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

City of Athens v. MacAvoy (Published): An Athens PD officer was sleeping on the job -- with a married woman.  The husband finds out, and files a complaint with the Chief of Police  This sets off a jurisdictional "Who's on First?" of police officer discipline.

The Chief placed the officer on indefinite suspension.  Texas Local Government Code Chapter 143 gives officers a right to appeal discipline actions to an independent examiner.  The officer appeals.  He says the suspension was improper because, under Texas Government Code Chapter 614, he should have been given a copy of the husband's complaint before he was suspended.  The 143 examiner agrees with the officer, and reverses the suspension.

The City of Athens appeals the examiner's decision by suing.  The City contends that the 143 examiner didn't have jurisdiction to apply 614.  The trial court held that it (the trial court) did not have jurisdiction because Chapter 143 makes the examiner's decision final, unless the examiner lacked jurisdiction.

The Tyler court says: 

1. Look into the City's allegations.  Maybe 614 is beyond a 143 examiner's authority to apply, maybe it isn't.  Either way, the City's pleadings raise the question.  The trial court jumped the gun by dismissing the case.  For now, the trial court has jurisdiction to consider the question.  After considering the matter, it may turn out that the The City is wrong, in which case the trial court will not have jurisdiction.  But the City may be right, in which case the trial court will have jurisdiction.  Case remanded so the trial court can figure it out.

2. Don't get sucked into another jurisidctional merry-go-round.  Let's say that the 143 examiner does have authority to apply 164. There are occasions when an examiner's application of a statute is so hare-brained that the application is outside of the examiner's authority.  "Don't go there", says the Tyler court (not in so many words, of course).  The City complains that, even if 614 applies, the Chief himself qualifies as a "complainant" and thus the officer was given the required pre-suspension complaint.  The examiner figured that the complaint that 614 is about is the husband's.  That's not exactly a hare-brained conclusion.  It may still be wrong, of course.  If the Tyler court were deciding the issue itself, it might side with the City.  But the point is that Chapter 143 gives examiners a wide degree of latitude in interpreting statutes within their jurisidiction to apply.  This interpretation is within that latitude.

So it come back to: Is the application of a provision in Chapter 614 within the jurisdiction of a Chapter 143 examiner?  On this front, as if getting into the middle of a marriage isn't bad enough, the officer has stepped into the middle of a feud between the Texas Legislature and the Supreme Court of Texas.

The City argues that the old version of 614 is limited to certain kinds of officers, and doesn't apply to this officer.  The officer counters, "So what?"  There's a new version of the statute and a slight change in the wording makes it look like he's now protected by 614.  The City responds: Yes, but when the Texas Legislature passed the new statute, they did not intend for the new statute to change the law spelled out by the old one.

And that, dear readers, is the fued discussed in the post entitled Texas Legislature/Supreme Court of Texas Showdown!

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In the interest of RDG and In the interest of TDM (Published Memos): Texas Family Code § 263.405 may be unconstitutional to the extent that it requires indigent parents whose rights have been terminated to state their grounds for appeal before they get the trial court record.  I say "may" be unconstitutional because, after the parents here got the record, they didn't find any appellate points they had missed.  The Tyler court dismissed the appeals for that reason.  The Tyler court did not decide the constitutional question.  But the tea leaves in these companion decisions make for interesting reading.  This issue has ramifications for the FLDS proceedings.

Background: Say that a husband beats his wife and is convicted of assault.  He appeals that conviction.  While his appeal is pending, the wife is thrown in jail, and her efforts to divorce the bum are held in limbo.  Outrageous, isn't it?  That could never happen, could it?

Well, when a parent's rights are terminated by the Texas Department of Family and Protective Services, it is the kid who is stuck in foster care -- unable to be adopted because of the chance, however remote, that a long and seemingly incomprehensible legal process will give her back to her parents.  Technically, the parent's rights have been "terminated" at the trial level.  In reality, the parent can use the appeals process to exercise considerable control over the child.

That doesn't sit well with the Texas Legislature.  Over the past several sessions, they've adopted measures to shift the balance away from the parent's right to appeal, and towards the kid's ability to move on.  See here, here, here, and here.  For the most part, those measures are combined in Texas Family Code § 263.405.  As always, it's up to the courts to hash out the details of new statutes ...

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State for the Protection and Best Interest of EG (Published): Statements in a civil application to compel an incompetent criminal defendant to take his meds aren’t proof warranting forced medication.

EG was declared incompetent to stand trial on a cocaine possession charge. He was ordered to a mental hospital. In the hospital, he’d do crazy things like snort artificial sugar.

His doctor diagnosed him with schizophrenia, and prescribed several drugs to treat him (and restore his competency to stand trial). EG may be crazy, but he ain’t stupid: he refused to take the meds. (Who didn’t see that one coming?)

