Tyler Appeals Blog

Race and jury selection ...

Jeff@RambinFirm.com (Jeff Rambin) — Fri, 26 Sep 2008 11:08:55 -0600

A while back, I posted on a Batson case in the criminal context. Today, the Supreme Court of Texas handed down a Batson decision in the civil context -- a case of alleged racial discrimination in the workplace.

Today, the Supreme Court of Texas held that the employer's attorney struck two potential jurors on account of their race. Wow. The jury that was seated didn't buy the employee's claims of racial discrimination. They entered a verdict for the employer. Today, though, the Supreme Court of Texas set aside that verdict, and sent the case back for a new trial. The majority opinion was written by Chief Justice Jefferson.

The last time the Supreme Court of Texas looked at Batson issues was more than ten years ago. since then the Supreme Court of the United States of America has examined the issue. See the NY Times article on the case here.

Batson is a three step process. First, there's a charge that a potential juror was excluded on account of race. Second comes an assertion of race neutral reason for the exclusion. Third is an examination of whether that race neutral reason is merely a hollow pretext. With today's decision, step three just got a whole lot more interesting, and important.

The concurring opinion says that Batson isn't enough. In their view, Batson is only a partial remedy for the abuses that come from giving parties the ability to exclude potential jurors. The full remedy? Do away with preemptory challenges.

Petition granted on a Tyler case ...

Jeff@RambinFirm.com (Jeff Rambin) — Fri, 26 Sep 2008 10:33:34 -0600

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.

Constitution Week: Supreme Court of Texas

Jeff@RambinFirm.com (Jeff Rambin) — Fri, 19 Sep 2008 10:46:44 -0600

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.

Friday Night Lights Out

Jeff@RambinFirm.com (Jeff Rambin) — Fri, 12 Sep 2008 20:09:07 -0600

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).

Open season on anyone forty or over.

Jeff@RambinFirm.com (Jeff Rambin) — Mon, 08 Sep 2008 21:35:52 -0600

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.

Tyler before the Supreme Court of Texas

Jeff@RambinFirm.com (Jeff Rambin) — Sun, 07 Sep 2008 21:30:58 -0600

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.

Was the inmate appointed to run the asylum?

Jeff@RambinFirm.com (Jeff Rambin) — Thu, 04 Sep 2008 21:44:18 -0600

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.

Not gonna take it, Part II

Jeff@RambinFirm.com (Jeff Rambin) — Thu, 04 Sep 2008 21:22:08 -0600

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."

Advanced Civil Appellate Practice CLE

Jeff@RambinFirm.com (Jeff Rambin) — Thu, 04 Sep 2008 21:08:28 -0600

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.

The Interim Report

Jeff@RambinFirm.com (Jeff Rambin) — Wed, 03 Sep 2008 09:03:49 -0600

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.

Are our courts prepared for another Rita?

Jeff@RambinFirm.com (Jeff Rambin) — Tue, 02 Sep 2008 08:25:40 -0600

Gustav, thankfully, wasn't as bad as feared. He was plenty bad enough, especially in Louisiana and Mississippi. Texas has been spared the brunt. Still, I'm very glad to say that my wife's grandparents got out of Beaumont and came up here to Tyler. Being prepared is the sensible thing.

On the subject of preparedness, today seems like a good day to post on the Task Force to Ensure Judicial Readiness in Times of Emergency. It was formed in November 2007. The name accurately tells you what the committee is about. But the name is bureaucratic and, well, lifeless. Don't let that fool you. Chief Justice Jefferson put the work of the Task Force in very human terms in his opening comments at a May, 2008 meeting:

And first, let me start with just an apology. It seems to me I should have been thinking about this from the very beginning. We all should anticipate, be thinking about anticipating emergency situations. But it came most clear to me when I was watching what transpired after Hurricane Katrina and the devastation that New Orleans suffered as a result of it.

And looking at the families on TV standing on rooftops and floating in the lakes that were caused by the levees breaking.

And I wondered, at that time, what are the children going to do? Some of them have lost their parents. How are they going to find them? And you need a judicial system to introduce them into, if necessary, foster care on the road to permanent adoption if their parents are lost.

What happens to those who are involved in the criminal justice system? There were no courthouses open. There were no judges to take arraignments. That has an impact on the safety of the community.

And it seemed to me that judges ought to have a plan in place to take care of that sort of contingency.

And then right after Hurricane Katrina came Hurricane Rita. And we saw the impact of Rita and we saw the impact of Rita on Texas and the devastation it caused. There were so many lawyers that called us after Hurricane Rita hit saying, “What do we do? The courthouse is closed and there is a statutory deadline coming up. How do we protect our client’s interests?”

And so at that point we convened an Emergency Task Force of our Rules Advisory Committee to look at modifying the rules to accommodate that situation.

All of this led me to think the judiciary needs to work and needs to be prepared for not only natural disasters like the hurricanes I mentioned but terrorism. A health pandemic. With the goal that the rule of law is maintained. After all, judges here, members of the armed forces, we swore an oath to preserve, protect and defend the Constitution and laws of the United States.

