Decisions

Recent Decisions

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

EX PARTE JERRY HARTFIELD;

In this petition for a writ of prohibition, the appellant contends that his constitutional right to a speedy trial has been violated. Even though this case documents what appears to be the longest gap between indictment and trial in any speedy-trial case, because a pretrial habeas proceeding is not an appropriate avenue for raising a speedy-trial claim, the portion of the trial court's order denying the petitions for writ of habeas corpus is vacated. The writ of prohibition is dismissed as moot and a stay in the trial court's proceedings is lifted. Corpus Christi Court of Appeals, NUMBERS 13-14-00238-CV, 13-14-00239-CV, 13-14-00240-CR, NUMBER 13-14-00344-CR, 08-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Susan Combs, in her official capacity as Texas Comptroller, and Greg Abbott, in his official capacity as Texas Attorney General, Appellants v. Texas Small Tobacco Coalition and Global Tobacco, Inc., Appellees

The trial court granted the appellee summary judgment finding that a state tax on tobacco was unconstitutional. The tax, a fee assessed against non-settling manufacturers and not against settling manufacturers, violates Texas's Equal and Uniform Clause. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-13-00753-CV, 08-15-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Tom Bennett and James B. Bonham Corp., Appellants v. Larry Wayne Grant, Appellee

The appellants challenge a $2.28 million judgment awarded to the appellee for a successful malicious prosecution claim. Generally a person cannot procure a criminal prosecution when the decision whether to prosecute is left to the discretion of another because the independent exercise of discretion destroys the necessary causal link between the defendant and the prosecution. There are two important exceptions to this rule where a defendant may still be liable for malicious prosecution because his actions are such that it makes an intelligent exercise of discretion impossible: 1. when a defendant provides information which he knows is false that causes a criminal prosecution, or 2. when a defendant's conduct was the determining factor in the prosecutor's decision to prosecute. The trial court's judgment is affirmed conditioned on the appellee filing remittiturs in the trial court decreasing his award of exemplary damages. Austin Court of Appeals, No. 03-11-00669-CV, 08-13-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

In re Texas Education Agency and Michael L. Williams, Commissioner of Education for the State of Texas

The relators, the Texas Education Agency and the Commissioner of Education, filed a petition for writ of mandamus alleging that the district court abused its discretion by issuing temporary restraining orders enjoining the State Office of Administrative Hearings and two administrative law judges from proceeding with a hearing on the charter revocation of a charter school. The charter school is involved in a suit with TEA on the same underlying charter-revocation matters. Delay of the SOAH hearing is not preliminary to the suit, but instead it the complete relief sought by the charter school. There is no viable argument that the TROs should have proceeded without joining a necessary party because of time lost in locating and joining TEA. The commissioner's petition for writ of mandamus is conditionally granted. Austin Court of Appeals, No. 03-14-00496-CV, 08-11-2014

Practice Areas: Education Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

EL PASO INDEPENDENT SCHOOL DISTRICT, DR. LORENZO GARCIA, AND MARK MENDOZA, Appellants, v. MICHAEL McINTYRE AND LAURA McINTYRE, INDIVIDUALLY AND ON BEHALF OF THEIR CHILDREN, K.M., L.M., C.M., M.M., AND L.M., Appellees.

The appellants, a school district and officials, challenge various rulings of the trial court in this dispute regarding home-schooling. Leeper does not suggest that an attendance officer does not have the right to investigate truancy claims, or that home school parents need not prove they are teaching their children in a bona fide manner from an appropriate curriculum. Exhaustion is required when a constitutional issue involves the administration of school laws and turns on fact issues. The trial court should have granted the motion to dismiss under the election of remedies provision articulated in Texas Civil Practice and Remedies Code §101.106. The claims against an attendance officer should have been dismissed based on qualified immunity. The trial court's judgment is reversed and rendered, and remanded.

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

THE CITY OF EL PASO, TEXAS, Appellant, v. HIGH RIDGE CONSTRUCTION, INC., Appellee.