So the doctor filed an application under Tex. Health & Safety Code Ann. § 574.106 to compel EG to take the meds. This statute is relatively new.  For an overview, here is the bill analysis from the 79th Texas Legislature in 2005.

The trial court granted the application. The Tyler court of appeals reversed and rendered.

Statements in the doctor’s application were not backed up by testimony. Under the statute, there must be clear and convincing evidence that: 1. the patient doesn’t have the “capacity” to make his own decision about the meds, and 2. the meds are in the patient’s best interest. The factors going into “capacity” are the patient’s ability to: a.) understand the nature and consequence of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and b.) make a decision whether to undergo the proposed treatment. These factors are viewed in light of: i.) the patient’s expressed preferences regarding treatment with psychoactive medication, ii.) the patient’s religious beliefs, iii.) the risks and benefits, from the perspective of the patient, of taking psychoactive medication, iv.) the consequences to the patient if the psychoactive medication is not administered, v.) the prognosis for the patient if the patient is treated with psychoactive medication, and vi.) alternatives to treatment with psychoactive medication.

That’s a lot of i’s to dot and t’s to cross. Perhaps the doctor could have done that here. The problem was that the doctor made the right assertions in the application, but didn’t touch all the bases in his testimony. In particular, the doctor explained neither EG’s illness, nor how (untreated) the illness robs his capacity to make decisions about medication, nor how treatment would be in EG’s best interest. Since the court found there was “no evidence” on these elements of the State’s burden of proof, there was no need to get into the finer points of the legal sufficiency standard of review, and certainly no need to reach the factual sufficiency question.

Forcing incompetent criminal defendants to restore their competency with meds is a very knotty and very hot issue. Take, for example, the Elizabeth Smart case. The Utah Supreme Court is currently (March, 2008) considering the emergency motion of one of the defendants, Wanda Barzee. Like EG, Barzee, was declared incompetent to stand trial, and also like EG, Barzee refuses to take psychiatric medications. The United States Supreme Court issued a decision in this area in 2003, Sell v. United States, 539 U.S. 166, 177 (2003)(holding that a person has a “’significant’ constitutionally protected liberty interest in avoiding an unwanted administration of anti-psychotic drugs.”)

And then there’s the related issue of: “How much wiggle room is there between criminal ‘competency’ to stand trial and civil ‘capacity’ to refuse medication?”

With Rusk State Hospital in the Tyler court's jurisdiction, the Tyler court is, and will be, on the front lines of this issue.

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Rapid Settlements v. SSC Settlements (Published): Arbitration is a bit like an alien abduction isn't it?  Well, I suppose if you're the party that wants arbitration, it's more akin to the Rapture.  Either way, the parties find themselves transported to another realm.  Leaving those left behind wondering what has happened and what to do.

OK, here's what I mean:  Here in our legal world, we've got our own community with its own rules.  Especially rules about who has enough interest in a matter to be a party to a case.  Not every case is just about the two parties to a written agreement.  There are often cases where third parties also have a big stake in the outcome.  Maybe these third parties intervene in a pending suit.  Maybe they sue in their own right.

But what happens when arbitration comes along like an alien spaceship, zaps the signatories up out of the legal world, and leaves the third parties behind?  This case raises that question.  That's why it's a "Case o' the Year" contender.

The details ....

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Crosby v. Dixon, et al. (Published Memo): Prisoner civil rights suits can be dismissed without a hearing.

This is a matter of separating the wheat from the chaff. We want the door to be open to legitimate complaints by prisoners, but with all that time on their hands, prisoners are notorious for taking a “free bite at the apple” with lawsuits alleging violations of civil rights.  Perhaps the most notorious is the one where the prisoner complained that he was forced to eat crunchy peanut butter instead of creamy (or was it vice versa?).  See this post about the response to such suits in the federal judiciary.

Tex. Civ. Prac. & Rem. Code Chapter 14 attempts to strike a balance by imposing requirements that inmates bringing pro se suits in forma pauperis must state certain procedural matters plainly at the outset – or their cases get tossed.

But how, exactly, do they get tossed? The prisoner here asserted that the trial court should have given him a hearing before tossing his case. Chapter 14 states that prisoner suits must be brought within 31 days after the prisoner gets an adverse decision from the prison grievance system. What's more, their suits must state the date on which they got that notice.

The suit here didn’t state the date. Not much point of a hearing on that. In the words of the Tyler court, the defect is “clear and wholly ascertainable from the record.” Dismissal without hearing was within the trial court’s discretion.

Now you know why this short memorandum opinion was designated for publication.  It's only January (and least as far as trial judges are concerned) it looks like we've got a Case-'o-the-Year frontruner.

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