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 re Tieri (Published): A two front custody battle.  On the one hand, there's New Jersey where the couple and the children lived for most of their lives.  On the other, there's Texas, where the mother, kids, and for a brief period, father lived as the marriage unraveled.  The father files for divorce in New Jersey and he gets custody there.  The mother files in Texas, and she gets custody here.  So it comes down to which court has jurisdiction.  It's a Uniform Child Custody Jurisdiction and Enforcement Act case raising two questions:

First, under the six month consecutive residency requirement of Tex. Fam. Code Ann. § 152.102(7), does a temporary absence of the children from the State of Texas a.) not matter as long as it meets the “temporary” threshold; b.) “freeze” the six month clock until the children come back to Texas; or c.) require a restart of the clock at zero?

The answer is most likely “c,” although parts of the decision could be read to mean “b”.

Second: If a custody proceeding is voluntarily dismissed in one state, can another state assume jurisdiction over custody as though the first custody proceeding had never been filed?

No.  Even though the case has been dismissed, the first state retains jurisdiction unless, along with the dismissal, it entered a specific finding that it has lost jurisdiction (for example, because neither parent lives in the state anymore).

2006

• January: Mother brings the kids from New Jersey to Texas.
• February: Father files divorce in New Jersey.
• March: While the mother and children are still in Texas, the New Jersey court awards custody to the father.
• April: Mother and children return to New Jersey because they’ve been ordered to appear at a hearing.  Other hearings are set, and they stay in New Jersey for somewhere between 22 to 26 days.  Mother and father reconcile.  Father dismisses New Jersey divorce.  All go to live in Texas.
• August: Father leaves Texas. Mother files for divorce in Texas.
• September: Texas court denies father’s special appearance. Asserts jurisdiction.
• October: Texas court names mother sole temporary managing conservator, denies visitation to father pending further order.

2007

• February: New Jersey court, on father’s petition, reinstates the New Jersey divorce.  New Jersey court reopens case on grounds that the mother had fraudulently induced the father to dismiss it. In other words, she never had any real intention of reconciling.  New Jersey court acknowledges that the Texas court has asserted jurisdiction, and refuses to rule on custody unless the Texas court relinquishes jurisdiction.  As for itself, the New Jersey court does not enter an order relinquishing jurisdiction or finding that the circumstances have (or had at any point in this process) deprived it of jurisdiction.
• April: Father files a motion in Texas to dismiss under UCCJEA.
• August: New Jersey court grants the divorce without deciding custody.  Texas court holds a telephonic hearing including both courts and counsel from both states.
• September: Texas court denies the father’s UCCJEA motion, holding that, at the time of the Texas divorce, the children had lived with the mother for six months, and in Texas for eight months (considering the their April ’06 presence in New Jersey as temporary).
• December: The father files a petition for writ of mandamus in Tyler.

The record is silent about what happened between September and December. The opinion doesn’t discuss issues of waiver and delay, so I’m guessing that there were motions for rehearing before the trial court. In any event, the Tyler court reviews the questions of law de novo. Since the children went back to New Jersey for a period, and since the New Jersey court didn’t enter an order waiving jurisdiction as part of the voluntary dismissal, New Jersey, not Texas, retains exclusive jurisdiction.
 

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In the Guardianship of Humphries (Published Memo): Tex. Probate Code Section 655A trumps Tex. R. Civ. P. 141 when it comes the the assessment of attorney's fees, but does not trump the court's ability to award sanctions via Tex. R. Civ. P 215.3.

A nineteen year old, Luke, was incapacitated in an auto accident.  His father was appointed guardian.  Mother and maternal aunts challenge that in trial court probate proceeding. (The father and mother are divorced).  The attorney ad litem did a lot of work as a result of the mother's presence in the case.  That work included getting a temporary restraining order preventing the mother from seeing Luke or having inappropriate communications with the staff of the nursing home where Luke now lives.  Affidavits from the nursing home staff supported the entry of the order.  That temporary restraining order was later, by the mother's consent, converted into a temporary injunction.

The mother also had some "unstable" contact with the owner of a record retrieval company.  The mother's then-attorney had ordered some of Luke's medical records from a facility other than the nursing home.  The attorney ad litem is entitled to a copy of those records.  But the mother showed up at the office of the record retrieval company to pick up the originals before they could be copied. She made it very clear that she didn't want the attorney ad litem getting anything. The record retrieval company's owner felt "really afraid" and let the mother, and the records, walk out the door.  The attorney ad litem filed a motion to compel.  Eventually, the mother's attorney handed the records over as his last act -- just before his motion to withdraw was granted.