A construction company contracted with a city to deliver energy assessment and weatherization emergency conservation installment services related to the El Paso Weatherization Assistance Program for eligible residential properties. The trial court denied the city's plea to the jurisdiction in the company's suit against the city. The trial court's order denying the plea to the jurisdiction as it applies to the company's estoppel claim is affirmed. The order denying the plea as to the company's breach of contract claim is reversed and remanded to allow the company an opportunity to cure the jurisdictional defects; the pleadings fail to state a waiver of immunity under Texas Government Code §271.152 because they do not allege that the weatherization contract provided for goods or services to be provided to the city. The order is reversed and rendered as it applies to the unconstiutional takings claim.

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

RICHARD MERRILL MCCARTER d/b/a MERRILL BAIL BONDS, Appellant, v. THE STATE OF TEXAS, Appellee.

The appellant, surety of a criminal bond, seeks reversal of the trial court's bond forfeiture judgment, maintaining that the state's dismissal of the motion to revoke the principle's probation following his death entitles the appellant to mandatory remittitur of bond. The trial court's final judgment ordering forfeiture implicitly disposed of the remittitur claim raised in the appellant's defensive pleading. Because the appellant failed to file a reporter's record in this action even after being given an opportunity to cure, whatever was contained in the reporter's record supports the trial court's implicit denial of mandatory remittitur on the basis that costs of court and to the county exceeded the amount of bond posted. The trial court's judgment is affirmed.

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JESSIE HOFFMAN, Petitioner - Appellant v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent - Appellee

A petition for rehearing is denied, but the court of appeals addresses arguments put forward by the appellant in support of his Strickland claim. The opinion is corrected to note that an expert did create a written report, but the fact does not change the disposition of the case. The state court's decision that there was no Strickland error was neither contrary to nor an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court.

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

PATRICK MICHAELSKI AND LYNDA MICHAELSKI, Appellants v. JOHN WRIGHT, PEGGY WRIGHT, GRANT DIETZ, AND REBECCA DIETZ, Appellees

A jury found against the appellants on their claim that their home was flooded by rain water from the appellees' property. The jury could have reasonably determined that a ditch existed between the two properties. Water that flowed into this ditch stopped being diffuse ground water; this is true regardless of whether the ditch was manmade or naturally existing. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00490-CV, 08-07-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

BAUER-PILECO, INC., Appellant v. HARRIS COUNTY APPRAISAL DISTRICT, Appellee

This is an ad valorem personal property tax case. A reviewing court may not look behind the appraisal roll to evidence that the taxpayer's own rendition statement was incorrect to determine whether "personal property" that reflected the taxpayer's own estimation of its taxable property was valued incorrectly in the appraisal roll because it included specific types of personal property, i.e., inventory and intangible "work in process" accounts, not subject to taxation in the taxing district. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00052-CV, 08-07-2014

Practice Areas: Internet Law , Taxation (Internet)

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

REGENIA BECHEM, Appellant v. RELIANT ENERGY RETAIL SERVICES, LLC AND COMERICA BANK, Appellees

The debtor appeals an adverse judgment in this garnishment action. A bank account does not qualify for the personal property exemption under Texas Property Code §42.001. The bank asserted in its answer that the debtor and her daughter have legal title to a joint account, raising the possibility This answer raises the possibility that the daughter has an equitable interest in the account, which cannot be seized in garnishment for the satisfaction of the debts. The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00729-CV, 08-05-2014

Practice Areas: Banking and Financial Institutions

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

JAMALL ANDERSON, Appellant v. LARRY TRUELOVE AND BRADY ROBLES, Appellees

This is an interlocutory appeal from the trial court's denial of the appellant's application for a temporary injunction to enjoin the appellees Larry Truelove and Brady Robles from removing the appellant as the minister at West End Church of Christ. Applying neutral principles to the bylaws would not resolve the issues, because the bylaws contain no principles regarding termination of a minister. The trial court lacked subject-matter jurisdiction over this dispute under the ecclesiastical abstention doctrine. The trial court's judgment is vacated and judgment is rendered dismissing the case. Houston's 1st Court of Appeals, No. 01-13-00872-CV, 07-31-2014

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

ALICE M. WOOD AND DANIEL L. WOOD, Appellants v. HSBC BANK USA, N.A. AND OCWEN LOAN SERVICING, L.L.C., Appellees

Homeowners appeal the trial court's judgment in favor of a bank. Because a cure provision exists in the Texas Constitution, homestead liens that do not comply with the constitutional requirements are voidable. A declaratory judgment action to cancel a home-equity lien is not an action to recover real property, therefore the Texas Civil Practice and Remedies Code §16.051 four-year statute of limitations applies. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00389-CV, 07-31-2014

