 Original
lxpiratica data.
( Bigmod) lb J. YaDca6ld
!hW6i66iCU.~*
It will b. ncted that th. on. yrr ha6 rxpind should ruch *XI-
dcr6mant b. giaa any rff.ct.
You a6k for am cpinic8 on th. following quostion68
Honcrablo B86ccm Gil.6 (G-1235) Pago 3.
1. SinC. no bond m6 mrnticnod ia the bid for
aloam nor in the loaro i66u.d 6hculdth6 land cam-
mi66iCnOr OCntiBU6 ia for06 ~adOffOOt thr 1086. by
virtue of the payment of tbo pasalty prwid.d la the
bcmd for failure to drill?
2. Should the 1.16. bo doolarod fcrfoitod for
failure to ocmply with tha ton66 of the bid and loa6o
a6 i66U.d thorwon?
It.i6 tb 0pilli0nof thi6 dopart6matthat in oM6truiag th. thr.0
abow monticnod in6tru66nt6 that the loaro i8 quo6ticn t.rm1nat.d or b6-
oa66 null and void cm the failure cf,th6 106i06 to oanmnencocpWaticn6 for
th. drillir of a rnll.in 6.aroh of oil ud g*r 08 or boforo %C~dayr Pra6
the data of the doliY6ry cftho loaio bo~io of the j~fmisio~ ii th',ap
pliaatica and 1.86. that .failuro,to'aC66kko. 6iid roll a6 afcniaid &all
rond6r thi6 lo866 null and void t.oboth prtior.~ It till bi noted thit
in the 16660 l66soo wa6 not tivoa u opticr o r llootic8to oithor bigii
thir no11 or pay aa agnod rrntal or otiply withtho acaditik6 of i'b6&.
It ir true that ordinarily m do not find ia oil alrdgal 1686.6 as abro-
lute lgroanoht ta drill a roll togothor with a proYi6ica t.hat~tho'Ibaro
rhall b. aull and void, tormiaat6 or wad om failureto &ill the-r&l1 1~
a s~oifiod ti6IC,but w. 0an 600 10 rYa6cn ww ruoh a oolltraafcould not
k lnt.r .a into. The Ronwar Oil Ccrpomtic8 6ot cut i8 their 8pplic8tici
aad bid thii lx6Ct pmviricn a6 bLg a pr~viric8 bywhioh it 1166 illling
to b bound. T%. COUrt6 hW6 .h.~ 00~6tZ’Ud Oil ad g66 1.8606 agai66t
the 106600 6ad o.rt&aly suoh ccB6tndic8 nould k giYOn 18 thi6 iB6t6no.
6imo0 the 106600 i6 Ir6pCm6iblO for fh. 8%6V6 prOYi6iCa btig in the lOa60.
m do not think that th6 bc8d, whioh ~6 aCt monticaod im the
application or loaro, ha6 a- b6arimg on whothor or act tb6 2oaro to&at-
ld or ~oamo in111amdvoid for failure to drill th6 ~611. If it aould
haYo 6xy b.arilmg01 th6 coatnot b&woon th6 parti. with nrp.ct to the
loa6o, it lould cmly haw to do with th. damag.6 for viclatia 'aftho
ccv.mnt or agm.mont to drill the null ud not with tb proviri&6 th6t
the 1.86. rhculd brcDm6 void if the nllr66 mot drilled im tiw. Thir
1.86. wa6 lxooutod aftor cixapetitiw bidding a6 roquind by ohrptor 271,
Aot6 42ad L6gi6laturo, p. 462, and rtatutor th.roiu nforrod to. Suppc66
6cmo cthor company had 6ubnittod 61 lxa6t bid a6 wa6 ruh6itt.d w Ro8war
Oil Corporation with the lxcoptic~ of the provision with ro6p.d to drill-
img a ~011 with18 360 d8y6. A6 betwo~ ruoh Md and Romar~a bid th6 Land
CcmmLssicnor would haw boom jurtifiod 3.8ac86idorimg R.War'r bid a highor
bid, a6 the lgr66mont tu drill the roll 6nd th6 pmVi6iCa t&t the loaro
would b6ccm null and void if 66.160m6 not drilled withia a rpecifio time
M6 a Yaluablo added ccm6idOxWtiCli The offrot of the Co6unis6icn.rg6aC-
tic8 would result im the loaro nof having b6.~ giwa to the higha6t ud
krt bidder which would b6 doing imdir6otly what +ho rtatut.6 pr.Y.nt him
frcm doing dirootly. Arti6lo 5366, R.Yi6.d Civil Statutor 1926. lW find
mothixg ~IIthe rtatutor, in th. applioatica for 16aro cc i8 the 1086.
H6B. B86eomGil66 (O-1235) fig6 4.
it6Olf whordy the &666&66iCaOr cfth6 tinOr LaBd Office i6 6uthCr-
irod to l8t.Bd the drilling obligaticB in a 1.86. of thi6 aharaotor
or to aocopt the fcrfoit of a bc8d and paywant thonof in 11.~ cf'tho
drill-g provi6icnr ocBtai8od 18 the applicatic8 a8d b th. loam.
It 16 diffioult to llnyr toll whothor a pro~26ion 18 a loaro
6imilv t0 the 080 abCY. i6 a 6p.0181 ldmit8ticB 08 th6 l6tato gn8t.d
or a oc8diticm Nboquont. If it 16 a llnitatlo8 the loa6o 1~60 h&c
toxmi8atos on the 106600~6 failure to kgia drlllirg operations.
.
I8 the ca6o of Caulk ~6. Yillor, 18 8.W. (2d) 195, C.C A. of
GalYo6to8, rhoroin the granko iB a dood agr6.d to bgia lotual drilll8g
of m dl rll within rix month6 aftortho data of O& sale l8d that
failure to &s6aoaoo drilli8g opOmtioB6 sithi 6dX noathr ho should fdr-
fait all of hi6 right6 in th. miHral6. The court h.ld that th. failure
to bgi8 drilling CpSntiOB6 Within 6iX mc8ths ip60 f6cfO t6miBat.d
the titl. to ths mirnml6. fr.th. 0.6. Of otllf~CdUCtiCa &.W,plty Y6e
x16= lt al. 10s S.K (2d) 965; C.666.App. 6.0. B, ~inica w Judge
k.dk?, th6 follcwi8g laBguag0 1666 used, in co88ooticm with a rimilar
pMYiliC8 in th. 1.86.r
“The 6-X.666 p~ti6iCY&l Of th. ~066.6 tht th.
right6 or e6t6t.6 of iih6loss04 6hall tWmi8atO on
its failur6 to drill the well6 am limitaticlqsup
ca the dumticB of the l6t8tos ore&ted byth6 lccoos."
833 6,160Gulf Production Ccmpany et al v6. Ccatinental Gil Company et al,
by the Supreme Court of Texas, opinion by Chief Justios Cureton on Dxr6e.1-
lmr 11, 1939, and not yet reported.
If such 0.provision is a condition rubsequ.8t then it 16 noco6-
sary fcr the lesscr~tc make 6 r.-oatIy or it6 squinleat in order to
tenniaate the 1.664.
In the ca6. of Curry ~6~ Texas Campaw, 18 S.E. (2d), C.C.A.,
Sa6tla8d.tho fcllcwiag la8guago wa6 usrd whioh oxpr.ss.s.ths wall set-
tlod law:
"If the forfeiture provision be e condition sub
66qU6nt, than W6 ar. unbl. tc attaah a8y impcrtanoo
to tho preci66 wording Of same. The rtie i6 a6 In-
oient astho cc6ncB law that a forfoituro pmYi6iC8,
which is a condition subsequent, that may mrk a ds-
feaaanooof a8 estate 18 land, doss not affoot such
dof.aaano6 in the absono. of a m-entry, or equiYa-
lot&e, which in the court.of time hare corn4to k
r.ocgn1e.d.'
c .. -
Hon. Baaoom Gil.8 (o-1255) Page 5.
Should we ti mistaken in construing the above provisions of the
lease a8 constituting a Special limitation upoa the astate leased iastead
of a condition subsequent, it nvuld be necessary for you to advise the
lsrsee that the lease is at an end and has ao further force and offed on
the above dascribd property in order to put the lease to an end, whioh
pnoaution you should take if you desire to bs oertain that the lease is
forfeited or terminated. As a general rule forfsitures are not favored
Iy the court, lmt beoauaa of the aaturo of (Laoil and gas loam ad the
inequity im alluwimg a losaoe to sit back aad hold lessor'8 propslfy
without devrlopPsmt of sam. aad prevent lossor frmn rsceivimg the bent
fits therefrom in the nature of royalty, the courts have favored forfeit-
ure of oil aad ga# lea8or for failure on the part of the lasaea to oom-
ply with drilling obligations. See Stephemaon, et al v. Stite, at ux@
226 S. It.812, C.C.A. of San Antonio, where the following lamguags i6
used:
"The oontraot iavolved being an oil aad gas leaso,
it will bo &rietly coastnzed against the lasroe, and,
although under hh* general rule forfeitures are not
favored, they are ir faot favored ia contracts of this
character."
Ha trurt t&t the above suffioievtly anawers your requeste
Yours very truig
By /s/D..Do +hon
DA Mahbn
Amsistamt
APPROVED DEC 23, 1939
/a/GEBILD C. MUM APPHOVED
ALTTOHNHYGER-BBALOF TEXAS Opinion Cmmittee
By BBS Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150917/ | Order Michigan Supreme Court
Lansing, Michigan
March 7, 2017 Stephen J. Markman,
Chief Justice
Robert P. Young, Jr.
Brian K. Zahra
153449(28)(34) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
ROBERT DONALD JONES, Justices
Plaintiff-Appellee,
v SC: 153449
COA: 329378
Wayne CC: 14-111404-DO
NAN MILLEN JONES,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s November
30, 2016 order is considered, and it is DENIED, because it does not appear that the order
was entered erroneously. The motion to stay is DENIED.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 7, 2017
a0227
Clerk | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132450/ | The Honorable Barry Read Opinion No. H- 930
Executive Secretary
Texas State Board of Examiners Re: Application of Psy-
of Psychologists chologists' Certification
108 West 15th Street and Licensing Act to persons
Austin, Texas 78701 contracting to provide
psychological services to
school districts on a
consultation basis.
Dear Mr. Read:
You have requested our opinion regarding whether a
person who contracts to supply psychological services to a
school district on a consulting basis is exempt from the
licensing requirement of article 4512c, V.T.C.S. That
statute requires a license of "any person who offers psy-
chological services as defined herein for compensation."
Sec. 21. Section 22, however, provides that:
Nothing in this Act shall be construed
to apply to: (a) the activities, services
and use of official title on the part of a
person employed as a psychologist by any:
. . . (2) public school district. . .
provided such employee is performing those
duties for which he is employed by such . . .
district . . . .
YOU ask whether a psychological consultant to a school
district is an "employee" of the district and thus exempt
from the licensing requirement.
p. 3887
The Honorable Barry Read - page 2 (H-930)
The answer to your question will depend on the facts of
each particular contractual arrangement between a school
district and a consulting psychologist. The terms of the
contract will control the status of the individual as
employee or independent contractor and the Board must make
the ultimate determination in each instance.
Inc. v. Love, 380 S.W.Zd 582, 591 (Tex. Sup. lmrian,
---
however, suggest a number of factors which the courts have
considered in making such a determination. Although the
following cases address the issue primarily in the context
of liability and workmen's compensation claims, and thus
should not be treated as dispositive of the Board's deter-
mination, we believe that they may be useful in focusing upon
some of the elements which the Board may consider in reaching
a decision in a particular case.
The most important element in determining whether a
psychological consultant is an employee or an independent
contractor is the school district's right to control the
details of his work. A substantial degree of control by
the school district would tend to imply that the psychologist
is an employee. Halliburton v. Texas Indemnity Insurance
co., 213 S.W.2d 677, 680 (TexTSup. 1948); Truck Insurance
Exchange v. Cartmill, 385 S.W.2d 277, 279 (Tex. Civ. App. --
Waco 1964Twrit ref'd n.r.e.). The ricrht of the school
district to terminate the contract without regard to the
final result of the work also suggests that the consultant
occupies the status of an employee. Southern Surety Co. v.
Shoemake, 16 S.W.2d 950, 953 (Tex. Civ. App. -- Austin9s),
rev'd on other arounds. 24 S.W.2d 7 (Tex. Comm'n ADD. 1930.
judgmt adopted): The requirement of‘completion and-acceptance
of the work before payment is made is a circumstance tending
to show the existence of an independent contractor relationship.
Southwestern Telegraph & Tele hone Co
724. 725 (Tex. Civ. APP.- &w&? %'k%&~: zfW;he
school district to set-the psychologist's hours of labor and
to require him to work exclusively for the district are
factors which tend to imply that the psychologist is an
employee. Shannon v. Western Indemnity Co., 257 S.W. 522,
525 (Tex. Comm'n ApF 1924, jdgmt adopted). Finally, if the
consultant is carried on the school district's payroll and
on its social security and income tax withholding records,
it may be difficult to deny that he is an employee. Anchor
;;C;;tty Co. v. Hartsfield, 390 S.W.2d 469, 471 (Tex. Sup.
p. 3888
The Honorable Barry Read - page 3 (H-930)
The foregoing list of factors are certainly not meant to
be exhaustive, and any number of other considerations might
be determinative of the legal status of the relationship
between the parties. We emphasize again that the specific
terms of each particular contract will control the result.
S UM,MARY
Whether a person who contracts to supply
psychological services to a school district
on a consulting basis is an employee of the
district and thus exempt from the licensing
requirement of article 4512c, V.T.C.S.,
depends upon the terms of each particular
contractual arrangement.
(-$YJz&
Attorney General of Texas
APPROVED:
6
DAVID M. KENDALL, First Assistant
C . RCX?EXT HEATH, Chairman
Opinion Committee
jwb
p. 3889 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4111644/ | Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 28, 2016
The Court of Appeals hereby passes the following order:
A17A0657. WALTER FRANK COLEMAN v. THE STATE.
Walter Frank Coleman pled guilty to influencing a witness.1 He subsequently
filed a “Motion to Vacate and Set Aside Void Judgment,” arguing the trial court’s
failure to conduct a hearing prior to sentencing him as a recidivist rendered his
sentence void. The trial court denied the motion, and Coleman appeals.
As the Supreme Court has explained, a post-conviction motion to vacate an
allegedly void conviction is not an appropriate remedy in a criminal case. See Roberts
v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper v. State, 286 Ga. 216, 218 (1)
(686 SE2d 786) (2009). Any appeal from an order denying or dismissing such a
motion must be dismissed. See Roberts, supra; Harper, supra.
A direct appeal may lie from an order denying a motion to vacate or correct a
void sentence, but only if the defendant raises a colorable claim that the sentence is,
in fact, void. See Harper, supra at 217 n.1; Burg v. State, 297 Ga. App. 118, 119 (676
SE2d 465) (2009). “Motions to vacate a void sentence generally are limited to claims
that – even assuming the existence and validity of the conviction for which the
sentence was imposed – the law does not authorize that sentence, most typically
because it exceeds the most severe punishment for which the applicable penal statute
provides.” von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). Thus,
when a sentence is within the statutory range of punishment, it is not void. Jones v.
1
Coleman filed a motion to withdraw his guilty plea, which the trial court
denied. Coleman appealed the ruling, which this Court affirmed on appeal. See
Coleman v. State, 337 Ga. App. 732 (788 SE2d 826) (2016).
State, 278 Ga. 669, 670 (604 SE2d 483) (2004).
Here, Coleman does not argue that his sentence falls outside the permissible
statutory range; rather, he contends that the trial court did not follow the proper
procedure in imposing sentence.2 As the Supreme Court stated in Jones v. State, 278
Ga. 669, 671 (604 SE2d 483) (2004), post-appeal “[r]ulings on pleadings asserting
erroneous procedure or unfair treatment are not subject to direct appeal because they
are not rulings on whether the sentence is void.” See Jones v. State, 290 Ga. App.
490, 493 (1) (659 SE2d 875) (2008). Because Coleman has not raised a colorable
void-sentence claim, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/28/2016
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
2
Coleman argues that OCGA § 17-10-7 (a) mandates a hearing on the issue of
recidivist sentencing. This statute contains no such requirement. | 01-03-2023 | 12-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4132477/ | The Honorable K. D. Hall Opinion No. H-963
County Attorney
Refugio County Re: Pension plan for
County Courthouse employees of Refugio County
Refugio, Texas 78377 Hospital.
Dear Mr. Hall:
You advise that Refugio County elected to participate
in the statewide Texas County and District Retirement System,
beginning January 1, 1968, shortly after the system was
established in 1967 by article 6228g, V.T.C.S. At that
time, the county hospital was leased to a private agency and
its employees were not then county employees. Subsequently,
the county undertook the operation of the hospital (which is
governed by the provisions of Texas Revised Civil Statutes,
title 71, chapter 5) and all hospital personnel became
county employees.
The hospital employees have asked the county commissioners
court to set up a separate pension system for them independent
of the Texas County and District Retirement System. The
Refugio County Commissioners Court has neither formally
precluded hospital employees from becoming members of the
statewide system, nor passed an order separately requiring
them to become members of the statewide system.
You ask:
Can the employees of a hospital owned and
operated by the County of Refugio form
their own pension plan, independent of the
Texas County and District Retirement System. . . .
p. 3186
The'Honorable K. D. Hall - page 2 (H-903)
The Texas Constitution, article 16, section 67, empowers
the Legislature to enact general laws establishing systems
and programs of retirement and related death and disability
benefits for public employees and officers',and it continues in
effect those systems and programs which existed at the time the
constitutional provision was adopted in 1975, subject to the
power of the Legislature to change them. Subsection (c) of the
constitutional provision states in part:
(c) Local Retirement Systems
(1) The legislature shall provide by
law for:
(A) the creation by any city or county
of a system of benefits for its officers
and employees:
(B) a statewide system of benefits for
the officers and employees of counties
or other political subdivisions of the
state in which counties or other political
subdivisions may voluntarily participate . . . .
. . . .
(2) Benefits under these systems must be
reasonably related to participant tenure
and contributions.
The Texas County and District Retirement System is a
statewide system in which counties may voluntarily participate
-- a system which the constitutional provision continued in
effect. Attorney General Opinion H-604 (1975). Subsection
l(c) of section 3 of article 6228g states that a subdivision
which once elects to participate in the Texas County and District
Retirement System may subsequently elect to discontinue
enrollment of new members, but "shall never discontinue as
to any members."
Subsection 2 of the same statutory section governs the
participation of employees in the statewide system. In
pertinent part, it says:
p. 3787
The Honorable K. D. Hall - page 3 (H-903)
The membership of the System shall be
composed as follows:
(a) All persons who are employees of a
participating subdivision on the effective
date of its participation in the.System shall
become members of the System as of that date;
provided, however, that this provision shall
not apply to any of the following persons or
groups of persons, to wit:
. . . .
(2) Employees of any county hospital which
hospital is governed by the terms and provisions
of Chapter 5, Title 71, Vernon's Texas Civil
Statutes, where the commissioners court --
of the
not included in the System, the commissioners
court may thereafter elect to require such
employees to become members of the System, and
such employees shall become members of the
System at the date fixed by the order for their
participation; the rights and obligations of
such employees and of the county as employer of
such persons shall be determined as if such
county hospital employees were employees of a
separate subdivision.
(b) ti person not a member of this System,
who becomes an employee for the first time of a
participating subdivision after the effective
date of participation of such subdivision, shall
become a member of the System, upon the first
day The monthfomwlng the date such person
becomes an employee, provided he is then under the
age of 60 years but any such person who is then
60 years or over shall not be eligible to become
a member of this System. (Emphasis added).
p. 3788
The Honorable K. D. Hall - page 4 (H-903)
The provis.ionreferring to hospital employees in sub-
section 2(a) (2) of section 3 was added in 1969. The
legislative history of this amendment makes it clear that
the Legislature intended to permit the commissioners court
to originally exclude hospital employees as a group from
membership in the County and District Retirement System,
but required affirmative action by the commissioners court
in order to preclude such employees from membership. House
Bill No. 1131 of the 61st Legislature as introduced would
have excluded hospital employees from membership "unless
the commissioners court of the county elects to require the
employees of any such hospital to become members of the system."
When the Senate considered the bill, it amended this provision
with the language as it now appears in the Act, which clearly
requires positive action in order to exclude hospital
employees from becoming members.
It would appear from the facts given us that the hospital
employees automatically became members of the statewide retire-
ment system when they became county employees, since the
county did not originally take action to exclude them,
nor did it subsequently discontinue the enrollment of new members
in the system. Cf. Attorney General Opinion M-520 (1969).
While section 3,subsection 2(a)(2) of article 6228g allows
counties to originally exclude hospital employees from
participation, we do not believe that it was intended to
modify the subsection l(c) prohibition against dropping
members from the system. Thus, if hospital employees have
become members of the Texas County and District Retirement
system, they must remain members.
In 1975, in anticipation of section 67, article 16 of
the Constitution, the Legislature enacted article 62283,
V.T.C.S., authorizing a county to create (and to contribute
to) a retirement, disability and death benefit system for
its appointive officers and employees if the county voters
approve.
The county might elect to discontinue the enrollment
of new county hospital employees under subsections l(c) and
2(a)(2) of section 3 of article 622851,and create an article
62283 local retirement system for new employees, but it may
not discontinue membership in the statewide system of the
p. 3789
. . . ~. . .. ,
. ,.
ThenHonorable K. D. Hall - page 5 (H-903)
current employees who are already members of the County and
District Retirement System, even though the employees in
question may desire not to participate in the system. See
Attorney General Opinion M-520 (1969). Moreover, those-
employees who are members of the County and.District Retirement
System may not receive membership credit from another State
or county retirement system for the same service. Tex .
Const. art. 16, S 67(a) (2).
SUMMARY
Employees of a county hospital have
automatically become members of the
Texas County and District Retirement
System when they became county employees,
if the county was already a participant in
the System and the county commissioners court
took no action to exclude hospital employees
originally from participation in the System.
Hospital employees who have become members
of the System must remain members, and
cannot receive membership credit from another
State or county retirement system for the
same service.
-@PROVED:
-1
DAVID M/ QNDALL, First Assistant
Opinion Committee
jwb
P. 3790 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132515/ | r THE .~.TTOIRNEV GENERAL
OFTEXAS
AUSTIN,TEXAR 78711
The Honorable Kenneth D. Gaver Opinion No. H-865
Commissioner
Texas Department of Mental Health Re: Authority of Depart-
and Mental Retardation ment of MH/MR to operate
P. 0. Box 12668, Capitol Station residential programs for
Austin, Texas 78711 the mentallv retarded in
San Antonio; and related
questions.
Dear Dr. Gaver:
You have asked several questions regarding the authority
of .the
. Austin State School to contract with other state insti-
tutions or agencies for mental retardation
. residential services
in San Antonio. The central questions are:
P
1. Can the Austin State School use its
appropriations to lease appropriate
building facilities in San Antonio,
Texas, from the Texas Department of
Health Resources and to operate resi-
dential programs for the mentally
retarded in such facilities?
2. Can the Austin State School contract
with the San Antonio State Hospital
whereby the school will pay the hospital
to provide in the City of San Antonio a
residential program for mentally retarded
persons?
3. Can the Austin State School contract
with the Texas Department of Mental Health
and Mental Retardation acting for and on
behalf of the San Antonio State School
whereby the Austin State School will pay
the San Antonio State School to provide
a residential program in the City of San
Antonio for mentally retarded persons?
p.3646
The Honorable Kenneth D. Gaver - page 2 (M-865)
The Texas Department of Mental Health and Mental
Retardation is composed of the Texas Board of Mental Health
and Mental Retardation, the Commissioner, Deputy Commissioner,
and staff, and the facilities and institutions by law made a
part of the Department. V.T.C.S. art. 5547-202, 5 2.01.
The San Antonio State Hospital and the San Antonio
State School, as well as the Austin State School, are insti-
tutions which are by law made a part of the Department.
V.T.C.S. art. 5547-202, 9 2.01; art. 3185(d); art. 3263g.
The San Antonio State School was created in 1975 by article
3263g, V.T.C.S., but no funds have ever been specifically
appropriated by the Legislature for its operation. Funds
have been appropriated to operate the San Antonio State
Hospital and the "Austin State School and Branch" for the
1976-1977 biennium. Acts 1975, 64th Leg., ch. 743, at 2473,
2476. The phrase, "and Branch" in the Austin State School
appropriation apparently refers to the Austin State School
Annex, located in Austin. V.T.C.S. art. 5547-202, 6 2.01;
art. 387133, § 12.
A pertinent provision of the 1975 General Appropri-
ations Act, specially applicable to the Department of Mental
Health and Mental Retardation, specifies:
NEW OR ADDITIONAL INSTITUTIONS. No money
appropriated by this Article may be spent
for constructing new or additional insti-
tutions, or for the purchase of sites
therefor. without svecific authorization
of the Legislature.‘ All institutions
shall be kept where they locatedb
are
the Leqslature, and all new buildings
Kbe constructed shall be on these sites
unless otherwise specifically authorized
by the Legislature. For the purpose of
this Subsection, specific authorization
may be granted either by basic statute
or special authorization in this Act.
Acts 1975, 64th Leg., ch. 743, at 2516.
(Emphasis added).
p.3647
.
The Honorable Kenneth D. Gaver - page 3 (H-865)
A fair reading of the Appropriations Act restriction on
the use of money for new or additional MH/MR institutions
convincingly demonstrates that the Legislature intended to
prohibit the Austin State School from using its appropriated
money for the purpose of establishing itself at a new or
different site. The word "purchase," when used in a statute
designed to prevent certain results, can include any trans-
action lending itself to the accomplishment of what the
statute is designed to prevent. Blau v. Lehman, 286 F.2d
786, 792 (2d Cir. 1960), aff'd 368 U.S. 403 (1962). See
~~~~~5~:2~2~3~;S;3875(~:~:2~;p.~7~~lf~~ 57
Webb, 64 S.W. 792 (Tex. Civ. App. 1901, writ ref'd).
The Legislature appropriated money for MH/MR contract
treatment services rendered by community centers and provided
money for state grants-in-aid to such centers, as authorized
by articles 5547-203 and 5547-204, V.T.C.S. Acts 1975, 64th
Leg., ch. 743, at 2463. However, we believe it did prohibit
the use of any appropriated funds for the establishment of
new or additional sites for the Austin State School. We
therefore answer the three questions above in the negative,
and your other questions, contingent upon affirmative answers
to one or more of the central questions, are not reached.
SUMMARY
The Austin State School may not use funds
appropriated to it by the 1975 General
Appropriations Act to lease or otherwise
acquire facilities in San Antonio for the
operation of residential services programs
for mentally retarded persons in Bexar
County.
,-Very truly yours,
Attorney General of Texas
p.3648
. .
.
The Honorable Kenneth D. Gaver - page 4 (H-865)
APPROVED:
Opinion Committee
jwb
P.3649 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150928/ | Order Michigan Supreme Court
Lansing, Michigan
March 7, 2017 Stephen J. Markman,
Chief Justice
153645(24) Robert P. Young, Jr.
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 153645
COA: 330953
Wayne CC: 14-009993-FH
GEJUAN MARTEZ PAUL,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s September
27, 2016 order is considered, and it is DENIED, because it does not appear that the order
was entered erroneously.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 7, 2017
p0227
Clerk | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/8669419/ | By Judge V. Thomas Forehand, Jr.
This matter is a declaratory judgment action filed pursuant to Virginia Code § 8.01-184 and is before the Court on cross-motions for summary judgment filed by plaintiff Bruce Salzman and defendant Progressive Specialty Insurance Company (“Progressive”). The parties agree that there are no material facts in dispute and that no issues exist to be determined by a trier of fact. The Court has considered the pleadings and Motions for Summary Judgment, the briefs in support and in opposition filed by counsel, as well as oral arguments of counsel heard on December 18, 2009.
*140
Facts
On October 11, 2007, Salzman was operating a motorcycle traveling east on Military Highway in the City of Chesapeake. Salzman collided with defendant Ivaylo Kanchev’s vehicle, which was turning left from Parkview Drive onto Military Highway. Salzman sustained injuries as a result of the accident, and incurred medical bills exceeding $50,000.00.
There are three motor vehicle insurance policies applicable to the instant case: (1) the Allstate Fire & Casualty Insurance (“Allstate”) policy of defendant Kanchev, which provided bodily injury coverage limits of $50,000.00 per person and $100,000.00 per accident; this policy provides motor vehicle liability insurance for the subject accident and is the primary coverage; (2) the Dairyland Insurance policy of plaintiff Salzman, which insured the motorcycle on which he was riding at the time of the accident; this policy provided bodily injury coverage against uninsured/underinsured (“UM/UIM”) motorists in the amount of $25,000.00 per person and $50,000.00 per accident; this policy insured only one vehicle, the Harley-Davidson motorcycle owned by Salzman; and (3) the Progressive Specialty Insurance policy of plaintiff Salzman, which provided bodily injury coverage against UM/UIM motorists in the amount of $50,000.00 per person and $100,000.00 per accident. This policy insured two vehicles, neither of which were involved in the subject accident.
The essential issue before the Court is whether language in the Progressive policy is unambiguous and successfully prohibits the “stacking” of the UM/UIM coverage for each vehicle listed on the policy, thereby limiting the available UIM coverage for Salzman to $50,000.00.
Standard of Review
Summary judgment is a “drastic remedy, available only when there are no material facts genuinely in dispute.” Fultz v. Delhaize Am., Inc., 278 Va. 84, 88, 677 S.E.2d 272, 274 (2009). A trial court must “accept[] as true those inferences from the facts that are most favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to reason.” Id.
“The filing of cross-motions for summary judgment does not, in itself, resolve the question whether material facts remain genuinely in dispute.” Town of Ashland v. Ashland Inv. Co., 235 Va. 150, 154, 366 S.E.2d 100, 103 (1988). The litigants’ belief that the evidence is *141“sufficiently complete to decide [a] case does not relieve the trial judge of the responsibility and duty to make an independent evaluation of the record on that issue. A court’s duty to ascertain whether certain facts remain in dispute or whether there are sufficient facts to decide the question presented is not obviated by cross-motions for summary judgment.” Central Nat. Ins. v. Virginia Farm Bureau Ins., 222 Va. 353, 356, 282 S.E.2d 4, 6 (1981).
Upon analysis of the pleadings and upon consideration of the arguments submitted by counsel, the Court is of the opinion that this matter is proper for summary judgment as no material facts remain genuinely in dispute.
Analysis
Virginia Code § 38.2-2206(B) provides, in part:
If an injured person is entitled to underinsured motorist coverage under more than one policy, the following order of priority of policies applies and any amount available for payment shall be credited against such policies in the following order of priority:
1. The policy covering a motor vehicle occupied by the injured person at the time of the accident;
' 2. The policy covering a motor vehicle not involved in the accident under which the injured person is a named insured;
3. The policy covering a motor vehicle not involved in the accident under which the injured person is an insured other than a named insured.
Where there is more than one insurer providing coverage under one of the payment priorities set forth, their liability shall be proportioned as to their respective underinsured motorist coverages.
The liability coverage available to Salzman through defendant Kanchev’s Allstate policy affords him the first layer of insurance protection. This policy provides $50,000.00 in liability coverage. Therefore, plaintiffs Dairyland policy, which insured the plaintiffs motorcycle, would be entitled to a full credit, or offset, against its potential UIM exposure in the amount of $25,000.00. The remaining $25,000.00 *142would be credited to Progressive, which would leave Progressive’s potential UIM exposure at either $25,000.00 if the Court finds that the Progressive policy unambiguously prohibited the “stacking” of UIM coverage, or $75,000.00 if the Court finds that the Progressive policy is ambiguous and, therefore, unsuccessfully prohibited the stacking of UIM coverage.
The subject Progressive insurance policy was attached as Exhibit A to plaintiff’s Motion for Summary Judgment and as Exhibit D to defendant Progressive’s Motion for Summary Judgment. The portions of the policy that are pertinent to the instant case are as follows:
Part IV: PROTECTION AGAINST UNINSURED MOTORISTS
I. UNINSURED MOTORISTS COVERAGE
(Damages for Bodily Injury and Property Damage)
The Company will pay in accordance with Section 38.2-2206 of the Code of Virginia and all Acts amendatory thereof or supplementary thereto, all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured or property damages, caused by accident and arising out of the ownership, maintenance, or use of such uninsured motor vehicle. In accordance with Section 38.2-2206 of the Code of Virginia, the company is also obligated to make payment for bodily injury or property damage caused by the operation or use of an underinsured motor vehicle as defined below, to the extent the motor vehicle is underinsured....
II. PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured and, while residents of the same household, the spouse of the named insured, and relatives, wards, or foster children of either.. ..
III. LIMITS OF LIABILITY
Regardless of the number of (1) persons or organizations who are insureds under this insurance, (2) persons or organizations who sustain bodily injury or property damage, (3) claims made or suits brought on account of bodily injury or property damage, or (4) motor vehicles to which this insurance applies,
*143(a) If the schedule or declarations indicates split limits of liability, the limit of liability for bodily injury stated as applicable to “each person” is the limit of the company’s liability for all damages because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting “each person” the limit of liability for bodily injury stated as applicable to “each accident,” is the total limit of the company’s liability for all damages because of bodily injury sustained by two or more persons as the result of any one accident. The limit of liability for property damages stated as applicable to “each accident” is the total limit of the company’s liability for all damages because of property damage to all property of one or more insureds as the result of any one accident.
Also applicable to the instant case, the Declarations Page of the Progressive policy, which was attached as Exhibit B to plaintiffs Motion for Summary Judgment and as Exhibit C to defendant Progressive’s Motion for Summary Judgment, includes the following language:
Your insurance policy and any policy endorsements contain a full explanation of your coverage. The policy limits shown for a vehicle may not be combined with the limits for the same coverage on another vehicle... .
“Courts interpret insurance policies, like other contracts, in accordance with the intention of the parties gleaned from the words they have used in the document. Each phrase and clause of an insurance contract should be considered and construed together and seemingly conflicting provisions harmonized when that can be reasonably done, so as to effectuate the intention of the parties as expressed therein.” Seals v. Erie Ins. Exch., 277 Va. 558, 562, 674 S.E.2d 860, 862 (2009). “An ambiguity exists when [a] contract’s language is of doubtful import, is susceptible of being understood in more than one way or of having more than one meaning, or refers to two or more things at the same time. The mere fact that the parties disagree about the meaning of [a] contract’s terms is not evidence that the contract language is ambiguous.” Pocahontas Mining, Ltd. v. CNX Gas Co., 276 Va. 346, 353, 666 S.E.2d 527, 531 (2008) (internal citations omitted).
*144When a disputed policy term is unambiguous, a court applies its plain meaning as written. Virginia Farm Bureau Mut. Ins. Co. v. Williams, 278 Va. 75, 81, 677 S.E.2d 299, 302 (2009). However, if disputed policy language is ambiguous and can be understood to have more than one meaning, a court must construe the language in favor of coverage and against the insurer. Id. Because insurance policies usually are drafted by insurers, a court must construe “ambiguous policy language purporting to exclude certain occurrences from coverage most strongly against the insurer. Thus, when an insurer seeks to limit coverage under a policy, the insurer must use language that is reasonable, clear, and unambiguous.” Id.
In addition to these basic principles governing the interpretation of insurance policies, the Supreme Court of Virginia has also articulated a general rule that courts apply to issues involving the stacking of UM/UIM coverage. Id. “[I]t is now the rule in Virginia that the stacking of UM[/UIM] coverage will be permitted unless clear and unambiguous language exists on the face of the policy to prevent such multiple coverage. Thus, under previously stated general principles, any ambiguity regarding the stacking of coverage within a policy will be construed against the insurer.” Id. (quoting Goodville Mut. Casualty Co., 221 Va. at 970, 275 S.E.2d at 627).
In Goodville Mutual Casualty Co. v. Borror, the Supreme Court of Virginia considered a motor vehicle insurance policy which covered two vehicles, and where two separate premiums were charged. Goodville Mutual’s stated UM limit of liability for damages to any one person as the result of a single accident was limited to $25,000.00. The plaintiff in Goodville sought to raise this limit by stacking together the UM coverage for the two listed vehicles. In the “Limits of Liability” section of the uninsured motorist coverage, the policy provided, in part:
Regardless of the number of ... motor vehicles to which this insurance applies,
(a) the limit of liability for bodily injury stated in the schedule as applicable to “each person” is the limit of the company’s liability for all damages because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting “each person,” the limit of liability stated in the schedule as applicable to “each accident” is the total limit of the company’s liability for all *145damages because of bodily injury sustained by two or more persons as the result of any one accident.
Goodville Mut. Casualty Co., 221 Va. at 970, 275 S.E.2d at 627. The Supreme Court held that the language of Goodville Mutual’s policy: “regardless of the number of ... motor vehicles to which this insurance applies,” was “clear and unambiguous and require[d] the construction that stacking is not permissible.” Id. at 971, 275 S.E.2d at 628; see also Mitchell v. State Farm Mut. Auto. Ins. Co., 227 Va. 452, 318 S.E.2d 288 (1984). When compared side-by-side, the “Limits of Liability” portion of the UM/UIM coverage section of the Goodville policy and that of the subject Progressive policy are nearly identical, the only difference being Progressive’s inclusion of the additional phrase at the beginning of subsection (a): “If the schedule or declarations indicates split limits of liability.” The addition of this phrase does not alter the substance of the language or create an ambiguity.
In Virginia Farm Bureau Mutual Ins. Co. v. Williams, 278 Va. 75, 677 S.E.2d 299 (2009), the Supreme Court considered a case where the insurance policy contained the same language in its UM/UIM coverage section as that previously held to be unambiguous in Goodville. The court noted that, although the UM/UIM coverage section contained the same language, “that similarity must be considered in the context of the other policy language.” Id. at 82, 677 S.E.2d at 303. The policy in Virginia Farm Bureau, unlike in Goodville:
[Djoes not state the limits of liability for “each person” in a schedule within the UM/UIM endorsement. Instead, the UM/UIM endorsement refers the reader to the “[declarations” page of the policy, in which there are three references to the term “each person.” Two of those references state a limit of liability for “each person” in the amount of $300,000, while the third reference states a limit of liability for “each person” in the amount of $250,000.
These different sets of coverage, when considered along with the “anti-stacking” language of the UM/UIM endorsement, leave unresolved the question whether all three separate limits for “each person” apply and, if not, which of the single separate limits for “each person” is applicable. This disparity in the stated limits of liability for “each person” *146manifests an ambiguity regarding the extent of total coverage for “each person” under the policy.
Id. at 83, 677 S.E.2d at 303.
Therefore, in Virginia Farm Bureau, the Supreme Court specifically cited two ambiguities: (1) whether only one or all three limits for “each person” applied; and (2), if only one limit for “each person” applied, which should be chosen, $300,000.00 or $250,000.00. In the instant case, the subject policy does not contain the same ambiguities that were present in Virginia Farm Bureau; here, the Progressive policy does not contain different amounts of limits for “each person,” but instead provides the same UM/UIM limit for “each person,” $50,000.00 per vehicle. The fact that two vehicles were insured and two separate premiums were charged is of no consequence. The subject Progressive policy also goes a step further than the policy in Virginia Farm Bureau by including on its declarations page the language: “The policy limits shown for a vehicle may not be combined with the limits for the same coverage on another vehicle.” This language resolves the issue of whether the limits for only one vehicle or for all vehicles listed under the policy apply. A plain reading of the declarations page in conjunction with the “Limits of Liability” section of the Progressive policy clearly restricts the limit for “each person” to the coverage on one vehicle.
Plaintiff argues that the Progressive policy is ambiguous because it fails to provide limits for “each person” and “each accident” in a designated schedule within the UM/UIM section of the subject policy; instead, the Progressive policy UM/UIM endorsement refers the policyholder to a declarations page for the “each person” and “each accident” limits of liability. However, the use of a declarations page was not identified as an ambiguity by the Supreme Court in Virginia Farm Bureau. As discussed above, the ambiguities identified there were the disparity of the policy coverages contained on the declarations page and a lack of instruction as to which limit or how many limits applied. Had the Supreme Court considered the use of a declarations page itself to be an ambiguity, it would have stated so in clear and specific terms as it identified the other ambiguities that were present in the policy.
Plaintiff also argues that the term “vehicle” as used on the Progressive policy declarations page is not specifically defined in the policy, and, therefore, using the “usual and ordinary definition” of “vehicle,” a “policyholder would logically conclude^ that the limitation to combining coverages found in the Progressive policy affects only those *147coverages involving a vehicle (such as property damages, collision, and comprehensive) and would not limit coverage involving bodily injury and/or UM/UIM coverage.” (PI. Br. in Supp. of Mot. for Sum. J., at 12.) This, however, would require a strained and awkward reading of the declarations page. Upon a plain reading, it is clear that the term “vehicle” refers to the two vehicles actually listed on the declarations page, a 2003 Ford FI50 and a 1991 Chevrolet VI500 Suburban, and not to a type of coverage involving a vehicle as the plaintiff suggests.
Conclusion
For the reasons stated above, the Court is of the opinion that the subject Progressive policy is not ambiguous and, therefore, successfully prohibits “stacking” of UM/UIM coverage. Therefore, the available UIM coverage for plaintiff Salzman is limited to $50,000.00, which, after the $25,000.00 credit available from defendant Kanchev’s Allstate policy, would leave defendant Progressive’s potential UIM exposure at $25,000.00.
Therefore, defendant Progressive’s Motion for Summary Judgment is granted and plaintiff Salzman’s Motion for Summary Judgment is denied. | 01-03-2023 | 11-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4132481/ | November 18, 1976
The Honorable W. J. Estelle, Jr. Opinion No. H- 899
Director
Texas Department of Corrections Re: Whether the estate
Huntsville, Texas 77340 of a deceased employee
may be paid for compensa-
tory time.
Dear Mr. Estelle:
you have requested our opinion regarding whether the
estate of a deceased employee may be paid for the.employee%
unused compensatory time.
In National League of Cities v. Usery, 49 L. Ed.Zd 245
(1976), the United States Supreme Court held unconstitutional
those portions of the Fair Labor Standards Act which required
states to pay their employees premium rates for overtime work.
As we noted in Attorney General Opinion R-883 (19761, this
decision means that most state employees are not subject to
the Act. The current General Appropriations Act, Acts 1975,
64th Leg., ch. 743, art. V, 9 2e, at 2846, permits payment
for compensatory time only where an agency or institution
is subject to the terms of the Fair Labor Standards Act.
In Attorney General Opinion H-883, we expressed the
opinion that persons who were separated from state employment
would not be entitled to be paid for compensatory time. In
our opinion, a similar result obtains with respect to deceased
employees. We are supported in this opinion by section 7g
of article V of the General Appropriations Act, which speci-
fically permits payment to the estate of a deceased employee
for "all of the employee's accumulated vacation leave and
for one-half of his accumulated sick leave." Since the
Legislature failed to provide for payment of unused compensatory
time to the estate of a deceased employee, it is our opinion
that no such payment is authorized.
p. 3774
The Honorable W. J. Estelle, Jr. - page 2 (H-899)
SUMMARY
The estate of a deceased state employee
may not be paid for the employee's unused
compensatory time.
Very truly yours,
. /$!&~&of Texas
Opinion Committee
jwb
p. 3775 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132463/ | The Honorable Donnan H. Winfrey Opinion No. H-917
Director and Librarian
Texas State Library Re: Confidentiality of
Eiox 12927, Capitol Station non-current personnel
Austin, Texas 78711 files transferred to the
State Archives.
Dear Mr. Winfrey:
You have requested our opinion whether the Texas Open
Records Act, article 6252-17a, V.T.C.S., applies to records
that have been declared non-current by the originating
agency and subsequently transferred to the State Archives
for permanent preservation. Specifically, you inquire as
to the status of personnel records from the Austin State
Hopsital for the years 1942-1957, from the Texas Confederate
Home for Men for the years 1950-1957, and from the Texas
Confederate Woman's Rome relative to the years 1945-1959.
You also ask whether any such records excluded from disclosure
under the Open Records Act remain permanently confidential.
The transfer of personnel files or other records to
the State Archives does not affect the status of the
transferred documents~ under the Open Records Act. Information
which is excepted from disclosure under the Act can be
transferred between State agencies without violating its
confidentiality or destroying its confidential character.
Attorney General Opinion H-242 (1974). Likewise, public
information remains public when it is transferred from the
files of the originating State agency to the State Archives.
Thus, we believe the non-current personnel records about
which you inquire retain the same status under the Open
Records Act after they have been transferred to the State
Archives as they had when in the files of the originating
agency.
P. 3844
The Honorable Dorman H. Winfrey - page 2 (H-917)
Information in personnel files is public except insofar
as its disclosure "would constitute a clearly unwarranted
invasion of personal privacy." V.T.C.S. art. 6252-17a, §
3(a) (21. We have considered the scope of this exception on
numerous occasions. See Open Records Decision Nos. 133, 132,
123, 119 (19761, 117,111, 110, 106, 103, 102, 93, 91, 71,
68, 67, 55A (19751, 60, 55, 54, 41, 37, 34, 15, 14 (1974).
We have also applied the "personal privacy" exception of
section 3(a) (2) of the Act to the personnel files of former
as well as current employees. Open Records Decision Nos.
133, 119 (19761, 93, 71, 68 (1975).
We have not, however, previously considered the question
of when personnel records excepted from disclosure under
section 3(a)(2) lose their confidential nature and become
public. The right of privacy in Texas has been defined as:
[Tlhe right to be free from the unwarranted
appropriation or exploitation of one's
personality, the publicizing of one's private
affairs with which the public has no legitimate
concern, or the .wrongful intrusion into one's
private activities in such manner as to outrage
or cause mental suffering, shame or humiliation
to a person of ordinary sensibilities. Billings
v. Atkinson, 489 S.W.2d 858, 859 (Tex. Sup.
m731.
Although Billings recognizes the right of privacy for purposes
of tort law, both the Supreme Court of Texas and this office
have nonetheless applied its standards in considering the
scope of the right to privacy under the Open Records Act.
Industrial Foundation --
of the South v. Texas Industrial
Accident Board, 540 S.W.Zd 668 (TexTSup. 1976); Attorney
General Opinions H-483 (1974), H-258 (19741, H-90 (1973);
Open Records Decision Nos. 123 (1976), 68, 67 (1975), 19,
18A (19741, 2 (1973). We likewise believe that the loss of
the right to privacy under the Open Records Act may be
analogized to the lapse of that right under tort law.
We believe that those portions of a personnel file
excepted from disclosure because release would constitute a
"clearly unwarranted invasion of personal privacy" retain
their confidentiality, unless waived, so long as the subject
of the file remains alive. The right of privacy terminates,
however, upon the death of the individual, and release of
one's files after death violates no protected right of
that individual's privacy.
P. 3845
The Honorable Dorman H. Winfrey - page 3 (H-917)
The authorities appear to be uniform
that the right of privacy cannot be
asserted by anyone other than him
whose privacy is invaded.
Johnson Publishing Co., 325%% %9,
-1. Dist. Ct. App. 19581.
Accord, James v. Screen Gems, Inc. 344 P.2d 799, 801 (Cal.
Dist. Ct. App.79rT.general rule" is that "the right
(of privacy) lapses with the death of the person who enjoyed
it . . . .' Young v. That Was the Week that Was, 423 F.2d
265, 266 (6th Cir. m70)CCorderv. Detective Publications,
Inc., 419 F.2d 989, 990 (6th Cir. m69). This is so because:
It is anomalous to speak of the privacy
of a deceased person . . . . As
Shakespeare said, 'The evil that men do
lives after them . . . .' What a man
does while alive becomes a part of
history which survives his death.
Maritote v. Desilu Productions, Inc.,
345 F.2d n8, 420 (7th Cir. 1965).
See Annot., 18 A.L.R. 3d 873 (1968).
-
Dean Prosser has described the right of privacy as
a personal one, which does not extend to
the members of . . . [one's] family,
unless, as is obviously possible, their
own privacy is invaded along with his. . . .
[Tlhere is no common law right of action for
a publication concerning one who is already
dead. Prosser, Privacy, 48 Calif. L. Rev.
