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

Chapman v. TDCJ-ID (Published Memo): An inmate on a work detail fell from a ladder.  He sues, alleging improper supervision, and a defect in the ladder (lack of non-slip rubber feet).  The suit is dismissed as frivolous under Texas Civil Practice and Remedies Code Chapter 14.

Following the Chapter 14 standards the trial court found that the claim's "realistic chance of ultimate success is slight."

The Tyler court reviews that decision under an abuse of discretion standard.  The State of Texas is immune from suit unless it has given permission to sue.  Permission to sue has been given for the "use of tangible personal property."  But no such permission has been given for cases of mixed use and nonuse.  Chapman's complaint about the ladder and being left alone is a mixed claim.  The claim was therefore frivolous.

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Hamilton v. Thompson, et al. (Published Memo): Prisoner's civil rights suits against eleven TDCJ-ID employees is dismissed without a hearing (or rehearing) for failure to comply with Tex. Civ. Prac. & Rem. Code Chapter 14.  There have been several decisions by the Tyler court this year on this provision.  This time, the prisoner listed his prior pro se lawsuits, as required, but did not provide the required summaries of what he was claiming in those suits and their outcomes.

The prisoner also objects on equal protection grounds to the portion of the dismissal order that assessed court costs against him.  He hadn't raised that issue before the trial court, so the Tyler court rules that it was waived.  Even so, the Tyler court goes on to say that the equal protection argument fails because the prisoner made no showing of disparate treatment.

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There's only one Tyler case in this week's orders from the Texas Supreme Court.  It's a denial of the petition for review in Geiger v. Williams.  Geiger is prisoner's civil rights suit against five TDCJ employees and six employees of UT Medical Branch.  In December, 2007, the Tyler court had affirmed the dismissal of Geiger's claims because Geiger failed to comply with Tex. Civ. Prac. & Rem Code Chapter 14.  What's interesting to me is that the Tyler court's April, 2008, decision in Archer held that Chapter 14 doesn't apply to claims against individual employees.  I'm wondering if Geiger made this point, or if Geiger's claims were otherwise barred by sovereign immunity.  Archer's claims fit within the Tort Claims Act waiver of immunity because they involved the use of a motor vehicle by the TDCJ employees.

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Wesson v. State (Unpublished Opinion): Bribery conviction affirmed. Wesson, the City of Palestine’s dual capacity tax assessor-collector/city water utility supervisor got $1,000 from a citizen in exchange for issuing him a $7,183.71 refund for “billing errors” on his water bill. Whether or not there was a billing error, the citizen shouldn’t have gotten the refund money because he owed $14,465.86 in back taxes to the assessor-collector’s office.

Jury argument: Wesson produced an old water bill on the eve of trial (it had to do with whether she had used part of the $1,000 to pay her own water bill). The prosecutor responded by asking the jury to consider why Wesson hadn’t produced the water bill sooner, and why she hadn’t produced any other documents. Wesson said the prosecutor’s argument was an end-around her Fifth Amendment privilege against self-incrimination.

It wasn’t. Granted, prosecutors can’t make a plea for the jury to consider a defendant’s failure to testify. But when documents are added to the mix, things aren’t as cut-and-dried. The court looks at the argument as a whole to see if the prosecutor “manifestly intended” such a plea, or (prosecutor’s intent aside) the jury would “necessarily and naturally” hear such a plea in the prosecutor’s words.

Under that standard, it appears that a tie goes to the prosecution – a “mixed” statement that could refer to the failure to testify or to the failure to produce documents does not “necessarily” refer to the failure to testify. That’s a bit of editorializing on my part, though. There was no mixed statement here. The Tyler court found that there was nothing in what the prosecution said that went to the failure to testify. The prosecutor’s statements were squarely directed to the documents. Hence there was no violation of the privilege against self incrimination.

Continue Reading...