Practice Areas: Banking and Financial Institutions

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

LATISHA GUILLORY, Appellant v. CHRISTOPHER BOYKINS, Appellee

The appellant challenges the trial court's order modifying the parent-child relationship. The appellant's complaints regarding the appointment of an amicus attorney, made after the trial had occurred and the work of the amicus attorney was completed, was not timely. The trial court did not exceed its authority by appointing the father as the sole managing conservator because the issue was tried by consent. Because the underlying proceeding was not an enforcement proceeding pursuant to Texas Family Code Chapter 157, the trial court lacked the authority to deem attorney's fees as "additional child support" and to order them withheld from the appellant's earnings. The trial court's judgment is affirmed in part, reversed in part, and remanded. Houston's 1st Court of Appeals, No. 01-13-00475-CV, 08-05-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

AMERICAN NATIONAL INSURANCE COMPANY, Appellant v. THE CONESTOGA SETTLEMENT TRUST, the RE Family Trust and Shea Ungar a/k/a Hershey Ungar, Trustee of the RE Family Trust, Appellees

An insurance company appeals the trial court's order granting a request by the appellee to apply New York law to issues relating to the validity of a life insurance policy in the underlying suit. The laws of New Jersey, New York, and Texas conflict as to the issue of challenging the policy's validity based on the alleged lack of an insurable interest. Section 192 of the restatement favors application of New York law because the insured was a domiciliary of that interested jurisdiction. No other jurisdiction was shown to have a more significant relationship. The trial court's order is affirmed and judgment is rendered that New York law should apply. San Antonio Court of Appeals, No. 04-13-00719-CV, 07-30-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

SIMULIS, L.L.C., Appellant v. GENERAL ELECTRIC CAPITAL CORPORATION, Appellee

The appellant, a software company, challenges an adverse summary judgment. The appellee could rely upon the appellant's interrogatory responses as affirmative proof against the appellant in support of the appellee's traditional motion for summary judgment under Texas Rule of Civil Procedure 166a(c). The standard does not require denial of a traditional summary judgment motion whenever evidence from a non-movant generally references unspecified documents. The trial court's summary judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00383-CV, 07-31-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

MORLOCK, L.L.C., Appellant v. NATIONSTAR MORTGAGE, L.L.C., Appellee

The appellant/plaintiff asserts that it has standing to challenge whether the defendant is the owner and holder of the promissory note and deed of trust and otherwise challenges summary judgment against him. an assignment of the Deed of Trust is not invalid because the assignment instrument is signed by MERS as nominee for the mortgagee and the mortgagee's successors and assigns, rather than by the mortgagee. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01117-CV, 08-07-2014

Practice Areas: Banking and Financial Institutions

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Kenneth Mark DORROUGH, Appellant v. John Murray FAIRCLOTH and Helen Bowen, Appellees

This suit involves an incident between the appellant, a game warden, and the appellee. The common-law doctrine of official immunity extends to a deputy game warden. The trial court's order is reversed and vacated and the suit is dismissed with prejudice. San Antonio Court of Appeals, No. 04-13-00884-CV, 07-30-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Bretton Guy DAWKINS, Bradley Ken Dawkins, Jerry Howard Oxford and Sharon Ann Oxford, Appellants v. Madelon HYSAW, Kathryn Hysaw Weaver, Michael and Cindy Burris Family Partnership III, Ltd., Byron M. Burris, and Judith Ann Burris Dziuk, Appellees

The trial court granted the appellees' traditional motion for summary judgment that argued that a will provided for equal sharing of the testator's royalty interest. On de novo review, the appellate court concludes the will's plain language devised all her rights in the specified surface estate -- and its corresponding mineral estate -- to each surface estate devisee subject to the two fractional royalty interests-fixed fractions of 1/24 of production-reserved for the devisee's siblings. For two tracts, a 200 acre and 150 acre tract, each of the testator's children are entitled to share equally in any and all royalty earned from those tracts. The trial court's judgment is reversed and rendered. San Antonio Court of Appeals, No. 04-13-00539-CV, 07-30-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Shawn Pierre LEE, Appellant v. The STATE of Texas, Appellee