383, 408 (1960).
The personal nature of one's right to privacy was recognized
by the courts soon after Samuel Warren and Louis Brandeis
introduced and defined the legal concept of a "right to
privacy" in their widely noted article on the subject.
Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev.
193 (1890). As early-% 1895 a New York court stated what
was to become the virtually uniform rule in American juris-
dictions:
P. 3846
The Honorable Dorman H. Winfrey - page 4 (H-917)
Whatever right of privacy . . .
[the decedent] had died with her.
~~"sl~:.v~p","r:Q~;,"' N.E. 22, 25
Although Texas courts have had no occasion to consider
the matter in connection with the right of privacy, a cause
of action for libel has been "restricted to the person who
has directly sustained the injury," and cannot be brought
by another on behalf of the dead, Renfro Dru co. v.
Lawson, 160 S.W.2d 246, 250 (Tex. S-4 Ti? %Z ZjZneral
rule that an action for invasion of orivacv does not survive
the death of the party ~whose privacy-was invaded is
"frequently analogized to defamation." Gruschus v. Curtis
Publishing z, 342 F.2d 775, 776 (10th Cir. 1965r We are,
therefore, of the opinion that Texas courts would follow the
almost uniform rule of other jurisdictions that the right of
privacy lapses upon death.
With the death of a former State employee, therefore,
no invasion of his privacy can occur, and his personnel file
is no longer excepted from public disclosure under section
3(a)(2) of the Open Records Act. A similar ,rule has been
applied to the exemption from disclosure of files "which
would constitute a clearly unwarranted invasion of personal
privacy" under the Federal Freedom of Information Act, 5
iJ.S.C.-§ 552(b) (6). Rabbitt v.
383 F. SUDS. 1065 (S.D.N.Y. lv4
possible that information in the-file of a deceased former
employee might invade the personal privacy of other living
persons, in which case that portion of the file would remain
confidential and excepted from disclosure under either
See Industrial Foundation of
section 3(a) (1) or 3(a) (2). _
the South v. Texas Industrial Accident Board, supra. IFa
review ae oersonnel file of a deceasedormer emolovee
reveals no such unwarranted invasion of the personal-privacy
of living individuals, however, the file is public and
subject to disclosure.
SUMMARY
Non-current personnel files transferred
to the State~Archives for permanent
preservation retain the same status as
they had before transfer under the Texas
Open Records Act, article 6252-17a, V.T.C.S.,
P- 3847
The Honorable Dorman H. Winfrey - page 5 (H-917)
and are public except insofar as disclosure
would constitute a clearly unwarranted
invasion of personal privacy. The right
of privacy is personal to the individual
and lapses upon his death, rendering his
personnel file public except insofar as
its disclosure would constitute a clearly
unwarranted invasion of the personal
privacy of living individuals.
Very truly yours,
APPROVED:
?leP.-+ht
DAVID M. &ENDALL, First Assis ant
(/&&$J
C. ROBERT HEATH, Chairman ~
Opinion Committee
jwb
P. 3848 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132472/ | .\TTDRIY~Y ~T.xlcx I.37 .,.,* December 9, 1976
The Honorable Knute L. Dietze Opinion No. H-908
Criminal District Attorney
Victoria County Courts Building Re: Authority of the
Victoria, Texas 77901 commissioners court to
veto the salaries budgeted
The Honorable W.T. McDonald, Jr. by the criminal district
District Attorney attorney and submit its
Brazes County own budget.
Bryan, Texas 77801
The Honorable Roland M. Seprcy
County Attorney
Brazos County
Bryan, Texas 77801
Gentlemen:
Mr. Dietze asks the following question:
Once the Victoria County Criminal District
Attorney employs his assistants and
fixes the salaries of his assistants and
investigators, does the commissioners
court have the authority to veto the
budget as set by the Criminal District
Attorney and submit [its] own budget.
Mr. McDonald asks essentially the same question with respect
to the district attorney of the 85th Judicial District. Mr.
Searcy asks whether the commissioners court may veto the
county attorney's budget.
Article 332a, V.T.C.S.,~ which authorizes prosecuting
attorneys (defined to include county attorneys, district
attorneys and criminal district attorneys) to employ assistants,
investigators and other personnel, provides:
P. 3809
I
.
The Honorable Knute L. Dietze
The Honorable W. T. McDonald, Jr.
The Honorable Roland M. Searcy - page 2 (H-908)
Sec. 5. Salaries of assistant prosecuting
attorneys, investigators, secretaries and
other office personnel shall be fixed by the
prosecuting attorney, subject --
to the approval
of
-- the commissioners court of the county or
the counties composing district.
Sec. 6. Assistant prosecuting attorneys
and investigators, in addition to their
salaries, may be allowed actual and necessary
travel expenses incurred in the discharge of
their duties, not to exceed the amount fixed
by the prosecuting attorney and approved &
the commissioners court of the county or the
Z&ties cornosin
ror trave~s~~~~~-fr~~lt~ims
General Fund, Officers' Salary Fund, or any
other available funds of the county.
(Emphasis added).
The answer to the question depends on the interpretationof
the underlined language of section 5. In construing statutes,
the ordinary meaning shall be applied to words. V.T.C.S.
art. 10, S 1. “Subject to” is defined as follows:
[Slubordinate . . . obedient to; governed
or affected by . . . . Black's Law
Dictionary 1594 (4th ed. 1951).
"Subject," used as an adjective, is defined as
likely to be conditioned, affected or
modified in some indicated way: having
a contingent relation to something and
usu[allyJ dependent on such relation for
final form, validity, or significance.
Webster's Third International Dictionary
2275.
P. 3810
The Honorable Knute L. Dietze
The Honorable W. T. McDonald, Jr.
The Honorable Roland M. Searcy - page 3 (H-908)
We believe that the salaries set by the criminal district
attorney, district attorney, or county attorney are not
final, but conditioned upon the approval of the commissioners
court. The commissioners may disapprove the salaries, and
therefore can be said to have veto power over that part of
the district attorney's budget. Section 6 permits travel
expenses in an amount fixed by the prosecuting attorney and
approved by the commissioners court. This reiteration of
the approval requirement indicates that its inclusion in
section 5 was not inadvertent, and that it is a necessary
step in determining major expenditures.
It is suggested that our interpretation of article 332a
should follow judicial constructions of language in article
42.12, section 10, Code of Criminal Procedure.
[T]he district judges . . . are authorized,
with
-- the advice and consent of the commissioners
court as hereinafter providec toemploy . . .
and fixthe salaries of probation officers. . . .
(Emphasis aaaedj.
This provision requires that the judges merely consult with
the commissioners on county finances, while the commissioners
must buduet the money so long as the expenditures are necessary
and reasonable. Coa-&ssioners Court of-Lubbock County v. -
Martin, 471 S.W.Zd 100 (Tex. Civ. AppT-- Amarillo 1971,writ
ref'd n.r.e.). Constructions of article 42.12, section 10,
however, do not control article 332a, section 5, which
consists of different language in a different context.
The relevant language of article 332a, section 5, is
unambiguous and can be read in harmony with the entire statute
without departing from its plain meaning. The statute makes
prosecuting attorneys responsible for personnel matters --
hiring, removal and setting salaries and travel expenses.
V.T.C.S. art. 332a, SS 2, 4, 5, 6. It makes the commissioners
court responsible for financial matters -- approving the
prosecutors' salary and travel expense proposals, and providing
for office expenses. -Id. 55 5, 6, 7.
p. 3811
,-~. .
. .
The Honorable Knute L. Dietze
The Honorable W. T. McDonald, Jr.
The Honorable Roland M. Searcy - page 4 (H-908)
Article 3912k, V.T.C.S., which concerns salaries of
certain county employees, does not apply to the salaries
about which you inquire. Article 332a is the more specific
statute, was enacted later in time, and repeals conflicting
laws. V.T.C.S. art. 332a, S 9. Article 3912k does not in
any case apply to the employees of a district attorney. -See
Attorney General Opinion H-656 (1978).
We conclude that the commissioners court may refuse to
approve the salaries proposed by the Victoria County Criminal
District Attorney, or the District Attorney or County Attorney
of Bryan County.
SUMMARY
The salaries for assistants and investi-
gators fixed by a district attorney,
criminal district attorney, or county
attorney must be,approved by the
commissioners court in order to become
effective.
Very truly yours,
Attorney General of Texas
Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145518/ | THEATJTORNEY GENERAL
OFTEXAS
Hon. Orville 6. Carpenter
Chairman end Exeoutivs Uireotor
Texas Unsmployment CcrmpensationCcmmission
Austin, Texas
Deer Sir: Opinion No, O-896
Ret In visa of the amehdmentto the
Tsxm Unsmployment Compensation
Act, nould the~stete Comptroller
bseuthori,sed taissue duplicates
of forged unemployment:onnpsnsation
: warrants? ,~~
Ue ars'fn reo&ipt~:i&your 1Miter of.Msy27,. 1939,;inswhhioh'you
request am op%nionLan thsGolI0wing question::
,?'l'n
vieyofthe wording of:thia.emendisei~t(800~ 9 (d)
of'ths Texs;sTJh~plogmsnt~&mpansa~on Aot,. artioIe 5521-b,
Vernon% Ahnofatsd~CiMI. Statutus; as emendedbythe 46th
Leg*, Rsgnlar Ssssim), nouYd'your opinion be,the sams:as:0x-
preetid in you& &etter(~optiion Na.. 0-385)'of Ne~ol~l&h?~
(peyn*etioaI fnaeriktons~oursLI)."
In opinion No:O-366, addressed to yourself, ws held that
ertials 4365 0f~the Revised Civil Statutes of 1925~prohibits the isauanae
of a duplicate warrant whsks the loss of'destruotion of thenoriginal
has not been oalled to the attention end proven to the setisfeotion of
the Comptroller in the manner provided in sefd Statute.
Artlole 4366. Revised Civil Statutes, 1925. proridssr
"The kmptrolle~,~when satisfied 'thetaany original
warrant dram upon the State Treasurer,has been lost or
destroyed'.or when any aertlfioete or other evidence of
indsbtedness appmmsd by the auditing board of the State
hes been lost, is authorized to issue a duplioete aerreht
in lieu of the original mrrent or e duplicate or a copy
of suoh oertifisete,~caother evidence of indebtedness in
lieu of such originel:~but 110 suoh~dupliaate'werrent, or
other svidsnoe of indebtedness, shell issue until the ep-
plicent has filed with the Comptroller his affidavit,
stating that he is the true onnsr of suah instnnnent, end
that the same is in fact lost or dsstroyed,~end shall also
file with the Comptroller his bond in double the ewunt
Hon. Orville S. Carpenter, June 9, 1939, pegs 2 O-896
of the oleim with two or more good and sufficient sureties,
payable to the Governor, to be approved by the Comptroller,
and conditioned that the epplioent will hold the Stete
harmless end return to the Comptroller, upon demand being
made therefor, such duplicates or copies, or the amount of
money named therein, together with all costs that may eccrus
against the State on colleating the same. After the is-
suenoe of seid duplicate or copy if the Comptroller should
escertain that the 88111s
we8 improperly issued,,or thet the
epplioent or pertyto whom the same was issued was not the
owner thereof. he shall~et onoe demand the return of said
duplicate or oopy if unpaid, or the amount Reid out by the
State, if'so &aid; end, upon failure of the party to return
same or the emount of money 'celledfor, suit shall bs in-
stituted upon said bond in Travis County."
It hes:~bsencelled to our attention that since opinion No.
O-386 nesrendered on March 16, 1939, by this department, en amendment
to'.theTemas Unemployment,Ccsnpensetiontact, Artiole 662lb;Vernon's An-
notated Civil Statutes, Hessbeen enacted into law.
,~ Section 9 (d) of theActis the pbrtinent,portion of the emend-
mentr
."If a warrent hesbeen issued by the,Cqptroller in _
payment of benefits esprovided under this Aat. and if the
oleiment entitled to receive suoh,werrant has lost orloaes
or for any reason failed or fails to receive suoh narren~t
after suoh~werrent ls.or.hes been issued by the Comptroller,
end upon satisfactory proof~of.suoh,,the~Comptroller may
issue to claimant a duplioete werrent es provided for in
Article 4365, Revised Civil Statutes of Tsxes of,1925, but
in no eventshell e duplicete werrent be issued after one
yser fromthe date of the original warrant.
“_
"If after any nerrant hss been,issued by the Camp-
troller payable to a claimant for benefits under the pro-
visions of this Act, end such nerrent shell have been lost
or mispleoed, or if oleiment for any reason fails or re-
fuses to present said warrant for payment within twelve
months after the dete of issuance of such warrant, suoh
werrant shall be oenceled, end.thsreefter no payment shall
be made by the Treasurerion such werrent, end no duplicate
warrant in plaae thereof shell ever be issued."
The reference to ertiols 4365, Revised Civil Statutes, 1926,
in the above quoted section of the Texas Unemployment Compensation Act,
is oelled to your attention.
Artiole 4366 e plies only to lost or destroyed werrents. In
suoh oeses, the ComptrolPer mey,issue duplicates on two conditionsr
--
Hon. Grville S. Carpenter, June 9, 1939, page 3 O-896
First, the filing of affidavit of proof of ownership
of the original and loss or destruotion by applicants
Seoond, filing of a bond by appliaant.
Section 9 (d) of the,Texas Unemployment Compenration Act pro-
vides for issuenoe by the Comptroller of a dupliaate warrant, where the
original has been lost or has not been received by the oleimsnt "for
any reason". Thus, in the case of a warrant issued in payment of bene-
fits under the Texas Unemployment Compen6a'cionAct. the Comptroller is
not limited to cases of loss or destruction in issuing duplicate.
In respect to these warrants, he oan issue duplioates when the
beneficiary fails to receive the original warrant "for any reason".‘
Sinoe Seotion 9 (d) refers to artiole 4366, Rwised Civil
Statutes, 1925, stating that the Comptroller may issue duplicate benefit
marrants under the dot "as prwided for in article 4365,.Rwised Civil
Statutes of Texas of 1926". it is evident that in respect to benefit
warrants this section of the Unemployment Compensation Aot was intended
to broaden the scope of article 4366 without, in any nay, repealing the
provisions of said article.
Consequently, Section 9 (d) of this artiale and artiale 4565
must be honrtmed together and the provisions~of article 4566 would
apply in the iasuanae of dupliaate benefit ramants when the claimant
for any reaaonfails to receive the original.'
The claimant, honever, must present satisfaotory proof of
failure to maeive the original and he must file applicant bond as
required byartiole 4366.
In answer to your question, it is our opinion that the amend-
ment ttithe Texas Unemployment Compensation Aat, which is article
5621-b of Vernon's Annotated Civil Statutes, modifies article 4366, Re-
vised Civil Statutes, 1926, to the extent that it authorises the is-
suance of duplicate benefit narrants , not on1y.i.nthe 0880 of proven
loss or destruotion, but upon satisfaotory proof that alaimant has not
reoeived,his warrant. But, at the same time, it ,requiresthat in all
other respeots, such as the filing of affidavit and bond, the provisions
of article 4365, Revised Civil Statutes, 1926, must be met.
Trusting that the above fully answers the inquiry submitted,
-se am
DS:csab:wo Yours very truly
ATTORNEY GEEERAL OF TEXAS
APPROVED: s/Gerald C. Mann
ATTORNEY GERERAL OF TEXAS By s/Diok Stout
Dick stout
Approved Opinion Committee by s/IIPBChairman Assistant | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132893/ | December 27, 1974
The Honorable A. G. McNeese, Jr. Opinion No. H- 485
Chai:rman, Board of Regents
Universi.ty of Texa.s System Re: Applicability of certain
P. 0. Box 2629 provisions in the Education
Houston, Texas 77001 Code to the Extension
Division of the University
Dear Chairman McNeese: of Texas at Austin
You ask the following questions:
(1) Does Section 54.203 of the Texas Education
Code require the exemption of qualified Texas veterans
from the payment of tuition and fees for Extension
Evening Courses and Extension Field Courses con-
ducted by the Extension Division of the University of
Texas at Austin?
(2) Does Chapter 52 of the Texas Education Code
allow the University of Texas at Austin to grant loans
under the Hinson-Hazlewood College Student Loan
Act to persons enrolled in the Extension Division of
the University of Texas at Austin?
The Extension Division is a component of the University of Texas at
Austin which provides educational services to a varied clientele. It offers
both evening courses and correspondence courses. Whether one receives
academic credi.t for successfully completing a course depends upon the
evaluation of the department or program administering the course. Admis-
sions standa:rds for students enrolling in an Extension Division course are
far less stringent than those that must be satisfied by students enrolling
in other universit:y departments: generally any high school graduate may
enroll.
p. 2201
The Honorable A. G. McNeese. page 2 (H-485)
As a component of the University of Texas at Austin, the Extension
Division is operated and regulated by the.University Board of Regents.
The Board attempts to operate the ~Extension Division on a self-support.ing
basis, offering courses only when there are sufficient paying enrollees
to cover all expenses. The Board insures that office space, office equip-
ment, and classrooms are available to the Division and provides for the
payment of instructors in the Division on a contract basis.
The Hinson-Hazlewood Fee Exemption Statute. Texas Education Code,
section 54.203. provides that the governing board of each institution of
higher education must exempt certain designated veterans from the pay-
ment of fees as follows: _,
(a) The governing board of each institution of
higher educ,ation shall exempt the following persons
from the payment of all dues, fees, and charges,
including fees for correspondence courses but excluding
property deposit fees, student services fees, and any
fees or charges for lodging, board, or clothing. . . .
The Uni.versity of Texas at Austin is plainly an “institution of higher
education” as that term is defined in the Act. Texas Education Code,
sections 54.001 and 61.003. While the Extension Division may be
operated on a somewhat different basis than other schools and divisions
of the University, it nevertheless is a component of the University subject
to regulation by the Board of Regents which has been established in order
to provide correspondence courses and other special programs. Section
54. 203 explicitly requires the governing board of the University to exempt
certain classes of veterans from the payment of all fees including fees
for correspondence courses. Thus, veterans designated in section 54.203
must be allowed to enroll in the courses offered by the University’s
Extension Division without paying tuition or any fees other than those
which educati.onal institutions are expressly allowed to collect from
veterans by section 54. 203. Our answer to your first question is in the
affirmative.
Your second question is whether the University of Texas at Austin is
allowed to grant loans made available by the Hinson-Hazlewood College
Student Loan Act to persons enrolled in the Extension Division. The
Hinson-Haslewood College Student Loan Act, Chapter 52, Texas Education
Code, establishes a student loan program to be administered by the
p. 2202
The Honorable A. G. McNeese, page 3 (H-485)
Coordinating Board, Texas College and University System. Section
52. 32 of the Act provides that the Board may authorize loans from the
Texas Opportunity Plan Fund to qualified students at any participating
institution of higher education in Texas if the applicant meets certain
qualifications. Under section 52.31 of the Act a participating institution
of higher education is:
. . . any institution of higher education, public or
private nonprofit, including a junior college, which
is recognized or accredited by the Texas Education
Agency or the Coordinating Board, Texas College
and University System, or its successors, and which
complies with the provisions of this chapter, and the
rules and regulations of the board promulgated in
accordance with this chapter.
Again it is clear that the University of Texas at Austin is a “participating
institution of hi.gher education” as that term is defined in the Act. Thus,
under section 52. 3.2 the Board is authorized to grant loans to qualified
students at the University including students enrolled in the University’s
Extension Di.vision. Of course, before any student in the Extension
Division may be grant.ed a loan, he or she must meet the requirements set
out in section 52.32 and any other reasonable requirements established
by the Coordi.nating Board in conformity with section 52. 32(a)(5). Our
answer to your second question is also in the affirmative.
SUMMARY
Under section 54.203 of the Texas Education Code
certain designated Texas veterans must be exempted
from the payment of tuition and fees when enrolling in
courses offered by the Extension Division of the Univer-
sity of Texas a.t Austi.n. Under secti,on 52. 32 of the
Code, the Coordinating Board is authorized to grant
loans to qualified students at the University including
students enrolled in the University’s Extension Division.
Attorney General of Texas
p. 2203
The Honorable A. G. McNeese. page 4 (H-485)
APPROVED:
5i3kb-MJ
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
pe 2204 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145412/ | GERAID C. MANN
Eon. L. R. Thompson
County Auditor
Taylor County
Abllene, Texas
Dear Sir:
Opinion No. O-1001
Re: Can the commissioners' court
legally make donations to the
Tuberculosis Association, to
the American National Red Cross,
or to any other charitable or
other organization making re-
quests for such donations?
Your request for opinion upon the above stated question
has been received and considered by this department.
We are unable to find any constitutional or statutory
authority for the expenditure or donation of county funds by the
commissfoners' court for the purposes above described.
The courts of Texas have repeatedly held that county
commilssloners'courts may exercise only such authority a8 is
conferred by the Constitution and Statutes of this State. There
are abundant authorities to this effect. We cite the followlng:
Article 5, Section 18, Texas Constitution;
ArtFcle 2351, Revised Civil Statutes of Texas;
TejrasJurisprudence, Vol. 11, pages 563-566;
Bland Vs. Orr, 39 S.W. 558;
Nunn-Warren Publishing Company vs. Hutchinson
County, 45 S.W. 2nd 651;
Hogg vs. Campbell, 48 S.W. 2nd 515;
Landman vs. State, 97 S.W. 2nd 264;
El Paso County vs. Elam, 106 S.W. 2nd 393;
Howard vs. Henderson County, 1.16SW 2nd 2791;
Dobson vs. Marshall, 118 S.W. 2nd 621;
Mills County vs. Lampasas County, 40 S.W. 404.
This department has repeatedly ruled to the same-'effect.
For example, opinion No. O-591 of this Department'held that the
commissionersI court of Galveston County, Texas was without
Hon. L. R. Thompson, page 2 O-1001
authority to expend county funds for the employment of lifg
guards for Galveston Beach; opinion No. 0-1085 of this Department
held that the commissioners1 COUY?t of MariOn COUntg, Texas was
without authority to pay the salary of a game warden; and
opinion No. O-1299 of this Department held that the commissioners'
court of Bexar County, Texas, was without authority to expend
county funds for fire protection from the City of San Anton10
for outside the city of San Antonio and in the county.
Conference Opinion No. 2662 of this Department,
dated February 4, 1927, Book 62, p. 48, 1926-1938 Attorney
General's Report, p. 390 et seq., written by Hon. D. A. Simmons,
First Assistant Attorney General, held that the commlssFbner3'
court had no authority to appropriate public funds to ch&it&ble
organizations managed and controlled by private Indivlauals and
that Constitution of 1876, Art. 3, Section 50, 51 and 52; Art.
8, Sec. 3; Art. 11, Sec. 3, and Art. 16, Sec. 6 referred to;
prohibit the appropriation of public funds to charities operated
by private individuals.
You are therefore respectfully advised that it Is the
opinion of this department that the county commlssloners' court
is without lawful authority to expend or donate county funds for
the purposes above mentioned.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/km. J. Fanning
Wm. J. Fanning
AsSi8taI-d
WJF:AW:wc'
APPROVE) DEC 13, 1939
a/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROW OPINION COMMITTEE BY s/BWB CRAIRMAN | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150936/ | Order Michigan Supreme Court
Lansing, Michigan
March 7, 2017 Stephen J. Markman,
Chief Justice
153691 (54) Robert P. Young, Jr.
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
KELLI SHINN, Richard H. Bernstein
Plaintiff-Appellee, Joan L. Larsen,
Justices
v SC: 153691
COA: 324227
Wayne CC: 13-008123-NF
STATE OF MICHIGAN SECRETARY OF
STATE ASSIGNED CLAIMS FACILITY,
Defendant,
and
AMERICAN COUNTRY INSURANCE
COMPANY,
Defendant-Appellee,
and
FARMERS INSURANCE EXCHANGE,
Defendant-Appellant.
______________________________________/
On order of the Court, the motion for reconsideration of this Court’s November
23, 2016 order is considered, and it is DENIED, because it does not appear that the order
was entered erroneously.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 7, 2017
t0227
Clerk | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145221/ | OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
tfdd.irom the r0nr aad m-t 0i 8 Juagm4xa rut&
lag him 18 8IltitbSd t0 8 fe8 5t 81.w rO%?8 rel808b. we
snol.osc, herewith, a copy of oonlcre~~oeoplnlon L:o. 3058.
'culth
ratcrenoa to Ca8e t:o.1, it would bm a
qru8tdon or au to whbthsr OJ?not the der8wftt
rfkat ua8
in the custody of the BlgktvrryPatm&ian or the ooeble
at the tim8 th8 dote&ant pleadob guilty and paid hl8
tinb. s the f8Ot8 8m th8t th8 68fUl&ant WU i0 th8
abturil 8al& le@ll OU8tN Oftho OOn8tablO at th8tm
th8 d8i8Bdmt PlCdOd @tiltY Uld 6 hi8 fin., thm th.
OOn8t8ble would be entltlrd to a F 1.00 r8kmse fee, if
not,,the oonotabla vrouldnot be hgallg editldl to l r+-
loam toe..
A~J'ROVELW'+UG
3, | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145250/ | OFFICE OF THE ATTORNEY.GENERAL OF TEXAS
AUSTIN
Hon.ii. a. ivyche,Fag0E
Smday of the suoceeding week to the State ai&-
way Department, to@%+ with carbon copies or
each license receipt issued hereumler &urln& the
pIWed% week. He shall also on %xiday of saoh
week remit to the Departnrent as now provldetl by
Law, all transfer rses oml chaurfeurs* lleeuae
fees oolleoted by him during the preceding veek,
together with oarboo copies of allrsaaipts issued
for said fees during the week.
*He shall also ecUomp?iny au relaitteaow to
the Rl@wey Departmntwith a eozaplete report of
suoh oolleotlons made and disposition aade thae-
0r;the r0t-n end umttents or aald report to be
presarlbed by the State Highway Dspartnmnt. xone
of .thu monies so plaoea to the araait or the Road
and Bridge Fund or a county shell be wed ta pay
the salary or compensation of any County J e or
Grmnty Comlssloner, but all eald WnleS ah
%l be
wed ror tho oormxuctlon and raemmawe oi late-
ral roads in suah oounty underthe euper~lsien of
the county l!in&me, If theme be one, end if tlwm
ie no such engineer then the County C~sloaers'
Court 6hd.l have authority to em the bervUe8
o? the Division En&iimec of the BtatO XlghwayDe-
partmatfor the pur ose ofaupervlsiogtheoon-
struotion and mlrve & of latmd. ma& in the*
respeotlveOoMtiea. All run&s allooated to the
oounties by the pravieions of this hot (Arts.
ways 0r such aountiea imd dlstrlats therein: or
the lmprovemnt or the roads ooqwlelng the Colmty
Roail Systeww
rfe ore inlorraed b the Gom.ptroller*s offloe #at Or
County has a rpulatlon of %, 768 aaeomllng to the laf5tFedem a?
oeww, anfl t et the 6ounty offiafal.5 of Gregg County art3 Eom-
pensated on an ennual salary basis.
seation 4 of &rtiole 39l80, R. C.~a,, readi as followsr
*In all counties 0ithisStats Contain&3
a population of Zess thm one hundred and ninety
thousand (lQG,OOG) inhabitants aoccrdiq to the
last precedirq Federal. Csnmm whereta the OOUI&~
oc gmmlnct oltfioers ere 5empewated on a salary
basis under the prodsions Of t”iS kot, them
shall be meat@ a fund to be known as the oOiii-
HOG. it. 6. Kyohe, rage 3
cerst sulary fund 0r county, Texas.'
Suoh fund oh&l be kopt separate and cpurt from
all other oounty funds, and shall be held and
disbursed for the purpose of pww the salaries
Of OrfleerS and the salarrie5 OS deputies, efmi~-
tants and clerks of offlasrs who hre drawi,xq a
oulary from csald rutic under tho provisions or
this Aat, and to pay the authorized expenses OS
their offices. Such fund shall be deposited in the
aouuty depository and shall be protested to the
~tme extent a5 other aounty runds.m
Seotion.6. or :ztfolo 3Qlee, R. C. 6., reads fn part
as follow:
"(a) In aouutles where&i the oounty affi-
olals are on a salmy baal~, in addltlant6 the
mo~&es deposited ts said Ofticers~ Salary Fuud
or funds under the rovi0iow 0r 8eatione 1, 3
and 5 or this Acrt tl em shall be depo6it;ed tharb
in gmrterly on the ffrrt day or January, kprll,
July and October of eaoh year, such sums aa
be apportioned to such oount umber the prowls Y or16
of this Aot, out of the aoa da ble appropriations
m&de by the Ia@?#lature for suoh purposssr-d.
howwer, that in uouutles tiersin the Co esloner6 *
Coyrt is authorized to determine whether oomty
of¶Xoers ehell be ooxupeasated on a salary basis,
no apportloument. 6haJ.l be xwile~ to euoh aounty un-
til the Comptrollsr of rublic kooounts shall have
been notified or the order or the Cotiesloners*
court that the oowty ofrioers 0r such ooltnty
shall be oompensatsd on a salary basis for the
fisoal year,'. . . .
"(b) ao officer reaelting a salary shall
hereafter reoeive any 8x off1010 a enimthn;
psovided, however, the Cox&s5foners""p Court
shall transfer irasa the General Fund of the
oouuty to the orrforsrs* salary pund or fur+ or
suoh aounty such run&a as may be neaess.ary to
pay the sa.larles and other ala&m ahargezible
a@.nat the sew wh8z~the manies; de ositd tber&-
in are lnsuffielent to meetthe ala Ls guyable
therefrom.w :
brtiale 667Sa-10 supra, speoifiorill ep~road~thst
none of the mnfes so g&aceji to the sredlt of ti
Bridge Lund or the county shall be&e& to pay the SW er
Hon.R. s. Kyche, Page 4
compensetion of cny county Jume or County Comisoioner, but
all said monies shall. bo used for the oomtruoflon and malnte-
name of lateral road6 in ouch oountles and that all funds
allocdod to the counties by the provisions of the aet my bd
used by the counties in the payment of obligations, l.f.e.ny,
Zsaued and incurrod in the conatruation or the roveaent of
9 ee and din-
ull roads, includiq State I?ighways of such oount
trlcts therein; or the lmprwement of the roads oonprlslng tbo
County Road Syrsttm.
In riew or the forego statutes, you are reapeat-
fully advlsed that It is the op 3 on of this department that
the Commfsoioners~ Court does net have the authority to traru%
rer nonibs reoeived from cute ro~lstrdkum to the Offioom*
Salary Fuud, regardless of the rrtatua of the CeneralIlrtn4.
Yours very trdLy
M=i'OMm CEN&iAL OF T.XAS
APPROVEDAUS 28, 1939
L e, 77h-L-u
,ATTORNEY GENERAL Or'TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132466/ | .. -
The Honorable Curtis Wilkinson Opinion No. H-914
County Attorney
County of Lamb Re: May Lamb County
I'.0. Box 946 finance a proposed revenue
Littlefield, Texas 79339 bond feasibility study for
the Lamb County Hospital
Authority.
Dear Mr. Wilkinson:
You advise that in 1974 the Lamb County Commissioners
Court passed an order creating the Lamb County Hospital
Authority, pursuant to article 4494r, V.T.C.S. The appointed
board of directors for the Authority has requested that the
county pay for a study to determine if there is a financially
attractive basis upon which hospital revenue bonds might be
sold by the Authority to finance the erection, furnishing
and operation of a hospital.
Unless such a study is conducted which confirms that it
is economically feasible to construct and operate a hospital
in Lamb County, a good rating for the proposed bonds cannot
be obtained. Such studies are statutorily sanctioned. See
Hospital Broject Financing Act, V.T.C.S. art. 4437e-2, 9-
3(c) (4). The directors of the Authority propose to repay
the county from anticipated bond sale proceeds. According
to your letter, the study is expected to cost between ten
thousand and forty thousand dollars. You ask:
Does the Lamb County Commissioners Court
have legal authority to expend public funds
for a feasibility study preparatory to the
Lamb County Hospital Authority issuing
revenue bonds?
p. 3835
The Honorable Curtis Wilkinson - page 2 (H-914)
The Lamb County Hospital-Authority is "a body politic
and corporate and a political subdivision of the State."
V.T.C.S. art. 4494r, 6 3; Thomas v. Howard County Hospital
Authority, 489 S.W.2d 403 (Tex.CE. App. -- Eastland 19721,
writ ref'd n.r.e., 498 S.W.2d 146 (Tex. Sup. 1973). It is
an entity distinct and separate from the county. Attorney
General Opinion M-260 (1968). Cf. Attorney General Opinion
H-554 (1975). The statute underwhich it was created denies
it taxing power but it is empowered to raise funds by issuing
revenue bonds and may accept donations, gifts and endowments.
V.T.C.S. art. 4494r, 69 1, 7, 19.
While one political subdivision may not constitutionally
make a gift of its public funds to another political subdivision
or lend it its credit, Tex. Const. art. 3, 9 52, a county is
not prohibited by the Constitution from expending its funds
for a proper public purpose merely because the expenditure
will incidentallv benefit another political subdivision.
See Harris County Flood Control Dist. v. Mann, 140 S.W.2d
1098 (Tex. Sup. 1940). Cf. Barrington v. Cokinos, 338
S.W.2d 133 (Tex. Sup. 19irm. In Dancy c Davidson, 183
S.W.2d 195 (Tex. Civ. App. -- San Anton= 1944, writ ref'd),
it was held that article 5, section 18 of the Texas Constitution
and article 2351, section 7, V.T.C.S., authorized the Cameron
County Commissioners Court to make expenditures for the
purchase of a public building to house a state public health
unit serving the county, as well as other state and federal
agencies serving the county. The Court stressed that the
agencies and offices were'performing governmental and public
functions which benefitted the entire county.
The public health of the populace is, of course, a
proper concern of the Lamb County Commissioners Court.
Article 4418f, V.T.C.S., specifies:
The Commissioners Court of any County shall
have the authority to appropriate and
expend money from the general revenues of
its County for and in behalf of public
health and sanitation within its County.
It seems clear that the Lamb County Commissioners Court
might have expended county funds to pay for a feasibility
study before it created the hospital Authority. The erection,
furnishing, and operation of a county public hospital is a
proper public function benefiting the entire county which
it might have undertaken itself. V.T.C.S. art. 4478: art.
4418f; Se dler v. Border, 115 S.W.Zd 702 (Tex. Civ. App.
1938, no
5- writ . The creation of the Authoritv did not
withdraw from the commissioners court the power to respond
P. 3836
The Honorable Curtis Wilkinson - page 3 (H-914)
to the public health needs of the county, [Compare Tex.
Const., arts. 9, 99 4, 9 and 13; Attorney General
Opinions C-772 , C-646 (1966)] and under the facts presented
to us, if the Commissioners Court of Lamb County determines
that it is in the best interests of the county to undertake
and pay for a hospital revenue bond feasibility study, we
cannot say the Texas Constitution forbids it.
The Interlocal Cooperation Act, article 4413(32c),
V.T.C.S., authorizes "the fullest possible range of inter-
governmental contracting authority at the local level" to
improve the efficiency and effectiveness of local governments.
See also V.T.C.S. art. 4434: Attorney General Opinion C-772
--
(1966). The County Hospital Authority Act, article 4494r,
requires bonds issued under it to specify that holders of
the bonds shall never have the right to demand payment out
of money raised or to be raised by taxes, but it does not
forbid the use of tax money to aid the Authority. It does
not repeal article 4418f.
SUMMARY
The Lamb County Commissioners Court has
legal authority to expend public funds
for a feasibility study preparatory to
the Lamb Count? Hospital Authoritv issuing
revenue bonds.- -
ery truly yours,
Attorney General of Texas
C. ROBERT HEATH. Chairman
Opinion Committee
jwb
P. 3837 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289136/ | 06/27/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 13, 2018
CHRIS JONES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 08-05720 Chris Craft, Judge
___________________________________
No. W2017-00405-CCA-R3-PC
___________________________________
The Petitioner, Chris Jones, appeals the dismissal of his petition for post-conviction relief
upon the post-conviction court’s determination that it was filed outside the statute of
limitations and that the Petitioner failed to prove that his mental incompetence required
its tolling. After review, we affirm the dismissal of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and TIMOTHY L. EASTER, JJ., joined
Paul K. Guibao and Ernest Beasley, Memphis, Tennessee, for the appellant, Chris Jones.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Carla Taylor, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
The Petitioner was convicted of second degree murder, attempted second degree
murder, attempted voluntary manslaughter, using a firearm during the commission of a
dangerous felony, and possession of a firearm where alcoholic beverages are served, and
he was sentenced to twenty-three years1 in the Department of Correction. See State v.
Chris Jones, No. W2009-01698-CCA-R3-CD, 2011 WL 856375, at *1 (Tenn. Crim. App.
Mar. 9, 2011), perm. app. denied (Tenn. Aug. 25, 2011). This court affirmed the trial
court’s judgments on direct appeal, and the Tennessee Supreme Court denied his
application for permission to appeal. Id.
The facts giving rise to the Petitioner’s convictions were summarized by this court
on direct appeal as follows:
This case arises from a parking dispute which ultimately resulted in
the death of Donald Munsey at the Windjammer karaoke bar in the early
morning hours of March 14, 2008. The [Petitioner], a Shelby County
Sheriff’s Deputy at that time, began the evening of March 13, 2008, at T.J.
Mulligan’s sports bar, where he ordered eight beers and watched a
basketball game. At halftime of the game, the [Petitioner] spoke to fellow
Shelby County Sheriff’s Deputy Lawrence Bowling. The [Petitioner] told
Deputy Bowling that his divorce was recently finalized and that his ex-wife
was keeping his children away from him and turning them against him.
Deputy Bowling testified that he could tell the [Petitioner] had been
drinking. The [Petitioner] also spoke with Cathey Lampley and her friend
Mary while he was at T.J. Mulligan’s. The [Petitioner] bought Mary a
drink, and when Ms. Lampley and Mary decided to go to the Windjammer,
the [Petitioner] asked if he could follow them. They agreed and all three
left T.J. Mulligan’s. Ms. Lampley testified that the [Petitioner] was not
intoxicated when she spoke to him at T.J. Mulligan’s. The bartender, Jason
Koski, also testified that the [Petitioner] was not intoxicated when he closed
his bar tab. However, Mr. Koski admitted that at the time of trial, T.J.
Mulligan’s was involved in a civil suit for allegedly overselling alcohol to
the [Petitioner].
A. The [Petitioner]’s confrontation with Justin Smith
Justin Smith testified that he was sitting in his truck when the
[Petitioner]’s truck “[j]ust came flying in around the corner . . . [and]
almost hit [his] truck in parking.” Mr. Smith further testified that he felt he
would not be able to get his truck out of the parking spot because of the
way the [Petitioner] had parked his truck. However, Mr. Smith waited until
1
We rely on the Petitioner’s statement in his post-conviction petition that he was sentenced to
twenty-three years, as neither the technical record nor this court’s opinion on direct appeal indicate the
sentence he received.
-2-
the [Petitioner] had gone inside the bar to speak to him about his truck.
Once inside, the [Petitioner] sat down with Ms. Lampley and Mary at a
table near the front door and ordered a beer. Mr. Smith then approached
the [Petitioner] to discuss how the two trucks were parked. The testimony
at trial presented several conflicting versions of exactly what was said
during this conversation.
Kimberly Guest, the waitress working at Windjammer that night,
testified that Mr. Smith asked the [Petitioner] if it was his truck outside and
“if he could possibly move it because . . . the trucks were close and [he]
didn’t want to hit his truck.” Ms. Guest testified that “there was no
indication that there was any kind of problem,” there was no physical
contact between the two men, and she did not hear any “threatening
language.” Stephanie Ravinuthala, a patron at the bar that night, testified
that Mr. Smith asked the [Petitioner] if he drove a gray truck and told the
[Petitioner] that he was “parked like three inches from [Mr. Smith’s]
bumper and [Mr. Smith could not] get out.” Ms. Ravinuthala also testified
that Mr. Smith did not appear to be belligerent and that she did not recall
Mr. Smith cursing at the [Petitioner].
Mr. Smith testified that when he asked the [Petitioner] to move his
truck, the [Petitioner] responded by saying “f--k you . . . I’m not moving
it.” On cross-examination, Mr. Smith repeatedly denied threatening or
being aggressive with the [Petitioner] but admitted that after the [Petitioner]
told him “f--k you,” he was “rude” toward the [Petitioner]. However, Ms.
Lampley testified that Mr. Smith approached the [Petitioner] intoxicated,
“very loud, very arrogant” before asking the [Petitioner] “if that was his f---
--g truck outside.” Ms. Lampley testified that the [Petitioner] was very
calm during this exchange and told Mr. Smith he would move his truck
when Mr. Smith was ready to leave.
At some point after their conversation, both Mr. Smith and the
[Petitioner] went outside. Gary Miller was working at the front door,
checking IDs, that night and testified that he overheard the two men
“discussing the way the [trucks] were parked.” Mr. Miller also testified
that at some point two or three other men joined the conversation.
According to Mr. Miller, the [Petitioner] asked the men “did they not
realize that he was a police officer by the tag that was on the truck.” Mr.
Miller further testified that there was no physical contact between the
[Petitioner] and any of the three or four people with him. Mr. Smith
testified that he went outside with the [Petitioner] because the [Petitioner]
-3-
“wanted to show me his license plate.” The [Petitioner] told Mr. Smith that
“he was a cop and he had the tag on his truck.” Mr. Smith testified that
after their conversation outside, he did not speak to the [Petitioner] again
that evening.
Mr. Smith’s friend, William Bobbitt, testified that he was near the
front door when Mr. Smith and the [Petitioner] went to look at the trucks.
On their way back to the front door, Mr. Bobbitt overheard the [Petitioner]
say that he was not going to move his truck and that Mr. Smith should look
at his license plate. Someone asked the [Petitioner] what he meant by this,
and he replied that he was a police officer. Mr. Bobbitt testified that the
[Petitioner] spoke with an aggressive tone but that there was no physical
contact between the [Petitioner] and anyone outside. Mr. Bobbitt further
testified that everyone went back inside after Mr. Munsey stepped outside
and told them to come in.
Ms. Lampley testified that before the [Petitioner] and Mr. Smith
went outside, Mr. Smith made a phone call and a short time later “[a]bout
[ten] guys around the age of 21 to 25 showed up” and were looking at the
[Petitioner]. Ms. Lampley testified that the [Petitioner] looked scared when
he came back inside. Ms. Lampley testified that she felt threatened because
this group of men continued to stare at the [Petitioner] and her. However,
on cross[-]examination Ms. Lampley admitted that she was “making some
jump here . . . that Mr. Smith called people and that as a result of those
calls, people arrived.”
B. The [Petitioner]’s confrontation with David Eagan
After the [Petitioner] reentered the bar, David Eagan approached
him to discuss the parking situation. Mr. Eagan testified that he was too
intoxicated to remember everything that happened that night. However,
Mr. Eagan testified that he spoke to the [Petitioner] because the [Petitioner]
“was a little rowdy” and that he wanted “to make sure that . . . everything
was okay” between the [Petitioner] and Mr. Smith. Mr. Eagan testified that
he “asked [the Petitioner] to move his truck and . . . just to calm down and
everything was going to be okay.” Mr. Eagan testified that he could not
remember anything else about his conversation with the [Petitioner]. Mr.
Eagan repeatedly denied threatening the [Petitioner] or having a physical
altercation with him. Mr. Eagan did admit on cross examination that he
had described the conversation between Mr. Smith and the [Petitioner] as
“an altercation.”
-4-
Several witnesses saw the confrontation between the [Petitioner] and
Mr. Eagan inside the bar. Ms. Ravinuthala testified that she saw Mr. Eagan
“lean[ ] down into [the Petitioner’s] face” when he spoke to him and that
the [Petitioner] responded by standing up and getting in Mr. Eagan’s face.
Joe Reynolds was working at the bar that night and testified that he saw the
[Petitioner] and Mr. Eagan “talking about the parking place or something.”
Mr. Reynolds testified that the [Petitioner] had an ink pen in his hand and
was “gripping [it] so tight that his knuckles were white.” Mr. Reynolds
decided to get Mr. Eagan to move away from the [Petitioner]. After
sep[a]rating the two, Mr. Reynolds spoke with the [Petitioner]. The
[Petitioner] told Mr. Reynolds “I’m a mother-----g Shelby County
Sheriff[’s] Deputy and I [came] in here to drink my f-----g beer and I want
to be left alone.” Mr. Reynolds told him that everything was okay and to
just have a drink and enjoy himself. Mr. Reynolds then went back to work
and left the [Petitioner] near the front door.
Several witnesses testified that after his conversation with Mr.
Reynolds, the [Petitioner] stood by a table and a stared at the bar where Mr.
Eagan and Mr. Smith were standing. Pamela Flynn, her husband, John
Flynn, and their friend, Ms. Ravinuthala, were seated at the table. All three
testified that the [Petitioner] was “actually standing almost on top” of Ms.
Ravinuthala just staring towards the bar. At one point, Ms. Guest asked the
[Petitioner] to move so Ms. Ravinuthala would feel more comfortable.
Mr. Reynolds approached the [Petitioner] and had a second
conversation with him as the [Petitioner] stared at Mr. Eagan and Mr.
Smith. Mr. Reynolds asked the [Petitioner] if he was okay, and the
[Petitioner] pointed at Mr. Eagan and said, “I’m going to kill that motherf--
--r righter there.” Then the [Petitioner] pointed at Mr. Smith and said, “I’m
fixing to kill his punk ass buddy and if any of his buddies over there even
approach me, I’m going to kill all of them motherf-----s.” Mr. Reynolds
told the [Petitioner] to calm down, and the [Petitioner] responded by
saying, “I’ve lost my wife and I’ve lost my family and I’ve lost my home
and I got nothing else to lose.” Ms. Flynn and Ms. Ravinuthala both
overheard the [Petitioner] threaten to kill Mr. Smith and Mr. Eagan. Mr.
Flynn overheard the [Petitioner] say he had nothing left to lose. Ms. Flynn
testified that the [Petitioner] was clenching and unclenching his fists as he
spoke with Mr. Reynolds. Mr. Flynn also testified that the [Petitioner]
seemed very upset as he spoke with Mr. Reynolds. Mr. Reynolds again
told the [Petitioner] to calm down but was called away to the office to
answer a telephone call.
-5-
C. The shooting
After Mr. Reynolds left the [Petitioner], Mr. Eagan paid his bar tab
and began to walk toward the door. The [Petitioner] pulled out a gun, ran
toward Mr. Eagan, grabbed Mr. Eagan by his shirt collar, and put a gun to
his head. Mr. Eagan testified that the [Petitioner] said, “I’m going to kill
you. I have nothing to lose.”
The testimony at trial presented conflicting accounts of what
happened next. Mr. Flynn testified that the bar was crowded that night and
there were lots of people standing near the [Petitioner] and Mr. Eagan. Ms.
Guest testified that she was near the [Petitioner] and overheard him say,
“who’s the tough guy now, motherf----r . . . the tough guy’s got the gun.”
Ms. Guest further testified that she asked the [Petitioner] “please don’t do
this” when Mr. Munsey grabbed the [Petitioner] from behind. According to
Ms. Guest, Mr. Eagan then fainted, knocking down the [Petitioner], Mr.
Munsey, and Ms. Guest as he fell to the floor. Ms. Guest then heard two or
three gunshots and saw that Mr. Munsey had been shot in the neck.
Mr. Bobbitt testified that he and Mr. Munsey were in the kitchen
when they saw the [Petitioner] grab Mr. Eagan. Mr. Bobbitt also testified
that he did not see a gun from where they were standing. Mr. Bobbitt and
Mr. Munsey then charged toward the [Petitioner] and tackled him. All four
men fell to the ground; however, Mr. Bobbitt testified that while the men
were on the ground, no one hit the [Petitioner]. Mr. Bobbitt also testified
that Ms. Guest was not involved at all. Mr. Bobbitt then heard two
gunshots and ran out of the building. Mr. Smith similarly testified that Mr.
