Hartford Insurance Company v. John Crain, No. 03-07-00202-CV (Tex.App. - Austin, Feb. 8, 2008)(Opinion by Justice Henson ) (TWCC judicial review suit, applicable deadline, timeliness) (Before Chief Justice Law, Justices Waldrop and Henson)
Hartford Insurance Company v. John Crain
Appeal from 33rd District Court of Blanco County
FROM THE DISTRICT COURT OF BLANCO COUNTY, 33RD JUDICIAL DISTRICT
NO. CV05952, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING
O P I N I O N
Hartford Insurance Company appeals from the dismissal of its suit for judicial review of a final decision by the Texas Workers' Compensation Commission (TWCC) appeals panel. (1) Hartford appealed the appeals-panel decision in district court within 40 days after the date the appeals panel filed its decision with the TWCC. Crain subsequently filed a plea to the jurisdiction, arguing that the appeal was untimely because Hartford failed to meet the 30-day deadline for seeking judicial review of a contested case under the Texas Administrative Procedure Act (APA). See Tex. Gov't Code Ann. § 2001.176 (West 2000).
After a hearing, the trial court granted Crain's plea to the jurisdiction. Because we hold that the 40-day deadline provided by section 410.252 of the labor code applies to Hartford's petition for judicial review, we will reverse the trial court's order granting the plea to the jurisdiction and remand for further proceedings consistent with this opinion. See Tex. Lab. Code Ann. § 410.252 (West 2006).
BACKGROUND
The administrative dispute that gave rise to this case involves the necessity of spinal surgery to treat an injury sustained by Crain. The parties agree that Crain's injury is a compensable workers' compensation injury.
Within the workers' compensation system, when a dispute arises over the medical necessity of a health care service, the medical necessity is reviewed by an independent review organization (IRO). Tex. Lab. Code Ann. § 413.031(d), (e) (West 2006 & Supp. 2007). If the dispute remains unresolved after the IRO's review, a party to the dispute has the opportunity to appeal the IRO's decision. Id. § 413.031(k), (l). In all medical-necessity disputes other than those involving spinal surgery, the party may appeal to the State Office of Administrative Hearings, where a hearing is conducted in the manner provided for in the APA. Id. § 413.031(k). However, a party to a medical-necessity dispute regarding spinal surgery that remains unresolved after the IRO's review must follow the dispute-resolution procedures provided by chapter 410 of the labor code. Id. § 413.031(l).
Chapter 410 of the labor code provides a dispute-resolution process that includes a contested-case hearing before a TWCC hearing officer and the opportunity for an appeal of the hearing officer's findings to the TWCC appeals panel. Id. §§ 410.151, 410.202 (West 2006). If a party is dissatisfied with the appeals panel's decision, it may request judicial review by the district court. Id. § 410.251 (West 2006).
On July 27, 2004, an IRO concluded that spinal surgery was reasonable and medically necessary to treat Crain's injury. Hartford timely appealed the IRO's decision and requested a contested-case hearing under chapter 410 of the labor code. After the hearing, a TWCC hearing officer issued a decision and order affirming the IRO decision. Hartford then appealed the hearing officer's findings to the TWCC appeals panel.
On January 18, 2005, the TWCC provided notice to Hartford that the appeals panel had not issued a written decision on Hartford's appeal within 30 days after the response was filed with the TWCC and that therefore the hearing officer's decision and order were final. The notice specifically stated that the hearing officer's decision and order became final on January 18, 2005, and that if the parties were not satisfied with the decision, they could file suit for judicial review of the appeals panel's decision in district court no later than the 40th day after that date. Hartford filed its petition for judicial review within the filing period given on the notice from the TWCC. (2)
Crain filed a plea to the jurisdiction, arguing that Hartford's petition should have been filed within 30 days after the appeals-panel decision was filed with the TWCC, pursuant to the APA. See Tex. Gov't Code Ann. § 2001.176. Hartford argued that petitions for judicial review of appeals-panel decisions involving spinal-surgery disputes are not governed by the 30-day deadline of the APA, and instead must be filed within 40 days after the appeals-panel decision is filed with the TWCC, pursuant to section 410.252 of the labor code. The trial court granted Crain's plea to the jurisdiction, and this appeal followed.
STANDARD OF REVIEW
Whether a court has subject-matter jurisdiction is a question of law reviewed de novo. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
The facts of this case are undisputed and the question of whether the trial court had subject-matter jurisdiction turns solely on an issue of statutory construction. Statutory construction is a legal question that we review de novo, ascertaining and giving effect to the legislature's intent as expressed by the plain and common meaning of the statute's words. State v. Schumake, 199 S.W.3d 279, 284 (Tex. 2006). We must read the statute as a whole, rather than just isolated portions, giving meaning to the language that is consistent with other provisions in the statute. Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 872-73 (Tex. 2005); Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).
