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

In the interest of A.T.S. and M.D.S. (Published Memo): Termination of parental rights with another constitutional challenge to  the Family Code's indigent parent provisions. 

The Tyler court holds that the Family Code Section 263.405(i) requirement of statements of appellate issues does not prevent parties from appealing matters that come up after the statements are filed.  In this case, it's the trial court's findings of fact and conclusions of law that were entered after the statements were filed.

The terminated parents had alleged that the Family Code was unconstitutional to the extent that it required them to see into the future.  It doesn't, so it isn't.

The parents got to present their appeal.  But it was denied.  The Tyler court goes to great lengths to set out the drug/un-under employment/non-compliance with CPS "family plan" evidence that supports the trial court's decision to terminate parental rights.

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Webb v. State (Unpublished Memo): Webb complains that the trial court didn't even consider her application for probation of a felony marijuana possession charge.  If Webb's charge is true, the trial judge deprived her of her right to due process under the Constitutions of the United States and the State of Texas.

For starters, Webb waived this complaint by not presenting it to the trial court.  But the Tyler court doesn't leave it at that.  The Tyler court looks at the merits of Webb's charge, and finds it without merit.  Unfortunately for Webb, the trial judge had read her application for probation. 

There was something in the application that galled the judge.  Webb had been convicted at a bench trial.  But her application said she was a good candidate for probation because "I never did anything. I've never been on nothing."  Having read that, the trial judge declared:

Yeah[,] you did something, it's not like you did nothing, you violated the law of this state. ... She comes and violates the law and thinks this judge is going to reward it? It ain't going to be. No. Probation is not appropriate for this defendant under these circumstances.

When Webb started crying, the judge went on:

Late for tears. I could shed some tears too, tears for those who were going to get that marijuana transferred into this county. Yeah, I get tears.

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Hohn v. Hohn (Published): Divorce dispute over what counts as the present value of the husband's interest in a partnership, and what counts as the husband's future earnings.  As Robin Williams once quipped: "Ah, yes, divorce ... from the Latin, meaning to rip out a man's genitals through his wallet."

Lest anyone accuse me of coarsening the public discourse with that observation, my defense is that I read it in the Economist.

As the Economist notes, some are expecting a rush to the divorce courts as the spouses of high earners try to get their divorce based on the earnings history of their spouses, before the reality of the sinking markets shows up in the form of paltry Christmas bonuses, etc.  For the Gotham big-shot attorneys representing the titans of Wall Street, this case out of little old Tyler might prove helpful.

The husband in this case is a partner at one of the firms that represented the State of Texas in the tobacco litigation.  The attorney and the firm as a whole are very successful.  They've got another big case in the works.  And that's what the fight is over.  The wife and her expert consider the huge fees that the firm might earn as good as in the bank, making the husband's current stake in the firm (which is community property) all-the-more valuable.  The Tyler court disagrees. 

Before getting to the ultimate conclusion, the Tyler court notes that the firm's partnership agreement provisions about what the husband would get if he were to withdraw from the firm do not control the court's valuation of his present interest in the firm.  Also, the trial court did not, in general, abuse its discretion in allowing the wife's expert to testify.  The expert had testified to the value of interests in professional firms before (including a prior divorce involving the same firm).  His choice of the income method of valuation over an asset-based method was a choice favored by other experts.

But the wife's expert included potential fees the firm might earn on the cases "in the works" in calculating the husband's current stake.  In the words of the Tyler court: "Revenue from these cases is no more than an expectancy interest and any money to be received constitutes future earnings to which [the wife] is not entitled."  The case is remanded for a re-division of the marital estate.

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Floyd v. State (Unpublished Memo): There was no factual basis to support a Tex. Code Crim. Proc. Ann. art. 38.23(a) jury instruction, thus a failure to request the instruction cannot amount to ineffective assistance of counsel.

Floyd believes that there was no basis for the traffic stop that resulted in a search that turned up cocaine.  The traffic stop was over an unlit license plate.  Those things are supposed to be lit so that the plate can be read from fifty feet away.  The officer and her dash cam say Floyd's plate wasn't properly lit.  Floyd's attorney cross-examined them on this point, but didn't produce any conflicting testimony.  And there's the rub.

Under Art. 38.23(a), a defendant is entitled to an instruction to the jury that they can disregard evidence if there was a fact question over whether it was obtained improperly (e.g., unlit plate = proper stop, or lit plate = traffic stop without probable cause) and the jury resolves that fact question against the State.

But here, there was no "unlit or lit" fact question.  There was only the officer's testimony.  Cross-examination questions, however pointedly worded and emphatically stated, do not raise a fact issue.

With no fact issue, no basis for the jury instruction.  No basis for the jury instruction, no error by the attorney in "failing" to request it.

Side note: the Tyler court could have taken the easy way out and relied on the Strickland presumptions.  Instead, they grabbed the issue head-on and said that the trial counsel's work was actually effective.