Bobbitt and Mr. Munsey tackled the [Petitioner]. After hearing the first
gunshot, Mr. Smith ran out the front door, and out of the corner of his eye,
he saw the [Petitioner] aiming the gun at him. Mr. Smith was then shot in
the buttock. Mr. Eagan testified that he did not remember anything after he
fell to the ground.
Mr. Flynn and Ms. Ravinuthala both testified that they saw Mr.
Munsey tackle the [Petitioner] and that both men and Mr. Eagan fell to the
floor. Ms. Ravinuthala testified that she saw the [Petitioner] and Mr.
Munsey “wrestle” on the ground for a minute. The [Petitioner] then pulled
himself up, aimed his gun at Mr. Munsey’s head, and fired it. Next, the
[Petitioner] turned and aimed his gun at Mr. Smith before firing a second
time. Mr. Miller had left the bar earlier to run an errand, and when he
returned, he discovered Mr. Munsey’s body lying on the floor with Ms.
-6-
Guest kneeling next to him. Mr. Miller saw the [Petitioner] seated by the
front door. He told the [Petitioner] to remove the magazine from his gun
and to lay them on a table, and the [Petitioner] complied.
D. The police investigation
Officer Zane Lewis of the Memphis Police Department (MPD) was
one of the first officers to arrive at the bar. Officer Lewis testified that the
[Petitioner] surrendered to him and his partner, and that he took the
[Petitioner]’s gun into custody. Officer Jeffery Klein of the MPD testified
that the [Petitioner] was placed in his squad car after he was taken into
custody. Officer Klein testified that during the time between his initial
arrest and when the [Petitioner] was brought to the police station, the
[Petitioner] repeatedly talked about his children and his recent divorce.
Officer Klein testified that the [Petitioner] never said he was attempting to
arrest Mr. Eagan or that he was threatened by Mr. Eagan or Mr. Smith.
Instead, the [Petitioner] only said he had to shoot Mr. Munsey to save his
life.
Lieutenant Don Crowe of the MPD Felony Response Bureau
testified that he was in charge of the investigation. Lieutenant Crowe
testified that two spent shell casings were found at the crime scene, that the
[Petitioner]’s gun can hold up to nine rounds, and when the gun was taken
into police custody, there were seven rounds remaining in the magazine.
Lieutenant Crowe also testified that when the [Petitioner] was brought to
the police station, photographs were taken of injuries to his chin, left hand,
and left elbow along with photographs of a red mark on his chest and
redness on his right ear.
Dr. Miguel Laboy testified that Mr. Munsey died from an
intermediate range gunshot wound to his neck. Dr. Laboy further testified
that the fatal gunshot could have been fired from a few inches up to two
feet away from Mr. Munsey. Dr. Laboy also testified that Mr. Munsey had
tested positive for methamphetamine at the time of his death and that
methamphetamine can make a person feel euphoric, aggressive, or violent.
E. The [Petitioner]’s testimony
The [Petitioner]’s testimony presented a radically different
description of the events that led up to the shooting. The [Petitioner]
testified that there was nothing wrong with the way he had parked at
-7-
Windjammer and that Mr. Smith could have easily gotten his truck out of
the parking space. However, according to the [Petitioner], once he was
inside the bar, Mr. Smith came up to him and said, “are you the asshole
driving the gray truck . . . you need to move your f----g truck.” The
[Petitioner] testified that he told Mr. Smith that he did not want any trouble
and that they should go outside and they would see Mr. Smith was not
blocked in. According to the [Petitioner], Mr. Smith then responded by
saying “this is my f-----g bar . . . you don’t f-----g belong here . . . you need
to f-----g leave.”
The [Petitioner] further testified that when he went outside, Mr.
Smith had about seven or eight young men waiting on him. According to
the [Petitioner], as he tried to reenter the bar, Mr. Eagan said to him “you
don’t realize who you’re f-----g with motherf----r” and “when you get ready
to leave, we’re going to take you out back and we’re going to kill you.”
The [Petitioner] testified that he then told the men they had way too much
to drink, that he was not looking to start any trouble, and “y’all have
already seen the tags on my truck.” Then, according to the [Petitioner], as
they reentered the bar Mr. Eagan said, “do you think cause you’re a cop
that we won’t kill you . . . we don’t give a f--k that you’re a cop.” The
[Petitioner] testified that he asked Mr. Reynolds to throw Mr. Eagan and
Mr. Smith out but that Mr. Reynolds “just stared at me like I hit him in the
head with a hammer.” According to the [Petitioner], Mr. Eagan continued
m to threaten him after he sat back down saying, “I’m looking at a dead
motherf----r and that motherf----r is you.” The [Petitioner] testified that
later, Mr. Smith walked up to him while talking on a cell phone and told
him, “they’re going to be waiting out front for you when you try to leave
and they’re going to kill [you] . . . you’re dead.”
According to the [Petitioner], he then attempted to ask Mr. Reynolds
for help again. The [Petitioner] claims he asked Mr. Reynolds to call 911
and told him, “I’ve got men that I don’t even know saying they’re going to
kill me . . . obviously they must think I have nothing left to lose but I do.”
The [Petitioner] also testified that he told Mr. Reynolds that “the guy with
the beard said that I’m a dead motherf----r” and denied ever saying “those
are two dead motherf-----s over there.” According to the [Petitioner], Mr.
Reynolds smelled of alcohol and just stared at him before going over to join
Mr. Eagan and Mr. Smith as they all stared at him. However, Mr. Reynolds
testified that the [Petitioner] never asked him to call 911 and that after he
split up the [Petitioner] and Mr. Eagan, neither Mr. Eagan nor Mr. Smith
bothered the [Petitioner] for the rest of the night.
-8-
The [Petitioner] testified that he was not staring at Mr. Eagan,
instead he was watching him so he could escape out the front door when he
accidently bumped into Ms. Ravinuthala’s chair. Then, according to the
[Petitioner], Mr. Eagan “like a bat out of hell . . . makes a beeline straight to
me and he gets up in my face” and said, “it’s time for you to die.” The
[Petitioner] testified that this was when he drew his weapon and attempted
to arrest Mr. Eagan and that as he was attempting to get Mr. Eagan on the
ground, someone hit him on the back. The [Petitioner] further testified that
once he was on the ground, several men began hitting him on the face and
chest. He was hit on the chin with a sharp object, and the men were trying
to pry his gun away from him. The [Petitioner] testified that he fired only
one shot, not aiming at anyone, and that he did so only to save his life and
to avoid being killed with his own gun. The [Petitioner] testified that he
crawled out from underneath the pile of men and that he disarmed only
after Mr. Eagan, Mr. Smith, and the 15 other men that were with them had
left the bar. The [Petitioner] also testified that he told Officer Klein about
the threats and that he was attempting to arrest Mr. Eagan when he was
attacked.
On cross-examination, the [Petitioner] admitted that the weapon he
used was not his service weapon and that it was both illegal and against
department regulations for him to have his gun with him inside the
Windjammer. The [Petitioner] also admitted that Mr. Eagan had nothing in
his hands and had no weapon out when the [Petitioner] pulled his gun. On
cross-examination, the [Petitioner] stated that the other witnesses’
testimony was wrong and that he had asked Mr. Reynolds five or six times
to call 911. When asked why he did not use his cell phone, the [Petitioner]
stated he left it in his truck to be polite toward Mary and Ms. Lampley.
When asked why he did not ask to use Mary or Ms. Lampley’s cell phone,
the [Petitioner] responded that he did not know if the women were “in
league with these people” and perhaps they had lured him to the
Windjammer to be killed. The [Petitioner] on cross[-]examination further
testified that he was attempting to arrest Mr. Eagan for three counts of
aggravated assault even though Mr. Eagan had not caused serious bodily
injury to another and had not displayed a deadly weapon.
Id. at *1-7 (footnotes omitted).
The Petitioner filed an untimely petition for post-conviction relief. On May 20,
2016, the post-conviction court conducted a hearing on the Petitioner’s claim that the
statute of limitations should be tolled due to his mental incompetence. At the hearing, the
-9-
Petitioner testified that before the incident in this case, he was a sergeant with the Shelby
County Sheriff’s Office, working as shift commander of the Interstate 40 Drug
Interdiction Unit and on the joint drug task force with the Shelby County District
Attorney’s Office. He had worked in law enforcement for nineteen years and did not
have a criminal record. He recalled that prior to his arrest on March 14, 2008, he had
never been diagnosed with a mental illness or taken any type of medication for a mental
illness. Within two days of his arrest, he saw a psychiatrist and was put on medication.
He recalled that he underwent a mental evaluation prior to trial, but the report was never
submitted to the court. He admitted that he was never deemed incompetent to stand trial.
Asked what it is like for an officer to be incarcerated in the Shelby County Jail, the
Petitioner said that “historically the Shelby County deputies and the Shelby County
jailers don’t get along and don’t like each other.” He believed this was because many of
the jailers had been arrested “for bringing in narcotics into the jail and for dealing
narcotics on the street.” The Petitioner likened the sixteen months he spent in the Shelby
County Jail to watching the first responders rush into the World Trade Center on 9/11
before the buildings fell down “knowing when it came down the horror that they died.”
He said that he began to suffer from mental illness during his incarceration in Shelby
County. The jail psychiatrist diagnosed him with major depression and placed him on
Celexa, Risperdal, Risperidone, and Wellbutrin.
The Petitioner testified that his treatment for mental health issues continued after
he was convicted and transferred to the Department of Correction. He was first housed in
West Tennessee State Prison. He did not recall the practitioners “who saw [him] [there]
because of [his] mental state at that time,” but he noted that his medical records indicated
that Dr. Cole treated him. Dr. Cole diagnosed him with “post-traumatic disorder” and
“severe psychosis psychotic” and increased his dosages of Risperdal, Risperidone, and
Wellbutrin. The Petitioner claimed that the combined effect of his medications left him
with no recollection of what occurred during his daily life in West Tennessee State
Prison. He elaborated that “everyday was March 14, 2008,” and the only thing he
remembered doing at West Tennessee State Prison was sleeping. However, he also said
that his adrenaline was high because of “the unknown if . . . the situation was fixing to
escalate very quickly.” He explained that it was difficult to go from “living a wonderful
life” wherein he had taken “two point five billion dollars[’] worth of cocaine,
methamphetamine, heroin, amphetamines, [and] marijuana off the interstate I-40,” to
“being in a[n] eight-by-ten room twenty-four hours a day” and “need[ing] to save [his]
own life.” He said that he had very limited communication with his family during his
time at West Tennessee State Prison.
The Petitioner testified that he was transferred to Northeast Prison, where he was
additionally prescribed Lithium, Lycos, and Vistaril, and his dosage of Celexa was
- 10 -
increased. He said that the additional medications made him see “blacked-out figures in
the corner of [his] room.” The Petitioner stated that, as a former law enforcement officer,
he felt that he needed to avoid other inmates for his safety. He also stayed to himself
because the guards “are on a payroll of the gangs and the dope dealers and they’ll turn
their head in a second and not see anything if somebody is attacked.” He said that he had
to be “on guard twenty-four hours a day” to make sure he was not attacked, which added
to his post-traumatic stress disorder. During his time at Northeast Prison, he did not read,
write letters, or go to the computer lab or law library.
The Petitioner testified that he was transferred next to DeBerry Special Needs
Facility, where he remains in the “honor unit.” He said that upon his brother’s advice in
July 2012, he stopped taking all his medications and began psychotherapy. He recalled
that when he first moved to DeBerry, he slept in his clothes and boots on top of his
blanket to be ready in case he was attacked. He felt that the effects of the medications
had gotten worse over time, and it took many months to a year for him to become
functional after ceasing the medications. The Petitioner said that he has been in regular
communication with his family by phone and in-person visits since being housed at
DeBerry. In fact, he called his mother every day.
The Petitioner testified that he did not remember receiving a letter from his
appellate counsel dated September 15, 2011. However, “because [of] [his] recollections
becoming more clear after being off the medication,” he recalled that his cellmate read
him the letter at the time. His father also sent him a duplicate copy of the letter on March
14, 2013. The letter informed him that the Tennessee Supreme Court had issued the
mandate in his case, signifying the end of the state appeals process, but it did not mention
post-conviction relief. He said that another inmate told him about the ability to file a
petition for post-conviction relief in December 2012, which he did after stopping his
medication. He did not feel as though he was able to understand his legal rights or
manage his personal affairs while taking the psychotropic medications. He surmised that
if he would not be permitted to drive a vehicle while taking the medications, he should
not be deemed competent to file a meaningful post-conviction petition within the statute
of limitations while taking the same medications.
The Petitioner testified that, although he had stopped taking medication for a
period of time, on June 13, 2015, his psychotherapist conducted a psychological test and
diagnosed him with schizophrenia. His psychotherapist encouraged him to begin taking
psychotropic medication “to help [him] deal with life and [his] mental health diagnosis.”
After the hearing and submission of written briefs by the parties, the post-
conviction court found that the Petitioner had not made a prima facie showing of
incompetence to toll the statute of limitations and dismissed the petition as time-barred.
- 11 -
ANALYSIS
The Petitioner argues that the post-conviction court erred in dismissing his petition
for post-conviction relief for failure to file within the statute of limitations. He admits
that he did not file a timely petition but argues that due process should toll the statute of
limitations due to his mental incompetence. He challenges the post-conviction court’s
determination that he did not make a prima facie showing of incompetence for tolling.
Under the Post-Conviction Procedure Act, a claim for post-conviction relief must
be filed “within one (1) year of the date of the final action of the highest state appellate
court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date
on which the judgment became final, or consideration of the petition shall be barred.”
Tenn. Code Ann. § 40-30-102(a).
The post-conviction statute contains a specific anti-tolling provision:
The statute of limitations shall not be tolled for any reason, including any
tolling or saving provision otherwise available at law or equity. Time is of
the essence of the right to file a petition for post-conviction relief or motion
to reopen established by this chapter, and the one-year limitations period is
an element of the right to file the action and is a condition upon its exercise.
Except as specifically provided in subsections (b) and (c), the right to file a
petition for post-conviction relief or a motion to reopen under this chapter
shall be extinguished upon the expiration of the limitations period.
Id.
Subsection (b) of the statute sets forth the three narrow exceptions under which an
untimely petition may be considered, none of which is applicable in this case. However,
in addition to the statutory exceptions, our supreme court “has identified three
circumstances in which due process requires tolling the post-conviction statute of
limitations”: (1) when a claim for relief arises after the statute of limitations has expired;
(2) when a petitioner is prevented by his or her mental incompetence from complying
with the statute’s deadline; and (3) when attorney misconduct necessitates the tolling of
the statute. Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013).
In determining whether the statute of limitations should be tolled due to a
petitioner’s incompetence, the question is “whether the petitioner possesses ‘the present
capacity to appreciate [the petitioner’s] position and make a rational choice with respect
to continuing or abandoning further litigation or on the other hand whether the petitioner
is suffering from a mental disease, disorder, or defect which may substantially affect the
- 12 -
petitioner’s capacity.’” Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 512-13 (Tenn.
2013) (quoting Tenn. Sup. Ct. R. 28, § 11(B)(1)). “The question is not whether the
[petitioner] is able to care for himself or herself, but whether the [petitioner] is able to
make rational decisions concerning the management of his or her post-conviction
appeals.” Reid, 396 S.W.3d at 513.
The inquiry begins with a presumption that the petitioner is competent. Id. at 512.
The petitioner must then make a prima facie showing that he or she is incompetent “by
submitting affidavits, depositions, medical reports, or other credible evidence that contain
specific factual allegations showing the petitioner’s incompetence.” Id. If a prima facie
showing is made, the post-conviction court will then “schedule a hearing to determine
whether the [petitioner] is competent to manage his [or her] petition.” Id. At the hearing,
the burden is on the petitioner to prove “that he or she is mentally incompetent by clear
and convincing evidence.” Id. at 494 (citing Tenn. Code Ann. § 40-30-110(f)).
In conducting its analysis, the trial court should ask the following questions:
(1) Is the person suffering from a mental disease or defect?
(2) If the person is suffering from a mental disease or defect, does that
disease or defect prevent him from understanding his legal position and the
options available to him?
(3) If the person is suffering from a mental disease or defect which does not
prevent him from understanding his legal position and the options available
to him, does that disease or defect, nevertheless, prevent him from making
a rational choice among his options?
Id. at 513 (quoting Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir. 1985)).
A decision may be rational even when it is not one that the majority would
consider acceptable, sensible, or reasonable. A decision is rational when it
is based on a process of reasoning. A person’s decision-making process is
rational when that person can (1) take in and understand information; (2)
process the information in accordance with his or her personal values and
goals; (3) make a decision based on the information; and (4) communicate
the decision.
Id. (internal citations omitted).
- 13 -
The Petitioner argues that due process requires the tolling of the statute of
limitations because he was unable to manage his personal affairs or understand his legal
rights due to mental health issues. He disputes the post-conviction court’s finding that he
was not a credible witness and argues that his medical records support his testimony that
he was mentally incompetent. He asserts that he isolated himself from other inmates due
to his post-traumatic stress disorder, depression, and severe anxiety, and that the various
medications he was prescribed for his disorders had side effects that affected his ability to
file the petition in a timely manner.
The Petitioner acknowledges that the post-conviction court specifically found his
testimony not credible. The findings of fact made by the trial court are conclusive on
appeal unless the evidence preponderates against them. See Wiley v. State, 183 S.W.3d
317, 325 (Tenn. 2006). When reviewing factual issues, the appellate court will not
reweigh the evidence and will instead defer to the trial court’s findings as to the
credibility of witnesses or the weight of their testimony. Id. In finding the Petitioner’s
testimony not credible, the post-conviction court noted that the Petitioner
gave detailed accounts of what he did to be safe, complaining of the TDOC
staff behavior concerning his stay. He constantly alternated in his
testimony between describing how he was ignored and mistreated by
medical staff, how the jail guards were selling drugs and taking bribes, and
then would brag on himself as to being shift commander of the Interstate 40
Drug Interdiction Unit, the District Attorney’s Drug Task Force, his medals
for valor and life-saving and how much heroin he had stopped from coming
into Memphis. He did not make a believable witness. His medical records
are replete with his complaints of treatment and his constant anxiety for his
safety, which do not describe a man, as he testified, that seemingly just sat
in his cell and stared into space all day, heavily medicated.
The post-conviction court further noted that although the Petitioner testified that
he visited with members of his family during the time period he seeks tolling, he did not
present the testimony of anyone at the hearing regarding his being in a “helpless” state.
The Petitioner also argues that his mental health records support his testimony that
he was unable to manage his personal affairs or understand his legal rights. However, as
found by the post-conviction court, the medical records reveal that the Petitioner was
malingering about his condition. In one psychiatric report submitted by the Petitioner,
the examining doctor noted that the Petitioner “embellished” his condition in self-
reporting a panic attack. In another psychiatric report, the examining doctor noted that
the Petitioner was “clearly malingering psychosis” and had a “decreased willingness to be
forthcoming and authentic.” The court observed that the Petitioner’s medical records
- 14 -
contained “numerous complaints the [P]etitioner made to medical personnel about other
non-mental medical conditions he stated he was suffering and the way he was being
treated . . . which evidenced clearly his awareness and ability to handle his affairs.” We
reiterate that “mental incompetence” does not equate with “mental illness” for tolling
purposes. Terry Lamar Byrd v. State, No. 03C01-9905-CR-00199, 2000 WL 217948, at
*2 (Tenn. Crim. App. Feb. 25, 2000). Rather, “[m]ental incompetence denotes the
inability to manage one’s personal affairs or to understand one’s legal rights and
circumstances.” Id.
In sum, the post-conviction court determined that the Petitioner was not a credible
witness and that his medical records indicated that he was feigning mental illness and
unwilling to be honest about his mental health. The evidence supports the post-
conviction court’s finding that the Petitioner failed to establish he was unable to
understand his legal rights and liabilities due to a mental illness or defect.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the dismissal of the
petition.
____________________________________
ALAN E. GLENN, JUDGE
- 15 - | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/7606071/ | Affirmed. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4150931/ | Order Michigan Supreme Court
Lansing, Michigan
March 7, 2017 Stephen J. Markman,
Chief Justice
153146(14) Robert P. Young, Jr.
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellee, Justices
v SC: 153146
COA: 329775
Wayne CC: 86-000820-FC
DAVID VAUGHN,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s October 26,
2016 order is considered, and it is DENIED, because it does not appear that the order was
entered erroneously.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 7, 2017
p0227
Clerk | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145224/ | 791
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
@ALLIc MA””
#.lmm”.-
fionorable kilterPetreh
couzity Jatolney
-~errvlJ.b,
hm08
Eoa. %lter Peteoh, Pago Is
The Conat:tutIon c:znta'lnsnc other provi4lons relating
to the exemption of publio property from taxation thar. the pro-
vlaloas sentioned above. ~urthez!&or4, the atatut44 h&v4 uot at-
tempted to cxtend axaptlon iron taxat?on to bonds 01 the kind
wblch you rantion. krtlale 7145, hevlsod Civil Statutes, provides
that 'all propsrty, coal, personal or m&red, exoept such a4 mey be
hanlnaftar oxpmesly exelopted, I4 sub&at to Caxatlon,cd the
sauceshall be mndered and llat4d a6 her4In presor?bed.*
hrtiOl4 7147, *.vIeed tit11 Statutes,doolarae that "per-
40~1 property for the purposss ot taxation oh41 be conetrued to
Include all . . . bonds and other av1denaes of debt. . .*
fn rwtheranoe or the Constitution, kwoie vlso, E4vIm1d
Cl611 Ftatutso, dosorlbos property wkloh ahall be exempt fron taxa-
tion. Ceatione 4 and S of mid Artlole ‘II50 Tehte to the WimptlOn
extended to publia property and to oounty bulldin(rs. Ev4n it *he
Coastltutloa authorlaqd, then la no la-go in maid ArtloloOl80
which would withdrawbonds of the OhbCtOr under dlsoussion tros
tht!.p0ti8iOna Or hTtiOi0 714?, heV%SSd Civil st&Ut4& Our answer
to your cu48tIon foll.o~s thst such bond4 am eubj4ot to personaL
property tax.
Your8 vary truly
ORLrl COMM”TEE
APPROVEDAWG 11, 1939
ATTORNEYG?ZNERAL
OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145251/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Hon. .&My Hawkins, page 5
w~here the oonstablehas three oaeee
against the 5am man all of them oomlng from
the same arrest is the oounty liable to the
constablefor one-half faellin eaoh separate
ease filed cc only one oase pluuswhat ever mile-
age Costa there happenedto be9 He has aotual-
ly only served one warrsnt and one oommitment
on th6 p0rsaut*
Article 1055, Code ot Criminal Prooedure ef the
State of-Texas, as amendad by the Forty-sixthLeglalature
or Texas, effeotlveIhayl.5,1939, read8 as rallows:
'The oounty shall not be liable to the of-
ffoer and witness having oasta $.aa miirdeaasnor
uaee where defendantpaye hia ilne and Ooatae
The oounty shall be liable for one-half of the
fees ot the offioere of the Oour'b,when the de-
iaadantfaiLstopayhieiinoaadlayl,hicr fine
out in the oounty jail or dleehargeethe eeme
by nman8 of working suoh tine out on the oouxi-
ty roads or an any oountg prajeot. And ta ay
euah half ot oosts, the Oounty alexk shall ia-
sue his warrent on the County Traaaurer in fav-
or 0r 5uoh 0fri0et to be paid out af the Road
and Bridge Pund or other iundo no% othenrlee
approprlatsd.*
~rtiole 1065, oode of CrimLnal Preoedure of
Texas, nets out the feea to whloh a oonetableand other
p6aoe orrioars are e~titlscl.
Artiole loll, Code of Cr%mi.nalProcedure of
T6xaa, reads as foUmsr
*X0 item of oasts shall bs taxed far.a
purported service whloh was not performed,or
for a servioe ror whioh no f'eeis expreealy
provlded by &vi."
Opinion ho. O-100 end other a inione of thie
departmenthold that a @n&able, or otter peace otfioere,
are not entitled to fees exoept ior mrvlo+m perfonnad,
a6 autll.nedby the fee statute. .
Hon. ~tinoy Hawktine,pa@ 3
OlWENs;X
MO. 1, listed by you, In your letter,
a3
*Qperatinga kaotortshiols without li.e;btP,
is axmrently oovsred by Artiola 998 of the.Fmml oocle
of Ttxas.
05ZClWlE
HO. 6, listed by you, in your letter,
as
*OperatIn& an uare&&srsd rshiole*,
fe apparently oovere6 by -iale 8OYb of the PenalCoda
of Texas.
as
la spparentl~oorers~ $y Artiole 479 of the F+eMl Code
of Texas.
Artielt 803 or the Penalaode of Turn,, -da
aa r0z.m838
*Any peaae oiflaar is auttmrLee& to am&
ulthoutwarraut an&pareoa fouardoamlttSnl:r
Violeticm 0r MY prori8ion of the preaedLmg ar-
CiOlss of thi.*OhAptsP.
Thiclaz'tlo~ of the Penal Code &Vi p~a@S ob-
iioersthe right to arrest without mrrant permn8 fmand
oommSttl.nga vlolatlan of lirtiole796 of the Penal Cede,
to-rit; the offenseor operating a motor rahlala,rltho%t
lights, but it does not p;ivogo&e8 ofiioirrathe right
to arrest rlthout warrant p~tmtmYiolating8Wbofth@
Pe~lcods,to-wlt;tbeoffa~lae of operatiag;aaumqls-
tered motaa:vebiele,
fioors with right to arrest without wsrraut lf
bruaoh of the peaoe Is bsinC(odtted In of-
ticer*s presefice,opaekm 0r o~erloadodt~~
not betis ,"ezse a *br~aeh of the.paaaer.*
(Hz:.:.
ys+ :~,s~~,96 S.W. (Zd), OBl.)
To be a *broaah of the peaoe* , the a& m
ed of must be olievi;iiah
tisturba,orthraatmuto dir
turb, the tranquillitycnjapd by oltlzens. (EUD h.
S"iiaE,eupr%.)
*lminkeIulessio not an orz6Ms %gdnrt tha
publia peaoe and a emstable may not arr6st fen
&Wkenneaa without marr8ntr* (IIIBf0.m. SPA%%,
103 S.W. (2d) 954.)
Conference oplnlon Xar 8985, .o?thl8 bqwtmmt,
writtag.February 15, 19=, by IL @raw Ckadler anb. at
louayCalhou&, .W3icrtarztaAttofnsjyGanua~ troltithat
a aofi&,tnmt for wkioh 6 pm00 oirioar la allaWe& a iea
a$ TOM,tQ.00) ~01la .%allor ex~utlng an order M"a
oourt 6lreat2ng that b p0r8tm be plaoed in Jaf& anU ,jm
0fSieat 1Lsnot allOiS& to &erg8 8-h tr* in the abtrmae
Pou are, therefars,re3pe&fully a&ir#d that
It i6 tiieopkuion 0r thl8 depaa-tmm, that ii the llcpII
atab2.s aotual3.yarmatadth~ dafeadent for operating a
motor tehiclc .nithoutllght6, utth or without v6trruttG
the ocnstablewmld beentltM.tmrTwe (&rW) &%~AAx
Han. Quincy Hawkfns, page 5
ree r0r arrest in this mt,tanoe. rr the 00mdbie a+
rested the detenciant~wltha warrant, for operating an
we i&wed vehlols, he would be entitled to a Two Dal-
3.4~"f tee.
$2.00) tii.rrdi If ha arrested him without a
war-t r0r thh 0rrense the arrest would be iuef3ax;
an& the ocmstablemuld not be entitled to an arreot
it30In this ln8tanoe. Ii the oonatable arrested the de-
readant r0r the orzenso or bnraL%Pnes~in a publio
pith a warrant, he wonbtl be entitled to a TWO (&2.08~"
Dollar arrest ret3in this inetanos. fr he arrsmted the
detendant r0r publio arunkem~asswit.3outa warrant, then
the arrest would be illegal an6 the acmetable wouM not
be entitle&to an arrest fee In thla lnstanoe.
If this defendantpleaded guilty to'eaoh oi.the
three llsted charges, and was fined by the justloe oi
the peaoe, thea the ooastable vm.M be entitleedto.suoh
ret38ai3he actually earned r0r t3uohServioes that lm aot-
ucil4 petrromned.If the ooastabletook and apprarrsd
bontlsfn eaoh of these oamm, in the manner outllaetlby
law, then, in that etent, ths oonetablewould be a&tibl-
ed to suoh rees .. un the other han(l,If he didnot take
and approve boncla, as outllned by the stat&S hb OO+
tdnly WOUND not be entithu t0 any tee rot tahne ad
approring bon-. If b&Et 4lQmldtDKolts were laroed la
eaoh oi the thres oases aM WON se-d by the OQL~%~Y~.
ble upon the defendant by plaoing the deicmdant tn Jail,
then, $.nthat event, the oonetabls would bo Ontitle to
a 0otYmiht re0 In edaoh0aSe. E0wevbr, lr only on0 oom-
mltment y.u loeued, and only (we oQEJpItmeat wae served
by t&e oonstable,he would only be entltled to On0 UQa-
rpit-t tee. If the oonstablo released the deiOndant
rxoa jail and ircm the roroe and effect or the three
juQmente restraining the defeendzsnt up02 th% erpintion
&~ hia t&leein Jail, then it is the opinion ot this de-
partmmt that the ometable inoul.6 bo entAt tO a te-
lsaae ree 0r One ($1.00)Dollar in eaoh 0r the thrae
e(ISee* It iS the n*rther Opinion Of this 6SpWtffIm
that the oonstablemwld only be entitlfd to tb m8tUd
mileage seat under ,hrtl.ob1068 ol:the Code of '6-l
Pro0edurs. In other words, the donstable is entitled Co
reseror such servioes as he aotuaZly pertonaed, ior
whiob the law prorides him ompaneation~ The ooastable
$6 not entitled to any reee ror ~MWV~O~O wbioh he does
not pe0x-h
HOU. ~uinoy Hawkhe, Pa4386
Under Article 1055, Code of Criminal Prooedure,
supra, the oounty would be liable to the oonc&able for
one-halt or all of the legal tees of the OoA8table au
above intioateb, where the defeACimt did not pay bJI#
fines and oosts ln oaah, but laid out hla fine8 an& ooats
In Jail.
Trusting that this satieraotorny auawers your
lnaulry, we are
Very truly yours
ATTORKEY O- OF TlDCM
WmJ.?')ob | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145189/ | OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Hon. Wayne Lefome
county Auditor
Clq county
Henrtetta. Tua8
Dear Sir:
to make a detail& audit or ell res oftioee
0r Clay County. Thie audit ehonw.that eaoh
offioer of Olay County had failed to eubmlt
sworn monthly axpnaa aooounte with the ex-
oeptlon of tha Tax Aeseeeor Colleotor rho
ha& submitted the reports ae required bT Ar-
tiale 5899 a8 amended, Fi.C.8. Immediately
tOllowIng this audit the ex offioiale 0i the
reapeotl+s offloee aeked the eo5mleeionere~
oourtto allowtheunto eubsitewommonthl~
expeae~ aaoounte for the year8 1937 an131998,
The eommlaslonoru~ aourt or Clay County ea-
tered aa order in it8 mlautee whloh is ae
follow8r To quote-
*Wo hereby allow t& offlosre to
eubmlt ewora moathly etatemente r0r tbr
year8 1939 enll1938 protidad we are aot-
la& l&hin our legal author;ltiy to do 8th
The b mthor1t.J whloh we refer to
sh a ll I?l b a se4
upon a suliasgof the At-
torney Gmeral, ae to our authority r0r
aoceptt.lyreport8 eubmltte4 ln the yeaT
1939 aovering the montblv reports rhioh
ehould hare been eubmltted in the par8
ot 19s'pend 1938.'
"In other word8 we want to only allow
the expeaeee whloh are just end OOrreOt ao-
ootiing to the etatutee of Texae.
Vhe o~~~&eelonere~ oourt or Clay ootm-
ty aOOept&%hC&mya3 AWOw of the XX
coalatyapesrmkai~ar 1998 nith the same
nee~tioa~~Irj'~~tb~~gard to emathlp regorte
with th$e eXOept$Qll,that the Uolmtt Fud$e'e
emital report iwi rgb$eot to em auW, Aa
tar a8 we are able to find the rinutor ef
the aommleelonere~ OOUI% iOr the your L.989
and 1998 do not oarry a zyoord st'any anauel
report8 being approved by the oomlmionere~
court.=
Ron. Wayne Lerevm, page S
As we OonetNe your question, you desire
to knw whether or not the oomleaionere~ oourt oan
legally allow axpeneee iaourred under Artiole 3899,
Vernon's Clril Statutes, end rrlatedtee statutes,
whsn the4county 0rriaftu fail to file their mnth-
ly reports for the years 1957 and 199B as required
by Art1018 3899, eupra, end who now want to file such
reports and olalm euoh exprneee.
Artiolee 6896, 8897, 3898, and Sootion (a)
of Artialb 5899, Vernon's Ciril Stetutee, reed as
r0u0w8 :
aArtlole 3896. To keee (Looounte
Xaoh dietriot, oounty and preoinot of-
tfOsr shall keep a oorreot statement of all
fees oarned by him end all eume Oomlq .into
his hands as depoeite ior 00868, tog&her
with all truet funds plaord in the r6 istry
0s tb 00wt. r-8 or 0rri00 ~rd 00!Qez eeione
la a book,or in booka to ba prorided him
for that purpoeo, In uhiah the off leaf, at
the time when euoh &posits are aude or euoh
fees end oaamieeione am earned and when any
or all of auoh fund+ ehall 6cmu .%utobin,
.han&S, ehell enter t&e eemo; en4 it Shell
be the duty of the oomty auditm in ootm-
ties haviw a oountp auditor to ennuallf
lxamlne the books aml iowmnts of euah of-
fioere and to report his findin& to 6ho
ne~~ooeeding graad jury or dfetriot
In aotitiee havine no aouaty audi-
tar, 'gt shell be the duty of the Ocpesai86iOIL-
era' aourt to make the ezeminati0n of said
books and accounts or have the eemtamade
and to-meke report to the grand .Jury ee
herelnebor, provided.
*Artilale3891. Grrornstatement
&aoh dletr~ot,~Oounty and pI?eOirlOt
Of-
fiaer,at the dloee of eaOh ffeOa3.year
(Deoembsr Slat) ahall makm to the dietrlot
oourt of the oounty In whloh h6 reeldee 8
eworn etatoment la trlplloate (on forme de-
816Md and approred by the State Auditor)
a oopy of whlah statement shall be forward-
ed to the State Auditor by the olerk of the
6IetrIat ooart of said oounty wlthla thirty
(SO) days after the saw has been flied in
his orriaa, ena oae oopy to ba silt36 rith
the oounty audItor,.ir ally)otbmrwIw said
oopy shell be filed with the OommIealenere~
oourt. Said report shell show the emount
of all fees, aonmIeeIone end eampeneatlone
whatever earned by @aId orfloor durlq tha
fl8Oalyeari and esoondly; rrhallshow the
emaunt of fess, conmissIons end bcrapenea-
tlone oolleoted by hla during the ftioal
year; thirdly, said report shall om*lLn
en ItemIwd statement of all fete,,doWe-
alone and ooqemeatlone earnod durl&~the
fleoal year whIoh were not ooltiokd; .M-
g&her with the n6sia0s the partt~owi*
said fees,.oommleeIone and oaapmnea~ione.
Sal6 ~report ahell be filed llotlater than
February lint?; ol.$owlng.the @lore of the
fleoal 1 eai:Aa
I.‘,. ‘for. eaoh day after said date
thab ea 6 report reaalue not fllod, said
ofrI8vr r&ills1e liable 80 a penelty of
Twenty FIv6 ~#arS.,OO) DollaPe, tilah may be
reoovered by thenoounty in a suit brought
for ewh purpotme, and ln addltlon said or-
rioer shall be eubjeot to remowbl from
0rri0s.
“ArtiOla 3898. Fleoal m
Tha fieaal pear tithln t& meaning or
this Aat, ehall be& an Jaxmery let of eaoh
year4 and aaah dietrIatt,oounty a pmolnot
oiilasr she.%1Silo hle reperk end maka the
tinal eettlemant required in this Aot not
later than Pebrunry let or eaoh yea28 pro-
fided, however, that cgrioore reoaitinig ,ti
Eon. Wayne br~Yr0, page 6
annual ealery aa aamponeatlon for their
eorviaoe ahall, by the olnee or osoh monthr
pay Into the OrflOor8*Salary Fund or funds,
all fees, oommIeelone and oomgoneatlon
oollsoted by him duxlag eald math. when-
etor euoh affloer aortae for a fraotlorul
W8 Of ah0 fiSO@i YMZ, h0 8Wi MV8rth0-
loan rib hle report and m&o fiati eettlm-
want for euoh part of tho year M ho servos
and shell be ontitled to 6uoh propotilonato
part 0s his oomponeatlon ae tho time rm,
his eorvloo boars to the entire year.
“AktlOlO se99. &~oneo aaoount
(a) At the aloea of rash mouth of hle
tsaux0 0s 0rrh oaeh ofrloer aem6 heroin
rho Is ooatineatad on a fee basis shall
meke as part of the xoport nw raqulned by
law, mIte&aod and mworn etat~ontofall
the aotuelend noooeeary oxponeo~ Inourrod
by him ln the oonduot of his offiao, woR
ae etati4inory, stews telo hone. promIwe
on offIofti8* bonde, inoludL th0 0086 or
surety bonds for his mputlee, pramlum on
fin, burglary, theft, robbery lneurenoo
protooting pub110 funde, travel&g ixs=
sad other naooeeaxy expensoe~
eionor8~ oourt of tha oountp.oS the ahoxifr*e
reeldonoe may upon the wxltten and em*0
applloation es tbe Bbsrtrr stating fihe no-
~eeeity therefor, purohaeo equipment ior a
bruaau of ociminal idontlf:oat~Qn euoh M
oamorao, finger print 04rde. Inke, ohomIoaL8,
mioroeoopee, radio and laboratory oqulpmont,
ill* bard& filing oabinrte, tear gae aad
o th elqulpmont
r In keepIn wtth the 89’8t08I
In use by the ~Depaxtmontof Pualio Gafot~
of this State or the United States DepaIt-
ment of.Juetloo and/~ Bureau or QrImlwl
Identifloatlon~ Y euoh scrponeeebe Inourrod
‘inaonmeatlon with eny partloular oaeoo euoh
etatomantehalln~ euoh oaeo. &uahorgoaeo
Iion.wa.y-no
Lorowe, page 6
aooount ehall bo oubjeot to the audit of
the Oounty Auditor, IS any, othorwleo by
the CowIeelonere* Courtt oad ii it appears
that any ltom of euoh oxponra was not la-
ourrod by euoh offloor or euoh Item wae not
a noooeeery oxperma or 0rri80, euoh Itu
shall by ouoh auditor or oourt rojootod, in
whloh oaee the aollootlone of euoh ftomuy
bo edjudlaated in any aourt of oanpotont
jurlediotion. The 80ount 0s eahrlee paid
to Aeeletante end Deputies shall also bo
oloarly shown by euoh offloor, giving the
name, position and amount p a idlixohg.and Ln
no event ehall any ofrIoor show any groator
amount than aotually pa%&any euoh AeeIetent
The emcunt 0s euah exponeee
~~g%ECyiith the emount or ealarIoe paid
to Aseletente, Doputlee and Olorke shall bo
paid out or the fee8 earned by luoh Offl@@r~
The oo5mIeelonore~ oourt 0s the aonuty of
the 8horlff'e roeidknoe may, upon the rrittoa
and euorn applleatlon of.tho aherIff.eta~
Ing the nooeeelty therefor, allow qe or ‘more
automobIloe to be us&d by the 6horif$ in the
dleohar@ of his offlolal dntl~e, rhieh. If
purah&eod by the Oo\oty, ebell be bou&ht In
the mannerpmeorlbed by law for the pnro~aeo
or euppllae .and paid fbr out 6f the Gemral
Fund of the oounty end thoy ehall bo and ro-
main in the property 0s the oouaty. The
oxp@neo of malntonanoo, doproolatlon and opew
at&on of euoh aut0mobllee as may be allwod,
whether purohaeod by tho oounty or waod by
the sheriff or’hS.8Deputies QereonaLly, shall
be p,aIdfor by the sh0rirr and tho omowlt
thereof shell bo reported by the Sheriff,
on the report above mentloxwd, in the Sam0
manner as herein provldod for other orprwee.”
It 1 slrldont that the Logtelatwo Intended
enoh monthly roporte~bo form a art or th6 fleoal an-
nual reports M required by ArtP 010 5891, eupra*
This 8tatute alone dose not oover the subjsot Or Ox-
penees as set forth in Art1010 9899. In order for
rim settlemat to be aad0 a8 requirea br utioi0
5898, it is a neoeseary prerequisite ior both, the
aonthly report and the annual etatement to be made by
the 0rri0Or8.
Artiole 1OZ 0r the Penal code read8 a8 rob
lOW8 I
*Any 00uaty 0rrioer or any diatriat.at-
tiorneyto ahcm is08 or costs are allowa
by law who rhall fail to ohuge up t&s is.8
or oosts that mar be due under existing law8,
or who ahall remit any fee that may be due
un&er the laws, or who rhall fail to nmke
the report wqulred by law, or who Ohall
pay hi.86eputy. olerk or asels~aut a 3.088
8mn thsn~8peolflOd in hi8 8wol-aetatemont,
or rsoelre baok aa a rebati any part of the
oompon8ation alloueb 8uOh demty, olo?k or
w8i8ttant, 'ahall k rind not 106~ thui
*mpriv0 nor more thw iit0 hundred 4&i
lar8. Saoolmot rorbiddon br thl8 artlou.
i8 8 80pw8te 0rrw80.*
3lt'uUlbe noted that under Beation (aj d
Artiole 5899, :mipa, applloable to ree orriwrs or
the oounty, requires eaoh orrio n0md in th0 maxi-
mum r00 law (now Artioler S8834891, Vernoa*u Oivil
Ststutea, as emended) to make a monthly itwiaed end
sworn rtatement~or all the aotual amI neoessary ax-
~4$86~ hOU?rCrd by Owh orrioor,in,th6 oonduot or hi8
.
Apgarently, it was tht ,intention-or thO ISa-
islature in prOYiUI& thi8 aOUOWM.Ilg pmOOdW0, to
errorb proteotion b oountiei and make it easier ror
their ff.nanaie.l agents to ohQOk up aad iallOw th0 0~
pend$ture8 0r,rbd8 OR behalr ai the oounbimr ror no-
oe~eary ~pplles‘ and other items laantioned~ tn Alctiol*
8899, aupra, when suoh expenditure8 are m&I W it8
oirioere.. fdoA8kfllr.:Besar County @&.A.~, 1995) 880
8.W. 891, writ Ul8lnlseed.;
Hon. wayw urerre, page 8
In State v. ~arM8 (O.C.A., 1937) 108 S.W.
(2d) 397, the oourt speaking or a statute requiring
the eherirt to 8ubmiC itemized ana verlrled looouuta
whioh ha had not don8 in the manner provided by
statutes saldr
Wh8 rrtatulm were eubstantlally oom-
~1106 with. The nqulremont relating to the
r0xm In whloh sherlrree OXpenditWJS ror
thlr purpo~ are to be premnted to the Cm-
mlseloners~ Court were not lntwded as llml-
taflonr on the power of that body."
In the reoent ofxm Or Pimron t. &dVeStOn
County, 131 S.W. (ad) 27, deolded by the Austin Court
or Oivll Appe@l.~,the lseurror oertaln lump mn items
Olalmd by Pleroon as reimburse!aents for postage,
traveling eIcQenSeB anb mesaengsr srnioe wae berore
the oourt. The raota di8OiOSed three lump aum item
oontalned in Pierson annual report ror 1933 and 1936,
and furthm, that Piers0 made ao numthly 8tatementr
as required by Aroiole IJBQQ,aupra. we qu0k rmm
the oplnlon rendered by the oourt in this oaw a8
r0ii0w I
"Thie statute was oomplied with at the
beglnnlng or 1933 and the &puts authorlecrd
and her salary fixed at $dO per month. To
grant or approve a'salary raiem 'tooperate
retrompeotirely would, ww hold, be a clear
rlolatlon or our state oonstltu4~oa~,Art. S,
8 33, v8lllOll'S
Annotated Statute8,~smpirr
@a8 a Fuel 00. v'.State, 181 'hzr.YLi.S,
47 3.
W. (2d) 28s Turner V. BarwS, Tex. OlVl APp.,
19 S.W. (2dI 826, arrlnnsd On other p0wd8i
Tax. Qom. App., 27 S.W. (26) dS2. The rule
laid down 2n Cameron County v. Fox, Te+ OOra4
App., 61 8.W. (ed) 43s. Is not appliaabl@
hero. There the tax oolleotor, tithout pre-
rloua authority, employed Sod p a id
lil.aXieU
to deputies the item beiag reported fn hi8
aooount, whioh wee audited and approved by
the oonuaimionere* kourt. St wa6 held that
Hon. Wayue Lsfene, page 9
it was not esssntlal to obtain approvai in
advanw or employment or depltiesy thit the
0OlDD.iIB8iOIlQl'8'
OoUrt had POWer t0 ratLfy
what it had ths original power to author&e.
Hers the spplloatlon had been mad8 ana ths
salary ilxsd by the oaumlesloners*~oourt in
sdvanae of the servloes poriormed thereunder.
The ooo11pis~loner~~oourt elearly had no pow-
er thereafter to lnoreaae the salary ror
~ervloes alread performed under authoritf
or its order. ii e vaiw or thu 8ervioes
psrrormsd oannot be inquired into. Nor is
it material that the justioe astually paid
the fill 096 to the deputy eaoh month as tim
senlaes werm rendered.
Vhe other reoovered ltemrrin dispute
wsre thoss in the roiiodng quotation rrr08i
Pierson's 1938 and 1936 annual reports:
198111 1936
POStage ............ $60. POStS@.........#85
Traveling Zxpsnsss.. 60. Trareling Sxpen. 30
Messenger Servloe... 26. Yessenger Serv. 18
?Plereen made no monthly statements aa re-
qulred In the iollowlng portion of R&.8.,
Art1010 88991 'At the olose of eaoh month oi
his tenure 0r suah orrioe eaoh otrloer whose
tees are arrsoted by the provisions Ot‘thls
lawshallmaks as a part ofths report 2101
required by law, an ltemlsed and sworn state
meat or all the aotual ma usoessary sxpenser
lnourred by him in ths oondust of his ofr&oe,
suoh as stationery, stamps, klephone, travsl-
ing expenses and othsr neoessary expense* fr
suoh erpenae be lmurred in somsotlon with
any partioular oase, moh statement sh@ll
nsae sueh owe. Suoh oXpen aooount Shall
be subjeat to the sudlt Of f&s county audtter,
it any, snQ fr it appear that any itsm Of ruoh
expense was not lndurred by mob officer, (~1:
that BuOh item wns not ne~aoBBarythereto,
auoh item may be by mush auditor or oourt
reJ*oted. h nhloh 0888thOO0CmOtAOBS Or
suoh item may be adjudloated in any sourt'
or oompeteat jurlsdlotlon. * * * 9
c “Thr SLaIkirOStpUrpOB0Or thi8 St8tUtO
was to provide a sma ns
o r lsoertalning the
oorreotaess of lxpeuse itsau eashmonth a8
they are lnourrsii. The aotualexpense8 paid
or lnuurred oonstltute the msasure of the
OrriOia’B right to rsooupment. The monthly
ltemlsatlon ls ror ths proteotloa or th8
oounty by ariordlq a~mesns or asaerttxining
the raot and amormt or 8ueh olaimed item 0r
expense and whether it was~propsrly ohar&a-
lb& as moh$ It 18 manirest rmmt& annual
&~K&B and donfl~dbythe evidenseflist
these expeasss were merely ostlmatsd and a
lump sum given eaoh ysar.. l%e,.statutewculd
b8 Or A0 ~81110it it8 ul\l)or)r z’orfSiOn8
oould be evaded ln this mannsr t *holdthe
itOQ8 properly disal&wed by the oamni8~ioaaB~
OOUl't+tutathe trlsl OOWt'S ~ud&Bwtt oorreoh
in deiiyingr800vary thereror.*
Under Art1010 3399, supra, cash orrioer ,fs
required, as apart orhlrmonthly report, tomake a
8tatement of ths expenses laourred by him in the oon-
duet or hi8 offloe; and it is provided that the ammint
thereof shall be deducted by the orrioer in making
th@ rSpOZ% rEOI!J
tb t!KUOUtOr OurXTdi rOO8, ir My,
am by him to alo omanty.