The appellant challenges his conviction of alleged burglary of a habitation with the intent to commit aggravated assault. Because the appellant did not have permission to enter the apartment, regardless of whether the door was open or closed, the evidence supports the jury's determination that the entry was without the owner's effective consent. The trial court's judgment is affirmed.San Antonio Court of Appeals, No. 04-12-00316-CR, 07-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

The STATE of Texas, Appellant v. Ruben GARZA, Jr., Appellee

The state appeals the trial court's order granting appellee's Motion to Suspend Further Execution of Sentence. The state alleges that the motion was granted based on the erroneous entry of a nunc pro tunc judgment deleting a deadly weapon finding. There is no evidence in the original record that the trial court intended to enter a finding of no deadly weapon. The trial court acted to correct a judicial error when entering the nunc pro tunc judgment. The amended/nunc pro tunc judgment is vacated, and judgment is rendered reinstating the original judgment and sentence. San Antonio Court of Appeals, No. 04-13-00331-CR, 07-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

DENNIS HEINERT AND ALL OTHER OCCUPANTS, APPELLANTS v. WICHITA FALLS HOUSING AUTHORITY, APPELLEE

The appellant challenges the trial court's judgment evicting him from his leased residence operated and managed by appellee, a public housing agency. When deciding whether a person acted with the requisite intent to make a terrroristic threat, relevant evidence includes the choice of words, body language, and tone of voice; ending a telephone message with a pleasantry does not establish the lack of requisite intent. The appellant's accommodation request fails because he did not link his alleged disability, schizophrenia, with the alleged threats of violence to housing authority staff. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00220-CV, 07-29-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Dave MCNEIL, Appellant v. The STATE of Texas, Appellee

The appellant contends the trial court erred in denying his motion to suppress. Although the statute permitting a blood draw when the DWI suspect allegedly has two or more prior DWI convictions is not unconstitutional per se, it does not permit a blood draw in the absence of a warrant or some well-recognized exception to the Fourth Amendment's warrant requirement. The transportation code's implied consent provision is not a permissible exception to the warrant requirement. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00415-CR, 08-06-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Armando SIMON, Appellant v. The STATE of Texas, Appellee

The appellant contends that because the appeal of the underlying conviction was pending, the trial court lacked jurisdiction to modify the conditions of his community supervision prior to receipt of the mandate, and therefore abused its discretion in revoking his community supervision. Given that the judgment was not final at the time the trial court modified the conditions of appellant's community supervision and therefore the community-supervision term had not yet commenced, the trial court lacked jurisdiction to modify a condition to add a requirement that the appellant attend alleged sex offender counseling. The trial court's judgment revoking community supervision is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00292-CR, 07-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Antonio AVILES, Appellant v. The STATE of Texas, Appellee

On remand from the U.S. Supreme Court, the appellant challenges the denial of his motion to suppress. The only exception to the warrant requirement proposed by the state was Texas Transportation Code §724.012(b)(3)(B), the mandatory blood draw statute. Because this is not a permissible exception to the warrant requirement, and the state did not argue or establish a proper exception to the Fourth Amendment's warrant requirement, the blood draw violated the appellant's rights under the Fourth Amendment. San Antonio Court of Appeals, No. 04-11-00877-CR, 08-06-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

City of El Paso, Texas, Appellant v. Greg Abbott, Attorney General of Texas and Stephanie Townsend Allala, Appellees

A city appeals the denial of its plea to the jurisdiction in a case brought under the Texas Public Information Act. The city's jurisdictional evidence conclusively established that it was willing to supply the requested information and, to the extent that it located it or received it from the individuals named in the request, it actually had done so. That a former city councilman has public information on his private email account that he has not provided to the city, despite multiple official requests by the city that he do so, does not reflect that the city is unwilling to disclose that information as it is required to do so under the PIA. The district court's denial of the plea to the jurisdiction is reversed and a judgment of dismissal is rendered. Austin Court of Appeals, No. 03-13-00820-CV, 08-01-2014

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Texas Association of Psychological Associates, Appellant v. Texas State Board of Examiners of Psychologists and Texas Psychological Association, Appellees