DISCUSSION
This case turns entirely on a determination of whether a petition for judicial review of medical-necessity disputes regarding spinal surgery must be filed in accordance with the 40-day deadline provided in section 410.252 of the labor code or the 30-day deadline provided by the APA.
The parties agree that dispute resolution involving the medical necessity of spinal surgery is governed by chapter 410 of the labor code. Within chapter 410, subchapter F is entitled, "Judicial Review - General Provisions." Subchapter F contains section 410.252, which states, "A party may seek judicial review by filing suit not later than the 40th day after the date on which the decision of the appeals panel was filed with the division." Hartford argues that, based on section 410.252, the 40-day deadline applies in this case and therefore Hartford's petition for judicial review was timely filed.
However, subchapter F also contains section 410.255, which states, "For all issues other than those covered under Section 410.301(a), judicial review shall be conducted in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code." Tex. Lab. Code Ann. § 410.255 (West 2006). This reference to the government code encompasses the judicial-review provisions of the APA. See Tex. Gov't Code §§ 2001.171-.178 (West 2000). The exclusionary language of section 410.255 requires us to look to section 410.301(a), located in subchapter G, which states, "Judicial review of a final decision of the appeals panel regarding compensability or eligibility for or the amount of income or death benefits shall be conducted as provided by this subchapter." Tex. Lab. Code Ann. § 410.301(a) (West 2006). Reading these two provisions together, it becomes clear that appeals-panel decisions regarding compensability or income or death benefits are reviewed as required by subchapter G of chapter 410, while all other decisions are reviewed as provided by the APA.
Crain argues that petitions for judicial review of appeals-panel decisions regarding issues other than compensability or income or death benefits must be filed within the 30-day deadline set forth in the APA. See Tex. Gov't Code Ann. § 2001.176(a) ("A person initiates judicial review in a contested case by filing a petition not later than the 30th day after the day on which the decision that is the subject of the complaint is final and appealable."). Crain further argues that a spinal-surgery dispute does not constitute an issue regarding compensability or income or death benefits, making the decision in this case subject to the 30-day deadline.
Hartford, while contending that a spinal-surgery dispute affects compensability or income or death benefits, asserts that the 30-day deadline created by the APA is inapplicable, regardless of whether judicial review of a spinal-surgery dispute is to be conducted under the APA or subchapter G of chapter 410. Hartford argues that the 40-day deadline provided by section 410.252 applies to all appeals-panel decisions, and that section 410.255, which provides that judicial review should be conducted under the APA, simply refers to the manner in which judicial review is to be conducted, rather than the relevant deadlines. In light of the traditional statutory-construction principle that more specific statutes control over those that are more general, we agree. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000).
Subchapter F of chapter 410 is titled "Judicial Review - General Provisions," while subchapter G is titled "Judicial Review of Issues Regarding Compensability or Income or Death Benefits." Section 410.252 specifically states that a party has 40 days to file suit once an appeals-panel decision has been filed. There is no mention in section 410.252--which is contained in the general provisions of subchapter F--that the 40-day deadline is limited to those decisions that are reviewed under subchapter G. Three provisions later, section 410.255 states that "judicial review shall be conducted in the manner provided for judicial review of a contested case" under the APA (emphasis added). The APA sets forth general procedures for administrative contested cases, including the applicable standard of review and the requirement that the review be conducted without a jury. See Tex. Gov't Code Ann. §§ 2001.171-.178 (West 2000). Because section 410.252 of the labor code specifically creates a deadline applicable to the judicial review of appeals-panel decisions, it controls over the more general provision of section 410.255, which merely provides that judicial review of certain appeals-panel decisions shall be conducted in the manner provided for judicial review under the APA. We read section 410.255's requirement that review of appeals-panel decisions be conducted "in the manner provided for judicial review" under the APA as relating to matters such as the standard of review and the lack of a jury trial, rather than the deadline for filing a petition.
Furthermore, the placement of 410.252 in subchapter F, under "Judicial Review - General Provisions," is further evidence that the legislature intended the 40-day deadline to apply to all appeals-panel decisions. If the legislature intended the 40-day deadline to apply solely to appeals panel decisions regarding compensability or income or death benefits, it could easily have included the deadline provision under subchapter G, which is titled, "Judicial Review of Issues Regarding Compensability or Income or Death Benefits." In construing a statute, we must ascertain the legislative intent by looking to the entire act, including the caption and body. Trawalter v. Schaefer, 179 S.W.2d 765, 767 (Tex. 1944).