And to do that, we have to have access to justice for our citizens, especially our most vulnerable citizens. And so in the end this is not about courthouses, it is not about judges. It is not even about court personnel. It is about the citizens of the State of Texas and doing our best to ensure that their civil rights are protected.

The work of the Task Force is ongoing.

Update: on a related note, Todd Smith at TexasAppellateLawBlog has posted on the Gustav-related closure of the Fifth Circuit until next week.

What do we do now?

Jeff@RambinFirm.com (Jeff Rambin) — Fri, 29 Aug 2008 14:42:39 -0600

On July 25th, the Supreme Court of Texas issued five identical decisions indicating that it would hold off on deciding the constitutionality of a provision of the Family Code dealing with appeals from terminations of parental rights. That's probably a hint to the Texas Legislature to address the issue in the next session. All well and good. But what should trial judges do while waiting for a new statute?

Well, two of today's twenty-two decisions from the Texas Supreme Court deal with appeals from terminations of parental rights. One case, In the interest of G.B., et al., reiterates the high court's position that it will hold off on deciding the constitutional issues. The other, In the interest of M.N., a child, offers some help for trial judges in these in-between times.

Under the Family Code, terminated parents have fifteen days to file their statement of appellate issues. But is that fifteen days a hard-and-fast deadline, or may a trial court grant extensions? Today, the Supreme Court of Texas said that trial courts have the authority to extend the fifteen day deadline.

But there was a lone dissent. Rather than butcher Justice Willett's brief words, here they are

For better or for worse, the Legislature in Family Code section 263.405(b) set a firm fifteen-day deadline for filing a statement of points for appeal. Reasonable people can dispute the efficacy of this hard-and-fast deadline, but few can dispute its clarity.

I fully understand the Court’s desire for leniency in enlarging the fifteen-day deadline beyond the statute’s terms. Appealing the termination of one’s parental rights is serious business, and having such rights vanish because of a counsel’s (or pro se litigant’s) mis-calendaring is nigh unfathomable. On the other hand, every day of childhood is irreplaceable, and society benefits when children are placed in safe, secure and loving homes as quickly as possible.

The Legislature wanted these cases to proceed with alacrity, reducing post-judgment delay by barring appellate consideration of tardy points. I would take lawmakers at their word: fifteen days means fifteen days. Squeezing out delay, however, does not permit squeezing out due process. It is one task to honor a fast-tracking statute’s unambiguous text and refuse to judicially rewrite it under the guise of construction. It is quite another to examine whether that text, however plain, unconstitutionally restricts due process or other guarantees. Terminating parental rights cannot warrant terminating constitutional rights.

I would (1) hold that court-made rules of procedure do not trump the Family Code’s fifteen-day deadline and then, assuming preservation, (2) confront head-on whether this statutory deadline violates Durham’s due-process rights or any other constitutional provision. Because the Court does neither, I respectfully dissent.

In a footnote, Justice Willett notes that the Supreme Court of Texas has granted review of a petition squarely presenting the constitutional questions. I still stand by my earlier prediction that the issue won't be decided until the Legislature takes another look at this. But I could be wrong. The 81st Regular Session of the Texas Legislature convenes on January 13th, 2009. If there aren't any good bills in the works on day one, Justice Willett may have an easy time of bringing other Justices over to his way of thinking.

Back to School edition of Tyler before the SCoTX

Jeff@RambinFirm.com (Jeff Rambin) — Fri, 29 Aug 2008 10:29:57 -0600

Twenty two decisions today out of the Supreme Court of Texas. None in Tyler cases. There was, however, a case involving a Brookshire's employee out of the Texarkana court. I may post on that one later.

Even though there were no decisions, there was a fair bit of action on Tyler cases.

The Collins case is set for oral argument on November 12th.

The Geiger v. Williams petition for rehearing was denied.

The Walter mandamus out of Smith County was denied (that one had bypassed the Tyler court and gone straight to Austin).

Addicks has expressed an intent to file a petition for review of the Tyler court's decision in his prisoner's civil rights case.

Sembera's petition for review has been filed in the PetroFac case.

And though it's not a Tyler case per se, it's definitely worth noting that the Entergy case is set for oral argument on October 16th. The outcome of Entergy could impact Tyler's Petrofac and City of Athens v. MacAvoy cases.

Candle Kaboom!

Jeff@RambinFirm.com (Jeff Rambin) — Tue, 26 Aug 2008 21:33:45 -0600

DeGrate v. Executive Imprints (Published) No evidence summary judgment affirmed in negligence and design defect case over exploding candle. The precedential value of this case is probably limited because the Tyler court questions the briefing presented by the DeGrates.

Mrs. DeGrate got a new scented candle marketed by Executive Imprints. After letting it burn for an hour or so, she went to blow it out. The flame just got bigger. She dropped the candle. The hot wax splattered everywhere, including on her. She and her husband bring many claims including negligence and strict liability.

Executive Imprints filed a no evidence motion for summary judgment. The DeGrates responded with the report and affidavit of a Ph.D chemist. The chemist believes that the candle had the wrong sort of wax, the wax pooled up too much, and the design of the candle allowed the wax to be heated to the flash point.