The aoaount is subjaot to the audit of ftu
.cwuuty audit&r, if any, or othenrlss by the oesmls-
BiOMUrB’OOUEt.
Ordin8rily BtatUt@S that m&ate anb~prO8srlbs
the time within whiah sn orfioer 8hal1 perform speel-
iled hatlea are regarded a8 msrsly dlreotory %u8oia?
as the t&no 18 oonoerned. Though, ths 0rri00r neglsotr
Eon. Wayne &fern, peg* ll
to set within the t&B prBBerlbed, it he acts rfterc
warda the publla till not be perriMe to auffqr by
haerea crude oil ao. Y* forratw oil ao.
iii@8%?&., Wt Tl’MhUt Y. Add~OeS 8 T@X. 8191 TOX.
fur., Vol. 34, p. 466.
ForLr8 gr6nt6d t0 orrioer8 anut b elxer8l8-
66, sad dUti.8 ippO864 ou them-t be perioawd in
the menner pretmrlbed by per-
law. An orrloer la not
mltt6d to vary the pr68orlbed m&e of periornunoe oi
hi8 duties. oamp To TEQaa8, 88 8.W. &d) 490; Bryaa
Y. Sundber$ S Tex. 4l8~ Tex. Jur., Yol. 34, pe 456.
We an rindful of the rule that what the oaa-
riB8iOIA6rS*.OOWt oould 8UtEOhSO first iMtM66, ia *
lt may ubssquently ratify, botu6 oaa 866 no l pplioa-
tiOn to the SitUatiOA lot b-4 U&IOU SU8h raBt8 M prr-
sent66 to this departmenta pioblio o?floex8 are 6hrg6d
with kakrled~ oi the &tie8 h&t0864 upon the8 br
law and uh4tm the ~qLBlatum has pn8oribed a pnxm-
dure sad maxma ior the pmriozmaaoeof amh datie8,
they 6am6t i@6re sush p?6Oedure or oh0686 other
&&hhodS end the above Quot#a sta&utes prmUe the
method andmennor by whl6hofflosr8wZm aze ooapoamt-
l4orrat~b~~~~l~pncclnt~aPt~a~ and-a
statement or all th elOtu8l neaes*a~ 0rgm808 in-
owr66 by them in the 0-wt or t&e* Offl668 at tlw.
olose of 6aamnth oC+brir tenomu of oftioo. Cltwh
Up6M6 80BOU8t Bhan 86 SUbjOOt t0 #6 8Udit Or th0
oountr endltor,it a!ay, otherwin by tho 6dssIOn-
ore* oourt end ii it appears that fte&.Qi Suoh
expense N not laourre4 by such 0rr "T owe o;r,eneh itu
yas not n060888ry upon86 or 0rri66, suoh lws tWll
be, by swh ludltot or oeWrt, m rated, ia rhish oM6
the,6oll6&ioa 0r Swh rtem may i6 6djodloat6d in any
006x-tor 66mp6tsnt jnrf.8dlotioa~
Not only %S it tE6 duty Of an OiiiOW t0 SakO
hi8 JXtpOl’tB a8 l-@p?;il?@dby &tiOb -08, SUQr8, bUt
ArtloSe 108 or the Petml U6d0, above qaot64, ma&a8 it
a penel orfenss ror fallur~ to 6kaW Ohs r6ports as re-
qubed by the StStUt68.
Ohder the raets prenntdl in ytwr lnquirj, the
Eon. Wayne Lerevre, page 12
OoLtatyclerk substaatlally camplied with the requl?e-
meats of Artlole 3899, in filing 22 monthly report8
during the years of 1939-1938 sad Should reoelve the
benefits 0r these reports for the months ror whioh
they were riled.
Ia viewthe roregoiag authorities, rol)
or
are reppeotfully
advised that it is the opinion #f
this department that 6OUItty OrfiOidS who ars oma&en-
sated on a fee bCiSi8who tail to m&w their monthly
reports as required by Se&ion (a) of Artla3s 3399,
supra, ior the ysars 1939 and 1998 oannot file suah
reports at this tim cad olaim BuOh erpensS8 as nigat
have been sllowed under the monthly reports had they
been flleU in ooapllence wlth the 8tatutes requiring
a monthly report to be filed at t e close of eaah
month of their tenon, oi offioe*,4 I6DweYer,this opia-
ion iB not to be ,ooast?ued88 holding thtitthoss Offi-
oers who ialled to make the required monthly reports
are not entitled to the sOtu& lts8iSOf 6XPSn8OB a8
oen be deterd.ned, frost01ee.rsnd oomiaoiag Proof
to &iv8 been aotually and neoeBearil inourred by
the lsgal ooaduot 0r their 0Frices upon a
gCLdai;in
~g+~~~wlng to the oormty emdi.tor and eommlBeion-
We are of the opinion that suah expeMe8
as OSJJbe &own to be oorreotby proper method8 other
than the monthly reports oan be allowed.r/
Trusting that the roregolng~ rally ansrsers
your inquiry, vm are
Yours Yew truly
ATTORWSY
GXl!ERAL
OF TEXAS
AW:ob | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132499/ | The Honorable Bob Armstrong Opinion No. H-881~
Commissioner
General Land Office Re: Constitutionality of
Austin, Texas 78701 statute granting to City
of Corpus Christi condi-
tional title in submerged
land previously set aside
for school fund.
Dear Commissioner Armstrong:
In 1971 the Texas Legislature enacted an uncodified law
granting the City of Corpus Christi submerged~lands in
Corpus Christi Bay to use as a public beach without compen-
sating the permanent school fund. You have asked whether
the statute attempts an unconstitutional grant of school
lands.
Because it is not found in the codified compilation of
Texas statutes, the pertinent parts of the rather lengthy
1971 provision are set out below:
Section 1. The City of Corpus Christi,
Texas, a home rule city, desires to restore
and maintain a recreation beach, commonly
known as Corpus Christi Beach, and intends
to accomplish this purpose acting in con-
junction with the United States Corps of
Engineers, and other agents and contractors,
and as a result of a survey and report made
by the United States Corps of Engineers,
such restoration has-been found and deemed
to be feasible, and the project has received
Congressional authorization.
The Honorable Bob Armstrong - page two (PI-881)
Sec. 2. In furtherance and in aid of the
above objective there is hereby granted to
the City of Corpus Christi, the United States
Corps of Engineers, their respective agents
and contractors, a construction easement, on
the lands described in Section 3 of this Act,
for the purpose of allowing such city, the
Corps of Engineers, their agents and con-
tractors to conduct dredging, filling,
excavation, and all necessary operations,
without payment to the State for any fill
material of any kind or character removed
from the borrow areas described in Section
3, in furtherance of the purpose stated in
Section 1, on the lands described hereinafter
in Section 3, which lands are owned by the
State of Texas or in which the State has
title or interest. There is expressly
excluded from the provisions hereof any
vested private property rights.
Sec. 3. The lands to which this con-
struction easement is granted shall be
described as follows:
TRACT1
[Description]
TRACT.2 - Proposed Borrow Area
[Description]
TRACT 3 - Alternate Borrow Area
[Description]
Sec. 4. Insofar as the State of Texas
has jurisdiction and authority over the waters
which all or any part of the land described
in Section 3 underlies, grant is hereby made
to the City of Corpus Christi, and the United
States Corps of Engineers , or their contractors
and agents to conduct all operation necessary
in furtherance of the aforesaid objective in,
through and upon said waters.
.p.3709,
The Honorable Bob Armstrong - page three (H-88I):
Sec. 5. The grant of authority herein shall
extend to contracts let in furtherance of the
objective stated herein whether let jointly
by the City of Corpus Christi and the United
States Corps of Engineers, or by either of
them acting alone.
!rs
-
subject to oil and gas directional drilling
only and off-site mining of other minerals.
Sec. 7. All laws or parts of laws in
conflict herewith,are hereby repealed to
the extent of such conflict.
Sec. 8. If any word, phrase, clause,
sentence or part of this Act shall be held
by any court of competent jurisdiction to be
invalid or unconstitutional, or for any other
reasons void or unconstitutional, it shall
not affect any other word, phrase, clause,
sentence or part of this Act, and such
remaining portions shall remain in full force
and effect. Acts 1971, 62nd Leg., ch. 883 at
2708. (Emphasis added).
Section 6 grants Corpus Christi a fee simple determinable
in Tract 1, an estate that will last as long as the land is
used for a public beach. See Eyssen v. Zeppa, 100 S.W.Zd
417 (Tex. Civ. App. -- Texzana 1936,writ ref'd); 22 Tex.
Jur.Zd, Estates 9 7; Restatement of Property §§ 23, 44.
The Honorable Bob Armstrong - page four @-I-8813:
Section 2 grants Corpus Christi, the United States Corps
of Engineers, and their agents and contractors, a construction
easement, which permits them to excavate and remove fill
materials from the borrow area in Tract 2 or 3. The Act
does not provide for compensating the public school fund for
the grant of Tract 1, the removal of materials from the borrow
area, or any other use of the property encompassed in the
construction easement.
We will first consider the grant of Tract 1 to Corpus
Christi, the validity of which turns on whether the land has
been dedicated to the permanent school fund. Article 7, section
2 of the Texas Constitution determines the components of the
permanent school fund.
All funds, lands and other property heretofore
set apart and appropriated for the support of
the public schools; all the alternate sections
of land reserved by the State out of grants
heretofore made or that may hereafter be made
to railroads or other corporations of any
nature whatsoever; one haif of the ublic
domain --
of the State; ~ndl~um~o mone
fhatmay come toe
-- Statgrme -%?
sa e of
Fportionf -- same . . . .(jEm$%isdded).
Article 7, section 4 requires that these lands be sold.
The lands herein set apart to the Public
Free School fund shall be sold under such
regulations, at such times, and on such
terms as may be prescribed by law . . . .
This provision prevents the Legislature from giving the land
away, although it might postpone sale and instead lease the
land. Wheeler v. Stanolind Oil & Gas Co., 252 S.W.2d 149,
;;;o,(Tex. Sup. m52); Reed v. Rogan, 59 S.W. 255 (Tex. Sup.
.
Article 7, section 5 governs the disposition of proceeds
from the sale of school lands.
The principal of all bonds and other funds,
and the principal arising from the sale of
the lands hereinbefore set apart to said
school fund, shall be the permanent school
p; ,37X:
The Honorable Bob Armstrong - page five (H-881)
fund . ., . . And no law shall ever be
enacted appropst=g-any part ofhe
permanent . . . school fund to z other
purpose whatever . . . (Emiihasisadaed).
These constitutional provisions render the Legislature
powerless to make a free grant of school lands. Moreover, once
the Legislature has dedicated land to the permanent school
fund, it may not withdraw it. The Texas Supreme Court in
Hague v. Baker, 45 S.W. 1004, 1005 (Tex. Sup. 18981, stated
that azim, section 2, "fixed the right of the school
fund in one-half of the unappropriated public domain, but
left the legislature . . . with extended authority over the
segregation of that interest . . . ." The Court went on to
say that "where the legislature has taken affirmative action,
and has provided pro tanto for the segregation of the interest
of the school fund, its action is final . . . .'I Id. at 1006.
It was held in E&v. State, 84 S.W. 607, 611 (Texxiv.
App. 1904, writ refq),t once it appropriated lands to
the school fund, "the Legislature could not by subsequent
legislation change or destroy the character of these lands as
public school lands . . . .'I In 1900 the Settlement Act
settled permanently the division of much of the public domain
but excluded lakes, bays , and islands on the Gulf of Mexico
within tide water limits. Acts 1900, 26th Leg., 1st C. S.,
ch. 11 at 29. When the Legislature subsequently placed
lands excluded by the Settlement Act in the public school
fund, its decision was also final as to them. Attorney
General Opinion M-356 (1969).
In 1941 the Legislature enacted article. 5415a, V.T.C.S.
The pertinent portion of that statute reads as follows:
Sec. 3. The State of Texas owns, in
full and complete ownership, the waters
of the Gulf of Mexico and of the arms of
the said Gulf, and the beds and shores of
the Gulf of Mexico, and the arms of the
Gulf of Mexico, including all lands that
are covered by the waters of the said
Gulf and its 'arms, either at low tide or
high tide, within the boundaries of Texas,
as herein fixed; -----
and that all of said
lands --
are set apart -and granted --
to the
p. 3712
The Honorable Bob Armstrong - page six (H-881)
Permanent Public Free School Fund of the
State, andmbeeT?f-%?mbenefit
ofe Public Free School Fund of this
State according to the provisions of law
governing the same. (Emphasis added).
Grants of lands under navigable waters are strictly construed
against the grantee, and any ambiguity will be resolved in
favor of the State. State v. Bradford, 50 S.W.Zd 1065, 1075
(Tex. Sup. 1932). The Supreme Court has said that "before a
statute will be construed to include land under navigable
waters, such as river beds and channels, it will have to be
expressed in plain and positive language and not in general
language." Id. We believe that the underlined language of
article,5415axpressly and unambiguously grants tidelands
and submerged lands to the public school fund. Moreover, it
has been construed to have made this grant. Butler v. Sadler,
399 S.W.Zd 411, 419 (Tex. Civ. App. -- Corpus Christrl966,
writ ref'd n.r.e.); Attorney General Opinion M-356 (1969).
In view of the clear language dedicating submerged glands to
the permanent school fund and the inability of the Legislature
to revoke its grant, we conclude that,the Legislature could
not constitutionally grant Tract 1 to Corpus Christi without
requiring compensation to the permanent school fund.
Section 2 of the 1971 Act grants a construction easement
over all three tracts in furtherance of the Corpus Christi-
Beach restoration project. We believe that the grant of.
this easement was inextricably intertwined with the grant of
the restored beach to Corpus Christi. The invalidation of
section 6 impairs the purpose underlying section 2 so that
the latterprovision cannot stand alone.
Although the Act contains a saving clause, it has no
meaning when sections 2 and 6 are removed. Therefore, we
believe that the 1971 Act is unconstitutional in that it
violates article 7, sections 2, 4 and 5 of the Texas
Constitution.
p. 3713
The Honorable Bob Armstrong - page seven (H-881)
SUMMARY
An Act granting the City of Corpus Christi
submerged lands without compensation to
the Public Free School Fund is unconstitu-
tional in that it violates article 7,
sections 2, 4 and 5 of the Texas Constitu-
tion.
_Very truly yours,
Attorney General of Texas
APPROVED:
jwb
p. 3714 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132502/ | The Honorable L; J. Lacina, Jr. Opinion No. H-878
County Attorney
Washington County Re: Whether an MH/MR
P. 0. BOX 557 state school is entitled
Brenham, Texas 77833 to a distribution of the
available school fund or
the county permanent.school
fund.
Dear Mr. Lacina:
You have asked for our opinion on four questions involving
the available and permanent school funds for Washington County.
Your first two questions concern whether the Brenham State
School Independent School District is entitled to a distribution
of the state available school fund or the county available
or permanent school fund.' The district was established by
Acts 1973, 63rd Leg., ch. 200 at ~450, and is part of a
statewide entity, i.e. the Department of Mental Health and
Mental Retardation,7th the Texas Board of Mental Health
and Mental Retardation acting as "ex officio trustees."
You ask:
1. Is the Brenham State School entitled to
a share and distribution of the available
school fund?
2.. Upon
__ distribution
_ of the permanent
school fund pursuant to Section 6, Article
7, of the Constitution of the State of
Texas, is the Brenham State School, a
facility of the Texas Department of Mental
Health and Mental Retardation, entitled to
a share in the distribution?
p. 3697
The Honorable L. J. Lacina, Jr. - page two E-878):
In answer to your first question, article 7, section 5 of
the Texas Constitution, which establishes the state available
school fund, provides in pertinent part:
The available school fund shall be applied
annually to the support of the public free
schools. And no law shall ever be enacted
appropriating any part of the permanent or
available school fund to any other purpose. . . .
(Emphasis added).
We also note that the Constitution "provideCs1 a permanent
fund for the support, maintenance and improvement" of facilities
for the mentally retarded on a statewide basis, rather than
for each individual county. Tex. Const. art.~ 7, § 9.~ Further,
the Education Code, which is applicable to and generally governs
Texas schools, does not provide for the school districts of
the Department of Mental Health and Mental Retardation. Section
1.04 of the Code provides:
(a) This code shall apply to all educa-
tional institutions supported either wholly
or in part by state tax funds unless specifi-
cally excluded.
(b) This code shall not apply to those
eleemosynary institutiozunder tE control
and direction ----+-
of the De artment XMental
Health and Mental Retar ation or tothe
institu=ns and activities of the Texas
Youth Council. (Emphasis added).
In our opinion, the Brenham State School is not a "free public
school" in the constitutional sense and is therefore not
entitled to a share and distribution of the state available
school fund.
Your second question involves use and distribution of the
county available and county permanent school funds. Since
the county available fund was created "for the benefit of
public schools" within each individual county, the Brenham
State School is not entitled to a share or distribution of
this fund because the school does not qualify as a "public
school" in the constitutional sense, and the students of the
school are not necessarily residents of Washington County.
(’ !
_.
The Honorable L. J. Lacina, Jr. - page three ("-87S):
Tex. Const. art. 7, §S 5 and 6. See Education Code, fj1.04.
With regard to the possible sale ofcounty permanent school
fund land. under article 7, section 6b of the Constitution,
the use of the funds are limited to "reducing bonded indebted-
ness of those districts or for making permanent improvements."
We note that the Brenham State School, as part of the Department
of Mental Health and Mental Retardation, is state funded and
has no bonded indebtedness and that permanent improvements
are awarded through the Department; therefore, article 7,
section 6b has no application to the Brenham State School.
Thus, we also answer your second question in the negative.
Your last two questions involve distribution of the
county permanent school fund under article 7, section 6b.
You ask:
3. Upon distribution of the permanent school'
fund to the respective school districts entitled
thereto, may the school district invest,its
share in these funds pending application of
the funds toward payment of bonded indebtedness
or construction of improvements?
4. If a school district may invest its funds,
peAding use for the constitutionally permitted
purpose, is the interest earned on such funds
available for use by the district for purposes
other than retirement bonds or construction of
improvements?
Article 7, section 6b, which was adopted in 1972, provides
that
any county, acting through the commissioners
court, may reduce the permanent school fund
of that county and may distribute the amount
of reduction to the independent and common
school districts of the county on a per
scholastic basis to be used solely --
for the
purpose of reducing bonded indebtedness of
those districts or for making ermanent -
improvements. (zphasisd .
The Honorable L. J. Lacina, Jr. - page four (E-878)
In your brief, you stated that, logically, the distributed
funds could not be immediately applied towards reduction of
bonded indebtedness or construction of permanent improvements
and that investing the funds in the interim period would
insure that no earnings would be lost to the school children
of the county. You have informed us that the deposit of the
funds in an interest bearing account will be a temporary
measure until currently obligated payments to bondholders
or contractors become due, and our decision is based on this
premise. The language of article 7, section 6b is of recent
origin and has not been interpreted by the courts; however,
we believe that the investment you suggest is permissible as
long as the resulting income (interest) and the principal
are not expended except as directed by the constitutional
amendment. As trustee of the fund, the Commissioners Court
may have a continuing obligation to insure that the fund is
~spent~for the constitutional purpose. See Attorney General
Opinion M-1104 (1972); We therefore an=r your third
question in the affirmative; however, we must answer your
fourth and ~final question in the negative. The interest
earned on the funds pending their use for the constitutionally
permitted purpose is part of the "fund" and may not be used
except for the sole "purpose of reducing bonded indebtedness
or making permanent improvements." Tex . Const. art. 7,
i 6b: -See Attorney General Opinion H-391 (1974).
SUMMARY
The Brenham State School is not a public
free school in the constitutional sense and
is therefore not entitled to a share and
distribution of the state available, county
available or county permanent school funds.
The district may temporarily invest the
distribution of the county permanent school
fund pending its use for the constitutionally
permitted purpose; however, the interest
earned must also be used only for the reduction
of bonded indebtedness or construction of
permanent improvements under article 7,
section 6b of the Texas Constitution.
Attorney General of Texas
p. 3700
/ ,
The Honorable L. J. Lacina, Jr. - page five (E-878):
APPROVED:
DAVID M,+ENDALL,
jwb
p., 3701 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132511/ | The Honorable Robert E. Schneider Opinion No. H-869
Executive Director
Texas Water Rights Commission Re: Whether section
P. 0. Box 13207 25.031(c), Water Code,
Austin, Texas 78711 authorizing special
districts to purchase a
portion of the capacity
of a regional waste dis-
posal system, can be
applied constitutionally
to bonds authorized prior
to the passage of the
statute.
Dear Mr. Schneider:
YOU have requested our opinion regarding the authority
of a special district to use bond proceeds to purchase a
portion of the capacity in a regional waste disposal system.
your first question is:
whether Section 25.031(c) (Water Code] is
a constitutionally valid authorization for
Inverness Forest Water Control and Improve-
ment District to use the (previously voted]
bond proceeds . . . to purchase capacity in
the Gulf Coast Waste Disposal Authority's
regional sewage treatment plant. . . .
Section 25.031(c) provides in pertinent part:
Notwithstanding any provision of this
chapter or any other law to the contrary,
a district may use the proceeds of bonds
issued for the purpose of constructing a
p. 3663
The Honorable Robert E. Schneider - page 2 (H-869)
waste disposal system or systems, and payable
wholly or in part from ad valorem taxes, for
the purchase of capacity in, or a right to have
the wastes of the district treated in, a
waste collection, treatment, or disposal
system and facilities owned or to be owned
exclusively or in part by another public agency,
and a district may issue bonds payable
wholly or in part from ad valor-emtaxes
specifically for such purpose if a majority
of the resident electors of the district
have authorized the governing body of the
district to issue bonds for that purpose
or for the purpose of constructing a waste
disposal system or systems.' The bonds
shall be issued in accordance with the
provisions of, and shall be subject to the
same terms and conditions of, the laws
authorizing the district to issue bonds
for the purpose of constructing waste
collection, treatment, and disposal systems,
except as otherwise provided in this sub-
section.
In brief, this question turns on whether section 25.031(c)
of the Texas Water Code, as to bonds authorized prior to its
enactment, alters the result of Attorney General Opinion H-
567 (1975)r which indicated that proceeds from the sale of
bonds in 1965 by Inverness Forest Improvement District could
not be used to contract for sewage disposal services where
the district would neither own nor operate the facilities.
While section 25.031(c) is designed to permit the "purchase
of capacity" type transaction which Attorney General Opinion
H-567 (1975) held'to be unauthorized, the enactment of that
section does not change the basic results of Opinion H-567
concerning the Inverness Forest "special district."
First, there is the obvious problem of applying
section 25.031(c) retroactively. Tex. Const. art. 1, 5 16.
Second, as initially determined in Attorney General Opinion
H-567 (1975), bond proceeds may only be used for the purposes
for which they were voted. It is clear that a resolution
calling a bond election becomes a part of the contract and
agreement between the voters and the District, should the
voters authorize the issuance of the bonds. Crowell 2v
p. 3664
The Honorable Robert E. Schneider - page 3 (H-669)
Cammack, 40 S.W.2d 259 (Tex. Civ. App. -- Amarillo 1931, no
writ). To hold that the Legislature could change the
agreement between the voters and the district could
constitute an impairment of the obligation of contracts.
Tex. Const. art. 1, 5 16. Third, the Legislature cannot, by
legislative enactment, alter the results or effect of an
election held pursuant to a constitutional mandate:
[Tlhe Legislature shall not authorize
the issuance of any bonds or provide
for any indebtedness against any
reclamation district unless such
proposition shall first be submitted
to the qualified property tax-paying
voters of such district and the
proposition adopted. Tex. Const.
art. 16, 9 59(c).
Ci&@ Aransas Pass v. Keeling, 247 S.W. 818 (Tex. Sup.
In shortxnrproceeds must be used for purposes
for which they were voted. Lewis v. City of Fort Worth,
89 S.W.Zd 975 (Tex. Sup. 1936);aZingtonY.Cokinos, 338 S .W.2d
133 (Tex. Sup. 1960); City of Beaumont v. Pzddie, 65 S.W.Zd
434 (Tex. Civ. App. -- AustTii1933, no Einerefore,
the answer to your first question is that the enactment of
section 25.031(c) of the Texas Water Code does not alter the
conclusions reached in Attorney General Opinion H-567 (1975)
regarding the use of previously voted bond proceeds.
If the result of H-567 is not affected and the special
district must use the bond proceeds to purchase a proprietary
interest in the regional sewage plant rather than entering
into a service contract for plant capacity, you ask that we
determine the nature and scope of the
proprietary interest which must be
purchased . . . .
It is pertinent to note that the bond propositions submitted to
the electorate of the Inverness Forest Improvement District
on August 14, 1965, authorized bonds
p. 3665
,
. .
The Honorable Robert E. Schneider - page 4 (H-869)
for the purpose of Pmk=zwg-
structinq a water an
system and a sewage disposal plant for
the district. . . . (Emphasis added).
Furthermore, similar propositions were passed in October 16,
1967 and February 14, 1970 elections, which provided bonds
for the purpose of purchasing and/or
[February 14, 1970 proposition used
"and" instead of "and/or"] constructing
extensions and additions to the district's
existing water and sanitary sewer system
and drainage system. . . .
Although Opinion H-567 did not involve the method to be
used or what would constitute "purchasing and constructing,"
it would certainly be within the "sound judgment and
discretion" of the special district to purchase and construct
as they determine within the electoral guidelines. Barrington
v. Cokinos, , at 142. Therefore, it would not be
iiiirmle the special district to make a determination
that purchasing and constructing, or causing to be constructed,
an undivided, legal interest in a regional waste plant would
satisfy the electoral mandate. The special district would
own a portion of the physical plant rather than the mere
contractual right to a guaranteed use or portion of the
capacity of the regional system. Thus, the special district
would have used the bond proceeds to purchase and construct
a facility which the electorate had authorized.
Since the issuance of bonds creates a contract between
the issuer and the bondholders, C$Cy of Aransas Pass
- v.
-
Keeling, supra, it should be not;nthz the definltlonof
Wsystem" in each Bond Order is as follows:
The term system as used in this order
shall include and mean water works and
sanitary sewer system owned and operated
by the District, and all extensions and
improvements thereof and improvements
thereto whensoever made.
p. 3666
. ”
.
The Honorable Robert E. Schneider - page 5 (H'-869)
Neither the bond election propositions, nor the Bond Order
specifies how the facilities are to be purchased and constructed.
It is, therefore, obvious that the portion of the regional
system purchased by the special district would become part
of the "system." Provisions of Chapter 25 of the Texas
Water Code also support the proposed transaction since
"[a] district may contract . . . to purchase . . disposal
facilities or systems." Water Code 9 25.022. See Water
Code §s 25.024; 25.025; 25.027; 27.028, Therefore, in
answer to your second question, we believe that it would be
reasonable, and in pursuance of the electoral mandate as
well as the Texas Water Code, to approve issuance and use of
bonds to purchase an undivided, legal interest in a regional
system, if the special district decides to do so in the
exercise of its discretion.
In your third and final question, you ask:
[Ilf the district should purchase a
proprietary interest in the,regional
system, to what extent must the district
participate actively and directly, if at
all, in the operation and maintenance of
the system?
Neither Attorney General Opinion H-567 (1975), nor the
bond election propositions or Bond Orders specifically
address this question. However, provisions of Chapter 25
of the Texas Water Code specifically permit such operation
contracts between a special district and a "district." Water
Code SS 25.027; 25.028. Furthermore, one political sub-
division of the State, such as Inverness Forest, can transfer
money to another political subdivision of the State where
the latter assumes the unqualified burden and duty of using
it for a governmental function of the former; however, there
must be a guid pro w contract. Bexar County Hospital
District v. Crosby, 327 S.W.2d 445 (Tex. Sup. 1959): San
Authorit v- Shepherd, 299 S.W.Zd 920 (Tex.
Antonio Rser .--f-Y
-57);clty e Aransas Pass v. Keeiinq, SUp;.thWZn
SOI the operation contract should prove e only
operation of the facilities in question with sufficient
assurance that the special district does not delegate away
p. 3667
The Honorable Robert E. Schneider - page 6 (H-869)
its governmental powers.
s.W.2a 103 (Tex. Sup. 1975
of an undivided, legal interest in the regional plant, to be
operated by a "district," would not be an unlawful delegation
of governmental powers, since the special district would be
using the services of the operating agency without delegating
rate making or other powers, Therefore, in answer to the
third question, the special district may enter into an
operation contract with a Texas Water Code "district."
SUMMARY
The enactment of section 25.031(c) of
the Texas Water Code does not affect the
validity of Attorney General Opinion H-567
(1975) as it applies to the Inverness
Forest Improvement District. The special
district, limited by the bond election
proposition submitted, may not acquire
a contractual right to purchase a
percentage of capacity in a regional
system. However, the special district,
in its discretion, may use bond proceeds
to purchase an undivided, legal interest
in a regional system. The special district
may contract with a "district" for the operation
of its portion of the regional system under
Chapter 25 of the Water Code.
Very truly yours,
Texas
Opinion Committee
jwb
p. 3668 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145243/ | TEJGA~TORNEY GENERAL
OF TEXAS
AUSTIN ~~.TEXAFI
GERALD C. MANN
AlTORNeY 0.SNE.b.l.
Honorable 0. J. S. Elllngson
General Manager
Texas Prison System
Huntsville, Texas
Dear Sir: Opinion No. O-1168
Re: From.what fund may the Texas
Prison System legally pay
boiler Inspection costs?
This will acknowledge receipt of your letter of
February 24, 1940, wherein you request the opinion of this
department upon the following matter:
You desire to be~informed as to the fund from
which you may legally pay inspection costs, that is, fees
and expenses incident to the inspection of your boilers and
other machinery.
Acts 1937, Forty-fifth Legislature, page 893,
chapter 436, as amended by Acts 1939, Forty-sixth Legisla-
ture, House Bill 419 (Vernon's Civil Statutes, Article
522lc), provides for the inspection of steam boilers, the
administration of the Act being under the jurisdiction of
the Commissioner of the Bureau of Labor Statlstlcs of the
State of Texas, the Act providing for the inspection to be
had by the Inspector of boilers or any deputy Fnspector, or
by any qualified boiler inspector employed by any county,
city and county, or,city, or any insurance company, provided
that such persons making inspections (other than the inspec-
tor of boilers or deputy inspectors regularly employed by
the Commissioner) shall first obtain from the Commissioner
a commission as an inspector showing his qualifications to
make such inspections.
Item 12 of your Maintenance and Miscellaneous
Appropriation, Senate Bill 427, Acts of the Forty-sixth Leg-
islature, reads as follows:
"General support and maintenance; also in-
cludes transportation, re-capture, contingent ex-
penses and liability insurance premiums ....$375.000.00."
- Honorable 0. J. S. Elllngson, page 2:: O-1168
We find no specifically ItemFeed appropriation
for inspection costs. It Is, therefore, the opinion of
this department that the items of expense incurred by the
Texas Prison System in the employment of authorized persons
to Inspect the boilers of the agstem may be paid out of
the general support and maintenance or contingent expense
item of approprlation quoted.above.
If, in the opinion of the Texas:Prlson System, It
becomes necessary to have an Inspection made of machinery
other than that which the law above referred-to requirea to
be Inspected under the jurlsdictlon of the Commissioner of
the Bureau of Labor Statistics, the expenses of such in-
spection in our opinion, likewise may be paid out of the Main-
tenance and Miscellaneous Appropriation above referred to.
,Yours very truly
ATTORNEYGENERAL OF TEXAS
By sji3.W. Fairchild
B.W.,Fairahild
Assistant
RWF:LM:we
APPROVED March 22, 1940
s/ Gerald C. Mann
ATTORNRY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145249/ | C?FFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Eon. w* P. sexton
f%UntyAttOrn6y
otan(;s
collllty
Oran@, Teraa
Deer strr
Tour repuert e above Hated ques-
tionha8 beunrearirsd
Qf
crhf1x.mto the
1466 tbst mdor
on a8 ha tad aalLeated
to the Statsfor S5$
d but OS aolldati&3
ly paidrwh sheriff.
riff alaims he is entitledto
althou&ht& J. P. aolleoted,
aounted for all the mxmy keyCO-
advim me am to whloh28 entitled
*'Please
to the f$ aoxmalssion,
the8herifior,thejustiae
or the peace,"
Proaedurs of Taxes,
mtials 950,Codeof Crlmlnal
reada
;:ad-~~follow8
I
Hcc. I. P. mxton, page 2
‘The dlstriat o r c o unty
lttonmy ahall be
entitledto
-- -l$ ot
-- _. -. iorfeliturea or
8ll fines,
monies coiieatearor tm matie or eouumrty, up-
on judgmentreooveredby and the alerk
of the aourt ln whlah are ran-
dered shell be entitledto or wle amount
of aeld Judgment,to be paid out of the amount
when aolleated.w
Artiale951, Code of CrM Procedure of Texas
as fgnd;cgb the Aatn of the P0hprir8t Legdslature,
Pa , . iO5, *ma. 1, 1929, reads a8 follows~
n%e sheriff6r other oftiaer._araeptta
Justiceof the maoe or his alark,-& oolleats
fur the State or oouhts.rxaevta b.r3r
~IIDDII~Y
r8f3;-umt8~
any proasion of idis ode, 6hd.i
be entitled to retain S$ thereofwhen oollsat-
ad." (Undoraooring ours).
tiae ofth~ dape&nt has rapaatedlpruled that a us-
ae is not entitledto retain !5$oomiss1on
on flaw 001Yeated. Re nspeotfullyrefer you to the fol-
lc oplnlonaof this departmnt with reisrenoeto same;
to-84
9 !
Opl.nion written by Hon. Jams 8. NeiY, Assirrtent
Attormy Caneral addressedto W. E. Yanay, County Auditor,
l&rrantCounty,fbrt Worth, Texas,dated Deatmber1, 1937,
and an 0piniOn WTitten by Hon. JO0J. AlsUp ASSi8tantAt-
torneyCeharal addressedto Mr. R, A. Co&hey County
Awlltor,Lufkli, Texas, ends dated December 18, i933.
OpinionNo. d-626 of this depa&eut hold8 that
the sheriffis entitledto 6% aonmlsslon.onrSne6 in such
inatanaesonly as such fines are collectedby the sheriff.
Therefore you are respectfullyadvisedthat it
fe the opinionof t&s department,thet under the situation
outlinedin your~letterand underthe law, the justiceof
the peaoe would not be entitledto 25$ao!melaslon
oh tines
oolleotedby the justloeoithe pbaee.
. *
,Hon.IL PC dcdon, page 3
You are furtherrsspeaWullyaddsed that it
16 the o inion of this de ant that the sheriffwuld
be antltPad to 5% ooxml1184""
on on f&s8 in rush instanact6
only as such llws were oolleetedby the sheriff.
Trusti= that thL ratisiaotorlly
answerspar
lnqlliry,
,ve an
Tours very truly
AlTURSQXGE?7ERALO?TX&3
WnJFrob
AWROVED JUL ZS, 1939
(Signed)1. t. wmre
TXRSTASSISTMT
ATFG#.lR 0-w.
oplnt::m~ttw
By R. 'II.
2'.Chairevln | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132564/ | The Honorable George Rodriguez, Jr. Opinion No. H- 816
El Paso County Attorney
Room 201, City-County Building Re: Whether prelim-
El Paso, Texas 79901 inary and negotiating
sessions of a city
and police association
under the Fire and
Police Employees
Relations Act are
open to the public.
,Dear Mr. Rodriguez:
You have requested our opinion on a number of questions
regarding collective bargaining between a city and municipal
police officers association. Specifically, you ask:
1. Whether a meeting of a municipal
police officers association at which
a quorum is present is subject to the
Open Meetings Act, article 6252-17;
2. whether the internal deliberations
of a city's negotiating team relating
to the collective bargaining process
are open to the public;
3. whether meetings between a city's
negotiating team and its mayor and/or
city council relating to the collective
bargaining process are open to the
public;
p. 3446
The Honorable George Rodriguez, Jr. - page 2 (H-816)
4. whether the internal deliberations
of a municipal police officers association
relating to the collective bargaining
process are open to the public; and
5. whether the actual bargaining sessions
between a police officers association and
a city are open to the public.
Article 5154c-1, V.T.C.S., the Fire and Police Employee
Relations Act, provides:
All deliberations pertaining to collective
bargaining between an association and a
public employer or any deliberation,by a
.quorum of members of,an association
authorized to,bargain collectively or
by a member of a public employer authorized
to bargain collectively shall be open to
the public:and in compliance with the Acts
of the State of Texas. sec. 7(e)~. .: ;,
'Association,"is defined as
any organization of any kind, or any agency
or employee representation committee or
plan , in which firefighters and/or police-~~'~
men participate and which exists~for the
purpose, in whole or in part, of‘dealing
with one or more employers, whether public
or private, concerning grievances, labor
disputes, wages',rates of pay, hours,of
employment, or conditions of work affecting
firefighters and/or policemen. Sec. 3(4).
The Open Meetings Act is'applicable to "every . . .
meeting or session of,every~governmental body.. . . .'I V.T.C.S.
art. 6252-17, S ,2(a). "Governmental body" is defined by the '~~
Act as
p. 3447
The Honorable George Rodriguez, Jr, - page 3 (H-816)
any board, commission, department, committee,
or agency within the executive or legislative
department of the state, which is under the
direction of one or more elected or appointed
members; and every Commissioners Court and
city council in the state, and every deliber-
ative body having rule-making or quasi-judicial
power and classified as a department, agency,
or political subdivision of a county or city;
and the board of trustees of every school
district, and every county board of education;
and the governing board of every special
district heretofore or hereafter created by
law. Sec. l(c).
In our opinion, a municipal police officers association, as
a type of 'association" described in article 5154c-1, is not
a "governmental body." Thus, the Open Meetings Act, as such,
is not applicable to its deliberations.
As to your second and third questions, article 5154c-1
would seem to require that the internal deliberations of a
city's negotiating team and its conferences with the mayor
or city council relative to collective bargaining are open
to the public. We believe, however, that there is an important
limitation upon section 7(e). In Attorney General Opinion
M-1261 (1972), this Office grafted a limited attorney-client
privilege upon the Open Meetings Act, although the Act at
that time did not contain an express exception for attorney-
client conferences. The Opinion held that
a public body governed by Article 6252-17
may only validly claim the attorney-client
privilege and hold a closed session to
discuss legal matters with its attorney
when it desires legal advice with regard
to pending or contemplated litigation,
settlement offers, and similar matters
where an attorney's duty to his client,
pursuant to the Rules and Canons of the
State Bar of Texas, would clearly
conflict with that Article. -Id. at 9, 10.
p. 3448
The Honorable George Rodriguez, Jr. - page 4 (~-816)
The year following the issuance of Attorney General Opinion
M-1261, the Legislature, in amending the Open Meetings Act,
adopted virtually verbatim the above quoted language from
the Opinion. V.T.C.S. art. 6252-17, 5 Z(e).
We believe that this limited privilege is equally
applicable to the open meeting provisions of article 5154c-1.
In our opinion, whenever a city's collective bargaining team
seeks the advice of counsel during its internal deliberations
or during its preliminary discussions with elected city
officials, portions of those deliberations or discussions
are excepted from the open meeting provisions of section 7(e)
when such counsel participate and when the duty of the
attorney to his client pursuant to the Rule6 and Canons of
the State Bar of Texas conflict with the concept of a public
meeting.
The same kind of attorney-client privilege must also be
accorded a police officers association. We note, however,'
that the internal deliberations of such an association are
not required to be open in any event when a quorum of members
is not present.
Your final question is whether the.actual bargaining
sessions between a police officers association and a city are
open to the public. The attorney-client privilege cannot be
construed to apply to these sessions, since the confidentiality
which provides the basis for the privilege is necessarily
absent in such an adversary situation. Since we have discovered
no exception to the clear language of the statute, it is our
opinion that the actual bargaining sessions between a city
and a police officers association are open to the public by
virtue of section 7(e) of article 5154c-1.
SUMMARY
Meetings of a municipal police officers
association are not subject to the Open
Meetings Act. The internal deliberations
of a city's collective bargaining team
and its preliminary discussions with
elected city officials are open to the
public, but sometimes may be closed if
p. 3449
The Honorable George Rodriguez, Jr. - page 5 (H-816)
counsel participate. The internal
deliberations of the collective bargaining
team of a municipal police officers
association are open to the public if a
quorum of members is present, but
sometimes may be closed if counsel
participate. The actual bargaining sessions
between a city and a police officers associ-
ation are open to the public.
Very truly yours,
APPROVED:
Opinion Committee
jwb
p. 3450 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4391746/ | J-S07036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKY DAVID HALLIDAY, JR. :
:
Appellant : No. 426 MDA 2018
Appeal from the Judgment of Sentence February 8, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001384-2017
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
CONCURRING STATEMENT BY McLAUGHLIN, J.: FILED: APRIL 29, 2019
I join the majority Memorandum except for footnote eight.
____________________________________
* Retired Senior Judge assigned to the Superior Court. | 01-03-2023 | 04-29-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4145284/ | *
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https://www.courtlistener.com/api/rest/v3/opinions/7295081/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3186599/ | [Cite as Williamson v. Recovery Ltd. Partnership, 2016-Ohio-1087.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Michael H. Williamson et al., :
Plaintiffs-Appellees, :
v. : No. 15AP-638
(C.P.C. No. 06CV-4469)
Recovery Limited Partnership et al., :
(ACCELERATED CALENDAR)
Defendants-Appellees, :
[Richard T. Robol, :
Appellant]. :
The Dispatch Printing Company et al., :
Plaintiffs-Appellees, :
v. : No. 15AP-639
(C.P.C. No. 05CV-11795)
Gilman D. Kirk et al., :
(ACCELERATED CALENDAR)
Defendants-Appellees, :
[Richard T. Robol, :
Appellant]. :
The Dispatch Printing Company et al., :
Plaintiffs-Appellees, :
v. : No. 15AP-640
(C.P.C. No. 05CV-4220)
Recovery Limited Partnership et al., :
(ACCELERATED CALENDAR)
Defendants-Appellees, :
[Richard T. Robol, :
Appellant]. :
Nos. 15AP-638, 15AP-639 & 15AP-640 2
D E C I S I O N
Rendered on March 17, 2016
On brief: Zeiger, Tigges & Little LLP, John W. Zeiger,
Steven W. Tigges, and Bradley T. Ferrell, for appellee The
Dispatch Printing Company. Argued: Bradley T. Ferrell.
On brief: Wesp Barwell, LLC, and E. Joel Wesp, for
appellees Recovery Limited Partnership and Columbus
Exploration, LLC. Argued: E. Joel Wesp.
On brief: Reminger Co., L.P.A., and Jason D. Winter, for
appellant. Argued: Jason D. Winter.
APPEALS from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Appellant, Richard T. Robol, appeals from an order of the Franklin County
Court of Common Pleas requiring him to produce certain documents to appellee, Ira O.
Kane ("the receiver"), in his capacity as the receiver for defendants-appellees Columbus
Exploration, LLC ("Columbus Exploration") and Recovery Limited Partnership ("RLP").
For the reasons that follow, we dismiss these appeals in part and affirm the order in part.
{¶ 2} The events leading to these consolidated cases giving rise to these appeals
involves the attempt to recover artifacts and treasures from the shipwreck of the S.S.
Central America and are more fully detailed in two prior opinions from this court and an
opinion from the United States Court of Appeals for the Fourth Circuit. See Dispatch
Printing Co. v. Recovery Ltd. Partnership, 10th Dist. No. 14AP-640, 2015-Ohio-1368,
¶ 4-6; Dispatch Printing Co. v. Recovery Ltd. Partnership, 10th Dist. No. 14AP-473,
2015-Ohio-381, ¶ 3-12; Recovery Ltd. Partnership v. Wrecked & Abandoned Vessel S.S.
Cent. Am., 790 F.3d 522, 524-28 (4th Cir.2015). As relevant to this appeal, Robol was
previously counsel for Columbus Exploration and RLP. On June 14, 2013, the trial court
appointed the receiver after concluding that Columbus Exploration and RLP were
insolvent. The order appointing the receiver authorized him to obtain any and all
Nos. 15AP-638, 15AP-639 & 15AP-640 3
property, documents, electronically stored information, and tangible or intangible objects
belonging to Columbus Exploration or RLP. The receiver subsequently issued a letter to
Robol in July 2013 requesting all documents and tangible things belonging to Columbus
Exploration or RLP. Robol initially asserted that he held a retaining lien on the
documents and property of Columbus Exploration and RLP as a result of unpaid attorney
fees, but this argument was rejected by the trial court below and, in ancillary proceedings,
by the United States Court of Appeals for the Fourth Circuit. See Recovery Ltd.
Partnership, 790 F.3d at 529-30. The property, documents, and electronically stored
information sought by the receiver included e-mail communications between Robol and
Columbus Exploration and/or RLP. Despite the receiver's July 2013 request, Robol
continued to retain certain property and documents sought by the receiver.
{¶ 3} On April 24, 2015, Robol provided to the trial court a flash drive digital
storage device purporting to contain 49,000 e-mails sent or received by Robol that were
retrieved from a third-party server. Robol asserted that an undetermined number of e-
mails on the drive would relate to Columbus Exploration or RLP and would be responsive
to the receiver's request. Robol claimed that he lacked the resources to have his attorneys
review the drive to extract the relevant documents and lacked the time to perform the
review himself; instead, Robol requested that the trial court conduct an in camera review
of the drive containing the 49,000 e-mails. Robol asserted that most of the e-mails on the
drive would relate to his other clients, which were not parties to the case, and would be
protected from disclosure by attorney-client privilege held by those third-party clients.
{¶ 4} Following a status conference with the parties on June 5, 2015, the trial
court issued an entry denying the request for an in camera review of the flash drive. The
trial court ordered the receiver to propose search terms to be used in reviewing the flash
drive and provided that Robol would have an opportunity to object to any of the search
terms and propose alternatives. The court indicated that it would provide a computer to
be used in performing the search and that the e-mails identified by the search would be
turned over to the receiver. The receiver subsequently provided a list of 100 search terms;
Robol objected that the search terms were overbroad and that production of all e-mails
containing those terms would violate attorney-client privileges held by Robol's third-party
clients. The trial court then conducted an additional conference with the parties on
Nos. 15AP-638, 15AP-639 & 15AP-640 4
July 2, 2015. Following that conference, the trial court issued an order providing that
counsel would conduct a search of the flash drive using the terms provided by the
receiver. All e-mails identified by the search that were dated before May 12, 2014 or
March 10, 2014 for certain search terms, were to be turned over forthwith to the receiver.
All e-mails dated on or after May 12, 2014 (or March 10, 2014), were to be turned over to
Robol's counsel for a privilege review and creation of a privilege log to be submitted to the
trial court for review. The order further provided that any e-mails that were provided to
the receiver relating to attorney-client privileges held by Robol's third-party clients were
subject to the "claw-back provision" of Civ.R. 26(B)(6)(b), and were to be immediately
sequestered and returned to Robol's counsel.
{¶ 5} Robol appeals from the trial court's order, assigning one error for this
court's review:
THE TRIAL COURT ERRED IN FAILING TO CONDUCT IN
CAMERA REVIEW OR AN EVIDENTIARY HEARING
BEFORE REQUIRING THE PRODUCTION OF PRIVILEGED
COMMUNICATIONS TO THE RECEIVER.
{¶ 6} Although the trial court's order was issued pursuant to its prior order
appointing the receiver and authorizing him to obtain all documents and property of the
receivership entities, rather than in response to a discovery request, it is analogous to a
discovery order because Robol asserts that it will lead to the disclosure of materials
protected by attorney-client privilege. Generally, discovery orders are not final and
appealable. Concheck v. Concheck, 10th Dist. No. 07AP-896, 2008-Ohio-2569, ¶ 8.