The trial court denied the petition for declaratory judgment made by the Texas Association of Psychological Associates, finding that the challenged administrative rules requiring supervision of licensed psychological associates are a valid exercise of the Texas State Board of Examiners of Psychologists' authority. The Psychologists' Licensing Act vests the board with the authority to exercise broad discretion in its licensing standards. The contested rules requiring psychological associates to practice under supervision are in harmony with the act's general objective of protecting the public from unqualified practitioners of psychology and are consistent with the act's specific and broad delegation of authority to the board to set standards for the issuance of psychological associate licenses. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-11-00541-CV, 07-31-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

JOSHUA DIVIN, Appellant v. TRES LAGOS PROPERTY OWNERS' ASSOCIATION, Appellee

The trial court found against a property owner in his suit against an owner's association. The informal insertion of a trial court ruling in a different case (in which the appellant is not a party) without proper supplementation of the record is improper. To establish the defense of limitations, the appellant was required to prove when the cause of action accrued. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00124-CV, 08-07-2014

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

BYRON MORGAN, APPELLANT v. D&S MOBILE HOME CENTER, INC. AND SHAWN FULLER, APPELLEES

The appellant attempted to pierce the corporate veil of the appellee and hold its sole shareholder liable for damages awarded in a previous judgment against the corporation. In the prior case, the jury answered yes to questions about the corporation committing fraud and deceptive trade practices. The trial court entered judgment, though, only upon the deceptive trade practice findings. Entering the prior judgment on one theory does not automatically vitiate favorable findings encompassing alternative grounds of recovery. The shareholder did not establish as a matter of law that the manner in which the prior judgment was entered alone barred the appellant from pursuing his effort to pierce the corporate veil. The trial court's summary judgment is reversed and remanded. Amarillo Court of Appeals, No. 07-13-00263-CV, 08-01-2014

Practice Areas: Securities and Federal Corporate Law , Shareholder Derivative Suits

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

MARY ALICE PALACIOS, Appellant, v. THE STATE OF TEXAS, Appellee.

The appellant, a justice of the peace, was convicted of official oppression by allegedly intentionally or knowingly subjecting two persons to an arrest that she knew was unlawful. The state, in this case, could not prevail by merely showing that appellant lacked legal authority to act as alleged. The state had the additional burden of proving beyond a reasonable doubt that appellant knew that her acts were criminal, tortious, or both. All of the alleged acts involve appellant's discharge of official duties and her judicial interpretation of the applicable law. Appellant acted with a reasonable belief that her court had been granted jurisdiction to do the complained-of acts; therefore, she did not know that the act of signing the arrest warrants was unlawful, if it was. The judgment is reversed, the indictments dismissed, and a judgment of acquittal is rendered on each count. Corpus Christi Court of Appeals, NUMBER 13-11-00254-CR, 07-31-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Appellants, State of Texas' Agencies and Institutions of Higher Learning; Office of Public Utility Counsel; Steering Committee of Cities Served by Oncor; Oncor Electric Delivery Company, LLC; Alliance of TXU/Oncor Customers; Texas Industria [...] v. Appellees, Public Utility Commission of Texas; Office of Public Utility Counsel; Steering Committee of Cities Served by Oncor; Oncor Electric Delivery Company, LLC; Alliance of TXU/Oncor Customers; Texas Industrial Energy Consumers, Cross-A [...]

This is an administrative appeal from a final order of the Public Utility Commission increasing rates charged for electric transmission and distribution services by a utility. The district court's judgment is affirmed with respect to eight of 12 issues and reversed and remanded to the commission for further proceedings with respect to the following four issues: 1. whether the commission properly determined that the utility need not offer state colleges and universities a 20% discounted rate; 2. whether the commission properly excluded from the utility's reasonable and necessary expenses a portion of its requested franchise-fee payments; 3. whether the commission properly calculated the "lead-day" figure for the franchise-tax component of the utility's cash-working-capital allowance; and 4. whether the commission properly determined the utility's federal income-tax expense. Austin Court of Appeals, No. 03-11-00072-CV, 08-06-2014

Practice Areas: Energy and Natural Resources

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Hunt County Community Supervision and Corrections Department, Appellant v. Christina Gaston, Appellee

This is an appeal of a trial court order denying a plea to the jurisdiction in a whistleblower suit. The case concerns an initiative in which probation officers allegedly solicited donations of money and sports equipment from probationers in exchange for credit against the probationers' court-ordered CSR hours. The plaintiff's awareness that a district judge was empowered to administer probation terms and conditions against defendants in the 196th District Court is not evidence of an objectively reasonable belief that he was an appropriate law enforcement authority with respect to the reports of alleged violations of Texas Code of Criminal Procedure article 42.12 by probation office personnel. The district court's order denying the plea to the jurisdiction is reversed and the suit is dismissed. Austin Court of Appeals, No. 03-13-00189-CV, 08-06-2014