Our interpretation of chapter 410 of the labor code is consistent with the language of the notice sent to Hartford by the TWCC, which advises parties that they have 40 days from the date the decision is filed with the TWCC to file a petition for judicial review. While the record does not conclusively establish whether the TWCC has taken an official position on this issue, the language of the notice suggests that the TWCC interprets the labor code to provide a 40-day deadline for filing a petition in cases such as Crain's. An agency's interpretation of its enabling statute is entitled to deference by the courts so long as it is reasonable and does not contradict the plain language of the statute. Public Util. Comm'n v. Gulf States Util. Co., 809 S.W.2d 201, 207 (Tex. 1991).
Crain cites to a number of cases in which courts have noted that the 30-day deadline for filing a petition for review under the APA applies to decisions by the TWCC appeals panel regarding issues other than compensability or income or death benefits. See State Office of Risk Mgmt. v. Herrera, 189 S.W.3d 405, 407 (Tex. App.--Amarillo 2006, no pet.) (stating that "according to all involved," if disputed issues encompass matters of compensability or coverage, "then the 30-day period supposedly applies"); Beaumont Indep. Sch. Dist. v. Parkerson, 105 S.W.3d 761, 763 (Tex. App.--Beaumont 2003, no pet.) (finding that petition for review filed on 39th day was timely because disputed issue fell under 410.301 and therefore 40-day limit applied); Walker v. Argonaut Southwest Ins. Co., 929 S.W.2d 499, 501 (Tex. App.--Texarkana 1996, pet. denied) ("[I]f Walker sought judicial review for any purpose other than the panel's determinations on compensability or eligibility for or the amount of income or death benefits, he was required to file his suit within thirty days of the decision."). We are not persuaded by these cases, however, because any statements to the effect that the APA's 30-day deadline applies to certain decisions by the TWCC appeals panel were dicta; none of the cited cases hold that a trial court lacked subject-matter jurisdiction to review a TWCC appeals-panel decision because a party failed to meet the APA's 30-day deadline. (3)
The parties have exhaustively briefed the issue of whether a spinal-surgery dispute is an issue regarding compensability or income or death benefits, and the resulting standard of review to be applied to appeals-panel decisions regarding spinal surgery. Issues regarding compensability or income or death benefits are to be reviewed using a modified de novo standard, Tex. Lab. Code Ann. § 410.301, while all other issues are reviewed using the substantial evidence rule, Tex. Lab. Code Ann. § 410.255(b). Based on our holding, however, the issues of whether spinal-surgery disputes affect compensability or income or death benefits, and whether such disputes should be reviewed using modified de novo or substantial evidence standards are not relevant to this appeal. Because we hold that the 40-day deadline provided in section 410.252 applies to all appeals-panel decisions, regardless of whether the issue relates to compensability or income or death benefits, the trial court erred in granting Crain's plea to the jurisdiction. (4)
CONCLUSION
Because we have determined that Hartford's petition for judicial review of the appeals panel's decision is governed by the 40-day deadline set forth in section 410.252 of the labor code, we reverse the trial court's order and remand this case for further proceedings consistent with this opinion.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Reversed and Remanded
Filed: February 8, 2008
1. The TWCC was abolished as of September 1, 2005, and its functions were assumed by the division of workers' compensation within the Texas Department of Insurance. Because the majority of the underlying decisions in this case were issued by the TWCC, we will refer to both the TWCC and its successor as the TWCC.
2. The 40th day after January 18, 2005, was Sunday, February 27, 2005. However, title 28, section 102.3(a)(3) of the Texas Administrative Code, which governs the computation of time for TWCC purposes, provides that "unless otherwise specified, if the last day of any period is not a working day, the period is extended to include the next day that is a working day." Therefore, the deadline to appeal the decision was Monday, February 28, 2005. Hartford mailed its petition for judicial review on February 25, 2005, and it was received by the Court on Monday, February 28, 2005.
3. In Morales v. Liberty Mut. Ins. Co., 169 S.W.3d 485 (Tex. App.--El Paso 2005), rev'd, No. 05-0754, 2007 Tex. App. LEXIS 1080 (Tex. Dec. 7, 2007), the court affirmed an order of dismissal for want of jurisdiction because the appellant had filed a petition for judicial review in the employee's county of residence, as required by section 410.252(b) of the labor code, rather than Travis County, the required venue provision of the APA. See Tex. Gov't Code Ann. § 2001.176 (West 2000). However, the supreme court reversed this decision, finding that the appellant's dispute concerned compensability and therefore that the employee's county of residence was not an improper venue. Morales v. Liberty Mut. Ins. Co., No. 05-0754, 2007 Tex. App. LEXIS 1080 (Tex. Dec. 7, 2007). While the supreme court's opinion states in dicta that "[a]n appeal from a decision that does not concern compensability must be filed in Travis County," id. at *6, the holding is that the underlying dispute is an issue regarding compensability and is therefore subject to judicial review under section 410.310. See id. at *15. Like the cases cited by Crain, Morales does not specifically hold that a trial court lacks subject-matter jurisdiction to review a TWCC appeals-panel decision because a party followed the filing deadlines set forth in section 410.252, rather than the APA.