However, discovery orders requiring a party to produce privileged or confidential
information are final and appealable orders. See Mason v. Booker, 185 Ohio App. 3d 19,
2009-Ohio-6198, ¶ 11 (10th Dist.). Therefore, we begin by considering whether this court
has jurisdiction over this appeal.
{¶ 7} Courts of appeals have jurisdiction to review final orders of lower courts.
Ohio Constitution, Article IV, Section 3(B)(2). A trial court order is final and appealable if
it meets the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B). Eng.
Excellence, Inc. v. Northland Assoc., L.L.C., 10th Dist. No. 10AP-402, 2010-Ohio-6535,
¶ 10. Appellate courts use a two-step analysis to determine whether an order is final and
appealable: first, the court determines if the order is final under the requirements of R.C.
Nos. 15AP-638, 15AP-639 & 15AP-640 5
2505.02, and second, the court determines whether Civ.R. 54(B) applies and, if so,
whether the order contains a certification that there is no just reason for delay. Id.
{¶ 8} The statute governing final orders provides that certain orders related to
provisional remedies are final orders:
(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of
the following:
***
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action
in favor of the appealing party with respect to the provisional
remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to
all proceedings, issues, claims, and parties in the action.
R.C. 2505.02. A "provisional remedy" is defined as a proceeding ancillary to an action,
including "discovery of privileged matter." R.C. 2505.02(A)(3). "An order requiring the
release of privileged or confidential information in discovery determines the action with
respect to a provisional remedy and prevents the appealing party from obtaining an
effective remedy following final judgment because the privileged information has already
been released." Randall v. Cantwell Mach. Co., 10th Dist. No. 12AP-786, 2013-Ohio-
2744, ¶ 7. Because the proverbial bell cannot be unrung after the privileged information
has been released, orders requiring the production of privileged material are final and
appealable. Id. Therefore, we must consider whether the trial court's order is a final,
appealable order.
{¶ 9} Robol asserts that the trial court's order will force him to produce to the
receiver e-mails containing communications with clients other than RLP and Columbus
Exploration, thereby violating attorney-client privilege protections belonging to those
third-party individuals or entities. The e-mails to be searched under the court's order
were purportedly retrieved from a third-party server containing all of Robol's e-mail
records. Because some of the search terms identified by the receiver are broad and
Nos. 15AP-638, 15AP-639 & 15AP-640 6
because Robol has represented other clients engaged in activities similar to those
conducted by RLP and Columbus Exploration, Robol claims that the search will
necessarily capture communications with other clients. For example, one of the search
terms is "salvage," and Robol asserts he has represented multiple other clients involved in
salvage operations. Robol notes that the trial court admitted at the July 2, 2015
conference that it was probable that the search would identify e-mails that related to
Robol's other clients.
{¶ 10} We must carefully examine the trial court's order to determine whether it
requires Robol to produce potentially privileged material to the receiver and, therefore,
whether it constitutes a final, appealable order.
{¶ 11} The order provided that counsel would conduct a search of the e-mails for
key word terms identified by the receiver. The order specified that all identified e-mails
dated before May 12, 2014 (or before March 10, 2014, for the terms "California Gold,"
"Manley," or "Richard Howell") were to be turned over to the receiver forthwith, subject
to a "claw-back provision" under Civ.R. 26(B)(6)(b). All identified e-mails dated on or
after the specified dates were to be turned over to Robol's counsel for a privilege review
and creation of a privilege log to be submitted to the court. Thus, the court's order had
the effect of creating two classes of identified e-mails containing one or more of the
relevant search terms: (1) those dated before May 12, 2014 (or March 10, 2014 for three
specified terms), and (2) those dated on or after May 12, 2014 (or March 10, 2014). For
purposes of analysis, we will refer to these e-mails as the "group 1 e-mails" and "group 2 e-
mails," respectively.
{¶ 12} With respect to group 2 e-mails, the order does not require immediate
production to the receiver. Instead, the order provides that group 2 e-mails are to be
provided to Robol's counsel for a privilege review and creation of a privilege log. This
appears to be exactly the procedure that Robol argues the trial court should have followed.
Even if group 2 e-mails contain communications protected by attorney-client privilege
belonging to unrelated third parties, the trial court's order is not final and appealable with
respect to group 2 e-mails because it does not require production of those e-mails to the
receiver.
Nos. 15AP-638, 15AP-639 & 15AP-640 7
{¶ 13} Accordingly, we dismiss Robol's assignment of error for lack of a final,
appealable order to the extent he asserts that the trial court erred by failing to conduct an
in camera review or hold an evidentiary hearing with respect to group 2 e-mails.
{¶ 14} With respect to group 1 e-mails, the order requires that they be produced to
the receiver and does not provide for any privilege review by Robol's counsel or by the
court prior to production to the receiver. Robol argues that, due to the broad nature of
the search terms, group 1 e-mails will necessarily include his communications with third-
party clients. Robol asserts that production of such communications will violate the
attorney-client privilege and that an immediate appeal is necessary because the proverbial
bell cannot be unrung once any privileged communications have been released. Because
the order does not provide for a privilege review by the court, to the extent Robol argues
that production of group 1 e-mails to the receiver would result in immediate disclosure of
communications covered by attorney-client privilege protections of third parties, it is a
final, appealable order.
{¶ 15} "In Ohio, the burden of showing that testimony or documents are
confidential or privileged rests upon the party seeking to exclude it." Covington v.
MetroHealth Sys., 10th Dist. No. 02AP-243, 2002-Ohio-6629, ¶ 24. See also Waldman v.
Waldman, 48 Ohio St. 2d 176, 178 (1976) ("It is well-settled that the burden of showing
that testimony sought to be excluded under the doctrine of privileged attorney-client
communications rests upon the party seeking to exclude it."). A claim of privilege "must
rest upon some specific constitutional or statutory provision." State ex rel. Grandview
Hosp. & Med. Ctr. v. Gorman, 51 Ohio St. 3d 94, 95 (1990).
{¶ 16} "The attorney-client privilege in Ohio is governed by R.C. 2317.02(A) and, in
cases not addressed there, by common law." MA Equip. Leasing I, LLC v. Tilton, 10th
Dist. No. 12AP-564, 2012-Ohio-4668, ¶ 19, citing State ex rel. Leslie v. Ohio Hous. Fin.
Agency, 105 Ohio St. 3d 261, 2005-Ohio-1508, ¶ 18. "Under the attorney-client privilege,
'(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his
capacity as such, (3) the communications relating to that purpose, (4) made in confidence,
(5) by the client, (6) are at his instance permanently protected (7) from disclosure by
himself or by the legal adviser, (8) unless the protection is waived.' " Leslie at ¶ 21,
Nos. 15AP-638, 15AP-639 & 15AP-640 8
quoting Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir.1998); Perfection Corp. v.
Travelers Cas. & Sur., 153 Ohio App. 3d 28, 2003-Ohio-3358, ¶ 12 (8th Dist.).
{¶ 17} In this case, Robol has failed to carry the burden of establishing that
production of group 1 e-mails to the receiver would result in the disclosure of materials
protected by attorney-client privileges held by his third-party clients. Despite having
possession of the drive containing the e-mails and being notified of the search terms
proposed by the receiver, Robol has failed to identify any specific communications with
third-party clients that would be contained in group 1 e-mails under the trial court's
order. Robol asserted to the trial court that he lacked the resources and time to complete a
review of the e-mails to extract those relating to RLP and Columbus Exploration.
However, Robol has failed to identify even a single specific e-mail as a representative
example to substantiate his privilege argument sent to or received from a third-party
client before May 12, 2014 (or March 10, 2014) that contained one or more of the
receiver's search terms and that therefore would be included in group 1 e-mails to be
produced to the receiver. By contrast, Robol appears to have performed at least a partial
review of his e-mails in response to a request for production of documents issued by one
of the plaintiffs, because he submitted a privilege log asserting that certain e-mail
communications should not be produced to the plaintiff pursuant to that document
request. Absent the identification of any purportedly privileged communications, it is
impossible to determine whether attorney-client privilege applies to those
communications—i.e., neither the trial court nor this court could determine whether the
elements required to establish the privilege were present, such as whether the
communications involved legal advice and were made in confidence. See, e.g., State ex
rel. Lanham v. DeWine, 135 Ohio St. 3d 191, 2013-Ohio-199, ¶ 28 (determining that
certain e-mail communications were protected by attorney-client privilege).
{¶ 18} Despite the lack of any specific showing that group 1 e-mails would contain
communications with third-party clients protected by attorney-client privilege, the trial
court included a provision in the order to protect against any waiver of such privilege
through production to the receiver. The order provided that any e-mails relating
attorney-client privileged communications between Robol and third-party clients were
subject to the "claw-back provision" of Civ.R. 26(B)(6)(b) and that they were to be
Nos. 15AP-638, 15AP-639 & 15AP-640 9
promptly sequestered and returned to Robol's counsel. Thus, it appears that the trial
court imposed reasonable measures to protect against waiver of any potential attorney-
client privilege held by Robol's third-party clients.
{¶ 19} Under the circumstances presented in this case, Robol failed to demonstrate
that production of group 1 e-mails would result in the disclosure of attorney-client
privileged communications with third-party clients. Therefore, the trial court did not err
by ordering production of group 1 e-mails to the receiver without conducting an in camera
review or an evidentiary hearing.
{¶ 20} Accordingly, we overrule Robol's assignment of error to the extent that he
asserts the trial court erred by failing to conduct an in camera review or hold an
evidentiary hearing with respect to group 1 e-mails.
{¶ 21} For the foregoing reasons, we dismiss in part and overrule in part Robol's
sole assignment of error, and affirm the judgment of the Franklin County Court of
Common Pleas.
Judgment affirmed.
TYACK and KLATT, JJ., concur. | 01-03-2023 | 03-17-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3197642/ | In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00175-CR
ADAM CLEMENTSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1274535D, Honorable George W. Gallagher, Presiding
April 19, 2016
OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Contrary to his plea of not guilty, appellant Adam Clementson was convicted by a
jury of the third-degree felony offense of assault on a public servant.1 Punishment was
assessed at five years of imprisonment, suspended in favor of two years of community
supervision. Through one point of error, appellant contends the trial court erred in its
charge to the jury. We will affirm the court’s judgment.
1
TEX. PENAL CODE ANN. § 22.01(b)(1) (West 2015).
Background
Because appellant does not challenge the sufficiency of the evidence to support
his conviction, we will recite only those facts necessary for an understanding of his
appellate issue.
The indictment alleged appellant intentionally or knowingly caused bodily injury to
a Fort Worth police officer, Boyd Latham, by charging, pushing or grabbing him while
the officer was lawfully discharging an official duty and appellant knew he was a public
servant.
At trial, witnesses testified appellant was at a Fort Worth bar with a friend. Both
were intoxicated. Appellant’s friend became belligerent and the manager asked
appellant and his friend to leave. The manager summoned Lieutenant Latham and
Detective Gary Hawley, the two uniformed off-duty police officers working at the bar, to
escort the two men out. On their way out, an altercation occurred and appellant
“charged” at Latham, causing Latham’s head to hit a window in a nearby wall.
Appellant’s defensive theory at trial, as he himself testified, asserted he was acting only
to protect his friend during a bar fight and did not know Latham was a police officer.
Video recordings from security cameras of the incident were admitted into evidence.
The guilt-innocence stage jury charge instructed the jury on the presumption set
out in Penal Code section 22.01(d).2 The instruction read:
2
TEX. PENAL CODE ANN. § 22.01(d) (West 2015).
2
The defendant is presumed to have known the person assaulted was a public
servant if he was wearing a distinctive uniform or badge indicating his
employment as a public servant.
The charge also included an instruction in accordance with Penal Code section
2.05(a)(2).3
Appellant raised objections to the charge, including an objection to the language
from the section 22.01(d) instruction reading “[t]he defendant is presumed to have
known . . . .” He argued the language indicates a mandatory presumption, and
requested the instruction instead read “may be presumed to have known.” The trial
court overruled appellant’s objections.
3
If the existence of the presumed fact is submitted to the jury, the court shall
charge the jury, in terms of the presumption and the specific element to which it applies,
as follows:
(A) that the facts giving rise to the presumption must be proven beyond a
reasonable doubt;
(B) that if such facts are proven beyond a reasonable doubt the jury may find that
the element of the offense sought to be presumed exists, but it is not bound to so
find;
(C) that even though the jury may find the existence of such element, the State
must prove beyond a reasonable doubt each of the other elements of the offense
charged; and
(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving
rise to the presumption, the presumption fails and the jury shall not consider the
presumption for any purpose.
TEX. PENAL CODE ANN. § 2.05(a)(2) (West 2015).
The trial court also instructed the jury on the statutory defense of mistake of fact,
and the justification of protection of a third person. TEX. PENAL CODE ANN. §§ 8.02, 9.33
(West 2015).
3
Analysis
Through one point of error, appellant renews his contentions challenging the
instructions regarding the presumption arising from the fact Latham was in uniform
when appellant charged, pushed or grabbed him.
A person commits the offense of assault if the person intentionally, knowingly, or
recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (West
2015). This offense is a third-degree felony if it is committed against a person the actor
knows is a public servant while the person is lawfully discharging an official duty, or in
retaliation or on account of an exercise of official power or performance of an official
duty as a public servant. TEX. PENAL CODE ANN. § 22.01(b)(1). “Public servant” means a
person elected, selected, appointed, employed, or otherwise designated as an officer,
employee, or agent of government. TEX. PENAL CODE ANN. § 1.07(a)(41)(A) (West
2015). The actor is presumed to have known the person assaulted was a public servant
if the person was wearing a distinctive uniform or badge indicating the person’s
employment as a public servant. TEX. PENAL CODE ANN. § 22.01(d); Ford v. State, No.
13-07-00250-CR, 2009 Tex. App. LEXIS 2462, at *14-15 (Tex. App.—Corpus Christi
April 7, 2009, no pet.) (mem. op., not designated for publication).
When reviewing claims of jury-charge error, we first determine whether error
actually exists in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.
2009). If error exists and appellant objected to the error at trial, we then determine
whether the error caused sufficient harm to require reversal. Id.; Almanza v. State, 686
4
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see also Ngo v. State, 175
S.W.3d 738, 743-44 (Tex. Crim. App. 2005).
Mandatory presumptions are unconstitutional because they relieve the State of
its constitutionally-required burden of proving guilt beyond a reasonable doubt. Francis
v. Franklin, 471 U.S. 307, 317, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); Sandstrom v.
Montana, 442 U.S. 510, 524, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); Willis v. State, 790
S.W.2d 307, 309 (Tex. Crim. App. 1990). A permissive presumption, on the other hand,
permits but does not require the fact finder to find the elemental fact on proof of the
predicate fact, and places no burden on the accused to disprove the elemental fact.
Because permissive presumptions do not alter the State's burden of proof, they are
constitutional, provided the connection between the predicate and elemental facts is a
rational one. Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed.
2d 777 (1979); Willis, 790 S.W.2d at 310. To address these constitutional concerns, a
jury charge containing a statutory presumption that benefits the State must also contain
the instruction required by Penal Code section 2.05(a)(2). Hollander v. State, 414
S.W.3d 746, 754 (Tex. Crim. App. 2013) (Cochran, J., concurring); TEX. PENAL CODE
ANN. § 2.05; see Willis, 790 S.W.2d at 310 (Legislature enacted section 2.05 to specify
procedural consequences of a presumption and “to satisfy . . . constitutional strictures”)
(citation omitted).
In support of his point of error, appellant argues two propositions. First, he
reiterates his contention the instruction derived from Penal Code section 22.01(d) states
a mandatory presumption because it told the jury appellant “is presumed to have
known” Latham was a public servant because he was in uniform. The State argues
5
appellant’s contention is answered in the negative by the Court of Criminal Appeals’
opinion in Willis, 790 S.W.2d at 310, and we agree. The instructions given here are like
those addressed in Willis. Accordingly, we find the presumption on which the jury was
instructed was permissive, not mandatory. Id. (citing Bellamy v. State, 742 S.W.2d 677,
682 (Tex. Crim. App. 1987) and stating, “as long as Section 2.05 is adequately
incorporated into the court's charge containing a presumption, that presumption will be
construed to be ‘permissive’”).
Appellant also points to case law holding a party challenging the validity of a
permissive presumption may succeed by demonstrating it is invalid “as applied to him.”
Willis, 790 S.W.2d at 311 (quoting Allen, 442 U.S. at 157). In Allen, the Supreme Court
noted that a permissive presumption affects the application of the beyond a reasonable
doubt standard “only if, under the circumstances of the case, there is no rational way
the trier [of fact] could make the connection permitted by the inference.” 442 U.S. at
157. See also Bellamy, 742 S.W.2d at 682 (quoting a test asking whether “it can at
least be said with substantial assurance that the presumed fact is more likely than not to
flow from the proved fact on which it is made to depend”) (citation omitted).
Knowledge may be inferred from circumstantial evidence and proof of a culpable
mental state almost invariably depends on circumstantial evidence. Tottenham v. State,
285 S.W.3d 19, 28, (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citations omitted).
Appellant contends the required rational connection between the predicate fact (Latham
was in uniform) and the elemental fact (appellant knew he was a police officer) does not
exist in this case because there is no evidence appellant actually noticed Latham’s
uniform. Appellant testified he did not see the person he was encountering at the time
6
of the altercation was wearing a uniform and did not know he was an officer. We cannot
agree with appellant that his testimony denying such knowledge renders the jury’s
implicit acceptance of the statutory presumption irrational. The evidence bearing on the
question was not limited to appellant’s testimony, and the jury received evidence that
permitted a rational fact finder to make the connection between Latham’s distinctive
uniform and badge and appellant’s knowledge of his status as an officer.
A photograph in evidence shows Latham in his uniform, consisting of dark blue
pants and a dark blue shirt, with a badge over his left shirt pocket, insignia on both
upper arms near the shoulder and chevron-shaped gold stripes beneath the insignia on
both arms. The security video shows Latham in uniform and also clearly depicts the
holstered gun on Latham’s belt. Latham testified he and the other officer with him were
“[i]n a full uniform, police uniform. The only difference between what I was wearing then
and what I'm wearing now is I had stripes on my shoulders, gold stripes on my
shoulders.”
A witness testified appellant was a regular customer of the bar. Hawley testified
officers typically sat at the bar’s street-level entrance.
The altercation occurred in the bar’s upstairs area. There was evidence,
however, of earlier contact between appellant and the uniformed officers at the street-
level entrance. Asked if he noticed the two police officers when he walked into the bar,
appellant responded, “It didn’t register, but I walked by them. I would have said hello. I
say hello to everybody when I walk into a bar or a police officer.” He further said,
however, that he did not remember seeing the officers at the front door. Latham
7
testified he “believed” he had seen appellant before the night of the incident. Asked if
appellant recognized Latham when he entered the bar that night, Latham responded, “I
don’t know if he recognized me, but we spoke briefly.”
The security videos also provide probative evidence. One video depicts a
discussion occurring after the officers’ arrival in the upstairs bar area and shortly before
the altercation. Appellant and his friend appear as participants in the discussion, as well
as the bar manager and the officers. The video’s time record indicates some eighteen
seconds expired between the beginning of the discussion that included the officers and
the beginning of Hawley’s effort to escort appellant’s friend outside. While appellant
testified that “It -- it did not register at all that that was a police officer, at all[,]” he also
acknowledged that, looking at the video at trial, he “[a] hundred percent, I can agree
with that now, yes” that it was obvious Latham was a police officer.
Evidence that shows the appearance of Latham’s uniform, that appellant was a
regular customer of a bar that employed officers, that he spoke with Latham at the bar’s
entrance that night, that the officers were summoned to escort appellant and his friend
outside, that appellant was standing with his friend during their face-to-face discussion
when Hawley twice issued “verbal commands” to the friend to begin walking out all
support a conclusion the presumption stated in Penal Code section 22.01(d) is rational
as applied to appellant’s knowledge Latham was a police officer. Latham’s testimony
denying his knowledge and evidence the bar was loud, moderately crowded and
somewhat dark do not negate the conclusion. See Willis, 790 S.W.2d at 312 (also
finding rational application of statutory presumption under consideration there); cf.
Flores v. State, Nos. 01-10-00531-CR, 01-10-00532-CR, 01-10-00534-CR, 2013 Tex.
8
App. LEXIS 1809, at *77-78 (Tex. App.—Houston [1st Dist.] Feb. 26, 2013, pet. ref’d)
(mem. op., not designated for publication) (no error in instruction on presumption arising
from distinctive police uniform).
The court’s instruction is thus constitutional as applied to appellant, and the trial
court did not err by including it in the charge. We overrule appellant’s point of error and
affirm the judgment of the trial court.
James T. Campbell
Justice
Publish.
9 | 01-03-2023 | 04-26-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4132533/ | The Honorable H. R. Nieman, Jr. Opinion No. H-047
Director
State Building Commission Re: Authority of Board
Stephen F. Austin Building of Control and State
Austin, Texas Building Commission.
Dear Mr. Nieman:
You have requested our opinion concerning the relative
authority of the Building Commission and the Board of Con-
trol regarding the allocation of space in a building, which
was recently acquired by the Building Commission on behalf
of the State. Following what you have termed a major reno-
vation, the building will be used for state offices. You
have asked whether the Building Commission or the Board of
Control has title to the building and the power to allocate
the space therein.
Article 665, V.T.C.S., provides in part:
The State Board of Control shall have
charge and control of all public buildings,
grounds and property of the State . . ..
[alnd the Board shall be authorized to
provide for the allocation of space in any
of the public buildings to the departments of
the State Government.
Article 67Sm, V.T.C.S., which establishes the Building
Commission, provides in part:
p. 3571
The Honorable H. R. Nieman, Jr. - page 2 (H-847)
Sec. 3. The Commission shall have the
authority to promulgate such rules and
regulations as it deems proper for the
effective administration of this Act. Under
such terms and conditions as may be provided
by law, the Commission may acquire necessary
real and personal property, modernize, remodel,
build and equip buildings for State purposes
. . . .
. * .
Sec. 7. The Commission shall obtain title
for the state and retain control of the real
property acquired for sites and of the build-
ings located thereon until final construction
is completed and the buildings are occupied
by the state agencies to be housed therein,
at which time the management and control of
said buildings including the inventory values
of the sites and the buildings located thereon,
shall be transferred to the Board of Control.
Except as otherwise provided in this Act, the
initial occupants shall be those state agencies
agreed upon by the Commission and the Board of
Control. This Section, as amended, shall apply
to all new state buildi,ngsconstructed hereto-
fore or that may be constructed hereafter in
Austin, by the State Buildi,ngCommi.ssion.
Article 67Sf, V.T.C.S., the State Building Construction
Administration Act designates the Commission as the administering
agency, section 5(A); empowers the Commission to enter
construction contracts, section 81Cj; and authorizes the
Commission to promulgate rules and regulations necessary to
implement its powers, duties, and responsibilities, section
5(F). Section 13(C) provides that:
Upon completion of the project the Commis-
sion shall release the same to the using
agency . . . O
p. 3572
The Honorable H. R. Nieman, Jr. - page 3 (H-847)
Section 2(A) provides that:
[T]he State Board of Control shall be
considered the using agency for . . . state-
owned buildings maintained by the Board.
Article 678m was enacted in 1955 pursuant to article 3,
section 51-b(c) of the Texas Constitution. The Building
Commission thereby became the authority which acquires and
constructs state property. Prior to its 1963 amendment,
section 7 of article 678m read:
The Commission shall obtain title for the
state and retain control of the real property
acquired for sites and of the buildings located
thereon until final construction is completed
and the buildings are occupied by the state
agencies to be housed therein, at which time
the management and control of said buildings
shall be transferred to the Board of Control.
Except as otherwise provided in this Act, the
initial occupants shall be those state agencies
agreed upon by the Commission and the Board of
Control.
Since article 665 had long been in existence and since
article 678f was not enacted until 1965, the progression of
control over state property from 1955 to 1963 was as follows.
The Building Commission acquired the property and performed
any construction projects necessary. V.T.C.S. art. 678m, fi
3. These projects have always included ones of renovation
and repair. Attorney General Opinions M-780 (1971); M-695
(1970); NW-1429 (1962); NW-1215 (1961); NW40 (1957). After
the construction was completed and the building occupied the
Commission transferred control thereof to the Board. V.T.C.S.
art. 678m, § 7. The Board then had charge and control of
the building. V.T.C.S. art. 665. Thus a system was established
which provided statutory authority for the acquisition,
construction, control, and transfer of control of state
buildings.
In 1963 section 7 of article 678m was amended to include
the clause relating to the transfer of inventory values and
the last sentence of the present section, which states:
p. 3573
The Honorable H. R. Nieman, Jr. - page 4 (H-847)
This Section, as amended, shall apply
to all new state buildings constructed
heretofore or that may be constructed here-
after in Austin, by the State Building
Commission.
Prior to the addition of this sentence there was nothing in
section 7 that would have confined its application to less
than the entirety of article 678m. As previously noted,
article 678m has always applied to the acquisition and
renovation of buildings; therefore, before its 1963 amend-
ment, section 7 also applied to such buildings.
In our opinion, the Legislature did not intend to narrow
the application of section 7 by adding the last sentence thereof;
rather, the Legislature intended to make clear that section 7
applied in part to "new state buildings constructed . . .
by the State Building Commission." Had the Legislature
intended to limit that application of section 7, they could
easily have stated that the section applied on1 to such
"new state buildings." To merely state that-8t e section
applies to such buildings is not to provide that it applies
to no others. Thus any restriction on the existing application
of section 7 would be by implication. We do not believe the
Legislature intended to imply such a restriction, for amendments
are construed so as to harmonize with the Act amended. 82
C.J.S, Statutes, 9 384, p. 897. Since article 678f was not
in existence at the time of the amendment in question, any
restriction of the application of section 7 to less than that
of article 678m would result in a lack of statutory authority
for the transfer of control of buildings other than "new state
buildings constructed . O . by the I . . Commission." Such
a construction of the amendment would create a lack of
harmony in the act amended and would run counter to the rule
of construction that amendments are to be construed as part
of a coherent system of legislation. 82 C.J.S. Statutes, 9
384, pa 896. It is therefore our opinion that the application
of section 7 of article 678m was not and is not limited to "new
state buildings constructed . a . by the State Building
Commission:" rather, section 7 applies to all buildings acquired
and constructed by the Commission in the absence of a specific
statute indicating otherwise.
p. 3574
The Honorable H. R. Nieman, Jr. - page 5 (H-847)
We do not believe section 13(C) of article 678f to,be
such a statute. Even were it to apply to newly acquired buildings
and require the transfer thereof to the Board of Control as the
"using agency," a question we need not decide, section 13(C)
in no way abrogates the specific provisions of section 7 of
article 670m. Such an abrogation would constitute an implied
repeal of the provisions of section 7 of article 678m, and
would be inconsistent with the rules of statutory construction.
53 Tex. Jur. 2d Statutes, SS 100, 102, 104.
Section 7 of article 678m is therefore applicable. Its
provisions put title and control of acquired buildings in the
Building Commission, require a transfer to the Board of Control
after renovation is completed and the building is occupied,
and state that the initial occupants will be those agreed
upon by the Board and the Commission. In the event that the
two agencies cannot agree on the initial occupants, in our
view the Building Commission is the superior authority in the
matter, since article 678m, section 8 provides:
Sec. 8. The Commission shall have the
authority to call on any Department of State
Government to assist it in carrying out the
duties of the Commission. And particularly,
it shall be the duty of the Board of Control
to do and perform such acts and functions in
connection with this Act as the Commission
may direct .~. . .
See V.T.C.S. art.
- 678m, S 3.
Furthermore, in Attorney General Opinion WW-1215 (1961),
this office stated:
We are of the opinion that the functions
given the Board of Control under this Act
have to do, mainly, with the management of
the buildings after being occupied by the
State agencies and the control of the personal
property located therein and that any additional
duties given the Board of Control as to state
building sites and properties are to be delegated
to the Board of Control by the State Building
Commission.
p. 3575
The Honorable ?I.R. Nieman, Jr. - page 6 (H-84%1
It is therefore our opinion that the control and title
to a recently acquired and renovated building are lodged
with the Building Commission until transferred to the Board
of Control pursuant to section 7 of article 678m. Nothing
in this opinion is intended to alter the Board's duty under
the General Appropriations Act to provide utility'service to
the building.
SUMMARY
When a building is acquired by the State
and is to be renovated and repaired,
control of the building is transferred
from the State Building Commission to the
State Board of Control at the completion
of the renovation.
Very truly yours,
Attorney General of Texas
APPROVED:
Opinion Committee
jwb
p. 3576 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145274/ | 5Y5
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
fIon.BIT. Burn6
county Attornsy
ocdke~ a0unty
XuutisYl~s,Texas
mar sirr
advised that it la the
You are rcapeotl'uully
opinion oi tkis dqartaant thnt your question should
be answered in the affimd.iw.
Triistlngthat this satlefaotorily answers
your irq.dxy, we arc
Very tmily yours
A!i'TORXSY
CEK?;EAL OY TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4393589/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/03/2019 02:07 AM CDT
- 283 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
U.S. SPECIALTY INS. CO. v. D S AVIONICS
Cite as 302 Neb. 283
U.S. Specialty Insurance Company,
a corporation, appellee, v.
D S Avionics Unlimited
LLC, appellant.
___ N.W.2d ___
Filed February 15, 2019. No. S-17-1101.
supplemental opinion
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Supplemental opinion: Former opinion
modified. Motions for rehearing overruled.
Thomas M. Locher, of Locher, Pavelka, Dostal, Braddy &
Hammes, L.L.C., for appellant.
Robert E. O’Connor, Jr., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Johnson, District Judge.
Per Curiam.
This case is before us on motions for rehearing filed by the
appellant, D S Avionics Unlimited LLC, and the appellee, U.S.
Specialty Insurance Company, concerning our opinion in U.S.
Specialty Ins. Co. v. D S Avionics.1 We overrule the motions,
but we modify the opinion as follows:
1
U.S. Specialty Ins. Co. v. D S Avionics, 301 Neb. 388, 918 N.W.2d 589
(2018).
- 284 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
U.S. SPECIALTY INS. CO. v. D S AVIONICS
Cite as 302 Neb. 283
In the “Declaratory Judgment Was Premature” subsection,
we strike the third sentence of the first paragraph, including
footnote 14.2 Also in the same subsection, after the fourth
sentence of the second paragraph,3 we insert the following sen-
tence: “‘This rule embraces not only cases where the identi-
cal issues between the same parties are sub judice, but also
possibly cases in which the issues only are identical but not
the parties.’”4
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motions for rehearing overruled.
2
Id. at 398, 918 N.W.2d at 596.
3
Id. at 399, 918 N.W.2d at 596.
4
Strawn v. County of Sarpy, 146 Neb. 783, 788, 21 N.W.2d 597, 600
(1946). | 01-03-2023 | 05-03-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4145310/ | _.
THE ATI?ORNTEY GENERAL
OF’ TEXAS
Hon. Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir: Opinion No. O-1101
Re: Legality of expense account attached.
Can the Board of Dental Examiners
employ one of its members as Secre-
tary of the Board and pay him a sal-
ary out of the General Registration
Fund?
Your request for an opinion on the questions as are herein
stated has been received by this office.
Your letter reads in part as follows%
"I am enclosing an expense account of Dr. Carl Holder, Secretary,
Texas State Board of Dental Examiners, and request your opinion
as to whether this'account can be legally paid from the funds
appropriated to the State Board of Dental Examiners.
"In this connection I will thank you to advise whether the Board
of Dental Examiners may employ one of its members as Secretary
of the Board and pay him a salary out of the General Registration
Fund."
Article 4543, Revised Civil Statutes, reads in part as follows:
1,
...Before entering upon the duties of his office, each member
of the Board shall take the constitutional oath of office,
same to be filed with the Secretary of State. At its
first meeting the Board shall organize by electing one
member President and one Secretary, chosen to serve one
year...."
Article 4543, -supra, provides for the appointment and sets out
the qualifications of the State Board of Dental Examiners.
The last paragraph of-Article 4550a reads as follows:
"To aid the Board in performing the duties prescribed in
this section, the Board is hereby authorized to employ a
-- ^
secretary, who shall receive a salarg to be fixed by the
Board, and he shall make and file a surety bond in a sum of
not less than Five Thousand ($5,000.00) Dollars, conditioned
for the faithful performance of all the duties of his
office and the safekeeping and proper disbursement of said
Dental Registration Fund and all other funds coming into
his hands; such salary shall be paid out of said Dental
Registration Fund and shall not be in any way a Charge upon
the general revenue of the State. Said Board shall employ
and provide suoh olerks and employees as may.be.needed to
assist the secretary in performing his duties in carrying
out the purposes of this Act, provided, that their compen-
sation shall be paid only out of the said Dental Registration
Fund. All disbursements from said Dental Registration Fund
shall be made only upon the written approval of the President
and Secretary of Said Board and upon warrants drawn by the
Comptroller to be paid out of said Fund."
Section 33 of Article 16 of the State Constitution reads as
followsr
"The accounting officers of this State shall neither draw
nor pay a warrant upon the Treasury in favor of any per-
son, for salary or compensation as agent, officer, or
appointee, who holds at the same time any other office or
position of honor, trust, or profit, under this State or
the United States, except as prescribed in this Constitution.
Provided, that this restriction as to the drawing and
paging of warrants upon the Treasury shall not apply to
officers of the National Guard of Texas, the National Guard
Reserve, the Officers Reserve Corps of the United Sts!tes,
nor to enlisted men of the National Guard, the National
Guard Reserve, and the organized reserves of the United
States, nor to retired of'fLoers of the United States
Army, Navy, and Marine Corps, and retired warrant officers
and retired enlisted men of the United States Army, Navy
and Marine Corps."
Under the provisions of Article 4550a, supra, the State Board
of Dental Examiners is authorized to employ a secretary who
shall receive a salary to be fixed by the Board to aid the
Board in performing the duties prescribed by law.
Artiole 4551 provi.ded that:
"Each member oft the State Board of Dental Examiners shall
receive for his services Ten($?.O.OO) Dollars per day for
each dag he is actually engaged in the duties of his office,
together with all legitimate expenses incurred in the
performance of such duties. All per diem and expenses
accruing hereunder shall be paid from moneys received by
said Board from applicants for examination and from the
Dental Registration Fund as provided in this law; no money
shall e~ver be paid to any member of the Board from the
General Fund."
(O-1101)
Hon. Geo. H. Sheppard, Page 3 , O-1101
The members of the State Board of Dental Examiners hold an
office and Position of honor and profit under the State laws,
and Article 16, Section 33 of the State Constitution, above
quoted, prohibits the aooountlng offioers of the State.from
drawing or Paying warrants from the Treasury in favor of any
person for salary or compensation as agent, officer or appointee
who holds at the same time any other office ore osition of honor,
tates, except
trust or profit, under the State or the United !i
as prescribed in the Constitution.
On September 22, 1913, this department held in a lengthy con-
ference opinion, written by Ron. C. M. Cureton, First Assistant
Attorney General, and Ron. C. W. Taylor, Assistant Attorney
General, addressed to the Board of Regents of the University of
Texas, that should Mr. Ways accept the position of Professor
of Journalism in the University and at the same time hold and
exercise the duties of the office of Lieutenant Governor, he
could not draw pay for either such office or such position.
We quote from the above mentioned opinion as follows:
"AI-I
analysis of the above quoted section of the Constitution
(referring to Section 33 of Article 16) results in the
following: That theaccounting officers of this State
are prohibitedf rom drawing or paying a warrant upon the
treasury in favor of any person for (a) salary, (b) com-
pensation; as (1) agent, (2) offioer, (3) appointee, if
such person at the same time holds any other (1) office,
(2) position of honor, (3) position of trust, or (4)
position of profit, under this State or the United States.
"Mr. i&ayes is the Lieutenant-Governor of this State, and
under the Constitution as above quoted and discussed that
is an office. It is likewise a position of honor and trust,
and while it could hardly be said, owing to the very nominal
salary~paid, that it is a position of profit, yet, there
is a compensation attached to the office of Lieutenant-
Governor, which, be it great or small, is intended as a
remuneration for time devoted to the office.
f!It is very clear, therefore, that Mr. Mayes, so long as
he is Lieutenant-Governor, could not under the Constitu-
tion draw pay from the State as (l)agent, (2) offleer,
(3) appointee of the State."
On April 1, 1932, this department held in an opinion written by
Hon. Scott Gaines, Assistant Attorney General, addressed to
Mr. L. W. Rogers, First Assistant State Superintendent, that
a member of the faculty of the State Institution of higher learn-
ing cannot legally draw a salary from,the State Government and
at the ssme time serve asa school district trustee.
Hon. Gee. H. Sheppard, Page 4 , G-1101
On September 10, 1937, this department held in an opinionwritten
by H. L. Willlford, Assistant Attorney General, addressed to
Hon. Jams V. Allred, Governor, in oonstrueing Senate Bill No,
74, Acts of the Forty-Fifth Legislature, creating State Board
of Registration for Professional Engineers and holding that
members of the faculties of Texas University, Texas Tech and
the State A & M College are ineligible for appointment on said
force by reason of Article 16, Section 33 of the State Consti-
tution. This opinion also cites Article 16, Section 40 of the
Constitution of Texas, which provides that no personshall
hold or exercise at the same time, more than one civil office of
emolument, except that of Justice of the Peace, County Com-
missioner, Notary Public and Post Master, etc.
On September 23, 1937, this department held in an opinion
written b;- Hon. Scott Gaines, First Assistant Attorney
General, addressed to R. L. Bobbitt, Chairman of the State High-
way Commission, that under provisions of Seotion 33 of Article
16 of the Constitution a warrant cannot be drawn upon the treas-
ury in favor of any agent, officer or appointee or a salary or
a compensation as such, who, at the same time holds any other
office or position of honor, trust or profit under this State
or the United States, except certain exceptions therein stated.
In view of the foregoing authorities, you are respectfully
advised that it is the opinion of this department that the
State Board of Dental Examiners cannot legally employ one of
its members as secretary toaid the Board in performing the
duties prescribed by law as provided by Article 4550a, supra,
and pay him a salary out of the general Registration Fund.
You are further advised that a member of the State Board of
Dental Examiners, who, at the same time, holds and exercises
the duties of secretary to the board aw provided by Article
4550a, supras cannot draw pay foreither such office or such
position s oblong as he continues to hold the position as
secretary to the State Board of Dental Examiners as provided
by Article 4550a, supra, and remains a member of the Stats
Board of Dental Examiners.
Trusting that the foregoing answers your inquiry, We remah
Yours very truly
Attorney General of Texas
BY
:Zell Williams
Assistant
AW:OB
PPRGVED July 31, 1939 APPROVED
b IRST ASSISTANT ATTORNEY GENERAL Opinion Committee
By R. W. F.--chairman
.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Artlolo 4Sbbl prooldeo that oeoh saber or
t& Stat0 Boar4 0r DentaliExaminare shall roooirer0r
hla aerolaaa $10.00par day ror eaah day he ia sotire-
4 r Dsa ld..~.~,.Quk iea ..o L,,~,o rdth r la a ..~a Lb r
a11 lag3 tlrrt8'6xp6aoeo in~urmd ia tho porforaaaaa
o? suoh dutlea.
hrtiale455Oa authorizesthe Stat6 Board of
DentalExnmla6ra to omploy a aearetaxy,to aid th6 Board
ln porSomSag ~+ha:6~4lo@..p~~oribe6 b7 law, ad. the raly
of rruoh aeant6Ty rhrll k tlud~ by the Boar+&, ati mob
rsarefa~ ahall nab and fllo a auroty boa4 ln th a lm
oi 13Ot..;kU .thO&&,~o,~ .ditblL6h;iW:bb~%6ibhfUi
parrormanoo of &ll fhs a&" of hlr oifloo in tho MiO-
keeping and propor Qlaburaawnta oi the Dantal,Reglatratlon
Fund and ell other fun48 aomlng into hi6 hands.
sootloa3 0r Alrtlols a71a provld*athat:
*A Stata Board of Ragl~tratioaror Pro-
rasslonrlRa&mera oreatod whore
is her'8by
autx..itsbrU by t9 .a$alaiat6r thcpmykloar
or Chin A&t;*
Seotloa S or Art1010 3371~1
provid6sthat 88oh
Seotloa0 0r Article3S7la protides the tha
Seoretaryot the Board #hall mosl~o a aalar se the Board
ahall 4ete& Ion an4 SX-
In addltlonto the oosaperuat
p6nses provldad for in the Aat.
Regarding tha State Roar4 of Reglatretionfor
z+roroeaional 2znglatber0, lt ir mfmltestthat one nnabar 0r
theiRoar4 has the dutiu of learetary of g\toh Borrrd ox
orriiaio,~ma the k19.t aret~.tho Ramd *i Ro&a4ro4lon,
above rer6rre4 to; prorid rOr a per Ulem oompaaation
ror muoh 8srb0r, ror uo rxpouo or au08 wmb6r, ud to+
the ralarpof,su.o&~~~r, r&I o$ whlob,$ rar~ecapotui~
for’ tlie Lagl8latum $a pr6aorlb6 and mu0 3 .
The lte$utea 40 not providethat the Seorstary
of the State Eoer4 0r Dentel 3mmlnere shell reoelreany
salary in additionto his per diem OOmp0AsatiOn, 9~hileon
the'other head, the a.tatuteado.provldethat the Seorstary | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150934/ | Order Michigan Supreme Court
Lansing, Michigan
March 7, 2017 Stephen J. Markman,
Chief Justice
153504 (22) Robert P. Young, Jr.
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellee, Justices
v SC: 153504
COA: 329308
Wayne CC: 90-500109-FC
CHARLES JEROME BENSON,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s November
30, 2016 order is considered, and it is DENIED, because it does not appear that the order
was entered erroneously.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 7, 2017
t0227
Clerk | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132544/ | The Honorable Charles Barden, P.E. Opinion No. B-836
Executive Director
Texas Air Control Board Re: Whether certain
0520 Shoal Creek Boulevard information maintained
Auetin~,Texas 78758 by the Air Control Board
ia confidential.
Dear Mr. Barden:
You have requested our opinion on a number of questions
regarding section 1.07 of the Texae Clean Air Act, article
4477-5, V.T.C.S. Section 1.07 provides:
Information submitted to the [Texas
Air Control] [Bloard relating to secret
processes or method8 of manufacture or
production which is identified aa con-
fidential when eubmitted shall not be
disclosed by any member, employee, or
agent of the [Bloard.
You ask:
1. Whether employees of the Texas Air
Control Board may make public information
which has been labeled as confidential if
such information doee not relate to secret
processes or methods of manufacture, and,
if 80, what procedures, if any, the Board
is required to follow in making the latter
determination1
2. how broadly the Board should interpret
the meaning of 'relating to secret processes,
or method8 of manufacture or proauction'; and
3. whether confidential information may be
forwarded to other governmental bodies.
p. 3526
The Honorable Charles Barden - page 2 (H-83&
Section 1.07 establishes a two-pronged test for deter-
mining whether information submitted to the Board is dis-
closable to the public. In order to be deemed confidential,
such information must: (1) relate to secret processes or
methods of manufacture or production; and !2) be identified
as confidential at the time of submission. Either of these
two criteria, standing alone, is not sufficient to invoke
the confidentiality provision of section 1.07. Thus, we.
conclude that the Board may make public any information
which does not relate to secret processes or methods of
manufacture, even though that information has been labeled
as confidential at the time of submission.
The Act does not specify the procedures by which the
Board is to make the determination as to whether particular
information relates to secret processes or methods of manu-
facture. Such procedures must be devised by the Board, in
accordance with section 3.01 of the Clean Air Act, which
states, in pertinent part:
The board shall administer the provisions
of this Act.
If, of course, the Board receives a request for information
which it considers to be excepted under section 1.07, it
should request a decision from the Attorney General pursuant
to section 7(a) of the Open Records Act. V.T.C.S. art.
6252-17a. We emphasize, however, that it is the Board which
is charged with administering the provhions of the Clean
Air Act, and it is the Board which must make the initial
determination as to whether any requested information falls
within the exception of section 1.07. See Attorney General
Opinion H-90 (1973).
You also ask us to specify how broadly the Board should
interpret the language of section 1.07, which makes non-
disclosable confidentially-labeled information "relating to
secret processes of methods of manufacture or production."
You state that, in some instances, to reveal the amount,
type and rate of emissions from a particular unit might
enable a person to determine how the process itself functions.
In Attorney General Opinion H-539 (1975), we held that
emissions data is clearly public information. -See Attorney
p. 3527
The Honorable Charles Barden - page 3 (H-831)
General Opinion H-635 (1975). In accordance with our previous
decisions, it remains our opinion that emissions data must
be disclosed. In making a decision as to the disclosability
of other confidentially-labeled information, however, the
Board might consider the criteria which courts use in deter-
mining whether information may be classified as a "trade
secret."
The Texas Supreme Court in Luccous v. J.C. Kinle
376 S.W.2d 336, at 330 (Tex.-Suc m), 4 that
t e generally accepted definition of a "trade secret" is
??=I
that contained in the Restatement of Torts, section 757,
which is stated as follows:
b. Definition of trade secret. A
trade secret may consist of any formula,
pattern, device or compilation of infor-
mation which is used in one's business,
and which gives.him an opportunity to
obtain an advantage over competitors
who do not know or use it. It may be
a formula for a chemical compound, a
process of manufacturing, treating or
preserving materials, a pattern for a
machine or other device, or a list of
customers . . . . A trade secret is a
process or device for continuous use in
the operation of the business. Generally
it relates to the production of goods,
as, for example, a machine or formula
for the production of an article.
See also K&G Oil Tool (IService --
Co. v. G&G
Servica, Tl? KW.‘lh781,789ex. Sup.-5
H ffines, 314 S.W.Zd 763, 776-777 (Tex. Sup.
&em&al Corporation v A ri-Sul Inc
'mv. App. -- Da~a~~r~~f'~4~~w~~~;2~~~~
Manufacturing Cornan v. Locke' 454 S W 2d 4il; 433-r
~n%~'l970,
(Tex, Civ. App. Ao'writ); Brown
v. Fowler, 316 S.W.Zd 111, 114 (Tex. Civ. App. -- Ft. Worth
TSFSB,writ ref'd n.r.e.); Boucher v. Wissman, 206 S.W.Zd
101, 102 (Tax. Civ. App. --sT9i17,t ref'd n.r.e.1;
Open Records Decision No. 50 (1974).
p. 3528
The Honorable Charles Barden - page 4 (H-830
In accordance with the definitions and examples in these
cases and other criteria which it may devise, the Board is
required to make a determination of whether confidentially-
labeled information relates to secret processes or methods
of manufacture. We emphasize that the Board must make its
determination in any particular case on the basis of the
particular facts relevant thereto.
Your final question is whether information determined
to be confidential may be disclosed to other governmental
bodies. In our opinion, the policy of interagency
cooperation would permit the Board to disclose such infor-
mation to other state agencies. In Attorney General Opinion
H-242 (1975), we held that information which was not acces-
sible to the public under the Open Records Act may never-
theless "be transferred between state agencies without
violating its confidential character," on the basis of a
recognized need to maintain an unrestricted flow of infor-
mation between state agencies. See Attorney General Opinion
H-683 (1975); Attorney General OpTion M-713 (1970). Likewise,
confidential information may be disclosable to county and
municipal governments which are recognized as agencies of
the state. Payne v. Uaa;s~. 196 S.W.26 493, 495 (Tex. Sup.
1946); Bexar Count v, L n en, 220 S.W. 761, 763 (Tex. Sup.