Practice Areas: Securities and Federal Corporate Law , Whistleblowing

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Green Tree Servicing, LLC, Appellant v. ICA Wholesale, Ltd. d/b/a A-1 Homes, Appellee

The appellant challenges the trial court's final judgment awarding damages and attorney's fees to the appellee for the appellant's alleged breach of the implied warranty of title in connection with its sale to the appellee of a used manufactured home. Texas law requires a disturbance of quiet possession for actionable breach of the warranty of title. While Texas Business Code §2.312(a) does not define "title," its use of the term, modified by the adjective "good," countenances legal ownership rather than a documentary record, especially since the statute applies to the sale of goods, which often as a matter of course do not have title certificates or similar documentation. The trial court's judgment is reversed and rendered that the appellee take nothing. Austin Court of Appeals, No. 03-12-00126-CV, 08-07-2014

Practice Areas: Business Entities

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ANGELICA LOPEZ SANCHEZ, Plaintiff - Appellee v. R. G. L., as next friend Alex Hernandez; S. I. G. L., as next friend Alex Hernandez; A. S. G. L., as next friend Alex Hernandez, Movants - Appellants

This is a panel rehearing addressing an appeal by three children who are natives of Mexico, who seek reversal of the district court's finding under the Hague Convention on the Civil Aspects of International Child Abduction that they were being wrongfully retained in the United States and should be returned to their mother. The government should be joined in this suit under Federal Rule of Civil Procedure 19. The jurisdictional challenge raised by the children is not mooted by Rule 19 joinder. The district court had jurisdiction over the mother's petition because the individual with physical custody over the children was a party. The district court's order is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50783, 08-01-2014

Practice Areas: Family Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DEPARTMENT OF TEXAS, Veterans of Foreign Wars of the United States; AMVETS DEPARTMENT OF TEXAS, INCORPORATED; AMVETS POST 52, INCORPORATED; AMVETS POST 52, AUXILIARY, INCORPORATED; THE GREAT COUNCIL OF TEXAS, Improved Order of Redmen; REDME [...] v. TEXAS LOTTERY COMMISSION; GARY GRIEF, Executive Director in His Official Capacity; SANDRA K. JOSEPH, Director of Charitable Bingo in Her Official Capacity; MARY ANN WILLIAMSON, Commissioner in Her Official Capacity; UNKNOWN COMMISSIONER IN [...]

The plaintiffs-appellees brought a first amendment challenge under 42 U.S.C. §1983 against the commissioners and two executive officers of the Texas Lottery Commission, the state agency responsible for bingo licensing and regulation. This is an en banc hearing of a panel majority reversing the district court's judgment that was in favor of the appellees. The political advocacy restrictions in the Bingo Act do not withstand strict scrutiny and are facially invalid. The district court's permanent injunction and summary judgment are affirmed. 5th U.S. Circuit Court of Appeals, No. 11-50932, 07-28-2014

Practice Areas: Constitutional Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TROY THOMPSON, INDIVIDUALLY, AND AS HEIR TO THE ESTATE OF KEITH THOMPSON; TERESA THOMPSON, INDIVIDUALLY, AND AS HEIR TO THE ESTATE OF KEITH THOMPSON, Plaintiffs-Appellants, v. SHERIFF IRA A. MERCER; PALO PINTO COUNTY, TEXAS, Defendants-Appellees

The plaintiffs appeal summary judgment against them in their suit alleging excessive force. The use of deadly force is not unreasonable when an officer would have reason to believe the suspect poses a threat of serious harm to the officer or others. Firing an assault rifle directly into a fleeing truck created a significant - even certain - risk of critical injury to the driver. However, the risk was outweighed by the extreme danger to human life posed by the reckless vehicular flight. Law enforcement reasonably attempted alternate means of seizure before resorting to deadly force. The district court's summary judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10773, 08-07-2014