The attorney ad litem sought attorneys fees for his work done because of the mother's presence in the case, and as a sanction for putting him through the ringer to get the records.  The trial court went with the attorney ad litem on both fronts. 

But the trial court based the award of fees for work done on Tex. R. Civ. P. 141 instead of Tex. Prob. Code Section 665A.  The Tyler court says that Rule 141 "conflicts with the specific mandate" of Section 665A.  At first, the conflict is not readily apparent.  Section 665A says that fees are to be assessed as costs of court. Rule 141 provides that, for good cause, a trial court may assess the costs of court on a party.  So why can't the two be read together to support the award of fees against the mother?  Because 665A says that "if the proposed ward is unable to pay for the attorney's services, the county is responsible for the cost of those services."

My view: I have "strict constructionist" leanings, so I should be happy when a court takes a statute at its word.  But I'm not happy at the prospect of Luke or Smith County paying nearly $10,000 that, as the trial court found, should be paid by the mother.  If Luke has the money to pay now, he'd be better off saving it for future medical needs.  And Smith County has enough bills as it is.  Keep in mind that the total bill has now ballooned by virtue of this appeal.

I wonder how many situations like this come up every day in contested guardianship cases.  Without commenting on the mother's intentions here, let's just say I'm a cynic in general.  If the rules allow for an abusive party to have a "free bite at the apple" aka push the costs of their conduct onto someone else, they'll do it.  Rule 215.3 sanctions probably aren't the answer because the scope of sanctionable conduct is narrower than the broad "good cause" reach of Rule 141.  Same probably holds true for Tex. Civ. Prac. & Rem Code Chapter 10, which governs the signing of frivolous pleadings or motions.  Sounds like the Texas Legislature might need to tweak 665A so that it can be read along with Rule 141.  Opponents will contend that opens the door for judges to abuse Rule 141 to terrorize guardianship litigants.  I'm not as concerned about that as I am about the impact of this decision on those in the shoes of Luke and/or Smith County.  As a taxpayer, I can vote against a judge.  But what can I do about "unstable" litigants?

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The Tyler court's March 26th PetroFac decision ties into some very hot Texas Supreme Court versus Texas Legislature drama over the SCoTX's 2007 Entergy case.

In PetroFac, the Tyler court relied on the Business Organizations Code to interpret the Business Corporations Act.  The Tyler court felt this was appropriate because the Texas Legislature said the Code did not make any substantive changes to the Act.  Instead, the Code is a "plain language" restatement of what is already in the Act.

That logic was undercut in Entergy.  At issue in Entergy is the ability of premises owners to claim the benefit of the workers' compensation exclusive remedy provision under the Labor Code (aka, the "Comp. Bar").  The Texas Supreme Court read a recodified section of the Labor Code to extend that protection to premises owners, in spite of the Legislature's statement that the recodification was non-substantive.  The exact words of the Texas Supreme Court were: "The general statement that a recodification is not intended to effect substantive changes does not, however, override the plain wording of the statutory provisions directly in issue in this case." Entergy Gulf States v. Summers, ___ S.W.3d ___, 2007 WL 2458027 at *3 (Tex. 2007)(emphasis added).

State Representative Bryan Hughes and three other state lawmakers filed an amicus brief objecting to the Entergy decision.  The lawmakers used plain wording of their own, like "void" and "unconstitutional."

These lawmakers were certainly concerned about the Entergy court's reading of the Labor Code, but expressed broader concerns that the decision "foretell[s] a trend with respect to all of the other recodifications ...."   Like, say, the Business Organizations Code.

The Texas Supreme Court has granted rehearing of this controversial case.

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Sembera v. PetroFac (Published): Tyler’s PetroFac, in its S-Corp form, vanished when its shares were exchanged for shares in a new “Limited” PetroFac corporation. An S-Corp shareholder dissented to this exchange. Under the Business Corporations Act, a dissenter has the right “restoration” of his shares -- so long as it is “without prejudice to any corporate proceedings which may have been taken during the interim.” The Tyler court uses the soon-to-go-into-effect Business Organizations Code to determine that the share exchange is a prejudiced proceeding under the Act. Bottom line: A dissenting shareholder can’t get “restoration” of shares in a corporation that no longer exists.

But it's a long road to get to that conclusion ...

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