1920); State v
- -- -$&$j$~:d3;$,s;~;2d
Civ. App. ;!$e7;3 c;:i,,
331 S.W.2d 737 (Tex. Sup.'lm - -*' - -L
The situation is different, however, with regard to the
federal government. Although the statute requires the Board
to "advise, consult and cooperate with . . . the federal
government," section 3.19(4), we do not believe that the
Board may thereby disclose confidential information to the
federal government. As we stated in Attorney General Opinion
H-242 (19741, the policy supporting interchange of informa-
tion is absent when a federal agency requests information
that is not required by law to be disclosed to it, since the
state cannot effectively insure that the federal agency will
maintain the confidentiality of the information. Although
the state may permit the federal government access to
information in the state's possession, it may not permP=
t
access to non-disclosable information, unless some other law
requires its disclosure. Thus, absent a federal law requiring
p. 3529
The Honorable Charles Barden - page 5 (H-8%)
the Board to disclose the information, it is our opinion
that information which is determined to be confidential may
not be disclosea to the federal government or to any agency
thereof.
SUMMARY
The Texas Air Control Board may make
public any information which does not relate
to secret processes or methods of manufacture
or production, even though such information
has been labeled as confidential when sub-
mitted. Whether any particular information
"relate[s] to secret processes or methods
of manufacture or production" requires a
factual determination to be made by the
Board. Confidential information may be
forwarded to other state agencies and to
county and municipal governments, but not
to the federal government in the absence
of a federal law so requiring.
/\ Very truly yours,
/I Attorney General of Texas
DAVID M. KENDALL, First Assistant
Opinion Committee
jwb
p. 3530 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132550/ | THE ATNDRNEY GENERAL
OF~XAS
The Honorable Joe C. Banns Opinion No. E-830
Chairmcm
Coeeaittee on Energy Reao*cea lb: Whether a natural
Bourns of Representatives gam pipeline is a common
P. 0. Box 2910 carrier mubject to Rail-
Aumtin, Texar 18767 road Coemiaeion regulation.
Dear Chairman Henna:
You have requested our opinion regarding the authority
of the Railroad Comiemion to regulate natural gas pipelines.
Specifically, you aekt
1. Whether a nat)lrel gas pipeline or
a gas utiltity, es defined in a,rticle
6950, V.T.C.S., is a common carrier.
2. Whether the Railroad Commission may
require a natural gam pipeline or a gas
utility to transport natural gas for
others.
Article 6050, on which your first question is premised, pro-
vides in pertinent partr ..
The term ‘gas utility’ and 'public
utility' or 'utility,' as used in this
eubdivimion, means ana includes persona,
companies and private cerporatione, their
leeeeea, trustees, lna.receivere, owning,
managing, operating, leasing or controlling
within this State any wells, pipe linem,
plant, property, equipment, facility, franchise,
license, or permit for either one or more of
the following kinds of bueineeer
p. 3503
: . \.”
The Honorable Joe C. Banns,- page 2 (H-830)
1. Producing or obtaining, tranepor-
ting, conveying, distributing or delivering
natural gas: (a) for public use or
service for compensationi (b) for sale
to municipalitiee or persons or companies,
in those cases referred to in paragraph
3 hereof, engaged in distributing or
selling natural gas to the public; (c)
for sale or delivery of natural gas to
any ptreon or firm or corporation operating
under franchise or a contrac$ with any
municipality or other ltgal subdivision
of this Stattt or, W for salt or
delivery of natural gas to the public
for domestic or othtr use.
2. Owning or operating or managing
a pipt lint for tht transportation or
carriagt of natural gas, whether for
public hirt or not, if any part of the
right of way for Said line has been
acquired, or may htrtafttr be acquired
by tht lxtrciee of the right of eminent
domaint or if said line or any part
thtreof is laid upon, over or under any
public road or highway of this State, or
street or alley of any municipality, or
the right of way of any railroad of
other public utility; including also any
natural gas utility authorized by law to
exerciet the right of eminent domain.
3. Producing or purchasing natural
gas and transporting or cauming tht came
to bt transported by pipe lines to or
near tht Umita of any municipality in
which said gas is rectivtd and aietributtd
or sold to tht public by ano+htr public
utility or by said municipality, in all
caste whert such bueintee is in fact the
only or practically exclueivt agency of
supply of natural gas to such utility-or
municipality, is htreby declared to be
..
p. 3504
The Honorablt Joe C. Banns - pagt 3 W-830)
virtual monopoly and a business and
calling effected with a public inttrtet,
and tht said business and property
employed thertin within this Statt shall
be subject to the provisions of this law
and to the jureidiction and regulation
of the Commieeion as a gas utility.
Rvery such gas utility is htreby
aeclarta to be afftctta with a public
interest and aubjtct to tht jurisdiction,
control and regulation of the Comeieeion
as provided herein.
Oil pipelines are by statute expreeely dtclartd to bt
common carriers. V.T.C.S. art. 6018. There is no e,uch pro-
vision rtgarding either natural gas pipelinte or gas utilities,
however, and their statue as coxnon carritre is therefore deter-
mined by article 882, V.T.C.S.:
The duties and lihbilitiee of carriers
in this Statt and the remedicie against
them, shall be the emne as art prescribed
by the common law txctpt whtre otherwise
provided by this title.
In Producers Transportation Corn an v. Railroad Commission
of California, 251 U.S. 218 * Fiit Unittd States Supreme
i%urt held that a Dimline is a common carrier where it "in
truth, [carries] oil-for all producers seeking its service;
in other words, for the public.' 251 U.S. at 232. Whether
the actual business conducted by a pipeline is that of a
common carrier is a qutetion of fact.
common carrier if it holds itself out as available to trane-
port gas to all who may desire its eervicee. Otherwise, it
is a private carrier.
p. 3505
Tht Honorable Jot C. Banns - 4 (H-830)
However, the authority of tht RailrOad Commieeion to
require a pipeline or a gas utility to transport natural gas
for others does not depend upon its statue as a common
carritr . Article 6053, V.T.C.S., ptovidte in per:inent
part:
Sec. 1. Tht Coeunieeion after aut
notice shall fix and eetablieh and enforce
the adequate and rtaeonablt prict of gas
and fair and reaeonablt rates of chargte
and regulatione for traneporting, producing,
dietributing, buying, selling, and de~ivtring
gas by such pipt lines in this State; and
shall establish fair and equitable rules
and regulations for tht full control and
eupervieion of said gas pipt lines and
all their holdings pertaining to the gas
bueineem in all their relations to the
public, as the Commieeion may from time
to time deem properr and tetablieh a fair
and equitable divieion of tht ptocteda of
the sale of gas bttwten tht c~paniee
traneporting or producing tht gas and the
companite dietributing or etlling it; and
preecri~ and enforct rulte and rtgulatione
for tht government and control of such
pipe lines in respect to their gas pipe
lines and producing, rtctiving, traneporting,
and dietributing facilitite; end regulatt
and apportion the supply of gas between
towns, cities, and corporations, and when
the supply of gas controlltd by any gas
pipe lint shall bt inadtquate, the Commieeion
shall prescribe fair and reaeonablt rules
and regulations requiring such gas pipe
lines to augment their supply of gas,
whtn in tht judgment of the Commission it
is practicablt to do sot and it shall
txerciee its power, whether upon its own ,
motion or upon petition by any person,
corporation, municipal corporation,
county, or Comnieeionere precinct showing
a eubetantial interest in the subject, or
upon petition of the Attorney General, or
of any County or District Attorney in any
county wherein such business or any part
thereof may be carried on.
p. 3506
The Ronorablt Jot C.. Eanna - pagt 5 (H-830)
In Railroad Coemiiemion of Texas 524
s.w.za 2Z2 (Tax. sup. 197IT,ThGTii+mm
the Coeueieeion has jurieaiction to
regulatt and apportion tht ealte and
diepoeition of gas owned.by each gas
utility, so as to protect the public
inttrtet. 524 S.W.2a at 280.
The Supreme Court htld that whilt tht Commimeion lackm
juriediction over the aiepoeition of gas not owntd by the
gas utility through whose pipelint it is being tranexnitted,
it has full authority over the pipelint itself, and it may
mrtquire a utility to deliver gas to etvtral cities and
corporations in amounts at variance with their contracts."
Ia. at 281. Thus, it Would appear that, proviatcl tht
ztr of the gas is a gas utility, the Commrieeion may require
a gas pipeline to transport natural gas for othke.
In momt inetancte, such a pipeline would be embraced
within the atfinition of "gas utility" in article 6050. In
any evtnt, by tht terms of article 6053, the Couenieeion is
granted full authority over piptlinee regardless of whether
they may be dttmed to be gae~utilitiem. It is therefore our
opinion that, provided the owner of the gas is a gas utility,
the Railroad Cozmnieeion may requirt a natural gas pipeline
to transport natural gas for others.
SUMMARY
Whethtr a natural gas pipeline or a gas
utility is a coeeeon carritr depends upon
whether it holds itself out as available
to transport gas to all who may deeire its
lervicte. Providtd the owntr of tht gas
is a gas utility, tht Reilroaa Connnieeion
is unpowered to require a natural gas
pipelint to transport natural gas for others.
Very truly yours,
L4&.
Attornty General of Texas
‘P
p. 3507
-. . . . ’
II
. .* .
Tht Ronorablt Joe C. Banns - pagt'6 (H-830)
Opinion
jwb
Committtt
p. 3508 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132859/ | February 7. 1975
The Honorable Alton R. Griffin Opinion No. H- 519
Criminal District Attorney
Lubbock County Courthouse Re: Construction of article
Lubbock, Texas 79401 1899a, V. T. C. S., witch
reference to particular pro-
blems in microfilming
public records.
Dear Mr. Griffin:
You have rrqu,ested our opinion concerning the operation of
ar:icie 1899a, V. T. C.S., insofar as it may authorize the microfilming
of sealed files, surh as adoptions, juvenil,e proceedings, and inquests.
Article 1899a, sec:I:,on 1, V. T. C. S., provides:
The Distri~ct Clerk may, pursuant to this duty
to keep a fai,r record of acts and proceedings, p’ro-
vidt: a plan for the reproduction by microfilm or
other p’rocess which correctly and legibly reproduces.
or which fcwms a medium of copying or reproducing
all records, act:s, proceedings held, minut,es of t,he
court or courts, and i.nc:luding all registers, records,
and instruments for whj,ch the Di~stri,ct Clerk is or
may become responsi,ble by law. The plan shall be
in writing and shall~ i~nc!ude provisjons for maintenance,
rtt enl.ion. s ec:uri,ty, and retrieval of all records so
m~c~roi:.imrd or otherwise duplicatzed.
Secl.!,on 1I. 17 ib) , Texas Family Code, provides for the transfer of
the complelx~ file of an adoption proceeding to the St:at,e Department: of Public
Welfare up03 en1 ry oi a dxrcc 01’adopi:ion. Sectj,on 4 of article 1899a
allows dcst ru,The Honorable Alton R. Griffin page 2 (H-519)
proceeding, or trials only aft.er one year following the t-me at which
the judgment has become final and the time for an appeal has elapsed
or a mandate which is finally decisivelas &n issw.xl.Attorney General
Opinion H-466 (1974) construed section 11.17(b) of the Family Code to
allow retention of the adoption file for only a reasonable time, which
would seldom exceed ten days. Therefore the District Clerk is not
authorized to destroy the original file in an adoption proceeding, and,
were he to microfilm such a file, the copy so obtained must be sent to
the Department of Public Welfare. Since the District Clerk has only
temporary custody of the original file and is not auhorized to retain a
copy of it, it is our opinion that article 1899a does not authorize the
microfilming of adoption records.
Concerni.ng files and records of juvenile proceedings, section
51.14( The Honorable Alton R. Griffin page 3 (H-519)
SUMMARY
Article 1899a, V. T. C. S., does not authorize
the district clerk to microfilm the file or records
of an adoption proceeding. The district clerk also
may not open a sealed envelope containing papers
pertaining to an inquest, nor microfilm its contents
except pursuant to an order of the court conducting
the inquest.
Article 1899~1 authorizes the District Clerk to
microfilm the files and records pertaining to juvenile
proceedings, but the system which is utilized must
meet the confidentiality requirements of the Family
Code.
Yours, verv trulv.
i-Q-
- F
~~
JOHN
Attorney
L. HILL
General of Texas
DAVID M. KENDALL,First Assistant
C. ROBERT #EATH, Chairman
Opimon Committee
p. 2345 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132854/ | February 13, 1975
The Honorable B. L. DeBerry Opinion No. H- 525
State Highway Engineer
Texas Highway Department Re: Authority of State High-
11th & Brazes way Department to make ex-
Austin, Texas 78701 penditures requested to
qualify for projects under
23 U.S. C. sec. 405.
Dear Mr. DeBerry:
You have requested our opinion as to whether the Highway
Department can expend State highway funds pursuant to article 6674d-1,
V. T. C. S., in order to qualify for and secure federal funds pursuant to
23 U.S. C. sec. 405. You advise that the roadways to be covered are
basically city streets and county roads which are not part of the state
highway system of Texas.
The peeltinent provisions of 23 U.S. C. sec. 405, are as follows:
(a) The Federal-aid safer roads demonstration
program shall consist of all public roads or segments
thereof not on a Federal-aid system needing improve-
ments to correct safety hazards selected or designated
by each State subject to the approval of the Secretary.
(b) . . . including projects to improve highway
marking and signing, to eliminate roadside obstacles,
to eliminate hazards at railroad-highway grade crossings
and to correct high-hazard locations, identified by
accident reporting, traffic records and hazards analysis
systems . . . .
. . . .
p. 2368
The Honorable B. L. DeBerry page 2 (H-525)
(d) For the purposes of this section, the term
“public road” means any road under the jurisdiction
of and maintained by a public authority and open to
public travel and which is not on a Federal-aid
system.
Article 6674d-1, V. T. C. S., provides:
From and after the effective date of this Act,
all moneys appropriated by the Congress of the
United States and allocated by the Secretary of
Agriculture of the United States to the State High-
way Department for expenditure on roads not on the
system of State Highways, may be expended by and
through the State Highway Department in conjunction
with the Bureau of Public Roads, for the improvement
of such roads and said Federal Funds may be matched,
or supplemented by such amounts of State funds as may
be necessary for proper construction and prosecution
of the work . State funds shall not be used exclusively
for the construction of roads not on the System of
State Highways, the expenditure of State funds on said
roads being limited to cost of construction and
engineering, overhead and other costs on which the ap-
plication of Federal Funds is prohibited or impractical.
(Emphasis added)
Article 6672, V. T. C. S., provides:
Any funds for public road construction in this
State appropriated by the Federal Government shall
be expended by and under the supervision of the
Department only upon a part of the system of State
Highways. (Emphasis added)
Article 6674d-1 repealed any statute in conflict to the extent of such
conflict. Acts 1939, 46th Leg., p. 579. Since article 6672 was passed in
p. 2369
The Honorable B. L. DeBerry page 3 (H-525)
1917, it has therefore been modified by 6674d-1 and no longer prohibits
the use of state funds to match or supplement federal grants for roads
not on the system of State highways.
Article 8, section 7a, of the Texas Constitution states:
Subject to legislative appropriation, allo-
cation and direction, all net revenues remaining
after payment of all refunds allowed by law and
expenses of collection derived from motor vehicle
registration fees, and all taxes, except gross
productions and ad valorem taxes, on motor fuels
and lubricants used to propel motor vehicles over
public roadways, shall be used for the sole purpose
of acquiring rights-of-way, constructing, maintaining,
and policing such public roadways, and for the adminis-
tration of such laws as may be prescribed by the
Legislature pertaining to the supervision of traffic
and safety on such roads: and for the payment of the
principal and interest on county and road district
bonds or warrants voted or issued prior to Janua,ry 2,
1939, and declar’ed eligible prior to January 2, 1945,
for payment out of the County and Road District Highway
Fund under existing law; provided, however, that one-
fourth (l/4) of such net revenue from the motor fuel tax
shall be allocated to the Available School Fund; and,
provided, however, that the net revenue derived by
counties from motor vehicle registration fees shall
never be less than the maximum amounts allowed to
be retained by each County and the percentage allowed
to be retained by each County under the laws in effect
on January 1, 1945. Nothing contained herein shall be
construed as authorizing the pledging of the State’s
credit for any purpose. (Emphasis added)
This section requires certain revenues to be expended only for
“public roadways. ‘I Since 23 U.S. C. sec. 405 applies only to “public
roads or segments thereof, ” expenditures of State funds pursuant to
p. 2370
The Honorable B. L. DeBerry page 4 (H-525)
article 6674d-1 for the purpose of supplementing these federal funds are
consistent with article 8, section 7a of the Texas Constitution.
SUMMARY
Article 6674d-1 provides the State Highway
Department authority to expend State funds to
supplement or match federal funds received
pursuant to 23 U.S. C. sec. 405.
Very truly yours,
OHN L. HILL
General of Texas
-k--04/
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
p. 2371 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295082/ | Petition for certification denied. (See 120 N. J. Super. 197). | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4407189/ | Opinion filed June 13, 2019
In The
Eleventh Court of Appeals
___________
No. 11-18-00132-CR
___________
RUBEN GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR48792
MEMORANDUM OPINION
Based upon an open plea of guilty, the trial court convicted Appellant of two
counts of aggravated sexual assault of a child. After a hearing on punishment, the
trial court assessed Appellant’s punishment for each offense at confinement for ten
years, to run concurrently. We affirm.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and concludes that this appeal is frivolous
and without merit. Counsel has provided Appellant with a copy of the brief, a copy
of the motion to withdraw, a copy of the clerk’s record and the reporter’s record, and
an explanatory letter. Counsel advised Appellant of his right to review the record
and file a response to counsel’s brief. Counsel also advised Appellant of his right to
file a petition for discretionary review in order to seek review by the Texas Court of
Criminal Appeals. See TEX. R. APP. P. 68. Court-appointed counsel has complied
with the requirements of Anders v. California, 386 U.S. 738 (1967); Kelly v. State,
436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex.
Crim. App. 2008); and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
Appellant has not filed a response to counsel’s Anders brief. Following the
procedures outlined in Anders and Schulman, we have independently reviewed the
record, and we agree with counsel that no arguable grounds for appeal exist.1
We grant counsel’s motion to withdraw, and we affirm the judgments of the
trial court.
PER CURIAM
June 13, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
1
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
2 | 01-03-2023 | 06-15-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4145279/ | OFFICE OF THE ATTORNEY GENERAL OFTEXAS
AUSTIN
gonoreble Gee. ii.Sheppard
Comptrollerdf I%blic Amounts
Austin,,Texas
Dear E.ir:
le receired your 0 S Tuly 15, 1939, mad-
ing am Sollows:
*Please rei i&a passed br the
Stats taxes donated
0 ho5esteade in
ity of Port ethllr rrom
3, page 636, Regolar Session
Bistriot In Ccll.2nCounty, Chapter 36, page First
Called Session of the 40th Legislature.*
Chapter 33, page 32, 3rd Called Session; 36th LegislatWe,
reads in part as follcwa: .
Hon. Gee. B. Sheppard, Page 2
"Section 1 . That for a period of twenty years,
ccmmenoingeith the fiscal year beginning September 1,
1920, there be and hereby sre donated and granted by the
State of'Texas to the City of Aransas Pass, eight-ninths
i&/Q) the net amounts of the State ad valorem tares
collected upon the property and from persons itithe
county of San Patricia, including the.rollingstoak be-
longing to railroad oom?anieswhioh shall be ascertained
and apportionedas now provided.by law.
"Sec. 5. The moneys herein and hereby granted and
donated to the City of Aransas Pass are deolared to be
trust funds for the purpose of aiding the City ot
Aransas Pass in paying the interest and sinking funU
upon an issue or issues of bonds, the proceeds of which
bonds are to be used exolusively in constructingand
maintaining seawalle,breakwatersand shore protections
out into Red Fish Bay, landto fill in the space between
the shore and such sea%alls, breakwatersand shore pro-
tections in order that said alty be removed rrom
calamitousorerilows. The use and diveralon of suoh
moneys ror ar.y=otherpurpose whatsoever is hereby pro-
hibitea; . . .
Tea. 6. The fact that the greater portion of the
business part of the City of Aransas Pass an6 all of the
shippingdistriot is looated near the shore line of
Red Fish Bay, only-a few feet above sea level.,and the.
faot that the waves are dally eroding the shore line of
said bay~and inundatingvaluable property, and the iaot
that the hurricanesof 193.6and 1919 have demonstrated
that without proteation.#heCity oi Araneas Pass is in
Imminent danger of destruction,0r again sulferlnggreat
damage and loss of life, create an emergenap and an
imperativepublic necessity that the Constitutional
rule requiringbills to be read on three several days
b,esuspendedand this Act take eifeot and be in foraa
from and after its passage, and it is so enacted.*
The constitutionalityof the grant to Araneas Pass.was SUB-
tained in the ease of City of kransae Pass vs. Keeling, 247 S. b.
818, by the Supreme Court. After pointing out that the use of
oftfes and counties as ents of the.State In the dfseharge or the
Staters duty is not inhs ited by Constitution,the Supreme Court in
the course of its opinion said: .
Eon. Geo. H. Sheppard, Page S
"To the extent that the state aids in protaoting
Aransas Pass from the menace of storms through the grant
of part of the state taxes, she discharges a state obliga-
tion, and hence ho question arises as to lending or plddg-
ing the state's credit to E municipal oorporationor for
payment of the liabilitiesof such a corporation. Under
the legisiativeact, the city of Aran8as ?a88 alone i!:sues
and promises to pay the bonds, 'Ehile~thestate under-
takes to aid hransas Pass to meet the bonds by granting
the city certain taxes, yet the state does not guarantee,
payment of the bonds. The state's aredit is in no wise
involved. The State's obligation is completelydlsoharged
by surrenderingto the proper.oftiaialsof the city eight-
ninths of Sen Patricia County*s.stat%taxes ior So years.W
Prom this opinion of th% Supreme Court holding that the
grant to Aransas Pass was for a State purpose, we think It follows
that in the constructionof such shore .proteations Aransas Pass
was not performing a county purpose in behalf of San Patrioio County.
Stated difterently, such State ad valorem taxes were not remitted to
San Patrloio County by the above Act, but were'aollectedby the State
and delivered by~it to an agent of the State to be expended for a
State purpose.
Article 8, Section l-a, of the Constitutionof Texas,
adopted in 1933, reads as follows:
*Three Thousand Dollars ($3,000.00) of the assessed
taxable value of.all residence homestead8 a8 now defined
by law shall be exempt rrom all taxation ror all State
purposes; provided that tbis exemption shall not be appli-
cable to that portion of the State ad valorem taxes levied
for State purposes remitted within those counties or other
litioal subdivisionsnow reoelving any remission of
ate taxes, until the expiration of such period of re-
mission, unless before the expiration of such period the
board or troverningbody of any one or more of such aounties
or political subdlvlsionsshall have certified to the
State Comptrollerthat tb8 need for auoh remiseion of taxes
has ceased to exist in such county or political SUbdiviS%OZt;
then this Section shall become applicable to each Oounty
or polltiaal subdivisionas and vihenit shall beaom% within
the provision8 hereof."
From the express wording of the Constitutionit alearly,
appear8 that a county or other political subdivisionis notto be
551
Hon. Gee. h. Sheppard, Page 4
deprived of the homeatead exemption,unless at the time of the adop-
tion of said Article 8, deation l-a, such county or political sub-
division WaS receiving a remission or State taxes. ktehave already
seen that San Patricia County, as such, was not receiving such a re-
mission. *seare clear in the o~lnlon that so much of that County
as lies uithcut the boundaries of the City of Aransas Pass cannot be
denied the homestead exemption.
be now arrive at the situationwithin the corporate limits
of Araneas Pass, and as to which the answer is a different one. As
said by Chief Justice Philiips, in Corporationof San Pellpe de
Austin vs. State, 229 S. Ti.845, "the municipalitiesof the State
are polftical subdivisionsof the Stete." Under the Act in question
eight-ninths(8/9) of the State ad valorem taxes aolleated in the
Cityof Aransas Pass was graIIt8$baak to the City for a period of
twenty years, for the purposes therein set forth. Aransas Pass was
reaeivlng such grant of taxes at the time of the adoption of suoh
Seation of the Constitutionin 1993. liethink this constitutesa
*remission*or such taxes within the m-aning of the exaeptfon to
the exemption. The result fill nsoessarilybe that the burden will
be heavier in the City of Aransas Pass, through denial of the
exemption,but such is the language and manliest purpose of the
Constitution. tie quote from the 8uprene Court*s opinion in City of
Aransas Pass vs. Keelins, supra, further as follows: "It is because
of the speoial benefits to particular alties and counties that
special bnrdens on property within their boundaries, through'taxa-
tion, are jnstitied.R It was doubtless the view of the framera
of this Section of the %nstltution, and consequentlythat of the
people of Texas in voting it, that the special benerlta received,
by such alties as kransas Paes from the construotionof aoastal
improvementswithin their boundarieswas sufficient reason-for
denying them the exemption until the expirationof the respeotfve
periods of remission.
We are aware, 0r course, that bonds were issued by Aransas
Pass subsequent to the date of the grant. We are not acqnaintedwith
the sxact amounts and condition Or any such bonds. Prom the annota-
tion found at 109 A.L.R., p. 818, we quote as follows:
"Acoording to the weight of authority, supportedby
dimisions of the United &ate8 Supreme Court, the .iSSWiinOe
of bonds or the incurring of other obligationsby a munici-
pality under the authority of a statute providing for an
annual tax on the 'taxableproperty* in the municipality
for the payment thereof, does not give rise to a cOntraOtUa1
obligationnot to exempt thereafter any property ?romthe
non. Gee. Ii.shcppard, Page 5
class of taxable property existing at the time of
incurring the obllgatlona; and hence such an exemption,
\rhlchwould othrwlsc be Gthin the poser of the Legls-
lature and which doea not unreasonablydeplete the se-
curity of pra-existing obligationa,dooa not impair
the obligation thereof, v.ithinthe prohibition of the
ccntrect clause of the Federal Ct?LWJtitUtiOE. Gilman v.
theboygan (1863) 2 tilack.(U.S.) 510, 17 L. ed. 305;
Arkansas 2. Ii.Co. v. Louisiana 8.L. R. Cc. (1910) 218
u. z. 431, 64 L. ed. 1097, 31 :..Ct. 56; &tats, hall,
Prosecutor, v. Parker (1869) 33 C.J. i. 312; iSallayv.
iutch (1267) 6 Phlla. (Pa.) 408, And see Palo Verde
Irrig. Mat. v. F'eeloy(1926) 198 Cai. Cas. 477, 245 1'.
1092."
The Lldorado IndependentSchool Elstrict was a oreature or
special leglaletlon. It had outstandingbonds at the tine the Leeis-
lature passed a apccial act reducing its area. The histrict thore-
after sought to collect tax08 upon the territory thus left out of
ita boundaries. Tcrpeyers sought to enjoin such oo&lection. The
District urged that the ,contractualrights of the bondholderswere
impaired. lrom Judge Nlchels' opinion, Zldorado Independentsohool
District vs. Tladale, 3 2. R. (2d) 420, we Quote:
We do no: mean to hold that bondholdors (or other
taxpayers) do not have or may not in the.futureaopuire
praotlcally justiciable rights agalnot the exclusion
iron the district of the properties or defendants in
error. de have oommentod upon their poaslbilitles
merely by nay of negativing present showing of palpable
unoonstltutlonalityin the 1925 act and of right In the
plaintiffs in error to attack the statute on those grounds,
‘Laws frequently are enroroed which the court recognizea
as poesibly or probably invalid it attacked by a different
interest or 20 a different way.' 'LuongF,ingv. Klrkendall,
223 u. s. 59, 64, 32 s. ct. 192, 163 (66 Lans. Ch. 1-a.3SO)r
Weaver v. Palmer Eros. Co., 230 U. 5. 4C2,,46 5. Ct. 320,
70 L, Td. 654, 658."
WO nctice the further languag6 or the ccurt in the City of
Aransas Pass vs. Keeling aase, supra:
"The objection Is not tenable that reasonable pro-
vision Is Kanting to redeem the bonds becauee the Legis-
lature, eltor the sale of.the bondn8 can repeal the dona-
of state taxes ior 2D yeara. atate and federal au-
tf::r,
thorities are uniform that, when an act of ~a otate Legls-
lature, authorizing a band lasue,.creates. or authorizes
lion.
_. Geo. H. Sheppard, Page 6
the creation of, a aertain fund for thw bond's paymwnt,
such provision of the-act enters into the contract be-
tween the debtor and the holders of the bonds, so that it
carnot be re ewled by subsequentlegislationr.ithoutthe
substitution
-ET--
o something of equal efflcaoy. The sub-
sequent legislationwould impair the obligation of the
contract, and therefore some under constitutionaleon-
dwmnatlon."
The above language brd reference to a oomplwte repeal of
the tar donation. The aourt did not mean to say, and did not say
that so long as such a grant should be outstandingthe State oould
nvke no modfrication,genwral1.yerreotivo, or its tax laws.
Cheptwr 24, page 57, 3rd Called Swaaion, 36th Legislature,
~meds in-part as r0il0wa:
*Swotlon 1. That ror a period or twenty ywara,
oommwnolng with the fieeal year beginning September the
firat, A. D. 1920, there be and are hereby donated and
graqtwd by the State of Yexaa to the City or Port
Laraaa the net amounts of the State ad valorwm taxwa
to be aollectwd on all property and from all persons
own- property in Calhoun County, lwxas, including the
rolling atook belonging to railroad companieswhich
a-hallbe ascertained and apportionedas now provided
by law."
Chapter 292, page 666, Regular Session, 4lat Legislature,
reads as r0ii0w8:
wSection-f. That ror a period or Imnty yearn,
eommwnolng with the fiscal year ‘beginning September 1,
1929, there be and hereby are donated and granted by the
Stats ot Texas to the City of Port Arthur, Texas, situated
in %mmisaionera* Preeinat Dumber 2 or Jefferson County,
Texas, eight-ninths (8/9) tbw net amount6 or the State
& Valorwm taXW6 oollsoted on all property,both real
and personal, in Commissioners’ Preainct Number 2 of
Jwfrwrson county, Texas, whioh shall be esoertainwdand
apportionedas now provlded by lay.R
Tbe grants to the City ot Part Iavaoa and Port iwtti are
similar in other reapwcts to the one quoted morw fully above to the
City or hransas Pass. The same prineiplws are applicable. The
homestead exemption must be denied within the limits of Port Lavaaa,
and to the extent of 6/9 in i&?ansas.Pawrrand Port Arthur during the
rtispwctlve terms 0r the grants. The other areas in Calhoun County,
San Patricia County, and Cor~&seionere*Preoinot Do. 2 in Jsrrereon
County should receive the exemption,
lion. Leo. Ii. Sheppard, ?agw 7
Chapter 56, par.w159, let Cr?llwd lesion, 40th bgi~le-
ture, reads i:!part es followe:
"Lectlor.1. ror the ;urgose of eid!q tba independent
-ahool Diotr!ct.of t:.wCity GI Devada, in Collie Courrty,
-exaa) to be uatd for eohool bu:l:.lngRuTposes, all of the
itate ad valorwrttaxes on all property ih se?d lndwpondnnt
Lchool District subject to taxation,are h::rwbydonated
and granted by the :.Letwof ':exaato said independent
Loho Iilstriotror a period of hug-rive years Zrom the
tiae this act take8 amot, to be used by mid district aa
provided ir this RO:. %he said tax-8 shall tom tte basis
of a bond iosuw as provided herwin end shall be used to
pay interest and craata a s'nklng ru.udto pay said bonds.
Xbe proawwds of sold bonds, when sold, may he used by
neid district to construotend equip a aohool building or
uchool bulldinEs.
Tea.5. This grant end donation is aadw *under
Liactlon51 0r b.rtlcloS of the State Constitutionaa
erewndwd,end the 4glslaturw hareby dwolerwa, and xakes
a lwglslatlvwfinding, that said store, tornado or
oyolonw act:,ellyooourmd end caused greet dwstxuotlon
ci life and property end destroyed the school building
or said sahool distrlot, and that the same constituted
and is a great pub110 oaleGity juetliylngand euthor-
izlng thin act to be paeaed.”
The above is a remissionwithin the manning of the quoted
6ection of-the Constltutlonend the area within the boundaries of
the lndwpondwntSchool Diatriat ot Nevada mst be denied the wxwmp-
tlon during the lirw or the rwolisslon.
k+wadvert to our oplnlop No. O-380, dated Sarah 13, 1939,
addraeswdto Eohorablw Jexws +a.jtrwwn, County kttornwy of Nuaaes
County, atnrein we advised that the citieens of Xllleoy, Jin, ialls,
Brooks, Llwbwrg, Nval, Jim ?oge and Sueowe Countlo~ are entitled
to the exe:kpt.lonprovided In said Artlole 8, Section l-e or the
Csnstitution. The araa xltbin the limit8 of the City of Corpus
Christ1 is not entitled to suoh exemption during the life Of the
grant mdw by Chapter 136, pegs 270, General Lewa, 37th Legislature.
Yours very truly
A~&~E~.AUG 15, 1939
hsSi8tallt
ATTOmEY GENERAL OF T==8 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145289/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AIJFTIN
A 11OUl8. bo8tabli8hd by 8 8OfItraOtWbiOh
waly OOflfW8 a ~itllya oi huntlnl;OS
premia88 ot the ~antar elthou& the
ld th8 tr8nnwOtion a llmSO".
-Butthowh th8 oontraot un4.r rrhisirKlbbia .
deaomlantw Stsol? l *18880* aad
holdr~
80 danamhater it i0 hi8 ~~tit%On, -
00 lQpOllU’8
ho all8etiOll8 Ot ~titiOll t-t
it 18, la raot only a pot30~U 110~~88 fo Xlbbla
to caJoy tho &It8 &rant& hlr by it8 tUU,
Md 18 in II08UISe titO@hliiOti l-8, a8 t&t
taim i8 uad~atGOd.=
6. tom of dcmwl4d~t for the 8i&a~tu?oai
th. lloea8or mbdtted for oar 4+otnl, to bo wed In
tti qwll.r~Dtora$lonlioam*, la wti8saosoq.
Trnstln8 that thlr touJ armelm your inqulryin
are
APPROVID~T 20, 1939
A? | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145290/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable E. A. Hod,+ys
County Auditor
Wllllamson County
Oaorgetown, Texas
Baar Sir:
a.businass although
tsad'fti in another
on the above stated
question has be
queliry as a
justice preoinat
a bualaess although
an&her 3ustios Pre-
Ggorgetown, Justloe FrecFnat Ho.
married and owns a hose hers and
home atte; business hours, his
s to be performd in Justioe Prfminct
Ho. &, in whloh precinot his plaoe OS busi-
ness Is looated."
Artiolss 2927 and 8928, Revlssd Civil Statutes,
read s8 tallows:
Honorable H. A. Hodges, Page 2
*Artiole 2927. No person &all be ‘&igb
ble to~any State, county, preoiaot, or muni%-
ipal orrloe in this State uhlees ha shall be
eligible.to hold offloe under the Constitution
of this state, and unless he shall have resided
in this.State for the period of twelvd laonthe
and~Lix:mnths in the oounty, preolnat, or
mmiolpality, in whioh he offera himelf a6 a
candidate, next preoe.ding any general or 8pe-
ala1 eleotion, and shall have been an aotual
bona fide aitixen of said oounty, preolnot,
or mmioipallty for more than six mntha.
lie person inellgible to hold oiiioe &.all
ever hare his name plaoed upon the ballot at
any general or apeoial eleotion, or at any
primary eleotion where oandidates are raleoted
under~primary elsation laws or this Gtata;
and no such insllgible oaudidats shall ever
be toted upon, nor have votes oountsd Sor
him, at any such general, apeoial, or prima’ry
eleotion.
“Artlole 2928. Neither the &rotary
of State, nor any oounty judge of this State,
nor anr other authority authorized to is8u.e
oertiiloatss, shall ieeue any certifloatas
or eleotion or appointaent to any person
eleoted or appointed to any oi’floe in this
State, who 1s not eligible to bald euoh offio~
under the Constitution of this State and under
the above artlolel. and the name o? no inelig-
ible person, under the tinatitution and law6
ot.this Ytats, shall be oertitied by any
party, oommlttee, or any authority authorized
to have the names of oandidates plaoed upon
the primary ballot8 at any primary eleotion
in this State; and the name OS no ineligible
oandidate under the Constitution and lnwa of
this State shall be plaoed upon tho’ballot
ot any general or epeoial elootlon by any
:uthorlty wbo:oseduty it is to plaar name6 of
aandidatea upon otfioial ballotr.*
Artiole 6879a, Rsv-leed, Civil StatUteE, raado a8 tab
lows:
Honorable H. A. Hodges, Page 5
*Sea. 1. The duly eleoted oonstable in
each justioe preoinot having a olty or town
of less than eight thousand (8,000) population
aooording to the preoedlag Federal Census may
appcint one (1) Deputy and no more; and eaoh
Justloe Preoinot having a oity or town of
eight,thousand (8,000) and le:rs than forty
thousand (40,000). population aooordlng to the
preoedlng Federal Census may appoint two (2)
Deputies and no more; nnd in eaoh Justioe
Preoinot having c town or olty of forty
thousand (40,000) population or more aooord-
lug to :the reoedlng Federal Census nay ap-
point 3cive s 5) Deputies and no more, and eaoh
and every inatanoa said Deputy Constables
shall quality us requir.ed of Deputy 8herlrft3.
Tea. 2. Men the Constable in eaoh and
every instanoe uamed and desorlbed in tha pra-
aediug seotion of this Aot shall desira to
make appointment OS a Deputy or Deputies, as
the oasa may be, said Constable shall first
make written applloation to the Conmlsaloners~
aourt or his County showing .that It la naoeu-
sary for auoh Constable to have the Deputy or
Deputies requested i&order to properly handle
the business of hi8 office originating in the
Preoinot in which euoh Conetable has been
eleoted, giving the name of eaoh proposed ap-
poiutea; and lf the Commlssionerr* Court shall
find that the Qonstable Is in need of the
Deputy or Deputies requested to handle ths
business originating in his Preolnot, then
and in that event, and in that ev6,nt only,
the~Comnissionerel Court shall approve and oon-
firm ths appointment of the Deputy or Deputies
provided by this Act.
*Sea. 3. Aay person who aerve8 as a
Deputy Coustablb. without the provisions here-
of having been oonrplied with relative to his
appointment or any Constabls who issues a
DaputpshSp without the oonssnt and approval
of the Co:~elssionere* Court shall br fined not
less than Fifty Dollars (#SO+OO) nor mare than
One Thousand Dollars (#.1,000~00)~”
- 499
Honorable H. A. Hodges, Page 4
ite quote iron the oaae of Murray et al v. State,
67 s. 7.. (2) 274, as follows:
"Deputy Constables are provided for
by law and qualify In the same manner aa
Deputy Sheriffs. Artidle 6869, Revised
Civil Statutes, 1925; iUtiOle 6809, Ae-
vised Statutes, 1925, as amended by Aots
of 1929~ (1st Called Session) ohapter 113
(Vernon's Annotated Clvii Statutes, Artl-
cle
. .. 6869). Tb?y nre also
- .. vested by law _
witn some portion or tne sovereign runotions
of' the government, to be exeroised by thea
for the benefit of the publio. They are
publia offioers clothed with the power and
authority of their prinoipals. wils.on v.
State, 117 Ter. Cr. Rep. 63, 36 S. W. .(e)
733."
In the oase of Brown v. f&seeks, 96 S. Vi. (8) 039, it
was held that the Concuinsioners * Court has no jurlsdiotion to
add to or take from qualifioatlons fixed by the Lsgleluture
for oandidatss for office or oonstable. Therefore, It would
naturally follow that the Commissioners1 Court has no author-
ity to add to or take from the qualifioatlons rlxed by the
Legislature for a Deputy Constable.
Under the above QUOteA Statutes no person 1s eligi-
ble to any state, oounty, preoinot or munloipal office unless
he shall have resided in the state for the period of twelve
months and six montha in the oounty, preoinot or aunibipality
in whioh he offers to serve 8~ suoh offioer.
Artiole 2958, Revised Civil Statutes, provides, a-
mong other things, that the reeidenae of a married man is
where his wire resldea.
You are respectfully advised that it .is the opinion
of this department/that a man cannot legally qualify as a dop-
uty oonstable for a justice preolnot in whioh he does not re-
side.
Honorsble IL A. Hodges, Page 5
Trusting that the foregoing answera your Inquiry,
we remaln
Yours very truly
AT'lVRi?fl GENERALOF !I'EXAS
Ardell Williams
Assistant | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145308/ | .
OFFICE OF THE ATTORNEY GENERAL OF TEX+
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.
.
kionorabh Oeorgcr D. l&r&m, k'u~a C
prordta purohass or 011 by tendering muo to
Oomaon pWaha8@r?"
Xn rurthar explanation or your qu*stl~no, you 8tat0 Ln
your letter to Col. Thoiapsown thct c3llomaes 011 Cospanjr haa
drlll04 borne twoaty woU8 on land Ln Crookett County belonging
to chr i&irsralty of Toxa8, end that Cllor6oes 00 Company &s
-hut06 0. >lpa 1150 imm thoao relle to YoCaesy, whom a
.@8W@ttiw 18 Wde With &fU&lO ?i&~ &iUO dhlQUU~.
Tour quastXo58 ad8ume that Rumble ?lp* Ltm Company ti
fn f&at a 00-5 pWoha8or, und thle opinion 18 bawd 011that
This foot 1S8UO 18 f&pOrtmt, beomxm, Ud8rthO
zrao m tsth0 United 3tatOk Dlotrlot court in Nx0ma Hatural
m c8..V& ~~ibWOd OOdB8iO5 Of T'C)XEti, 69 hd. (2) ?m, it
WOti k RWOLL8titUtiO5d. ta Ppply the OOnPIY)II ptlroh8W 8tatUt.
to o plpo liar which 3~~8 not ln ract a oommo5 puroboaer.
A8 pOi5tUd OUt in the OpitiO5 by &ire 6OOtt ikd508, ths
prlnolpd statutea rrlmtlng to conxm oarrlor plpe4Unoa are
iU-tiOl.8 6018, 6019, mYf& 6040. 6041, 6046, 6oolb, 6oc8, pnd
6049a of V8lXkOn'a Aclnotete4 Civil Stututse. With rdurenoe to
FUr fhOt qUe8ttOli, tb PD8t ~tii505t 8tatUte8 - dodo, bolb,
arri 604Qa, 660. 0.
hrtio1.s 6040 prprida8, la part, that a ooamon oarrlar
pipe line wsha.ll be raqulre4 to lnrtP31 and mnintaln fooi+litlaa
for the rwelpt and dollro~y 02 oruda pstrolowu of patx-058 at
au pOi5W 05 8UOh pipe 115..-
.
rit101u 6045 ;rrOYidO8 t&at 50 oa6!!& arrler plpo llm
"8hn11diMr~ta tnicwaenoragdlut ahlgpn ip rrgordto
iaollltler rur5i8h~d or ssrolce rondurmL"
shotion 8 or utiols 60491 prorlao8 that ti oomon
oarriur plpa line8 8hdl be oomaoa puroho8on & tht 00 Om-
-5 PUOh8er
8hd~diAOriEhlata i5 it8 p-.@8"bt-a
r805 a8 4 & li58t l5Cltb r in th w -00
tWUO5 rid k 8 15 this 8t6teag It i8 tqO?
th18 8tatIitO that tha ~W8tkU,Oi th0 jU8tbWbt r-b&8
or any ai8oriml2lat,l~n18 to
k dotorminecl b thm mm.m8e ~COtis-
dJXl -taking into 0050iarmti0n the pmduot md Agcl or rrll8
la raip00ti~0 fhxa8 0nd ti ottar propa wtolr8.-
Xe ugruo with the o~nolua105 erpree8.d by Kr. Soott
iklnea thnt the iarogoln6 etotutory provisions are applioablo by
or
douorable George D. korgun, i'age S
their ttxprean terms to producers in dirrerent fields a8 well 88
to produoero wlthln the came rleld, and that under these stututee
a common purchaser 18 prohibited from making any unjust in-
reasonable dl8orlaWation aa botweon fields ln thla state.
Wa alao agree nlth Xr. Cainea' co5cluslon with referenoe
to rour 8eOOnd questlon,.and it 18 our opinion that a proboar in
a genoral area served by a common purohesor oan toroe prorata
purchase or 011 by tendering Same to a common purohaeor, a88uml5g,
of oourse, that the produoer oompllee uith,the rules of the Rall-
road Conm~l88lon a8 to the quantity and quality of the 011 whloh
is tendered. We believe that thle oonolu8lon neoesearlly r0U0wa
from the prohibition agaln8t dl8OrimiMtiO5, because ratable pur-
ohaalng 1s the only method of avoiding a dleorlmlnation between
produoore.
Yours very truly
ATTORNEY CENE;?AL OF TKXAS'
JemsP.Hart
A88leta5t
JPH:rXS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145350/ | OFFICE OF THE
AlTORNEY GENERAL OF TEXAS
AUSTIN
Honorable TOXIC, Eiw~
stat0 AWlltOr end gtriO~O~0p
Aumtlnl Torar
Deer Sir:
a 0r thi8 dr-
e u&laoooant8
te he8rurW in tha pap
n baaed te rtate em-
been lmrS.gnrd by 8tiia
lq o ear t
o ohua ve
ark&
hove #taOed general
d.11 be lmwerod rep-
v&ioh thrr.8p$mr ia SOUP
-lb this provlrionnan6rtory opal
the Steta Tr66aurexW
Xta four rht question evldentlg you #r* r8-
ferrfng to Artlolr 4372, a8 aam by the I.2~4 Le&ir-
lature in 1931. sala article made4 aa lollo*.s:
*The Treesurer ahall keep true accounts
of the rfioa !pts and expanditurer of the pub-
110 -txmys 0: the 'Fres6ury. anC close his
accwnts annus,llp on the Pat aey of Au,Tust,
vlth the ?rop&r leiv.~l TC!UO~~TS for the nam,
dlstln~.u:ehia~ batwoen the rtca2pt.t m2 dis-
burtammts of’ each fl~scal ye)rr.*
You arc advised that Artlole ~372 aakea it
aanthtory upon the Stetc Trsasurtr to keep true au-
oounts 0r tbs
rectl.pta and exptnaiturae or ths public
treasury. Your ettentlon is also celled to the feet
that the Le.$fslature has not left ths matter of the
katrlng of t&c sccoucts to tfm State Prceeurer'fi die-
artticn entlxalg, but has pesssa uummous artloles
troa time to time which detfno thr type at racordr
aacl acccmnts to be kapt by 88ia state Treemurrr.
In oonasctioh with your queetlol number 1,
you have asked the. followlAg quartloaa:
“2. Dosa the ~rOri8ion *true aocountr
or . . . ax~eadfturee of mbl.ic mxmym *
nwm that the State Treasurer nnaet lgtp
a rsoord/or account discloelng only the
number and stunt of State warraats Paid
,- by h&a (ISIState Traaeurar?
Or daen ‘true aoeounts or exptn-
“3.
dltures Gf public liontya* man that the G,tsta
Trtaaurdr must kae3: B record/or naoount att-
ting out in detail the nuabcr ttna asouslt 0r
east. state mrraat reeelvad ~(1 pid by &lm
a8 Stste TraaaurerT
“L. iioca this statute raau that the
Stata Txtaaurar mmt also keep a reaord/or
aocount setting out tha person, aorporntlon,
bcnk, eta., who piTi8Ated such wplrrant to
him cs State Trashlurer and wha rsoalved pa?-
ZQent theram?
"5. Gr doer this statute mean that be
must alao keep an BCOOUat/Gf record showing
Eonorablo To:.\C. Tin&, 73~8 3
that ti‘e stat.* ha8 aischrf0a ite obli?atlon
to the payee or .euch warrant?*
In answer to the above quoted qutrtlons, you are
advised that
Article k3e2 or Vernon's Lnnotatrd Clvll
St~~tutca, a8 emended by tke L2nB Legislature in 1531,
ccmtrols the type 07 reglwter to be kept by the Statr
Treasurer to show the iosueoce and poymbnt of warranta.
said articla reads as rollons:
*?ha Tressurrr S!XIX keep rs&ieters of
warrent 8 lowed, on6 for eaob class of warranta.
