East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

In this week's orders, the Supreme Court of Texas granted review on Kappus. 

Kappus is an estate case where an ex-wife got her ex-brother in-law disqualified as executor of her ex-husband's estate.  James and John owned some land together.  James died.  John was named his executor.  James was also survived by children and an ex-wife, Sandra.  Ever since the divorce, Sandra's relationship with John has been sour.  Now Sandra has some questions about the land.  Over the years James, John and Sandra had made improvements on the property.  That makes it more complicated to figure out what the land is worth, and how the proceeds of any sale should be divided.  John is representing the estate while at the same time pressing to reduce the estate's share in the land (and increase his own.)  Sandra claims this is a conflict of interest for John.  The Tyler court agreed.  Now the Supreme Court is going to hear oral argument in December.

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The Supreme Court of Texas did not issue any opinions this week.  There were no Tyler cases in their orders.  So, as discussed in the Last Word post, there remains only one Tyler case that the Supreme Court of Texas has agreed to hear.  As before, there are 10 other cases from Tyler in various stages of asking to be heard.

September 17th was Constitution Day.  To commemorate the occasion, Justice Willett of the Supreme Court of Texas authored this piece in the Austin American Statesman.  Justice Willett is rightfully proud of his work on the Constitutional Sources Project, an effort to create an authoritative online archive of the documents giving background and context to the United States Constitution.  It's really amazing.  Not only can you read the Constitution online, but, for each clause, you can click on a link that will take you to sources discussing the clause -- sources like the Federalist Papers, James Madison's Notes of the Constitutional Convention, ratification debates in the state legislatures, etc, etc.  Thanks to Don Cruse for pointing this out.

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Not long ago, the Tyler court threw out a case by a high school football coach who felt like he had been defamed in a rival town's newspaper.  The coach asked the Supreme Court of Texas to review the Tyler court's decision.  Today, the coach got his answer: No.  Game Over.

Please take a look at my prior Friday Night Lights post for the details.  Check out the show's website here.

Also, check out the website of the Supreme Court of Texas for information on court closures related to Hurricane Ike, and scroll below for information about how courts in Texas may respond to prolonged closures (you can't miss the post, it's the one with the radar clip of Hurricane Rita). 

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Sieber v. Carson and Brookshire Grocery Company (Published Memo): If you are forty or over when you get hired, it's presumed that there's no age discrimination if you get fired.

Sieber got hired at age sixty seven when he granted hunting privileges to a Brookshire's manager.  Five years later, Sieber revoked the privileges on grounds that the manager and his son were bringing too many other people onto the land.  The manager vowed to get Sieber.  Six years later, after several write ups, the manager canned the seventy-eight year old Sieber.  Sieber sued, claiming retaliation, intentional infliction of emotional distress, and age discrimination.

The retaliation claim fails.  The law protects employees from certain types of on-the-job retaliation.  Disputes over hunting privileges isn't one of them. See Tex. Lab. Code Ann. § 21.055 (Vernon 2006).  I suppose this means that the manager could have fired Sieber immediately without there being any unlawful retaliation.

An intentional infliction of emotional distress claim requires more than a typical employment dispute.  By the way, unpleasant and unfair actions are part of a typical employment dispute.  Even if Sieber was terminated over his age or the hunting privileges, that's not "atrocious, and utterly intolerable in a civilized community." Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).

The worst of it is that, since Sieber was over forty when he was hired, it's presumed that Brookshire's didn't discriminate based on age.  Ouch.  I turn forty this month.

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This past Friday the Supreme Court of Texas issued a grand total of zero opinions.  They were entitled to a rest.  They'd issued a boatload the week before.  There were a few cases dismissed in the weekly orders.  A few new cases were filed, too.  But nothing from Tyler.

The State Bar of Texas has a very good list of law blogs, with "Featured Posts" on a sidebar.  If you haven't checked it out, it's worth a look.  If you're here because this post got featured, my apologies.  Don't get me wrong, I appreciate the link from the State Bar's site.  But this particular post is boring.  Please check the "Supreme Court of Texas" category on the right to see some spicier versions of the weekly update.

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In the best interest and protection of R.M. (Published Memo): Civil commitment case under Tex. Health & Safety Code Ann. § 574.034(a) (Vernon 2003).   R.M.  threatened his brother.  When the police came, he threatened them, too.  He was taken into custody and given a psychiatric evaluation.  The doctor then sought to have R.M. sent to Rusk State Hospital.