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Thompson v. Vincent, et al. (Published Memo): Thompson failed to preserve error concerning the sale of 43.07 acres in Anderson County, Texas. The sale was ordered as part of a probate proceeding. The land was ordered to be sold, with the proceeds to be divided among several heirs.

On appeal, all of Thompson's issues went to the underlying probate proceeding -- he contested the validity of the will, he challenged the appointment of the administrator, etc. 

But, he did not directly challenge the order of sale. As a result, the order stands on appeal.

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Archer v. TDCJ-ID, et al. (Published Memo): On January 9, 2008, the Tyler court issued the Crosby decision.  It held that inmate civil right suits could be dismissed without a hearing if the inmate's pleadings don't comply with Tex. Civ. Prac. & Rem. Code Chapter 14.  This case shows that Crosby doesn't apply to suits against prison officials in their individual capacity.

Archer is an inmate at the Powledge unit in Palestine, Texas. He got burned when attempts to start a diesel engine went awry. He had been working on the engine at the direction of TDCJ-ID employees. He filed suit against TDCJ-ID, as well as the individual employees.

The Texas Civil Practice and Remedies Code imposes procedural requirements on inmates filing civil rights claims against the State. For one thing, the prisoner has to exhaust administrative appeals within the prison. Archer did not do that here. Consequently, his claims against the State were rightly dismissed by the trial court.

But Archer had sued the employees, too.

The Texas Tort Claims Act waives sovereign immunity for claims involving the use of a motor vehicle. Since that's how Archer got his burns, his claims against the individual employees could proceed. What's more, the administrative grievance process within the prison only covers claims against the prison itself, not the prison's employees. It was an abuse of discretion to dismiss those claims for failing to comply with the Texas Civil Practice and Remedies Code.

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Patrick v. State (Unpublished Memo): Patrick took ten years of deferred adjudication for burglary of a habitation. Then she went out and violated the terms of her probation up, down and sideways. 

When the court threw the book at her at the revocation hearing (18 years) she griped that trial court didn’t take the time to list all of her rights and ask if she was voluntarily waiving them (e.g. to remain silent, to have a hearing, to bring witnesses on her behalf, and to cross examine the State’s witnesses).

All of those waivers took place at the time she made her deferred adjudication plea. There’s nothing voluntary on her part about probation revocation. Therefore the trial court didn’t need to ask about her rights.

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In re Energy Transfer (Published): In a condemnation case, unless and until someone objects to the commissioners' award, mandamus is the only way to complain of a judgment that doesn't match what you think the commissioners ordered.

As long as condemnation domain cases remain before the commissioners, they are an administrative proceeding. Once the commissioners make an award, the trial court must enter judgment conforming to the award as an administrative act. The case only becomes a judicial proceeding if and when a party objects to the commissioner’s award.

Energy transfer felt that the landowner improperly presented (and the trial improperly signed) a judgment that had some “extras” that were not awarded by the commissioners. In particular, an abandonment clause, an indemnity clause, and a provision that Energy Transfer would be perpetually liable for restoration of the property. Even though Energy Transfer didn’t like those clauses, they didn’t want to object to the commissioners’ award and thereby open the matter up to a full-blown jury trial.

But since Energy Transfer did not invoke a judicial proceeding, they couldn’t pursue the judicial remedy of appeal to complain of the extras. Instead, mandamus was the only remedy available. On mandamus review, the Tyler court of appeals found no evidence that the commissioners had considered the extras. And since they weren’t considered by the commissioners, the commissioners could not have included them in their award. In the words of the Tyler court of appeals: “where a trial court fails to enter a judgment conforming to the commissioners’ award in a condemnation proceeding, that judgment is void.” Mandamus issues.

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In re Dekard; In re Kennedy; In re Parker (all Unpublished Memos): Three very similar cases disposed of on the same grounds. Criminal defendants want the trial court to set bail, read them their rights, and issue notices of the charges against them.  They bring mandamus actions in the Tyler court.  The Tyler court denies all of them.  The defendants could have, and should have, raised these complaints via habeas corpus petitions in the trial court.

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