The Cz::ptrollor~ehalJ furnish lists of warrant.8
lbmod, which lists shall ba oosparaa with the
rarrente nnd shall c.:nntftuts the Traacurar’r
rea,lstars of wnrratita isstma. Tbb mounts of
warrsnta lssurd aball br added by the Trsaourer
and Fortd a~atmt the totals cf the warrent reg-
lst~ss. The date or peymant of all wsrranta shall:
be ata=peQ on tbe aborr regl8ters. The Trsraurcr
shall krep e *warrant8 paid re@rrter.* In thir
register the warrents shall be entered eaoh day
arhmnpaid; the number and amount OS asoh warrant
paid baixg entered. S~arrantr shell bo maped bf
olaesra and separate tot.816 of warrants paid fmm
aaot fund shall be ehown, es wall as the grand
tctel of all warrant.8 p0ia raoh day. The Traes-
urer shall furnish to tha Comptroller eaoh day
a ccpy of the warroztta ytld register ehowiw the
.~ : werrants ra 14. The Traestmer shell keep e rag-
later of warrants cancelled, on whloh shall be
entered the detalla of all warrants oancellaa.-
It is tc be noted that tCe wwammta paid registera
which the State Trrano~rsr !maet keep, under thasi;thority of
the ebc9e quoted erticl4, mat state the number end mount
cl each warrent paid. That iafor?ation concernhe eeah uer-
rant is to be entered cn the 3x9 v:hen the warrant is paid.
In other wor00, th2 Laglnl3ture has mt left thle matter up
to $56 Qiscretlon of tfie Treasurer with the broad Uutr On
said Treasurer to keep trus aaootmts and sxpen~lturae Of
public amaps, but baa (r.ons furthpr 6~:: has stated syrclf-
icell~r xhst iafonetion ehsll be co::tafned in the warrant8
piQ regSster. The Legislature haa not ptovfdad herein
that t?lQrarrante paid rsgleter shbll lndioate tc what
person or fim the warrant was actually Fald. Under
Honorable Tom C. King, Pete &
Artlole 4382 eaoh armant is to be set cut aeparetely
In the warrent raid reggister as to the number of raid
warrant an4 amount. %ltl Tr66sUrer's re&itW Of War-
renta Issued In Zurnished hlrp by the Comptroller aster
such varrenta sre Iseued. In this rcspctct It Is to h
poil?tsd out that suah Warrant rsgiater, a oopy o: whioh
tha Ccnptrollsr makes end furnish613 to the Treasurer,
contains the information rsquired by Artlole 4359 as fol-
low :
*And such regloter shall consist of'
en entry of the agaunt of the vsrrant,
name of tha pags, epprcprlatlon to vhloh
oharged, and such other inroraation ee may
be daamd advisable by the Cos~troller.*
A copy of thle warrant reglater Is kept by the
Treasurer, end It In only wheu the warrant is eotually
paid that th8 smue Is to be entered into the warrants
paid rsgistrr. In this m(lnn6r ths Treasurer Iti protided
wltha rroord xtilah shove When tha varl-ant was peid, and
thereby when the atete has disoharged Its obl$Fatloa qa
such warrant. The actual payment by the Traasurrr or tha
varrent is under tht authority oi Artiol6 1371, Whioh pro-
vides In part as rollowa:
*The Treaeurer shall count6rsIgn end pay
all varrants drawn by ths Coqtroller on ths
Trsasury wh:oh era authorized by law . . .*
Ey way Of 8mnn6ry, th6T6fOl.6, the Leglelature
ha8 llOt b.?ft th@ qU68tiOn Of the type Of Vtirl-eZit r6&ist62'
to be kept to the disoretion of the Stat6 TreaSUr6r tandsr
the gcaaral prorlelon that he kssp trua accounte of the
sxy.anditures of pub110 m~nuys. but th6 LC@#JlatUre -S eons
further anti has epcclflcally dsflned t&is type of regleter
to bs k6pt by the State Trcaeurar and the infomation to
be coatolned In such rsglstar. It ts tha opinion of this
dspertmnt that Article L38!2 must be strictly omplied
with by the Stat6 Treasurer In ksepiug the registers and
oooounts.
“6. Certain banks, werraat oespanIsa,
sad finance aaupaniee here follov6d the
prsctiae or 16udIm ':!omsy to atats em~loyeee
iioncrable Ton C. King, Fqe 5
nW.c3 loans %re nacurcd by 6:: aesipment
by tha enployse to t&a vmrrent coapany of
all warraute due much em,~lo,pos by t.be
stoto. Thm i:rr:o uead by 3oan Cw Coapsny
ramIs a6 tollws:
** Pate 193- ;;0t6 $:w
Date ~ed~l%uoe
Vieaslrud front John Doe 7i
Comyny the above aaount
as an adranc6d payment tI
\ f
to me for ths purohase
of 8 wsrrant or check $ ‘P
due tm by the Stats at
Texas or Fedsrol Government In the amount and for
the prriod stated below. 1 htreby oesttiy that 1
have not &i~Qn 6n order or ae~l~ned raid warrant
or aheck to any other lndirldual, firm or oorpora-
tion. I hereby authorize delitsry oi said mrrrant
or check to ths above Company, and author&t6 said
Coqxny to 6ndOr66 6638 tor 166 Kh6n rcosivsd. The
dlsoount on this Item Is to be on the full amunt
or warrant or check. For value r%O6iV6d. Thl8 or-
der la Irrevocable until tiio above eaount is fully
paid, Including 10% attorn6y’e roes.
( ) Blue ( ) vh1ts
J Fxpsrls 6
.., .." . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
“This form Ie not aworn to before 6 notary
publlo.
*(a) Ia thle assI&msnt legal‘?
*(b)~ U so, is it bind&w upon the Comptroller
or Public Aooounts or 6 publla ofrlolal or anployeo
vri:c df.s^rribcteo such warrunt 60 thst upon
tlra pr&antrrsent to him nf this as6Qnment
be aucit. deliver to th6 naslgnar all vzwrants
cr eny earrant in his ~ometiuton in w)iich the
asclgor Is tmated payee?”
The instrument rhiah you mclaes 1~ on6 whit&
the R~E~Oezplcpoe a1gr.a prior to the ioeuanas to him of his
at&cc pay asrrant. The in8truwnt thursfore operates in
tArOti&a9d in f8ct s8 a %Qhrp eZS.%&!UWRt, end LBURt br oon-
aidrr~~d SC suoh. 'hl VOiiditr Cf- CiGOhifAStURiL8ntdSpSll6$
upcr, the assl~nebilitp.of th6 U,oLery of 8aid a-ployee,
rhlch 6618ry th8 warrant repreasnta. It i8 t0 be pOiCt&
Out that thei e~ri@3t8eEt Cal18 f@T the ~UrCh880 Or train8f6r
of tr.o warrant or thank due the sapioyes. ml18 iastrumtrnt
emi ths puestlon you cwkT&itczplatt, tb6reforta, that tba
lrstrulnent Is an esnQnm6at of 6 wsrr6nt or check due the
employeei because ot talery which .",a~ b6an earned. In thi8
c.ancttion it is to be pointed out thet the unearned malarp
of a public officio1 aannot ht sr;aigned. 5 COl?FUS Juris
873 CoZtcin8 the fO~lUWiRg f8Z@Mg;e:
"The r88aon for the rule is not 8 desire
to protoot t&s private lntsreat of euch of-
tiarrs, but i8 one of publlo policy, based on
the neoaslsity of sacurine, the aftioiraoy oi
ths publia service by lnmuritg tbst the fundo
provided for its ~latananoo shall be received
by those who nra to perrormthh work, at t&t
periods appointed ror tholr paymtints.
mhpplicntione of rule. The rula that
an offfoar camat n&e a raiid asai@Imant
by cntioPp6tion of his serlery or fe6s be
born ap?litd to siawnyd-iff'arent c:aesee of
offiaarn, including orzp offloers, naval
orriosrs, superintendent in dapsrtmeo t of
public cLariti66, assistant parlxmentarj
ccunael for t&e treemurg fn EnglenS, clsrka
in She United f?.tEtcE trst36Urg dO'?Oirt.aent,
?napeotora cf cuetwA3, xlel5. Osrr16r5,
If@thouor ka6~6rs~ couc:y es06s3,'cr6,
civctry treamrerr; I c14rkd or tha peach,
clerks of wurt, nuotcre In charicory, re-
cefvers, Cistrict ar proaeouiir*: attOrn8ya.
sheriffs ) paica.?l8n, STUI5unioipal firan%n."
Honorable Tom C. King, rake 7
TLe Suprem Court of Texas in tbe case of
Stats Blatlone Bank or El Faso VS. Ylnk, 24 s. if.
256. held that thr above quoted rule applies in
Teaaa, and stated as followa:
(at pages 257-258)
". . . .The law pmridoa ooapenaa-
tlo nror otricial lenlo a in order to
enable the offioer to be free from the
oarea O.r aaklng provlaion r0r his own
rupport and that or hi8 rmily during
the term of offloe, that he may devote
his wsolo time to the dlachargr of the
dutisa or his orrloe. Ir such orrlcer
ia permlttea to arelgn Me arlary or reaa
before earned., he as9 thus deprive hlm-
self aEd melif 0r thls support, and to
aeouro it he muat look to $0300 other
source. thereby aeprlvlng the atats 0r
the careful end thoup,htful attention that
the publio lntereat demnds. A hunsry
man 1s weak in the precrencs of temptation,
no setter what may be his ability to with-
stand it. in a sta to of IddepenUenoe. To
deprive ruch an otrloer of the mana or
daily support for hlmaalt and ramii~,
while his bi;Pe aust be given to work in
whhbohhe oau axpeot no relief, would. be
* .~ a strong induonment to resort to aathods
whloh, ir not dishonest, ma0uia at least
be inconelstant with the yubllc good, end
the dlgnitg of his OfflOe bs deatroped bT
losing the rcspaot and conflbence or the
pub110 . . . .*
sea also tha cam of Villliaaa vs. Ford, 27
s. -2. 723.
As to just whiah eaployeen are oonsldered
pub110 officials under the holding of the Supreme
Court of Texas lntha P’ln* oess, m:re, lo undecided
in Tame. ‘i;e uan, however, see the extent towhioh
the rule has bean axtended fn the quotation iron
i Corpus Jurls, supra. The court ot Appeal8 0r tintu0ky,
in th8 OOSO Or SOhIIiitt WJ. DOO~i43, 1LC 9. Wrn197,
XonorabLe Ton C. King, page 8
hsld the rule to apply to e rlremn. In eo holding
the court derined the tam “public oftlceP eu it is
usrd in this oonneotlon, ae rolloios:
(et @age 198)
“The word8 *rubllo ortloer, 1 ma ueed
In theme oplnlomr, man one rho rondera a
pub110 servloe; o sertloe ln uhlch the can-
era1 pub110 ia lntersatea. For Ii It were
not SO the reason for the rule would be
wanting, ineemoh as all the opinions ex-
prassly aeolars that the rule lo not
adoptad for the benefit or the one rsnder-
ing the service. Is a tlrenan n public
ofrlaar nithln this raanlng?R
The Supreme Court or Missouri ltteca+lad the
rule to an aselgnment made by a post orrlce mall aar-
rler. S8e State ve, Wllllamoa, 23 6. V. 1.054.
The rule announced above, however, doer
not apply to aalarlrs or *rages or tees or public of-
riOera uhioh hava been earned, although the sans ars
,unoolleoted. The Court o? Civil kppeela OS Teme, in
the case of Sager ve. Glty or lFao0, LO S. W. 549, writ
or error reruard by the’Suprane Court, so held. Tha
oourt stated 8% follows:
*- ~; (at page 550)
“r . . . %(I do not hold that an of-
ficer cannot assign his earned fees or
salary, beoause the right to do so would
not produoe the ease results that wouLd
follow the snrorced application Of much
compensatloa to the payment of hle debts.
If the money were in the treasury to
pay tha oifloer for the services rendered,
there would be no InUuoemeaf to sell him
claln for less than its race valur; and,
It the zoney were not on hand to po,y ror
the services rendered, it might be neo-
essary for the wrrioer to dlsoount his
clalrP, in order to &et the maans to sup-
port himself end f8~lly . . . ."
Honorsble Ton C. Klll;~, pegs 9
The ~a)r~eprlaalplo \‘a~)announced by the court
of Civil kppsals of Texan ln the csss of Tho;apson va.
Cu;u;;, et al, 35 3. 1. L12. The oourt atetrd as
:
/*It is 0lrarly Izaplird from thosa
authorities and tbr others cite4 In sp-
psllant*a brief tbt when thr official
aerviors era perfomod, and thr salary
or 1~4 earned en4 due, publlo polioy
does not prohibit their arrlgnment . . .*
Th6 Oalvcston Court o? Clv5.1 Appssls In thr
oar4 of Bated vs. Flrrt Stste Bank in Csldwell, 105
S. 91. (26) 784, rrlt or error dismissed, bald thst a
public oftloer’s fear ware sss~,aable after the nape
ha4 bean eemrd, rsgsrdlese of the fact that they ha4
not been oollected Prom thr Stnte Comptroller, snd b
state warrant for the 88ms had not been Issued. Ths
holding In that case aonoenad fees of a tax colfraotor
which had been ase&ned after thal had been eerneu, but
prior to the lssuaaco ot a state warrant by the Coap-
troller In paymsnt of the BBIOO.
Yourma advlrrd, therefore, that the tmeernsd
ealery of a pub110 cftloial Is unersignablr, bat that
ths portion of hia we&m or sslary which has barn earned
may be eral$nad prior to the tiao e warrant In payment
of the sass 1s 145u4d. In this eonneotlon your atten-
tion is again called to tha hat thst the parparted ln-
,’ strummt considered in this opinion r’roltda thet ths
warrant or oheok la due the e~ployre.
Your attention la further called to the fsot
that where wa&es or salary were properly assIgnable
because the ease had been eornsd, but e Warrant for tha
mm had not 88 yet been issued, Artlolc 6165s. Section
6, Vernon’s Amotatrd Cl911 Statutes, would apply. Said
article readi as follows:
*Such bond when so aprrcsvsd by the
county JuEgs eke11 be fitid, together
with the said aft5davlt, in the County
Clerk’s otfice in the County in which add
loan broker is located end doing buslnese,
an4 ths said bon4 shall be rsoordad at
length by the County Clerk in a well bound
book kept for tile t pur~:onri, TL<>t$.$Ct).rq$j-
sigarnent of weg.49 3x contract provi4ing
for the purohase oT !:a;!es, mortgages, i‘cwr
of Attorney to oollcot or o%br tra12~iar of
the ealary or vmgas of 0 mrriled ixm 6n4
each bill ot oale or chattel .aortgaEe u~an
housetold or kitchen iurafturs cl H aarried
aan shall be. said unless the rie.:;iebe msde
end giran with the ~ooussnt of ttro wlf”e, on4
such consent shall be evidenced by the wife
jofninp, in the assiFnment. mr,rt~aga, Fowr
of Attorney to colL0ot, or other trscsfcr
cf salary or wfqas on:3 the aifriing GP her
nma thereto RIX! by her xepera+:e scknowled&-
ment thereon, taken plnd rrrrrtlf5.d to by II
Frcpcr offlosr, substent5ally fn the rao4e
provided for the acLnow2e4gment of H wife
In the conveyance of D howsetenC.n
The above Q:,iOtsd article snu?d apply wkcre
wages 37 eolary wr6 balng saalgned prior to the loeuaaaa
of the wnrrent in paym6nt o,C 3~8 E~zL:E. t:r necaerlty it
would sot a~@g u;hera t!ze *.wwrant V:&S Carrued ffir the
eam, beoeuee then t&e aeze nwld not operets 06 E ceg,e
eeeignment, but would operate aiu the trsnsfcr of a SCR-
negotleble instTum6ut or a8 the CaSkiii?&-inOf the e.%-
~loyse’a rey chsck.
IA order thrmt x4 z2y ha able *to ascerta5.r~ the
validity of an aazignxent of a state warr:lnt, ?t is new-
efsary to sefd exactly vit,at type 02 eai instrument such e
u0+~at LB. The btet exg?eanisn a~ to the cL;-ratter
cf R stn:e warmnt ~88 3z Honorable Toa C. King, ~"6;s 11
rant for th6 o?rAlnt stated in its race
or to pay the full amcunt of such warmat
eximtad. No purchaser of the wr:ant,
whether In good faith or not, mild
la&ally demand fro3 the state the ragment
of mere then the amunt which xa8 owing.
se6 EDOr. or Law Froo., vol. 11, r;. 531;
volume 7, p. 818; volum 36 p. 895;
Corpue Jurla, Vol. 59, & 8 406;
Tar. JUT. vol. 11, Q. 6t?5, 8 118.
T3pesklng or the negotiability of a
werrant, in t%r saotlon of Corpus Jurls
mentioned above, it la said: ‘It Is not,
horetsr, a negotlablo lnstrumsnt In the
mm84 of the law narchant 80 aa to shut
out am against e bcne fide purohaeer ln-
qulrlas 6~ to ite validity or preclude
detanmr or sat-offs whioh aould be
assorted as against tha orlglnal paysa.
l * * A.6 ag9inst tha 8tptr ths soeigaar
aoqulres no greater rQhte than the party
to whoa the warrant was originally ltwued.*
Vroa the Ssotlon of Texas SurZapru-
denoe mentioned, tha fol.lowlng Is quoted:
%hll.r warrants are in thr ordinary form
of oo~merolal paper, they do not poeseas
the quslltles of such paper; they are not
negotiable lnatruments.’ . . .n
*- .I
Thdr8 oau be no question but that etste war-
Cent.8 are not negotlclbls lnatruments as t&a 8asa were
known under the lau of mrohants. Your attantIGn ie next
called to Article 569 of the Eevieed Civil Gtetutas Gf
T6xnal which reada as followsr
"The obl@es or easlgnae ai any
written lnetrument not negotiable by
the law Gf zmrchsnte, zay by asalgn-
msnt transfer all his lntrrast thara-
in to another."
!% era unable to find any reason why Art1010
569 would not fgply to state warrants. Under the author-
ltp of the
above quoted article, it has been held that
oredlt msnorandum may be assigned. See Rsd tbtor Co.
v. Goad ‘Motor Co., 24 5. W. (2d) 67.
It was alao held that tlar checks issued by
en employer are assignable by en mployss. See Aldridge
‘Lumber Coaprnp ve. Graves, 131 S. W. g1.6, writ of error
d-kalassd by the Bupenr Court.
Th5.s dspartmsnt ruled in en opinion dated
July 1, 1937, addressed to the Honoresbla George A.
Sheppard, Comptroller of Fubllo Aeoounta, Hhlch opinion
wes written by the Eonorabls SoOtt Gaines, Flr6t Aaeia-
tant Attorney Cener al, that whlla W>te wnrrante are
not nagotlablr lnstrumrnta, tha $838 my be aaslgnaa.
Said o?lnion reade in part aa follows:
“It is the ~41 Battled law of this
State that Etate or oounty warranta are
not negotiable inetrumenta but are NO-
nep.otlablr lnstrumsnta r;lthin th6 law
marohant but the title to aucb wsrrmnt
may be transferred by endorsement anb de-
livery, but an assignee would aoqulra no
greater r1Rht.e than the garty to whoa the
warrant wea origlnnlly ioaued. In other
words, an ordinary State warrant drawn
ayei-t the Stats Gsnoral Mvanue Fund
.-in the hands of an ses&nee would bs
eubjeot to the aazae defensss and off8ets
whloh could be esssrted against the or-
iginal payee. Spsrr v. Stata, 58 ?. X.
(26) 95, 123 Tax. Cr. hip. 188; tit bt
Belton v. Earria Trust and Ssvlngts 8ark,
273 6. W. 911, afflrsad 263 S.
Laeator v. Lopez, 110 TOI . 186 ‘i’il;64’S.
V:. 393; Galloway PD. Sheppard, ‘69 s. P;.
(26) 4l7 (wit of error dimalsaed).
“Therafore t anrst-.erlng ycur flrat
queatlcn, you are reeljeotfully sdvlsad
that a warrant drawn against the State
General Rrvenue Fund is not (I negotiable
instrument in the sense that tha law mar-
chant would shut out as ctpaiast a bona
fide puroheser lnquirlas 8s to ita vel-
ldity or rrealuds defenses or set-offa
whlah cou?d ba asserted a;la:nst the or-
l~lnal paycre. A4 o~vx!nrrt the state the
aerf@nas aoqulres no prsatrr ri&ts thsn
the- party to whom the warrant ‘was or-
iginally issued. ln other words stats
werraata are not negotiable instr~enta
l’urthar then that title may be trans-
Ierred by anQorsenrnt and delivery.”
You Oomuwnt in your letter on the faot that
the ions for the vaTrant sss&nment is not sworn to
berore a notary public. You 6re advised that It la
anneoaaeary t&t a written eesigmrhnt be morn to and
ecltnowladged. Sea 6 Corpus Juris houndan 1099.
You ore a6xt conoerned with wbcther or not
aaah warrant asslgmant is binding upon th6 state
aTent who delivers the warrnnt to the paye8. As a
pneral rule, valid essl~nmente ere hindlng upon
the debtor or peym, Then he la given mtloe or the
aasifimtnt. This rule has been appllsd by the courta
cf thla state to n sltustlon where a non-atgctlable
instrument is transferred under Artlalc 569, mpra,
sad it has been held that uadrr such artiole, If
notice is clvta to thq debtcr. ho la bound theraby
and has to deliver said rerrant to the esslcnee.
Thie cono1uslcn lozlaally folloa;s frcm the statement
of the court in the case ci Gulf C. k S. F. Fy. Co.
v. Xldrtdgo, 80 s. 7:. 556, as follov:s:
l - *Article 309 of the !?evirad Statutes
of 1895 provides that the seslgme of any
instrument asntionsd in the precediw erticle
my maintain an action thereon in hla own
mm, but ha shall allow every dltrcount and
clefsnae arc?lnat the same whtah it would
have been subjrot to in tha hands of any
2rtvlous owner berore notice of the es.6ig.n-
sent was given to the defendant. The pre-
vious article referred to is artlale 308,
which authorize8 e pledge6 or ase&nee of
any lnstrmant not nagotlabla by the law
narohant to transfer by aaaignment his inter-
est to another. It is true that thsse pro-
vialons of the statute tiss the expression
%rltten lnstrtment*, but we are inclined
to the o:!iniol; tbst : L cm bt:. locksd to
In corder $3 c?eta:r,f2e upori who9 the Sup-
den r~.sGn to estotllrih the fact that rey-
.mtnt V.-SE?lacu Yit2 orating ;q- ?:ith;iut
cctlca nr tt;;6 rar3~xlant. T&5 btGtUt6
~rooieae thnt tti~ nzol~nzsnt la ::sde
subject to 211 ::f the ,:efe.lscs bsfcra
ZIOtiCo Or the S$~i~nclWIt MS ,c.iven to the
Cefcndant . The use of the OXpZ-4Z6iOn 'notlce
of RaL'fGment v:as cfvcn Co the .; efendcnt'
izplies that the Cefsndsnt mutt bo &iven
notice of the asalpment in order to pre-
clude him rroa sasertlr,: a settlemsnt tloda
?,,ith the ori,gi.nel creditor. The rule my
pcsslbly be othsruioe 4th reftracce to
negotiable Instruments. A debtor v&o
settles cith the original creditor e nsn-
negotiable claim, +lthcut notics thet it
hae been trecsferred. ought to be yro-
ttotsd; and we are Inclined to the
opinlcn thet the burden of proof recta'
upon the aanipnee to establish eom fact
indlcatirdj that the debtor had notice at
the ti?ne the oettle~ht ues zade with
the origins1 creditor. . . .*
The says eoccluaion my also be dram froa
the langue@a of the %utrme Court $9 Texas in the cam
L oft Sta;l2ord Coqreoa Cm;,eny VR. Farars 'L Yerchanta
Katioml Bank, 143 2:. :':. llL2, El8 z=ollowe:
"The rvcsi;lt v:aa cot *EirF:nable at
Cow.c~n k:iv; and this ;.:urposa 7f Ikie Lezls-
leture in ecacti~ tht article copied
?ZiQBto zlske such lnetrment scsiqabla,
eo that the pc-~son to :::hc?a aucb inntrti-
nents shosld be r.e:;able z&+ht asnign
t.!is contreot, thus ;rlac.fnF. the so:ci,~ne4
in tLe place of the assignor. Eut th6
sani::nca :;f ruch contraat cwid not have
suet? t!.e 7..:rsr thereof at cmmon Law,
but Zust have used the mm of the origIna
obll gee. TS enforce the right acquired
under art?cle 3G8, the Ln&lelature enacted
Bomrabla Tos C. King, paps 15
artIel0 309, Reviaed Statee, Welch reads: ‘The aael~naa
of any lnstmmant iasentloned in ths pracedl~ article may
mintsin an action thcrron in his own name, but ha shall
0110~ every discount and defense agr.ainst the saoa rhloh
it w~ald have bean subject to In the hands of any prevloua
owner bofora notice of the aaslgmen: ma given to the
defendant; and In order to hold th6 aes?@or es surety
for the paymaut of the Inatrumnt, the evolgnas shall uea
bus dIlL~ence to aollsot the mm.
". . .
wS~tIola 309 made it the duty of the bank, when It
received the raoalpt, to give notice to the Cor,press Coz-
yany of the transfer in order to hold the obl.lgor respon-
sible to the asnlgnca.
. . .
“In Sraarlngan v. Lucklap It wee said: 'It me the
duty of the aaa&nea of a non-naectiable note to promptly
rotlfJr the maker of such trsoafar. It 18 even held that a
transf 6r, a%ve as ber.waen the pays8 and the lndorsae, la
not cmpleta until such notice ws given . . .*
*. . .
“By a strong iicpllcation article 309, supra, euthorIzee
the obllgor In a non-na&otlable contract to raoognlzs the
oblleea aa ths owner of the pro;trt;l until notified of its
aasigrlmsnt.”
It la therefore the opinion of thla dapartaant th+t under
be holdiwa of the above quoted casea and Artlols 569, If notice
f an’askl@mnt or transfer Is brought to the attention of the
tste spent whose duty it 1s to deliver the werrmt, than eel4
t&a egent Is bound thereby end mat pay the r!arrant to the
8SIgtU!J@J.
In this respact you are edvlaod. hl:wevcr, thet when
otlcs of an asalgnment la pr6%6ntsd to the yayin;: want, whlhh
gzlgnmnt shows on ita face to be nn aanignment of unecrnad aal-
r, or ra:zas 0r a public official, the ~-oyIc~ a6‘ent mat consider
uch asalpment wa voi!l, and my not r:sy the saws to the asei@me.
s pointed out by the Court cf Civil Ap?,ealo cf Texas in the case
f s1111e v. Yaatharforcl Co,5praea Co., $16 s. -. 472, pnymsnt to an
g~lgnee unc?ar B VOID ae~Ie,namat Is no pqment, and the fess are
till oacollected fees cf cftlca so far as the eaployoa la concerned.
gwevar, where the laatrusent rcrcltae ttnt the wor:~ant or check 1s
us the azployee and there Is nothing lndlcqtlpl”, the same as being
or unanrnsd salary, tba as-lgnment wuld have to be recognized
ithln the ll~ltatlon of .irticla 6165~3-6, suym.
Eoaorabla Torn C. Xl~8, pita 16
“7. Xunt a warrant rroeivrd by a ww-
rant company under such en nafilgnmant be an-
domed by the payea or by some one leeally
authorizad to endorna the ama for h1.mbafora
tha State Treasurer is authorized to pay the
aa%e to the holder thereof?
“8. If 80, is the form hereinabove set
out aufrlclsnt 80 aa to authorlza The John
Doa Company to endorse a warrant received by
thra by virtue of an aaslgnmant with thnt
f ora?
“9. If this form authorleas’ thin oompany
to endorse such rerrants for tha payaes thara-
of, which of the following steps should be
taken by Ths John Doa Company before t?;a Weta
Treasurer la authorized to pay warrants pra-
aantrd to him aa Stnta Trees-r by The John
Doa Company If the mama of the payaa of auoh
wsrrenta has bean sndoraad upon the mm by
The John Doa Cospany:
*(a) Marsly present such warranta for
papant?
-(a) File erlodIoally a sworn stato-
ment that they lpTha John Dca Company) have
written authorlzatlon for all warrants yra-
+ aantad within thnt period to endorse the
paj+as’s name thereto?
“(0) keooap~ny aaoh warrant presentad
for payment with a sworn atatament that The
John Doa company is authorized to endorse
the r;ayea’a nxde thereto?
-(d) Accozipany each warrant Fresentad
for payment with the orie,inal/or a carbon
copy of the f;r.n heretofore set out ale.nad
by the payee of such warrant?”
In these three quaetions you are concerned with
the typa of information tha Ststa Treaeurer should ra-
quira before he rays a at!ita \%arront to anyone but tha
payaa therein. There can ba no question but that when
Honorable TOE C. zing, i:aca 17
an assigcae nsrely presents the warrant to the State
Treaeurar without any other evidence that the sem he8
been properly eaiignea to him, the State Treasurer
would be unauthorized to make paymmt on the warrant
to the assl(;nea. This we8 the holding of the oourt
in the cam of Attoyeo River Lllaber Co. v. Fayos, 122!
S. ‘s?. 278. In aLscueelng non-negotiable instrumsnte
the oourt stated as follows:
. The cheeks In question
n having none
of ths'&mtial quellties of a negotiable
lnetrumnt payable to bearer, the ners
re 44tl no pm-
session of then by the app8llae --T-=-
sumution that she ia entitled to the rlzhts
of iha~pemon to whom they wore issued.-The
evldenoe failed to show that appellee had ao-
qufr4a the right ana title 0r the original
OvJner 0r said cheeks, and therefore rells to
show that she was entitled to rscomr thereon.
. . .* (Gc@arecorln~ ours)
The 3iprs33 Court or Teree In the teas of Cragg
v. Johnson, 37 Tex. 558, lc apeaklcg or a non-negotiable
lnatrunett, said as tollows:
". . . A ;GsreI transfer by delivery xl11
not enable ths holder to rscover, without
avsrrimnt end proof of such bone fide owner-
.ship. . . ."
Eowavsr, if tha warrent is endorsed by the peyse
ii~a~~~ataiv4rea to the werrant oo~tpany, suoh endoreezent
and dollvery would ba sutriclent to transfer said warrant.
Your attention Is oelled to the feet that Ytate warrants
read "my to the order or ." Ronorable Scott
Coinerr In the opinion prsviouely wfroa, stated as
r0ii0we:
". . . but the title to suoh weri.ent aay
ba transferred by erdorxmmt and deliv??ry,
. l .
*$n other v:oras stats warrants are not
negotiable instrumnto further than that title
zay bs transferred by endor;erent and delivery."
In the cam of City of Belton v. ilerrie Trust end
Savings &ink, 273 i. ":. 614, the court steted as r0ilows:
"That zunlolpsl warrasts are not r.c~stisblo
lnstruxente withPc the law mrchnnt, Suxtbsr
thah that title nry be trennforred by-%?%%-
i-ent ar.d deliver , is well settled."
Yhs Y.aco Ccu:t of Clvll Apceols in the oam OS
.:.00a V. Yparks, 4% 7:. 1,:. (~a) 142, stated 60 r0ii0wa:
mEow4v4r, the rimre feOt tlxt the instru-
zeht wao nonnegotiable In the eense that a pur-
chavsr of nrsgotlable popes who buys ror a val-
uable ooheideretlon eith,sut notloe, takes the
earn free OS equities In ravor o?‘ the a&or,
does not Atigste against a8 assignmht OS the
obll~stlon evidmoed thereby by lndoreaztvnt
and delivery of the lnstrumnt. .hethsr it be
denoi&mtad a tote or not, it was the prlzary
obllgi\tlan to pay mid was the svldenoe oS the
debt. The fact tht it was trade payable to ,‘.
T. ‘$a!issor order, evldenoes the Intention of
the parties that title thereto should pass by
Lndorsament and delivery of the Instrument, end
such was th;! effect thereof. . . .n
St is th% opli;ion of t&a dapartxmt,thereSore,
that while e rtate warrant is, not E negotiable lnstruzcnt,
the sasx nay bo transferred by ecdwearent bnfi delivery.
xc anf3w0s to your q,uf?etloz nu3her 8, Vu?3
ere un-
able to see any r6ason why the fo,rm which you include in
your letter xould not bo aufficlsnt to authorize the ;ohn
;;tje Co~~ang to endoree a varrant racaived by them by virtue
or ec a;aigm.snt.
In your question nutiber B you ar? concerzed viith
the authsrity of tLa Treaaurar ta rnw!;rzim on endarseamt
isae hy a warrant cooprng In thm naze of the cajree under
tte authority of the previously dincussjcd dower OS attxuey.
There can to EO question but that when the Treasurer ~227s
e warrant endorsed in tbls manner he Eoes so at h:s porll.
Au pointed out by the court In the ease OS ";fll.lo v.
tatheriord col;pr0ss co. ‘ 66 i.. i;. 472, pnyE.0ct to &xl as-
ei;oee mdga void nsskoz.?;ont IG no payzx~~t at all. ~hsre-
Sore, the T~~esurer should require ouuh iniorzutlon con-
oerniog the nuthority to endorse pey(~s~3 nfU?ieon IYWrrsnt
88 he seeie will proteot him3eli. There o!in bc no qusn-
t:on but that the m~l;od yoti s&Jsest in nwher 9 (d) -
that of acompnyiu& each warrant with t!lo oriLxinal or a
co~,y of the authorization - r..c~.Q.d be the rret,hoc¶ Chnt would
Honorable Ton C. King, psge 19
beat groteot the Treasurer. Eow*var, any of the Eethode
you suggeet w(xll% be rrufficlant 1P in iact authority for
the *a%ors*&ent hd baen given by the pay**. The .pro-
blem which ttil8 question prosento is one of proof in ca8*
of a conteet arising over a .ptxrtlcular warrant and not a
problem of authority of the Treasurer,
"10. If the fan: heretoSore 64t out
is not sufrloisnt to authorize the John CO*
Coqmp to endorm upon a atnte u-arrant the
m&e of the payee, what steps would have to
be t&en by that aonipany berore the S,t.ate
Treasurer would be autt.orized to pay the sanie
to The John: Co% Company? ::oul.d The ,John Eoe
Con;pany hava to file with each state warrant
upon presontsect ror payrkent, a 2ower of at-
tortxy to endorse the ntir;eot the payee upon
the a&e?-
This departnsnt is unable to find any reason
why the enclOSe% authorization would not be auftlclent
to authorize the John Poe Colr;panp to enborae the state
warrant in the n-6 of the payee. The enfforsement fe
part of the written assignment plan and as ha* Seen
previouuly stated, ouoh aoslgnJn%nt Goeo not have to be
aoknowladged or be und*r oath.
"11. If your answer to question ntmber
five ie In the negative, is there.any stat-
utory or constitutional prohibition whioh
V?OUl%prevent the Stat8 Tr*a8UMr irOni re-
quiring a power of attorney to be tiled and
by so doing keep an acoouot/or record shoa-
ing that the st.at% ha8 discharge% it8 ob-
ligation to the payee of such state warrant?
"12. Cr 1s there any statutory or Con-
stitutional provision reqolrlng the State
Treasurer to keep aooounte/or records ehowing
that the state bee dlsoharged lte obllgatlon
to the payee on a state warrant?"
A8 prwiously pointed out in this opinion, Artiole
4382 requires that the state Treasurer register each warrant
isher the saw is .pld in a wwarraaC paid reglater" and
Paid register is to 8hW the number an% amOUnt of eaid
warant. This is the record that tha l%glaLature has
pro-lded for acd whloh shows that the stqte hes dl8oharged
its o?J.igation on a partioular warrsnt. %iowever, there
is nothing in Article 43e2 or in any other 8tatute or In
the Constltutton r:h:ch mwld prohibit the Ztote Treasurer
from keeping a record Ehowing to whom a particular warrant
wed >ald, nlthcu&h, OS previously pointed out, the sam%
is fret rec;uired under Article i,JP2. In line with what
bee bean previcuslp stated, the State Treaeurer would heve
to reco~nlze ar. er:sQpmat of a state pp varrant rer.srd-
less of the fact that t::e ssaignee did not fwnisb the
Stcta Tre~surcr with the power of attorney eigne4 by the
payae. There onn be no question but t!mt un3sr the de-
cieions in this atate, end under Article 569, such a
written ttseiezwnt aa is enolosed in your lettor aonld
be auT?fcieat to aiwlgn ~oallblp a payee’s interest in a
state pay warrent, an4 ouch nsalgnment wuld have to be
recognized by the State Troesuror when the sma Is pre-
sented to hi3 =ith proper and sufriclent evidence of
tke tmnefcr.
“13. If a0 statute nr 00nstltutlnnal
~rovislon rreocribes the .zanner xhereby e
~ovexnmental ,Functlon ie to be performed
2nd no 9ti:tut.s or constitutional provisicn
3rohibit.e t?x use of the most eff~iclant
,-nd business llks manner, shrul4n’t that
mtthnd :f performInS such function be used
so OS to best protect tho lntereot of the
eta te:: !*
Cndoubtedlg yaw Guestlo:: numbr,r 13 muat be
azsvemd in ths cffiraative. ikcqavrr, 05 to Just what
in t_?e most efficient and bmlnes3-lika msnn "15. i'OUldthe per823 63 :xcocsGin~ztbC
rarront for oayzmnt under siicha evxx e\eSe-
wr?t b6 legally liabla to the st?t~:'~
Tne answer to your que5tlom a8 to tba liabil-
itg of :he :'tateTre.esurerend the ye:'soncr+.emtlne
the rorront mi@S depend in each lns?t%rreon tba racts
or the pUrtlCUi%r CGSO, sad we preier not to atte-tptto
lay down a eencral rule of 1%~ based oo a hypo:hetic%l
puastlon under th*se circunstanotn.
“16. If your a.nsw.:r
to question Five
16 in t+hone@ativo, and your nnsw%r% to
questlon Fourteen %nd Plftcen ara in the
affixatlve, Uoen the ioct that a public
offioia1 ana his ouretlen 1~1111.be 1~~.8llg
!fable GG the st.at%for auoh publfc ofPicl%l~%
non-fonsasca or nlaPeas%nce in the prformnca
of R #overumntsl function or that scme beok
or corporatlbn or perecn Hill be l%R"lly llaS1e
to the aiate for breach of s warracty or for
zisrepresentstlcns, juatifp lnefiXciant ~35
unhueinaoe-lika jxrtormncs Gl a ~ovnrnnextel
function when sn efPicient and hu~insss-like
mnnsr of pzrfoxxi~p,ouch E?vcr:im%cL%lfwiction
is n:)t p?ohlbited by etztute cr comtitotion?"
;iven if ?2;e .?tateTreosbrcr or scrle5:z2kinc~ c3ccem
:cre ~-:Sconollylinbie in 8 prtlool.~~ case, Chi% aould by .
Justffy the Lteta Trfasurer's n.+t cc:s>!l.vln~ dth
:o %.u;arr:lnt%
ubich Mse ?.otbeen
eodcrsed by the r;syeeunder %% %s!signm+nt
to prssent neparote and actual uutboriza-
tlcn t? endo: the sainain tha naas of
Ctete Treszu:?r in effect
iAs pay6a, isn’t tlif!
mklng such person a pcg111~a-Tentfsr the st:~te’i
If 80, can he lcrolly do thls’~‘~
Under the eituotios you eecume i.nquggtlon number
17, the 5tat.eTreasurer is not mski~: such a parson as you
describe a ~ayin& s::entfor the state, becmms suoh payment
by the State Treesurer is for the purpose cf Cischarglng
the s:ate*a liability on tAtiwarrant. The peyzientby the
state ‘Yensurer is to the lndlvidusl as asslgnsc~or trans-
fsrer of the peyea, nnd not to hi.?l OS DD agent to make
pepent to the payas on the xarrsnt. The payment by
the State Treasurer ie for the purpose of 3tschnrging
tha stata’s liability under the mrrant in all cases, and
it could not be sei,dthen t&t ths StrctoTrcscsure= wes
aaklw$ a paying eg&?t out of the po:con to when he saya
the Warrant.
:l’e
trust thet ths nbove discusaim of the
qu66tions fropounastdin your lettar ~111.sotiaractorily
ansnar your Inquiry. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4390160/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ZHONG HUANG, )
)
Appellant, )
)
v. ) Case No. 2D17-3966
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed April 24, 2019.
Appeal from the Circuit Court for Polk
County; Wayne M. Durden, Judge.
Howard L. Dimmig, II, Public Defender, and
Megan Olson, Assistant Public Defender,
Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, for Appellee.
PER CURIAM.
Affirmed.
VILLANTI, KHOUZAM, and BADALAMENTI, JJ., Concur. | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4125108/ | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2017 Decided February 10, 2017
No. 16-7055
SINA CHENARI,
APPELLANT
v.
GEORGE WASHINGTON UNIVERSITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00929)
Jason J. Bach argued the cause and filed the briefs for
appellant. Tracy D. Rezvani entered an appearance.
Nicholas S. McConnell argued the cause for appellee.
With him on the brief was James N. Markels.
Before: TATEL, MILLETT, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: After George Washington
University Medical School expelled appellant for cheating on
an exam, he brought suit in federal court for breach of
2
contract and discrimination based on disability. The district
court granted summary judgment to the University, deferring
to its view that appellant broke its honor code and finding no
violation of the relevant disability statutes. For the reasons set
forth in this opinion, we affirm.
I.
On December 14, 2012, appellant Sina Chenari, a third-
year medical student at George Washington University, took
the Step 1 Surgery Shelf Exam, a standardized test published
by the National Board of Medical Examiners (NBME).
Before the exam, the proctor read aloud the instructions from
NBME’s official Chief Proctor’s Manual, including that
students must complete the exam in two and a half hours and
that “[n]o additional time [would] be allowed for transferring
answers” from the test booklet to the answer sheet. Chenari
also received a copy of the “Exam Guidelines,” which
contained a similar warning.
In his deposition, Chenari explained that when the
proctor called time, he discovered that he had failed to
transfer some twenty or thirty answers from the test booklet to
the front side of the answer sheet. According to Chenari, he
“panicked” and “continued to transfer my answers.” Chenari
Dep. 267:7–:9. The proctor “asked me to stop,” but “I
continued to bubble in [the answer sheet].” Id. at 269:6–:18.
When the proctor then “reached over me to try to get the
exam, I just put my hand over the booklet and the exam and
just continued to bubble in my answers.” Id. at 270:3–:6.
Once Chenari finished, he “sat back” and the proctor “picked
[the exam] up.” Id. at 278:21–280:11. As Chenari concedes,
he ended up taking an additional “90 seconds to two
minutes.” Id. at 271:12–:13.
3
The proctor reported Chenari to the medical school’s
administration, as did another student present at the exam. In
response, Associate Dean for Students Rhonda Goldberg met
with Chenari to discuss the incident. According to Goldberg’s
deposition, Chenari told her that he “needed to” finish
bubbling in his answers but “probably made a mistake” by
doing so. Goldberg Dep. 23:1–:3.
Pursuant to University procedures, Goldberg formed an
Honor Code Council subcommittee to investigate. After
holding a hearing, the subcommittee issued a report
recommending Chenari’s dismissal for academic dishonesty.
The subcommittee forwarded its recommendation to the
Medical Student Evaluation Committee, and in a written
statement to that Committee Chenari took responsibility for
his “deplorable behavior” toward the proctor, acknowledging
his “clear violation of the most basic rules of th[e]
University.” Chenari Dep. Ex. 37 at 1. He nonetheless asked
for leniency because, he insisted, his “behavior did not
involve deception” and he had no prior disciplinary
infractions. Id. After a hearing, the Committee unanimously
recommended Chenari’s dismissal. The Medical School Dean
then reviewed the reports, met with Chenari, and upheld the
recommendation of dismissal. Now represented by counsel,
Chenari appealed to the Provost, arguing in a written
submission that his conduct lacked “an element of deceit” like
“cheat[ing]” or “l[ying].” Chenari Dep. Ex. 40 at 1. Rather,
his “mistake” was “completely out in the open.” Id. at 2. The
Provost denied the appeal, and the University dismissed
Chenari from the medical school.
On May 30, 2014, Chenari filed this action in the U.S.
District Court for the District of Columbia seeking
reinstatement and damages. He alleged several theories of
relief. First, he argued that he never violated the University’s
4
Honor Code, so the University’s decision to dismiss him
breached its contract with him and the contract’s implied
covenant of good faith and fair dealing. Second, he claimed
that he has a disability, Attention Deficit Hyperactivity
Disorder (ADHD), which he alleged the University failed to
accommodate in violation of the Rehabilitation Act (“Rehab
Act”), 29 U.S.C. § 794(a), and the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12132. Although Chenari
also claimed that he suffered from anxiety, he never argued,
either here or in the district court, that his anxiety qualified as
a disability under the disability statutes. See Adams v. Rice,
531 F.3d 936, 943 (D.C. Cir. 2008) (describing “disability” as
a “term of art under the statute[s]”). Finally, Chenari argued
that the University discriminated against him for his ADHD
and retaliated against him “when he began to advocate for his
rights,” claims he does not pursue on appeal. Compl. ¶¶ 44,
55. The University moved for summary judgment, which the
district court granted. Chenari v. George Washington
University, 172 F. Supp. 3d 38 (D.D.C. 2016).
II.
We review an order granting summary judgment de novo,
viewing the evidence and drawing all reasonable inferences in
favor of the nonmoving party. Foster v. Sedgwick Claims
Management Services, Inc., 842 F.3d 721, 725 (D.C. Cir.
2016). Summary judgment is appropriate if the movant, here
the University, “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). “A dispute about a
material fact is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016)
(alteration, internal quotation marks, and citation omitted).
We begin with Chenari’s contract claims.
5
A.
Under District of Columbia law, which governs here,
“‘the relationship between a university and its students is
contractual in nature.’” Manago v. District of Columbia, 934
A.2d 925, 927 (D.C. 2007) (quoting Basch v. George
Washington University, 370 A.2d 1364, 1366 (D.C. 1977)
(per curiam)). In breach of contract cases against a university,
“a judgment by school officials that a student has not
performed adequately to meet the school’s academic
standards is a determination that usually calls for judicial
deference.” Alden v. Georgetown University, 734 A.2d 1103,
1108 (D.C. 1999). This rule stems from the principle that a
diploma publicly signals a school’s confidence in a student’s
knowledge and skills, so the “‘decisions surrounding the
issuance of these credentials [should] be left to the sound
judgment of the professional educators who monitor the
progress of their students on a regular basis.’” Id. at 1109
(quoting Olsson v. Board of Higher Education, 402 N.E.2d
1150, 1153 (N.Y. 1980)). A university “will be entitled to
summary judgment unless the plaintiff can provide some
evidence from which a fact finder could conclude that there
was no rational basis for the decision or that it was motivated
by bad faith or ill will unrelated to academic performance.”
Id. (citation and internal quotation marks omitted). Similarly,
to show that a university breached the implied covenant of
good faith and fair dealing, a plaintiff must allege “either bad
faith or conduct that is arbitrary and capricious” and, in
resolving such cases, courts must not “substitut[e] their
judgment improperly for the academic judgment of the
school.” Wright v. Howard University, 60 A.3d 749, 754–55
(D.C. 2013) (alteration and internal quotation marks omitted)
(citing Allworth v. Howard University, 890 A.2d 194, 202
(D.C. 2006); Alden, 734 A.2d at 1111 n.11). True, all these
cases involve decisions about academic performance, not
honor code violations, but Chenari does not argue—nor do we
6
decide—that a different standard should apply here. Cf.
Hajjar-Nejad v. George Washington University, 37 F. Supp.
3d 90, 116–18 (D.D.C. 2014) (“[C]ourts have concluded that,
particularly for medical students, professional comportment
issues fall under the umbrella of deference to academic
decisions.”). Because the standards for breach of contract and
implied covenant cases overlap, we address Chenari’s two
claims together.
The University dismissed Chenari for violating its Honor
Code. Section F(2)(a) of that Code prohibits students from
“giv[ing] or receiv[ing]” unpermitted aid on tests and
assignments, plagiarizing, falsifying reports, infringing on the
rights of other students, or “violat[ing] any other commonly
understood principles of academic honesty.” Goldberg Decl.