Practice Areas: Civil Rights

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

IN RE PATRICIA ARNOLD, LAURA McLAUGHLIN, WILLIAM PRIDAY, AND KEVIN ROBBINS

The relators seek to compel city officials to comply with a referendum process. The relators seek referenda for the repeal of two sets of zoning amendments passed by the city council. Existing Texas law holds that the referendum process is not available to challenge individual zoning ordinances. The petition for writ of mandamus is denied. Corpus Christi Court of Appeals, No. NUMBER 13-14-00364-CV, 07-29-2014

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

U.S. BANK NATIONAL ASSOCIATION, Litigation Trustee of the Idearc, Inc., et al, Litigation Trust, Plaintiff Appellant v. VERIZON COMMUNICATIONS, INCORPORATED; GTE CORPORATION; JOHN W. DIERCKSEN; VERIZON FINANCIAL SERVICES, L.L.C., Defendants Appellees

A litigation trustee appeals orders and findings of the district court in the trustee's suit alleging fraudulent transfer claims. The litigation trustee does not have a right to a jury trial on a fraudulent transfer claim against a creditor when the creditor has filed a proof of claim in the bankruptcy proceedings and the bankruptcy court is required, before disposing of that claim, to determine whether, under 11 U.S.C. §502(d), property of the creditor is recoverable as a fraudulent transfer. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10752, 07-30-2014

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. MATTHEW JOSEPH MASSI, Defendant - Appellant

The district court denied the appellant's motion to suppress. Two separate requirements must be met for evidence to be admissible: 1. the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant must be "close enough to the line of validity" that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct, and 2. the resulting search warrant must have been sought and executed by a law enforcement officer in good faith as prescribed by Leon. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-51063, 08-01-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOE LOUIS REECE, Sui Juris in the interest of Joe Louis Reece Owner of Property Located at 1912 Morrison Drive, Fort Worth, TX 76112, Plaintiff - Appellant v. U.S. BANK NATIONAL ASSOCIATION, as Trustee Successor in Interest to Bank of America, National Association as Trustee, as Successor by Merger to Lasalle Bank National Association, Defendant - Appellee

The appellant challenges the dismissal of his wrongful foreclosure suit involving a promissory note and an associated Deed of Trust on property. The claim alleging fraud resulting from recordings denominating MERS as a beneficiary of the security instruments does not state a claim under Texas Civil Practice and Remedies Code §12.002, where the plaintiff fails to plead facts sufficient to allege that the defendant intended to cause the plaintiff physical injury, financial injury or mental anguish. MERS may assign a deed of trust to a third party and that such assignments confer the new assignee standing to non-judicially foreclose on property associated with that particular deed of trust. The district court's dismissal is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-10176 Summary Calendar, 08-05-2014

Practice Areas: Banking and Financial Institutions

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CLIFTON LAMAR WILLIAMS, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

The district court rejected the applicant's petition for habeas relief. The Court of Criminal Appeals use of the Briseno framework to evaluate the applicant's claim was not an unreasonable application of federal law. The applicant can prevail on this argument that he is intellectually disabled only by showing that the jury's finding that he is not intellectually disabled was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. The certificate of appealability is denied. 5th U.S. Circuit Court of Appeals, No. 13-70015, 08-01-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOHN B. JACUZZI, SR.; MARGARITA JACUZZI; JOHN B. JACUZZI, JR.; PATRICIA JACUZZI; JAMES JACUZZI, PlaintiffsAppellants v. ENRIQUE PIMIENTA, DefendantAppellee.

The plaintiffs launched a collateral attack on a related bankruptcy proceeding in federal district court under the Declaratory Judgment Act, claiming that they were never properly served before the bankruptcy court entered judgment against them and held them in contempt. Any judgment may be collaterally attacked if it is void for lack of jurisdiction. The other court's determination of personal jurisdiction is res judicata only if the defendant submitted to jurisdiction for the limited purpose of challenging jurisdiction and the issue was fully and fairly litigated. So long as the basis for the preliminary injunction or declaratory judgment is federal law, there is federal-question jurisdiction. The judgment of dismissal for want of subject-matter jurisdiction is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-41111, 08-05-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. SHERMAN LAMONT FIELDS, Defendant - Appellant