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Cullum v. State (Unpublished Memo): DWI conviction appealed on grounds that the officer had no reason to make a stop in the first place.  In a lack of situational awareness, Cullum peeled out of a Longview intersection at 11:30 p.m., squealing his tires for three seconds.  The officer (whose testimony was unrefuted) was back in traffic at the intersection.  He didn't have a clear look at the car, but he could hear it just fine.  The officer believed that the Ford Mustang was fast out of the gate on purpose.  Apparently, there's a law against that.  "Improper start from a parked position." Tex. Trans. Code Section 545.402.  The officer tracked Cullum down.  Once the officer had Cullum pulled over, he discovered that Cullum was DWI.  The Tyler court affirmed.  They probably would have affirmed even if Cullum had been driving a tan 1999 Camry.  OK, no they wouldn't have.  I used to drive one, Ed-style.  You can't squeal the tires.

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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 ...

Continue Reading...

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Stoker v. Stoker (Published Memo): Under the abuse of discretion standard, a court of appeals defers to the trial court's assesment of the evidence.  But there has to be evidence.  In this post-divorce receivership case, there was no evidence supporting the appointment of a receiver to sell the former marital residence.  The only thing in the record was argument of counsel.  Therefore it was abuse of discretion to appoint a receiver.

OK then, what evidence is needed to support the appointment of a receiver?

Good question.

A trial court's authority to appoint a receiver stems from Texas Family Code, section 6.502(a)(5).  But, while that statute gives the authority, it doesn't say when it should be exercised.  So the courts have tried to "extrapolate" what proof should be required.  They haven't come up with an agreed list of factors yet.  Instead it's just a series of ad hoc decisions.  Most courts tend to agree that you need to show that: 1.) some sort of harm that will come to the property (or its value) if a receiver isn't appointed, and 2.) a less harsh remedy would not be able to prevent that harm.

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Ott v. Dimond (Published): Contract for 25 years of employment ruled unenforceable for lack of consideration. Father/president of family-owned car dealership fires his son and asks the sales manager to run the dealership – giving the manager a 25-year employment contract. After the father’s death, the son becomes president and fires the manager.  Manager sued to enforce the contract.  He lost.

This case is a great lesson in how the world really works. For reasons I’ll get into later, let me say up front that I don’t know any of the parties, much less their states of mind.

The Dimond [not a typo] family owns the “Jack ‘O Diamonds” dealerships in Tyler and Longview. Jack Dimond, the father, was the president of the business as of early 2004. Jack had concerns about how his son, John, was handling things. Jack fired John from John's VP position. Jack then asked the sales manager at the Longview dealership, Bill Ott, to be in charge of all operations at that facility. As part of that request, Jack gave Bill a document (signed by Jack) promising Bill 25 years of employment with Jack ‘O Diamonds.

Jack passed away that same year. John (and family members aligned with him) inherited a controlling interest in the business. Those shareholders elected John to succeed his father as president. One of John’s first acts as president was … firing Bill. Bill sued, claiming breach of the 25-year employment contract.

But the document Bill relied on wasn’t a contract at all. Legal resolution of the case was straightforward. Contracts have to be based on consideration, and there wasn’t any. Sure, on the face of the contract it probably looked like a “deal” to a layman – Jack promised that Bill would have a job for 25 years, and in return, Bill promised to work for 25 years. But Jack’s promise doesn’t count in the eyes of the law, and neither does Bill’s.

First, Jack’s promise: the 25 years of employment wasn’t an absolute guarantee. Instead, it was merely a proposal that Bill would not be fired except for “good cause.” What does “good cause” mean? It’s not spelled out. Therefore, it means what the dealership says it means, and doesn’t really change the fact that Bill is an “at will” employee. In short, Jack’s promise means nothing, and is not valid consideration for a contract. See, Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).

Likewise Bill’s promise meant nothing at law. The same document that indicated Bill promised to work for Jack ‘O Diamonds for 25 years also stated that, promise notwithstanding, Bill retained the right to quit at any time. Again, that’s no consideration for a contract. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 228 (Tex. 2003).

What was really going on here? I don’t know. Start with the principles of “A man’s word is his bond” and “business is business” and kick this scenario around a little. Take the names out of it because it’s just not right to attach speculation to real people.

Having done that , make assumptions. Assume that the father had his wits about him. Then assume that he didn’t. Assume that the sales manager was just a good guy doing his job who got this dropped in his lap. Then assume that he weaseled his way into the father’s graces. Assume that the son is an incompetent businessman. The assume that he’s not. Or assume that you’re one of these three, and you can’t know for sure about the capacities and intent of the other two. Ask your kid to step into the shoes of each of these players. What questions come to mind? What would they do? Should the son have honored his father’s promise? Was it really the father’s promise, or the promise of the company itself made by and through its then-president? Was it the father’s place to make a promise that would extend beyond his own life? What should the sales manager have done when presented with the promise? (Well, for one thing, he should have consulted a good employment contract lawyer.) But beyond that, what are the practical ramifications of getting the blessings of your present boss, and thereby getting the enmity of your future boss? Was the father cagey enough to know that the promise could never be enforced – was the manager being used as part of a ploy to toughen up the son? Or was the father’s promise genuine?

A discussion like this is bound to tell you a lot about your kid’s readiness for the challenges of adulthood, and tell them a lot about your approach to business ethics.

Update: On April 9, 2008, Ott asked the Texas Supreme Court to extend his time to file a petition for review.  On April 10th, the request was granted, and Ott was given until April 28th.  That's the last notation in the file.  As of June 11, there's no indication that Ott ever filed a petition for review.

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