Ex. A at 8. The University concluded that Chenari violated
the Code’s “any other” clause by “knowingly continu[ing] to
fill in his answers on his answer sheet after time was called
and until he completed his answer sheet despite having been
instructed by a university proctor three times to stop doing
so.” Chenari Dep. Ex. 37 at 4. We agree with the district court
that this represents a perfectly “rational basis” for disciplining
Chenari. Alden, 734 A.2d at 1109. As the district court
explained, Chenari “stole time,” gaining “an unfair advantage
over the peers who adhered to the rules”—an obvious breach
of an Honor Code that prohibits violation of “commonly
understood principles of academic honesty.” Chenari, 172 F.
Supp. 3d at 49; see Alden, 734 A.2d at 1111 (“Far from
lacking a rational basis for dismissal, the Committee on
Students had sufficient academic evidence in the record from
which to determine that Alden should be dropped from the
school's rolls.”).
Chenari nonetheless argues, for four separate reasons,
that the University’s decision lacked a rational basis. First, he
7
points out that the proctor failed to cite the Honor Code or
Exam Guidelines in her initial report to the University, but he
cites nothing in the University’s rules requiring that she do so.
Second, he claims that he made no “attempt . . . to conceal his
actions.” Appellant’s Br. 19. This is absurd. Just as stealing is
stealing, whether at gunpoint or in secret bank transfers, so
cheating is cheating, whether in front of a proctor or behind
the proctor’s back. Third, and “most importantly” to Chenari,
the University scored his completed answer sheet and
“determined that [he] did in fact pass the exam.” Appellant’s
Br. 20. This too is absurd—so absurd that it hardly requires a
response, other than to point out that Chenari may well have
passed the exam because he took an additional ninety seconds
to fill in his answer sheet.
Chenari’s only argument that could conceivably raise
doubts about the University’s explanation is his assertion that
transferring answers from a test booklet to the answer sheet
after time expired represented a “common and accepted
practice of the GWU medical school.” Appellant’s Br. 19. But
if that is so, why in his deposition did Chenari state that he
had seen his classmates do so “covertly,” and why, during the
disciplinary process, did he characterize his conduct as an act
“with blatant disregard for the rules and for the rights of my
fellow students”? Chenari Dep. 272:21–:22, Ex. 37 at 1. In
any event, whatever the common practice at the medical
school, this exam was administered under NBME procedures,
which expressly warned that “[n]o additional time will be
allowed for transferring answers” from the test booklet to the
answer sheet. Ruiz Decl. at 2.
Finally, Chenari argues that the University acted in bad
faith by dismissing him rather than accommodating his
ADHD. As the district court explained, however, Chenari has
pointed to no record evidence that “the [University] or any
8
individual involved in the [disciplinary] process acted out of
bad faith or ill will.” Chenari, 172 F. Supp. 3d at 48. Nor does
he claim that dismissing him for cheating was either excessive
or discriminatory. Chenari simply urges us to infer that the
University acted in bad faith because it “did absolutely
nothing to help him.” Appellant’s Br. 20. But even if such an
inference would be appropriate, Chenari’s argument turns
entirely on how the University in fact responded to his
claimed disability, an issue to which we now turn.
B.
Chenari argues that the University discriminated against
him in violation of Title II of the ADA, 42 U.S.C. § 12132,
and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a).
Title II, however, prohibits discrimination only by a “public
entity,” a term the ADA defines as “any State or local
government,” an instrumentality of a state or local
government, “the National Railroad Passenger Corporation,
and any commuter authority.” 42 U.S.C. §§ 12131(1), 12132.
Because George Washington University, a private institution,
fits none of these definitions, Chenari’s Title II claim fails. Cf.
Singh v. George Washington University School of Medicine
and Health Services, 508 F.3d 1097, 1105 (D.C. Cir. 2007)
(citing 42 U.S.C. § 12182) (deciding a similar case under
Title III of the ADA, which prohibits discrimination by a
“place of public accommodation”). This pleading error,
however, makes little difference because Chenari may pursue
his claim under Section 504 of the Rehabilitation Act. See
American Council of the Blind v. Paulson, 525 F.3d 1256,
1260 n.2 (D.C. Cir. 2008) (explaining that the Rehab Act and
Title II of the ADA “are similar in substance and
consequently cases interpreting either are applicable and
interchangeable” (alterations, citations, and internal quotation
marks omitted)); Harrison v. Rubin, 174 F.3d 249, 253 (D.C.
9
Cir. 1999) (“Claims and defenses under the two statutes are
virtually identical.”).
To prevail on his failure-to-accommodate claim, Chenari
must “produce sufficient evidence (a) that [he] was disabled
for the purposes of the Rehabilitation Act, (b) that [the
University] had notice of [his] disability, and (c) that [the
University] denied [his] request for a reasonable
accommodation of [his] disability.” Stewart v. St. Elizabeths
Hospital, 589 F.3d 1305, 1307–08 (D.C. Cir. 2010) (citations
omitted); see Davis v. Shah, 821 F.3d 231, 259–60 (2d Cir.
2016) (“A plaintiff may base her [section 504] discrimination
claim on . . . failure to make a reasonable accommodation.”);
see also American Council, 525 F.3d at 1260 & n.2, 1266–67
& n.14 (allowing a failure-to-accommodate theory to proceed
under the Rehab Act and “constru[ing] section 504 in pari
materia with Title II of the ADA”); McElwee v. County of
Orange, 700 F.3d 635, 640 & n.2 (2d Cir. 2012) (treating as
“interchangabl[e]” Title II’s “reasonable modifications”
requirement and Title I’s “reasonable accommodations”
requirement). The district court granted summary judgment to
the University because, in its view, Chenari had offered no
evidence showing either that the University had notice of his
disability or that he had requested an accommodation.
Chenari, 172 F. Supp. 3d at 51–56.
On appeal, Chenari insists that he did give the University
notice of his ADHD. In support he cites his deposition, in
which he claims that, in a meeting with Goldberg and another
University official in October 2012—two months before the
surgery exam—he informed them of his ADHD diagnosis,
including that he had been prescribed medication for the
disorder. In her deposition, however, Goldberg denied
Chenari’s account of the meeting, claiming that they
discussed only his academic performance.
10
This is a classic “genuine dispute as to [a] material fact.”
Fed. R. Civ. P. 56(a). Under oath, Chenari testified that he
informed Goldberg of his ADHD. Under oath, Goldberg
denied it. At summary judgment, a court “may not . . . believe
one witness over another if both witnesses observed the same
event in materially different ways.” Johnson, 823 F.3d at 705.
Indeed, a court “may not believe” the movant’s witness—here
the University’s—given its obligation to view the record “in a
light most favorable to the nonmoving party”—here, Chenari.
Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016).
In dismissing Chenari’s testimony as “insufficient to
create a genuine dispute of material fact,” Chenari, 172 F.
Supp. 3d at 54, the district court applied the well-accepted
rule that courts may “lawfully put aside testimony that is so
undermined as to be incredible.” Robinson, 818 F.3d at 10
(quoting Johnson v. Washington Metropolitan Area Transit
Authority, 883 F.2d 125, 128 (D.C. Cir. 1989), abrogated on
other grounds by Robinson v. District of Columbia, 580 A.2d
1255, 1258 (D.C. 1990)). That scenario is “most likely when a
plaintiff’s claim is supported solely by the plaintiff’s own
self-serving testimony, unsupported by corroborating
evidence, and undermined either by other credible evidence,
physical impossibility or other persuasive evidence that the
plaintiff has deliberately committed perjury.” Johnson, 883
F.2d at 128. This is not such a case.
The University cites nothing to indicate that Chenari’s
testimony is “undermined . . . by other credible evidence,
physical impossibility or other persuasive evidence.”
Moreover, as this court has explained, evidence sufficient to
dismiss a plaintiff’s uncorroborated, self-serving testimony—
the situation here—is “rare[].” Robinson, 818 F.3d at 10. For
example, summary judgment is proper when a plaintiff’s
statement is demonstrably false after review of a “quite
11
clear[]” videotape, or when the testimony is contradicted by
“multiple disinterested witnesses.” Id. (citing Scott v. Harris,
550 U.S. 372, 378 (2007); Johnson, 883 F.2d at 128–29).
Here, by contrast, we have only Goldberg’s contradictory
testimony and, as the district court pointed out, that Chenari
never mentioned his ADHD in other meetings with University
officials, including during his disciplinary proceedings. See
Chenari, 172 F. Supp. 3d at 52–54. Those facts certainly go to
Chenari’s credibility, but nothing about them is “remotely
compelling enough to require a jury to disregard” his
testimony. Robinson, 818 F.3d at 11.
Although the district court thus erred in granting
summary judgment on the notice question, this does not end
the matter. As explained above, in order to prevail on his
failure-to-accommodate claim, Chenari must demonstrate not
only that he gave notice, but also that the University denied a
requested accommodation. After considering the evidence, the
district court found that Chenari failed to seek a reasonable
accommodation. See Chenari, 172 F. Supp. 3d at 54–56.
Chenari concedes that he never requested an
accommodation, but argues that his “repeated notifications to
the administration created an obligation on [the University] to
investigate and implement reasonable accommodations.”
Appellant’s Br. 28. To be sure, there may well be cases where
the plaintiff’s need for an accommodation is so apparent that
the defendant must offer one regardless of whether the
plaintiff requested it. See, e.g., Pierce v. District of Columbia,
128 F. Supp. 3d 250, 269–70 (D.D.C. 2015) (rejecting “the
District’s suggestion that a prison facility need not act to
accommodate an obviously disabled inmate if the inmate does
not ask for accommodations”). Although we doubt that this is
such a case, we have no need to consider the question given
12
that the record makes abundantly clear that the University did
offer Chenari an accommodation.
As Chenari conceded in his deposition, University
officials twice referred him to counseling and therapy,
including once to a specific counselor to deal with his anxiety
about a course involving roleplaying. Chenari acknowledged
that he never followed up on those referrals, insisting that he
had “no time,” though he never requested time off to seek
therapy—as he also concedes. Chenari Dep. 246:8–:9.
In addition to these express offers of assistance, the
University has an Office of Disability Support Services,
which, according to its director, “receive[s] and evaluate[s]
requests for accommodations from students.” McMenamin
Decl. 1. Goldberg explained in her declaration that she tells
all first-year students that “if they have a disability and need
to request an accommodation, it is the student’s responsibility
to go to [the Office] to pursue that matter.” Goldberg Decl. 1.
Moreover, the University’s “First Year Survival Guide” for
medical students instructs “[s]tudents who suspect that they
may have a disability[] which may require an
accommodation” to contact the Office.
Finally, the Office of Disability Support Services
maintains a website that walks students through the process
for obtaining a reasonable accommodation. See Disability
Support Services, George Washington University,
https://disabilitysupport.gwu.edu/ (last visited Feb. 2, 2017).
At the time Chenari attended the University, the website
included specific instructions about how students with ADHD
could obtain accommodations. Although Chenari testified that
he “did not know” about the website, he admitted receiving
and “looking through” the First Year Survival Guide, and as
noted above, Goldberg reported that she told all entering
13
students about the disability office. Chenari Dep. at 176:19,
186:18–19.
To sum up, then, the University not only twice offered
Chenari counseling, but also, through its Disability Office and
that office’s website, offered all students a procedure for
obtaining any reasonable accommodation they might need.
The Rehabilitation Act requires nothing more.
III.
For the foregoing reasons, we affirm.
So ordered. | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145313/ | Honorable Gee. II. SheDDard
ComptrolleFof Public‘bccounts
Austin, Texas
Dear Sir: Opinion No. O.-l099
Re: Is the $50 .OO pald in by‘manu'fac-
turers of headlighting equipment
for each hsadlight~~devicesub-
mitted appropriated for the use
of the Unlverslty of Texas
Your request for the opinlon.of~thls departmetito&the
question of whether or not'the $50.00 .paid in by manufadturers
of h&iidllghtingequipment for each headlight device submitted
for approval Is appropriated for the use and beriefitof the
University of Texas in testing the headlight equipment has
been received.
As you point out in'youtiletter of July 8, this find
lntb 6xistence Under an act ijfthe Leglelatu*e'~in1925
ccliue
and is codified in Vernon's Annotated TtixasStatutes iihlegts-
latfon under Article 6701, SectLon_.
5 reading as follows:
'Any person; fflrmor 'dotiporation
may submft
to the State Highway Cotilssion a lens; reflector
or headlight control device intended to make a
tieadllghtcomply vith the provlsions of this Act,
and make application that the same be tested as
to conformXt:tg
with the requirements of this Act.
Upon such'~appl.lcation
being made, the State Hlgh-
way Commlsslon shall, upon notice to the applicant,
submit such lens, reflector or headlight control
device to the testing agency as herein designated
with the request that such device be tested as tb
conformity with the requirements of this Act. Each
such applicant shall, upon the filing of his appli-
cation, pay to the State Highway Coimnissiona fee
of fifty dollars. All such fees shall be paid by
th8 State Highway Commission into the State Trea-
sury, and they shall be deposited In a fund to be
known as the Highway Light Test Fund, and the State
Treasurer shall keep such fund separate. The mon-
eys in such fund; or so much of them as may be
necessary, shall be used to meet the expense of
Hon. Geo. H. Sheppard, page 2 O-1099
the tests as herein provided, and for such use
they are hereby~appropriated, and the balance
thereof, If any, shall be paid into the State High-
way Fund. Moneys in the Highway Light Test Fund
shall'be spent under the directlon of the State
Highway Commlsslon, and may be spent only to de-
fray the expenses of testing by the testing agency
herein provided for."
This Section Constitutes a valid appropriation, but of course,
it was effective for two years only.'~Constitution of Texas,
Art. VIII, Section 6. Atkins vs. State Highway Department,
201 S.W. 226.
Your letter states that the question arises as to
whether the general approprlat1on appropriating money for th8~
HIghway Department also makes a specific appropriation fdr'the
use of this Highway Light Text Fund for the Us.8.Of-theUnlver-
sity~of T8XaS. In an opfnlon dated May 3, 1938',to-.Hon.
Julian Montgomery, State HIghway Department, Assistant Atto@
ney Gen8ralW.B'. Pope held'that the duty of supervlslng 'and
approving lenses-and reflectors under.ArtLcle 6701 had b-88i----
~traiisferredtotheDepartment of Public Safety atthe~t%me'th4t
department vas'created by act."ofthe Legislamre. Upon inv-es-
tigationof-the departmental appropriations mad8 by tti8&5th
6ipp6arsm
LegIsIature; we fir&that. non epeclfic~~appro'prlation
lh shy bill for th8 use of-this'Highway LLight~Test Fund.--It
Is ther8forethe opinfon of~'thF‘s:department that the mdney
paId into-this find-isnot now appropriated for ~tb8 use of
the University of Texas In testing the headlight equipment.
Yours very truly
ATTORNEYGENERAL OF TEKAS
By s/Ross Carlton
Ross Carlton
Assistant
RC:jm:wc
APPROVED J-t%26, 1939
s/W. F. Moore
FIRST ASSISTANT
ATTORREY GERERAL
Approved Opinion Committee By s/TDR Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295083/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1724925/ | 237 N.W.2d 142 (1976)
195 Neb. 183
STATE of Nebraska, Appellee,
v.
LeRoy PAINTER, Appellant (two cases).
Nos. 40119, 40120.
Supreme Court of Nebraska.
January 8, 1976.
*143 Duane L. Nelson, Lincoln, for appellant.
Paul L. Douglas, Atty. Gen., Gary B. Schneider, Sp. Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
SPENCER, Justice.
These appeals are from guilty pleas in two cases, each involving three counts of debauching a minor, in violation of section 28-929, R.S.Supp., 1974. Defendant, LeRoy Painter, was sentenced to 5 years in the Nebraska Penal and Correctional Complex on each count in both cases, with the sentences to run concurrently on the three counts in each case, but the sentences in each case to run consecutively. Defendant sets out four assignments of error: (1) The court erred in accepting pleas of guilty because there was no sufficient factual basis established for accepting such pleas; (2) the pleas were the product of an unfair and improper plea bargain; (3) the court erred in accepting the pleas without specifically having advised the defendant of the potential penalties; and (4) the court erred in imposing an excessive sentence. We affirm.
Painter lived with the complaining witness, Louise Howard, from October of 1972, until August 13, 1973. Also living in the home at that time were Louise Howard's three children, Francis Howard, Glen Donahoo, and Garrett Donahoo, whose ages were 8, 5, and 4. On August 11, 1973, after visiting several bars in Ainsworth, the complaining witness and Painter returned to their home in Wood Lake. It was there, sometime around midnight, that the specific instances of debauchery set out in the informations occurred. No useful purpose will be served by setting out in lurid detail the repulsive details of those incidents. We are here concerned only with procedural matters of due process.
Defendant does not argue his second assignment of error, consequently, we will not discuss it. Suffice it to say, however, that as a result of the plea bargain two cases, one for assault with intent to do great bodily harm and another for debauching a minor, were dismissed.
Defendant's first assignment is that there was no sufficient factual basis established as a matter of record for accepting *144 his guilty pleas. While the trial court did not specifically ask the defendant about the specific facts of the offenses, he did ask him if he had given his attorney all the facts as he knew them, and the defendant replied that he had. There is no question the trial judge was familiar with the facts sustaining the charges. This case is within the ambit of State v. Leger (1973), 190 Neb. 352, 208 N.W.2d 276. There we held that verification of the fact the court was aware of the factual basis for the plea from the presentence reports were sufficient. While it is advisable to do so, the trial court is not required to specifically inquire of the defendant as to the factual basis for a plea of guilty. Inquiry of the county attorney or examination of the presentence report, if before the court, are alternative methods.
Defendant's third assignment is that the court erred in accepting and entering judgment on the pleas without specifically having advised the defendant on the record of the potential penalties. There is no question in this case but that the defendant was well aware of the range of the penalties. The trial court did ask him if he understood what possible penalties there might be, and whether or not he had also discussed them with his attorney. He answered both questions in the affirmative. The offenses were described in detail in the information. The preliminary hearing, which is in the record, contains the statement of defendant's attorney as follows: "I have in my hands copies of all four complaints which Mr. LeRoy Painter, the defendant, furnished me about six days ago having had them in his pocket and he having read them. Uh it being my opinion that he does understand the charges and he has inquired of me and I have informed him of the statute and the penalty."
Defendant's last assignment alleges that the court erred in imposing a sentence of 10 years imprisonment, which he claims is an excessive sentence. We could not disagree more. In effect, under section 83-1,105, R.S.Supp., 1974, the defendant has received a 2 to 10 year sentence. Unless an abuse of discretion appears, a sentence within the statutory limits will not be disturbed on appeal. State v. Glouser (1975), 193 Neb. 186, 226 N.W.2d 134. The debauchery involved is particularly heinous and repulsive. On the record, there was no abuse of discretion.
The judgment is affirmed.
Affirmed.
BRODKEY, Justice (dissenting).
I respectfully dissent. In State v. Turner, 186 Neb. 424, 183 N.W.2d 763 (1971), this court specifically stated that the Standards Relating to Pleas of Guilty promulgated by the American Bar Association outline what should be the minimum procedure in the taking of pleas of guilty. Section 1.4 of those Standards provides as follows:
"1.4 Defendant to be advised by court.
The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally and
(a) determining that he understands the nature of the charge;
(b) informing him that by his plea of guilty or nolo contendere he waives his right to trial by jury; and
(c) informing him:
(i) of the maximum possible sentence on the charge, including that possible from consecutive sentences;
(ii) of the mandatory minimum sentence, if any, on the charge; and
(iii) when the offense charged is one for which a different or additional punishment is authorized by reason of the fact that the defendant has previously been convicted of an offense, that this fact may be established after his plea in the present action if he has been previously convicted, thereby subjecting him to such different or additional punishment." (Emphasis supplied.)
The record before this court does not affirmatively show compliance with the requirements *145 of the foregoing standard that the court personally inform the defendant of the possible penalties. The only references in the record as to defendant's knowledge of the possible penalties are contained in the following colloquies. Defendant's attorney stated in the preliminary hearing in the county court, as follows: "I have in my hands copies of all four complaints which Mr. LeRoy Painter, the defendant, furnished me about six days ago having had them in his pocket and he having read them. Uh it being my opinion that he does understand the charges and he has inquired of me and I have informed him of the statute and the penalty." At defendant's subsequent arraignment in District Court, the judge asked him the following questions and received the following answers: "Q. You understand what possible penalties there might be? A. Yes. Q. Which you have also discussed with your attorney? A. Yes sir."
The Commentary to section 1.4 of the Standards makes it clear that the purpose of the requirement that the judge warn the defendant of the consequences of his plea is that "the judicial warning effectively serves to overcome subsequent objections by the defendant that his counsel gave him erroneous information." A.B.A. Standards Relating to Pleas of Guilty, Commentary to section 1.4(c), p. 27.
In this case, Painter pleaded guilty to six counts of debauching minors. Three counts were included in each of the two informations. We cannot ascertain from the record before us if his attorney informed Painter that the maximum penalty for the offense was 5 years; and whether he told him only that, and did not also tell him that the possible penalty he could receive on the 6 counts was 30 years. As a matter of fact, the prosecutor did request a sentence of 30 years. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), is authority for the proposition that an accused may plead guilty, even though protesting his innocence, if he intelligently concludes his interests so require. Under this rule, Painter may well have been willing to enter his plea of guilty if he were under the impression that the maximum sentence which could be imposed upon him was 5 years, but not if he knew he could receive a sentence of imprisonment for 30 years. He had a right to make his decision with full knowledge of the pertinent facts, and in the absence of such information, I do not believe that it can be said he entered his plea voluntarily. It is possible that Painter was aware of the specific penalties, and the available alternatives, but the record before us does not so indicate. We have no way of knowing what his attorney or others may have told him, or whether the information imparted to him was correct. However, it does not appear from the record before us that the trial judge informed him of those matters at the time of his arraignment. The error, if any, should be corrected now, with the thought of possibly avoiding further legal proceedings of constitutional dimensions.
In State v. Lewis, 192 Neb. 518, 222 N.W.2d 815 (1974), involving a similar situation and the question whether or not the defendant was aware of the possible penalties at the time of the entry of the plea, this court, without vacating the judgment of conviction or the sentence, remanded the cause to the District Court for a hearing to determine that issue.
I would remand the cause to the District Court with leave to the defendant to apply to the District Court to withdraw his plea within 10 days from the receipt of the mandate. If he does so apply, the court should hold an evidentiary hearing to determine the extent of Painter's knowledge of the penal consequences of his plea. If the court finds that he was not aware of the penal consequences, the judgment of conviction should be deemed vacated, and he should be permitted to plead again. If it determines he did know, then the judgment and sentence should stand.
McCOWN, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3188954/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1706
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIE GONZALEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13-cr-30201-DRH-1 — David R. Herndon, Judge.
____________________
ARGUED JANUARY 27, 2016 — DECIDED MARCH 25, 2016
____________________
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. A jury found appellant Willie
Gonzalez guilty of conspiracy to distribute methampheta-
mine, 21 U.S.C. §§ 846, 841(a)(1), possession with intent to dis-
tribute methamphetamine, § 841(a)(1), and possession of a
firearm in furtherance of a drug-trafficking crime, 18 U.S.C.
§ 924(c)(1)(A). He was sentenced to concurrent terms of 360
months in prison for the drug crimes plus a consecutive 60
months for the firearm offense.
2 No. 15-1706
On appeal he challenges only the sufficiency of evidence
on his conviction on the drug possession count, arguing that
the government failed to prove beyond a reasonable doubt
that he possessed the four pounds of methamphetamine
found in the lining of a cooler in a co-defendant’s home in a
search on September 15, 2013, where both the co-defendant
and Gonzalez were present. The issue on appeal is whether a
rational jury could have found beyond a reasonable doubt
that Gonzalez possessed the drugs. See Jackson v. Virginia,
443 U.S. 307, 318–19 (1979); United States v. Salinas, 763 F.3d
869, 877 (7th Cir. 2014). We affirm.
I. Constructive Possession
The government offered sufficient circumstantial evi-
dence that Gonzalez had constructive possession of the meth-
amphetamine. Constructive possession is sufficient to prove
criminal possession under 21 U.S.C. § 841. United States v.
Lawrence, 788 F.3d 234, 239–40 (7th Cir. 2015); United States v.
Cejas, 761 F.3d 717, 728 (7th Cir. 2014). A defendant construc-
tively possesses an item over which he exercises “ownership,
dominion, authority, or control.” United States v. Parra, 402
F.3d 752, 761 (7th Cir. 2005).
The government had to prove that Gonzalez had “the au-
thority—not legal authority, but the ‘recognized authority in
his criminal milieu’—to possess and determine the disposi-
tion” of the methamphetamine in the cooler. See United States
v. Starks, 309 F.3d 1017, 1022 (7th Cir. 2002) (internal citations
omitted); see also United States v. Griffin, 684 F.3d 691, 695
(7th Cir. 2012) (intent to control item required for constructive
possession includes control through others); United States v.
Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986) (constructive pos-
session is designed “to take care of such cases as that of a drug
No. 15-1706 3
dealer who operates through hirelings who have physical
possession of the drugs,” and drugs need not be on premises
defendant occupies).
The government’s theory was that Gonzalez, headquar-
tered in California, distributed methamphetamine in the St.
Louis, Missouri area through co-defendant Daniel Hernan-
dez, in whose home the drugs were found, and that Gonzalez
had recently shipped the drugs to Hernandez for distribution
under Gonzalez’s direction. To prove Gonzalez’s constructive
possession, the government needed to prove that the drugs
recovered were those sent by Gonzalez and that he main-
tained control over the drugs after they were shipped to Her-
nandez. We turn to the government’s evidence, giving the
government the benefit of any conflicts in the evidence and
reasonable inferences from the evidence. See United States v.
Patel, 778 F.3d 607, 619 (7th Cir. 2015); Griffin, 684 F.3d at 693.
II. The Government’s Evidence
In early 2013 an informant bought methamphetamine
from a street dealer in St. Clair County, Illinois, across the
river from St. Louis. Agents of the federal Drug Enforcement
Administration worked their way up the supply chain to
Zachary Weil, an area resident. When confronted by the DEA,
Weil acknowledged he had been distributing “ice,” a street
name for a particularly potent form of methamphetamine hy-
drochloride. Weil agreed to cooperate. He identified his sup-
pliers as Daniel Hernandez and defendant Willie Gonzalez,
also known as “Smokey” and “Bullet” respectively.
Weil’s relationship with Gonzalez had begun in 2011. Weil
owed money to another drug dealer, so Gonzalez let Weil
work for him to earn money to pay off that debt. Weil’s first
4 No. 15-1706
load was five pounds of methamphetamine. During the first
few months of 2013, Weil had sold 30 to 60 pounds of meth-
amphetamine provided by Gonzalez, priced between $16,000
and $20,000 per pound. (Weil had another supplier from Las
Vegas who was investigated separately by DEA agents in Mis-
souri.) Gonzalez lived in California but told Weil that he
would designate Hernandez as a local go-between to provide
Weil with drugs and collect money from him. Once Hernan-
dez was involved in the operation, Weil received all drugs
from Hernandez and delivered all money to him. Gonzalez
remained in charge of the operation.
Beginning in July 2013, Weil made a series of recordings of
telephone conversations with Hernandez and Gonzalez and
meetings with Hernandez. During a conversation on July 19,
2013, Weil and Hernandez discussed a quantity of metham-
phetamine that Hernandez had provided to Weil without
Gonzalez’s permission. During that conversation the two men
also discussed a $5,000 payment that Weil had made to Her-
nandez toward his outstanding debt, but which Hernandez
had not yet reported to Gonzalez. Weil and Hernandez dis-
cussed these same subjects again on July 25.
Hernandez also told Weil that Gonzalez intended to send
a courier to St. Clair County with a new load of methamphet-
amine. In later conversations Hernandez told Weil that Gon-
zalez planned to travel to Illinois but would send the courier
with the drugs ahead of his arrival. They also discussed the
possibility of working with Gonzalez to sell cars to pay off
some of their debts, as well as the fact that Gonzalez was sup-
posed to pay Hernandez’s rent but had not done so for several
months.
No. 15-1706 5
In August 2013, six men beat Weil—his nose and an eye
socket were broken—and then put him on the telephone with
Gonzalez, who told Weil that he had discovered accounting
errors and demanded the money he was owed. In the weeks
following that beating, Weil and Gonzalez spoke by telephone
several more times. Gonzalez disclosed that he knew Hernan-
dez had misreported the amount Weil owed him. The discrep-
ancy, said Gonzalez, was the reason he had ordered the beat-
ing. Gonzalez added that he would wait to square Weil’s ac-
count until after sending more drugs to Illinois. Gonzalez con-
firmed, as Hernandez had told Weil previously, that a courier
would arrive with the methamphetamine before Gonzalez
himself would arrive. Gonzalez said he would be “out there
in a little bit,” and he told Weil to line up buyers for the new
shipment.
On September 14, 2013, Hernandez told Weil that he had
received the drugs and that Gonzalez was coming later in the
day. Weil set up a controlled buy of two ounces. Weil later
proposed increasing the amount to half a pound. Hernandez
replied that he would need approval from Gonzalez. Later
that same day, Weil received half a pound from Hernandez.
On September 15 investigators executed a search warrant
at Hernandez’s apartment in St. Clair County. Four people, in-
cluding Hernandez and Gonzalez, were present. The investi-
gators found approximately four pounds of “ice” in the lining
of a cooler located in a bedroom. The investigators also recov-
ered packaging (some of which had “residue” on it that inves-
tigators thought “probably” came from the half a pound sold
to Weil the day before), two guns, an accounting ledger, and
vehicle titles.
6 No. 15-1706
Gonzalez, Hernandez, Weil, and the dealers who led the
DEA to Weil were charged together in a multi-count indict-
ment. In Count 2, the only one at issue, Gonzalez and
Hernandez were charged with possessing the methampheta-
mine found in Hernandez’s apartment on September 15. All
defendants except Gonzalez pled guilty, and all but Her-
nandez testified against Gonzalez. Five investigators also tes-
tified and acknowledged that no fingerprints or other forensic
evidence tied Gonzalez to the items recovered at Hernandez’s
apartment. Gonzalez did not testify or call any witnesses.
III. Analysis
Gonzalez argues that the government relied on his “mere
presence” at Hernandez’s apartment to connect him to the
methamphetamine found in the cooler and thus failed to
show constructive possession. He compares his case to United
States v. Herrera, 757 F.2d 144 (7th Cir. 1985), and United States
v. Windom, 19 F.3d 1190 (7th Cir. 1994).
In Herrera, the defendant was arrested after leaving a resi-
dence with a brown paper bag containing heroin. Herrera, 757
F.2d at 147. He was convicted of, among other things, posses-
sion of heroin found in a footlocker within the residence. We
reversed that conviction: “The only certain link between Her-
rera and the footlocker is that the footlocker was in the house
when Herrera picked up the heroin.” Id. at 150.
Similarly, in Windom the police made a controlled buy of
heroin from a house where the defendant was found during
a later search. He had a large sum of cash, including $20 from
the controlled buy. Windom, 19 F.3d at 1193. The defendant
was convicted of, among other counts, possession of heroin
No. 15-1706 7
found in a backpack located in the house. Because no evi-
dence was introduced linking Windom to the backpack, we
also reversed that conviction. Id. at 1200–01. In neither case
did the defendant have sufficient ties to the location from
which possession of the drugs reasonably could be inferred.
Gonzalez, however, had a substantial tie to Hernandez’s
apartment: he paid the rent. Hernandez complained that he
had not done so for several months, but the tie was still rele-
vant in connecting Gonzalez to the drugs in Hernandez’s
apartment. And there was much more circumstantial evi-
dence that Gonzalez had at least joint possession of the four
pounds of methamphetamine in Hernandez’s apartment.
Gonzalez argues that there was insufficient evidence of a
connection between him and the four pounds of methamphet-
amine because, in their recorded conversations, he, Weil, and
Hernandez had discussed a large shipment of methampheta-
mine only in vague terms and had never discussed specific
quantities or how the drugs would be packaged. It is true that
no eyewitness testimony linked the expected shipment with
the methamphetamine in the cooler, nor did any forensic test-
ing match the drugs sold to Weil on September 14 with the
drugs found in the cooler.
Unlike Herrera and Windom, however, there was strong cir-
cumstantial evidence of control by Gonzalez. The timing of
the conversations about the shipment, which led up to the sale
to Weil the day before the seizure, allowed the jury to infer
that the drugs recovered were those sent by Gonzalez.
See United States v. Jones, 763 F.3d 777, 800 (7th Cir. 2014) (con-
structive possession was proven because, in part, during
weeks leading up to seizure of crack cocaine, defendant had
sought to obtain distributable quantities of crack).
8 No. 15-1706
From July through the beginning of September, Gonzalez,
Hernandez, and Weil had discussed Gonzalez’s plan to travel
from California to Illinois after sending ahead a shipment of
methamphetamine. On September 14, Hernandez told Weil
that the drugs had arrived and that Gonzalez would be arriv-
ing later that day. That same day Weil purchased half a pound
of methamphetamine from Hernandez. The following morn-
ing, investigators found Gonzalez in Hernandez’s apartment
along with Hernandez, four pounds of methamphetamine,
and discarded packaging that tied the drugs found in the
apartment with the half a pound delivered by Hernandez the
night before to Weil.
Additional evidence showed that, during the months be-
fore the September 2013 seizure, Gonzalez had maintained
control over drugs after they were sent from California to
Hernandez. Weil testified that he was required to do business
with Gonzalez through Hernandez; Hernandez received
drugs from Gonzalez and doled them out to Weil, who would
pay Hernandez instead of Gonzalez directly. These arrange-
ments provide strong circumstantial support that Gonzalez
had at least joint possession over large quantities of drugs in
Hernandez’s apartment. See United States v. Hernandez, 13 F.3d
248, 252 (7th Cir. 1994) (“The conclusion that Serrano had the
power to possess the cocaine is further supported by the evi-
dence that between the two of them, Serrano was in charge.”);
United States v. McAnderson, 914 F.2d 934, 947–48 (7th Cir.
1990) (finding evidence of constructive possession of firearms
when high-ranking member of gang participated in recorded
conversations planning use of firearms); United States v.
Espinoza, 684 F.3d 766, 777 (8th Cir. 2012) (finding sufficient
evidence of constructive possession when defendant was
No. 15-1706 9
aware of shipments to stash house, directed others’ sales from
stash house, and received proceeds from those sales).
Along with the drugs, the investigators recovered an ac-
counting ledger that, as one agent testified, “had numbers
matching what Daniel Hernandez and Zach Weil were talking
about on recordings.” And despite Gonzalez’s current asser-
tion to the contrary, there is no evidence that Hernandez had
another methamphetamine supplier. It is true that Hernandez
gave Weil amounts of methamphetamine without Gonzalez’s
permission. But the fact that the two men felt compelled to
hide these transactions from Gonzalez, who was angry when
he discovered Hernandez’s inaccurate accounting, shows that
Hernandez was not allowed to act without permission from
Gonzalez. Hernandez needed permission to sell Weil just half
a pound of methamphetamine, as opposed to two ounces, the
night before Gonzalez’s arrest. The government thus pre-
sented sufficient evidence to allow the jury to conclude be-
yond a reasonable doubt that Gonzalez maintained control
over the drugs in Hernandez’s apartment. See Starks, 309 F.3d
at 1022 (“Constructive possession need not be exclusive, and
can be shared with others.”).
A rational jury could find from the evidence at trial both
that the drugs recovered were the same drugs discussed in
the recordings—the shipment that Gonzalez planned to send
by courier from California ahead of his own his arrival—and
that Gonzalez retained control over those drugs after they ar-
rived in Illinois. Gonzalez’s conviction on the possession
count is
AFFIRMED. | 01-03-2023 | 03-25-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4132594/ | THE J~TIKBRNEY GENERAL
OF~XAS
AUSTIN. TEXASI 78711
February 24, 1976
The Honorable William A. Webb Opinion No. H-786
Acting Commissioner
Coordinating Board Re: Constitutionality
Texas College and University of,severance pay for
system terminated professors.
P. 0. Box 12788, Capitol Station
Austin, Texas 70711
Dear Commissioner Webb:
you have asked our opinion on the constitutionality of
a portion of the Coordinating Board's Polic
Freedom, Tenure and Responsibility). Tii&?BE ~o~::emic
of the Policy Paper in question is paragraph (3), section
IV, Faculty Dismissals, which provides:
If the faculty appointment is to be
terminated, the faculty member, except
in cases of moral turpitude, will receive
his salary at least for one year or for
the period to which he is entitled under
these regulations. He will be continued
in his duties for that period unless at
the discretion of the institution he be
granted a leave of absence with pay.
You indicate that some institutional administrators
contend that this provision conflicts with article 3, sections
51, 52 and 53 of the Texas Constitution. These sections
provide in part:
p. 3315
The Honorable William A. Webb - page 2 (H-786)
Sec. 51. The Legislature shall have no
power to make any grant or authorize the
making of any grant of public moneys to
any individual, association of individuals,
municipal or other corporations whatso-
ever. . . .
. . .
Sec. 52. (a) Except as otherwise provided
by this section, the Legislature shall have
no power to authorize any county, city, town
or other political corporation or subdivision
of the State to lend its credit or to grant
public money or thing of value in aid of, or
to any individual, association or corporation
whatsoever, or to become a stockholder in such
corporation, association or company.
. . .
Sec. 53. The Legislature shall have no power
to grant, or to authorize any county or
municipal authority to grant, any extra
compensation, fee or allowance to a
public officer, agent, servant or con-
tractor, after service has been rendered,
or a contract has been entered into, and
performed in whole or in part; nor pay,
nor authorize the payment of, any claim
created against any county or municipality
of the State, under any agreement or contract,
~made without authority of .law.
Another.'sectionof the.Constitution which raises similar
questions is article 3, section 44, which provides:
Sec. 44. The Legislature shall provide
by law for the~compensation of all officers,
servants, agents and public contractors, not
provided for in this Constitution, but shall
not grant extra compensation to any officer,
p. 3316
The Honorable William A. Webb - page 3(H-786)
agent, servant, or public contractors, after
such public service shall have been performed
or contract entered into, for the performance
of the same; nor grant, by appropriation or
otherwise, any amount of money out of the
Treasury of the State, to any individual, on
a claim, real or pretended, when the same shall
not have been provided for by pre-existing law;
nor employ any one in the name of the State,
unless authorized by pre-existing law.
Similar constitutional questions were raised in Attorney
General Opinion H-402 (1974), in which a county sought to
provide back pay for a county employee who was suspended but
later reinstated. We said:
If, then, a county commissioners
court has authority to hire employees, by
implication it has the authority to set
the terms of their employment. One such
term which may be possible is that if an
employee is indicted he will be suspended
with the understanding that he will be
reinstated with back pay if he is subse-
quently exonerated. A policy of this
kind would be a condition of employment
no different than the rate of compensation
or amount of vacation an employee is to
receive.
But in the situation you have described,
no such policy regarding indicted employees
was ever adopted by the commissioners
court. Instead, it is seeking to award
back pay after the indicted employee has
already been exonerated and reinstated.
In these circumstances it is our opinion
that a retroactive grant of back pay
would be unconstitutional.
p. 3317
The Honorable William A. Webb - page 4 (H-786)
In our opinion, a reasonable policy that a professor
who is to be terminated receive substantial notice or, if he
is to be terminated immediately, receive his salary for the
period for which he would have otherwise received notice is
constitutional so long as it is a term or condition of
employment. Thus, if a college adopts this policy it may
provide such severance pay for its employees who are termin-
ated after the adoption of the policy.
SUMMARY
A college may constitutionally provide
that terminated professors will receive
either substantial notice or severance
pay.
Very truly yours,
JOHN L. HILL
Attorney General of Texas
APPROVED:
st Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jwb
p. 3318 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4132655/ | The Honorable Charles D. Houston Opinion No. H- 725
County Attorney
Austin County Re: The taxation as costs of the
P. 0. Box 83 county law library fee in probation
Bellville, Texas 77418 proceedings in the county court.
Dear Mr. Houston:
You have requested our opinion as to the scope and application of
article 1702i, V. T. C. S. , which provides for the establishment of county
law libraries in counties with a population of 350, 000 or less and provides
further in section 4 that:
For the purpose of establishing County Law
Libraries after the entry of such order, there
may be taxed, collected and paid as other costs in
each civil case, except suits for delinquent taxes,
hereafter filed in every county or District Court, a
sum to be fixed by the Commissioners Court of the
respective counties within the State of Texas, not to
exceed Five ($5.00) Dollars in each case; provided,
however, that in no event shall the county be liable
for said costs in any case. Such costs shall be
collected by the Clerks of the respective Courts in
said counties and paid by said Clerks to the County
Treasurer, to be kept by said Treasurer in a sepa-
rate fund to be known as “County Law Library Fund.,”
Such fund shall not be used for any other purpose.
By resolution your Commissioners Court has set the amount of costs at
$5. 00. You specifically ask us,
Are Probate matters, such as the administration of
estates, the appointment of guardians, and commitments
to the state hospital, “CIVIL CASES” within the meaning
of Article 1702i, and should the library fee of $5. 00 be
taxed as costs therein?
/
p. 3101
. .
The Honorable Charles D. Houston - page two (H-725)
Proceedings within the jurisdiction of the probate court are governed by
the Texas Probate Code, enacted in 1955 and effective on January 1, 1956.
Prob. Code $ 2(a). Costs in probate matters are referred to in section 12 of
the Code which provides in part:
(a) Applicability of Laws Regulating Costs. The
provisions of law regulating costs in ordinary civil
cases shall apply to all matters in probate when not
expressly provided for this Code.
There is nothing in the Code which covers costs for county law libraries
and the cost provision of 1702i would therefore apply to probate proceedings
except where otherwise interpreted and limited by the Courts of Texas.
In Hogan v. Turland, 428 S.W.2d 316 (Tex. Sup. 1968), the Supreme
Court of Texas, in defining a civil action or case as opposed to a criminal
action, noted, with regard to a mandamus proceeding, that
[t 1he civil nature of the action is demonstrated
by the fact that it is not brought by nor in the name
of the state. . . .
Accordingly, we are of the opinion that the county library fee is taxable as
costs in all probate proceedings except where the action is brought by or in the
name of the state as where the confinement of a person of unsound mind or a
habitual drunkard is sought under the provisions of section 415 of the Code. But
see Ex Parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942), holding an earlier
Gcket bill relating to library fees to be a local or special law.
We also refer you to section 246 of the Probate Code which allows the court,
in its discretion, to order that “no costs. . . be charged in connection with. . .
(a guardianship) proceeding” wherein a guardian is appointed for the sole “purpose
of enabling a person to receive public assistance which is contingent upon need
, . . !I
SUMMARY
The county law library fee provided by article
1702i. V. T. C. S., may be taxed as costs, within
the meaning of article 1702i, in all probate pro-
ceedings except an action brought for the purpose
of confining a person of unsound mind or a habitual
drunkard.
Attorney General of Texas
The Honorable Charles D. Houston - page three
Opinion Committee
jad:
p. 3103 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154158/ | Electronically Filed
Supreme Court
SCWC-15-0000907
20-MAR-2017
SCWC-15-0000907
11:01 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________
JAMES DEMARCO and CHERYL DEMARCO,
Respondents/Plaintiffs-Appellants,
vs.
MAUI BEACH RESORT LIMITED PARTNERSHIP, a Delaware limited
partnership; NORTHWEST MAUI CORPORATION, a Delaware corporation,
Petitioners/Defendants-Appellees,
and
FIDELITY NATIONAL TITLE & ESCROW OF HAWAII,
a Hawaii corporation; TITLE GUARANTY ESCROW SERVICES, INC.,
a Hawaii corporation, Defendants-Appellees.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000907 and CAAP-15-0000588; CIV. NO. 10-1-1315)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioners/Defendants-Appellees Maui Beach Resort Limited
Partnership and Northwest Maui Corporation’s application for
writ of certiorari filed on February 3, 2017, is hereby
rejected.
DATED: Honolulu, Hawaii, March 20, 2017.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson | 01-03-2023 | 03-21-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4390162/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
VICTOR BREWER, )
)
Appellant, )
)
v. ) Case No. 2D18-1972
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed April 24, 2019.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; Wayne M. Durden, Judge.
PER CURIAM.
Affirmed.
NORTHCUTT, KELLY, and ATKINSON, JJ., Concur. | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4145315/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Bon. K. P. Gexton
County Attorney
Cranga County
Orange, Text a
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paid.”
Aftor oarrfully Oomilderlng the matter sub-
mltted by you, we are of the oplnlon that the Aeoislon
in the ease or PXmSCN Justloe or the Pease, et al vs.
OAZvE3~X COUNTY,151 k@ %nA 87, ooneludas the queetlon.
‘i.e quote as follour frcm the eourt’a oplniont
*From the lsrws presented la the brlcbr,
however, It appears that the oontroversy aa it
relstse to the aounty’e cult oonoorns the fol-
lowlnq itamxt (1) The ruta of $18.00 par mnth
Aurlnq the two-year period paid by Pierson to
.hls Deputy in exeeee of $60.00 per month ealarp
rixsd br the ecamInnloner%~ oourt)....
“The appointment of the As utp was undax
R. c. a., Art. S902, whioh prov f dae that1 ‘When-
wmr an9 Orriobr..r. shall require the xenior8
of Aeputlea os assletante in the psrfolaance of
hls duties, he may apply to the oountp aomids-
(lionera’ aourt of hia oounty iOr authority to
appoint euoh Aeputles or aaslrtant6, setting out
by sworn applloetlon the number needed, the posi-
tion eoucht to be filed, and the amount to be paid,
. . . . and said court may zaks its order author-
izing the appointment of suoh As)utlsr end fir
the canpenaatlon to be paid..rr*
“%ls statute was ca*-plied with at the be-
ginning OS 1935 and the deputy authorir:ed and
hoer salary fixed at 860 per month.
amrove a salary raise to operate
1y vmuld. we hold. be a elear violation of our
atate aonatitutlon, Art 3, para. 83 Veraon'
An St Eu I oas lk B&s1 co v. w.ite re1 Tex
13~: 47-P. ‘;.?A tI6!$1 Turner ;. Sarnee 'Tar Clr'
ArP.r 19 S. W. SA 325, affirmed on c&h&- &.nAs~
%I. Cola. App., 87 S. 1. 8A !532. The rulr laid
down in Canmvn County t. Fox, Tex. Corn. APR., Al
S. Y. Ed 483, la not applioeble here. There the
tax oollaator without preview authority, am-
ploped and pa i A ralarfee to deputies, the items
being roportod In hla aooount, whioh wee audited
. -
Eon. it. Pi Sexton, Page S
and appmved by the oammiesicnsra’ o’urt.
It was held that it was net essential to
obtain approval in advanoe of enployment a?
de~tiss~ that the oamnisnlnnersl oourt had
Dower to ratify what it had the orialnal
berer to autho>lza. Here the appll&atloa
had been made end the salary fired by thb
~alonerx~ court In advanoa or the sex+-
value
Kor is-it material that the
0r the ser~iosa DeIfOnartdcannof be
inquired Into.
justlae i aotuelly peid the full?$75,00 to the
.Aaputy eaeh month as the 8ervlose wera reader-
eA.N tundereaoring aura)
Artiole 3, 3eotlon 53, OS the Constltutlon of
Taxaa, reads:
“The LeglsIatura shall have no powr to
grsnt, or to authorize anp aounty or munlel-
pal authority to &rent, any extra ooinpsnsa-
tlon; ras or allaanee to a publia offloer,
agent, servant or eontraotor, after servlos
h&s been rendered, or a oontreeot has been
entered into, and performed in whole or ln
pert; nor pay, nor authorize the papent of,
any eloisl aroatsd against any oounty or munl-
olpalltp of the state, under any sgresmsnt
or oontraot, made without authority ot law.”
You are, therefore, regpeotfully aAvlseA that
it is the opinion or this de$artamnt that the question
pmpounded by you should be answered in ths negative.
Very truly yours | 01-03-2023 | 02-18-2017 |
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