The Tyler court finds fault with the expert. He doesn't back up his opinions. So they're not evidence.

The Tyler court also finds fault with the briefing of the DeGrates. In a footnote, the Tyler court says that the entirety of the DeGrate's briefing on the product liability claim was:

Under the doctrine of strict product liability, Appellants showed through the tendered summary judgment evidence that the candle was of a defective design since it was without a reasonable alternative design, as a fundamental element, marketed, manufactured and was unsafe for its purposes at the time it left control of Appellee and was sold posing an unreasonable risk factor for consumers.

So, if anyone cites this case against you, point out the footnote.

Attorney's fees slashed!

Jeff@RambinFirm.com (Jeff Rambin) — Tue, 26 Aug 2008 21:07:00 -0600

Thomas v. Bobby D. Associates (Published Memo): $49,000 in fees for a $7,000 recovery is excessive. The Tyler court orders a $24,000 remittitur.

This is a collections case. Thomas agreed to buy six tracts of land in Van Zandt County. He made the payments for a while, but couldn't keep them up. Bobby D repossessed the tracts but still sued for the full amount on the notes, plus interest. In total, Bobby D sought about $80,000 in damages. The jury only awarded $7,000. That's because the trial court didn't go for the Bobby D's double-dipping. The trial court instructed the jury to base their award on the amount due on the notes less the current fair market value of the repossessed tracts.

In light of the award, the Tyler court couldn't stomach the big fee award. Bobby D had asked for too much, had let the case linger on the docket for seven years, and had multiple attorneys get up to speed on the case only to hand it off to someone else. The Tyler court makes Bobby D an offer: agree to a $24,000 reduction in the fee award, or have the fees wiped out and sent back to the trial court for a do-over.

On the wrong road.

Jeff@RambinFirm.com (Jeff Rambin) — Tue, 26 Aug 2008 20:23:03 -0600

Morris v. State (Unpublished Memo): Intoxication manslaughter conviction affirmed. Morris and his passenger left the El Greco club in Kilgore at 12:30 a.m. They headed towards Tyler on Highway 31. For those not familiar with East Texas, that's a notorious liquor run road (Tyler dry, Kilgore wet). Not the best place to be after dark, as this case shows. Morris swerved into oncoming traffic. His passenger was killed in the wreck.

Morris complais that the evidene wasn't legally or factually sufficient to convict him (see opinion for discussions of these standards of review). But the investigating officer testified to skid marks on the scene that showed Morris was in the wrong lane. The officer also smelled alcohol on Morris. What's more, Morris complained of "heart pain" and was taken to the hospital. His blood was drawn, tested, and came back at twice the legal limit.

Conviction affirmed.

Morris also tried to say that his sentence was unconstitutionally cruel and unusual. Since he didn't make that complaint to the trial court, the Tyler court won't hear it on appeal.

Watch out!

Jeff@RambinFirm.com (Jeff Rambin) — Mon, 25 Aug 2008 21:45:17 -0600

Morales v. Dougherty and Mabe, dba Top Gun Trucking (Published Memo): Here's one for the personal injury practitioners. Truck wreck case upholding the submission of a sudden emergency instruction and the admission of testimony about the plaintiff's insurance coverage.

Here's the crash scenario, with letters representing vehicles.

A B C Hill D

The plaintiff, A, was waiting to make a left turn on a rural highway. B, and then C came up behind her. D then topped the hill. D couldn't stop in time, so he went off road on the right around C. But D then lost control and veered back onto the road, into A. C, another trucker, testified that, in his opinion, D did all that could be done and that A was dawdling.

That fact pattern supports a sudden emergency instruction for D. Even without D having plead for such an instruction. Sudden emergency is not an affirmative defense, so D could simply request the instruction during the charge conference.

The Tyler court holds that the plaintiff opened the door to testimony about her insurance coverage. She asked for thousands of dollars for medical procedures. She said that she had not gotten the procedures because she couldn't pay for them. But she had insurance. The trial court and the Tyler court say that the plaintiff's plea of poverty opened the door to her insurance coverage.

Another termination of parental rights.

Jeff@RambinFirm.com (Jeff Rambin) — Mon, 25 Aug 2008 21:08:18 -0600

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.

I sued the law, and the law won.

Jeff@RambinFirm.com (Jeff Rambin) — Sun, 24 Aug 2008 21:26:32 -0600

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.

The Tyler Court does Mr. Tyler no favors.

Jeff@RambinFirm.com (Jeff Rambin) — Sun, 24 Aug 2008 20:38:20 -0600

Tyler v. Crawford (Published Memo): Under Texas Rule of Appellate Procedure 20.1, the court reporter's ten day deadline to challenge a party's affidavit of inability to pay costs runs from the time the affidavit is actually put in the hands of the court, not from the date the party puts the affidavit in the mailbox.

Interesting twist: On the off chance that his grounds for appeal don't get the job done, Mr. Tyler filed a motion asking the Tyler court to order him to present the grounds that would win. Motion overruled

Also,since this case doesn't get to the meat of the inability to pay costs, let me point you to a prior case that does: "A horse, a horse, my appeal for a horse!"