The appellant unsuccessfully sought habeas relief in the district court on numerous grounds. The appellant raises numerous claims, including that his constitutional rights were violated by security measures at trial. Scrutiny of security practices must be balanced against the court's obligation to protect the court and its processes, and to attend to the safety and security of those in the courtroom. This balancing of competing interests is entrusted to the sound discretion of the trial court. A certificate of appealability is denied. 5th U.S. Circuit Court of Appeals, No. 13-70025, 07-30-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. LUIS FERNANDO CEDILLO-NARVAEZ, Defendant - Appellant

The appellant challenges his sentence stemming from an alleged conspiracy to kidnap a group of undocumented aliens. Because the status of the hostages was not included in the base offense level, we conclude that the district court did not plainly err in determining that the undocumented aliens were "vulnerable victims" under U.S. Sentencing Guidelines §3A1.1(b)(1) based on their illegal status. The application of a minor-victim enhancement was appropriate; a person alleged by the appellant to be a co-conspirator was not a charged co-conspirator in conspiracy to hostage taking. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-41214, 07-30-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SALTY BRINE I, LIMITED, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

The plaintiff appeals from the district court's determination that the transfer of certain overriding royalty interests through a complicated transaction was an invalid attempt to assign income. the district court had jurisdiction under the Tax Equity and Fiscal Responsibility Act to address every part of the royalty interest transaction, and ultimately to disregard the entire transaction, including the annuity sale, for tax purposes. A purported transfer of a royalty interest may still qualify as an assignment of income when the transferor retains control. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10799, 07-31-2014

Practice Areas: Internet Law , Taxation (Internet)

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

AARRON JACOB MOORE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends that the juvenile court improperly transferred the case to a criminal district court, because the state failed to show that it was not practicable to proceed in juvenile court before the appellant's eighteenth birthday for a reason beyond the state's control. Because "the state" includes law enforcement, a detective's heavy caseload and mistake as to the appellant's age are not reasons beyond the state's control. The juvenile court lacked jurisdiction to transfer the case to a criminal district court and, as a result, the criminal district court never acquired jurisdiction. The trial court's judgment is vacated and the case is dismissed for lack of jurisdiction., No. 01-13-00663-CR, 07-24-2014

Practice Areas: Family Law , Juvenile Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

STEPHEN J. HARPER, Appellant v. SPENCER & ASSOCIATES, P.C., Appellee

The appellant challenges the trial court's grant of a motion for scire facias to revive a dormant judgment. The writ of garnishment in this case satisfies the statutory requirement that it be a writ of execution. Unlike Stark, the record in this case shows that the trial court granted the writ of garnishment and the garnishment order was executed. Under modern rules, a "writ of execution," as used in context, can be read to encompass multiple specific forms of judicial enforcement of a judgment. Once the appellee executed the writ of garnishment on assets belonging to the appellant, the appellee was not required to undertake the further exercise of obtaining a writ of execution directly against the appellant to keep the original judgment from becoming dormant. The trial court's order is affirmed., No. 01-13-00706-CV, 07-24-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

DAVID T. MENDOZA, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Because of problems compiling the record for this appeal, the appeal was abated for further investigation. New trial is appropriate when the missing portion of the record is necessary to the disposition of the appeal. The trial court's judgment is reversed and remanded for a new trial., No. 07-14-00034-CR, 07-28-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

DOUGLAS KARL KATZENBERGER, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends that the trial court abused its discretion in denying his motion for mistrial and instead issuing an Allen charge when the jury sent out a note indicating it was deadlocked after ten and one-half hours of guilt-innocence deliberations. The fact a jury has to weigh difficult testimony and determine witness credibility often implicates the need for longer deliberations and no abuse of discretion in denying a motion for mistrial. After receiving the Allen charge, the jury requested the court reporter read back three specific portions of testimony from different witnesses. These requests rationally indicated ongoing deliberation among the jurors after they had earlier reported their polarized opinions were "firm." The trial court's judgment is affirmed. No. 14-13-00583-CR, 07-29-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROBERT EARL HUGHES, Petitioner - Appellant v. CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondent - Appellee

In this 28 U.S.C. §2254 habeas corpus case, the petitioner filed a notice of appeal from the magistrate judge's report and recommendation to grant the respondent's motion to dismiss. The report and recommendation of a magistrate judge is not a final order and does not fall into any of the other categories that would make it appealable. The appeal is dismissed for lack of jurisdiction. 5th U.S. Circuit Court of Appeals, No. 13-60805, 02-13-2014

Practice Areas: Criminal Law