R.M. had some interesting things to say to the doctor that night.  Turns out R.M.'s a Texas Ranger, and Governor Bush named him superintendent of the Rusk State Hospital.  At a hearing the next morning, the doctor testified to these statements, and R.M.'s erratic and aggressive behavior.

That's evidence supporting the application for a 90 day commitment.

R.M. points out that, at the hearing, he admitted that he was bipolar.  He promised to take his meds.  He denied the bit about running the assylum.  He explained that his claims of being a Ranger, while admittedly misleading, were truthful (R.M. is a graduate of Kilgore College, and in that sense, is a Ranger).  All-in-all, R.M. tried to talk his way out of going to Rusk State Hospital.  That's actually a sensible thing to do.

But the trial court had ruled against him.  R.M. would have liked a "do-over" before in the Tyler court.  He didn't get it.  Because of the standards of review on his legal and factual sufficiency points, the Tyler court just looks to see if there was evidence to support the trial court's decision.  In the words of the opinion:

The trial court was entitled to disbelieve R.M.'s testimony and disregard evidence contrary to the State's position. See id. at 27. Further, R.M.'s testimony does not negate the evidence that he is unable to have his needs met in the community. In light of the entire record, we cannot say that the trial court could not reasonably form a firm belief or conviction that R.M. is distressed and that his ability to function has deteriorated, thereby requiring further inpatient mental health services.

R.M. may not get to run the place, but he's going there.

P.S., an anonymous poster once pointed out that all civil decisions are published.  True. But I didn't want to get into a discussion of the Texas Rules of Appellate Procedure and the difference between the publication standards for civil and criminal cases.  I figured most trial practitioners and the general public would find the blog more accessible if I used a common nomenclature. Apologies to my non-lawyer readers.  My blog is listed on the new website for the Appellate Section of the State Bar of Texas, and there are all sorts of fellow appellate geeks who may be looking at TylerAppeals for the first time.

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In the best interest and protection of B.L. (Published Memo): Another case where a defendant declared incompetent to stand trial refuses the medication that could render him competent.  Here, the doctor for the State filed an application to force B.L. to take his meds.  But the Tyler court has already held that a bare application isn't evidence.  So B.L. wins this appeal.

This is the same result, and the same reasoning, of the earlier Tyler case of In re E.G.  As noted in that post, the Rusk State Hospital is in the jurisdiction of the Tyler court.  As you might imagine, there are constitutional issues raised by forcing someone to take medications.  If I had to place bets on what sort of Tyler case might eventually end up in the Supreme Court of the United States, this is where I'd go "all in."

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I'm in Austin tonight.  Drove in this morning to attend the first day of the CLE.  I'll be attending the second day of the CLE tomorrow.  I'll blog on some of it later.  Had a good visit with fellow law blogger Todd Smith.  For now, I've got a boatload of Tyler cases to look at.

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I checked out the Interim Report of the Task Force to Ensure Judicial Readiness in Times of Emergency.  Basically, it calls for counties to sign a Memorandum of Understanding (MOU) with the Supreme Court of Texas.  If you sign up, you promise to provide facilities for nearby counties when they're out of commission.  In return, you'll be paid rent, and you'll have the comfort of knowing that other signatory counties will house your courts if the need arises.  But don't sign up unless you mean it.  When the time comes, the decision won't rest in the hands of your county officials.  Instead, a judicial authority will come knocking with the MOU in hand saying: "We're here!"

Here's a key part of the thirteen page report:

In the event that the Supreme Court or the presiding judge of the _________ Administrative Judicial Region designate in writing that the assistance of __________ County is required to ensure the continued operation of the courts in a designated county, or assistance is requested by any Local Administrative Judge __________ County agrees to provide the following to enable the Appellate, District, Statutory, and Constitutional County Courts of designated county to continue court operations:

A. adequate facilities for court sessions;
B. adequate office space for judges and essential administrative staff, including essential county and district clerk staff; and
C. adequate telecommunication and information management tools necessary for the judges and essential administrative staff to conduct court business.

_________________ County agrees to provide assistance within 24 hours of notice of a designated county requiring its assistance.___________ County agrees to provide assistance under this MOU without any further contractual requirements for a period of up to seven working days. If it is anticipated that assistance will be required beyond seven working days, _____________ County and designated county will negotiate an interlocal agreement for the additional support.

The plan sounds reasonable enough.  But here in Smith County, the debate is over whether we have enough room for our own courts.  If the judges, clerks and bailiffs from some other county came knocking, I don't know where we'd put them.  I sure would like to know how many counties have signed up for this plan.

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