4. We express no opinion regarding the appropriate standard of review for spinal-surgery disputes or whether a spinal-surgery dispute relates to compensability or income or death benefits.
Saturday, February 16, 2008
Parallel Appellate Proceedings: Mandamus and Appeal in foreclosure case
In re Herndon Y. Robinson - Opinion by Justice Puryear (Before Justices Patterson, Puryear and Waldrop)
03-06-00058-CV (Tex.App. - Austin, Feb. 8, 2008)(Puryear)
In re Herndon Y. Robinson
Appeal from 201st District Court of Travis County
Disposition: Dismissed as moot
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
In this mandamus, we initially stayed a foreclosure sale pending resolution of the related appeal and then withdrew that order, conditioning the stay on relator's posting of a bond. Because the related appeal has been disposed of, we dismiss this mandamus proceeding as moot.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Waldrop
Filed: February 8, 2008
03-06-00058-CV (Tex.App. - Austin, Feb. 8, 2008)(Puryear)
In re Herndon Y. Robinson
Appeal from 201st District Court of Travis County
Disposition: Dismissed as moot
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
In this mandamus, we initially stayed a foreclosure sale pending resolution of the related appeal and then withdrew that order, conditioning the stay on relator's posting of a bond. Because the related appeal has been disposed of, we dismiss this mandamus proceeding as moot.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Waldrop
Filed: February 8, 2008
Appeal reinstated after bankruptcy stay, and dismissed
DISMISSED ON AGREED MOTION: Opinion by Justice Patterson (Before Justices Patterson, Puryear and Henson)
03-06-00697-CV
Jesus Alfredo Soto, Sr. v. Blane Schvaneveldt Racing Stable, Inc. and Raymond Daniel, Jr., King County Sheriff--Appeal from 261st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-06-000463, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This appeal was stayed on April 12, 2007, as a result of Appellant Jesus Alfredo Soto, Sr.'s notice of filing bankruptcy. On January 22, 2008, the parties filed an agreed motion to re-instate and then dismiss this appeal. In the motion, the parties state that appellant's bankruptcy proceeding has been dismissed and that they seek reinstatement and dismissal of the instant appeal. We grant the parties' motion; we re-instate and dismiss the appeal. See Tex. R. App. P. 8.3, 42.1(a).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Agreed Motion
Filed: February 8, 2008
03-06-00697-CV
Jesus Alfredo Soto, Sr. v. Blane Schvaneveldt Racing Stable, Inc. and Raymond Daniel, Jr., King County Sheriff--Appeal from 261st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-06-000463, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This appeal was stayed on April 12, 2007, as a result of Appellant Jesus Alfredo Soto, Sr.'s notice of filing bankruptcy. On January 22, 2008, the parties filed an agreed motion to re-instate and then dismiss this appeal. In the motion, the parties state that appellant's bankruptcy proceeding has been dismissed and that they seek reinstatement and dismissal of the instant appeal. We grant the parties' motion; we re-instate and dismiss the appeal. See Tex. R. App. P. 8.3, 42.1(a).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Agreed Motion
Filed: February 8, 2008
DWOP Opinion in Tx. DFPS case by Justice Ken Law
Fontenot vs. Texas Department of Family and Protective Services, No. 03-07-00719-CV (Tex.App.- Austin, Feb. 8, 2008)(Ken Law) (DFPS, TDFPS, CPS, child protection)
Arlene Fontenot and Robert Fontenot v. Texas Department of Family and Protective Services
Appeal from 33rd District Court of San Saba County
FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
NO. 8661, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants Arlene Fontenot and Robert Fontenot filed a notice of appeal on December 18, 2007. The district clerk notified this Court that appellants have neither paid, nor made payment arrangements for the clerk's record. By letter of January 15, 2008, this Court notified appellants that they needed to submit a status report concerning the appeal by January 25, 2008, or the appeal would be dismissed for want of prosecution. See Tex. R. App. P. 37.3(d). To date, appellants have not responded. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: February 8, 2008
Arlene Fontenot and Robert Fontenot v. Texas Department of Family and Protective Services
Appeal from 33rd District Court of San Saba County
FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
NO. 8661, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants Arlene Fontenot and Robert Fontenot filed a notice of appeal on December 18, 2007. The district clerk notified this Court that appellants have neither paid, nor made payment arrangements for the clerk's record. By letter of January 15, 2008, this Court notified appellants that they needed to submit a status report concerning the appeal by January 25, 2008, or the appeal would be dismissed for want of prosecution. See Tex. R. App. P. 37.3(d). To date, appellants have not responded. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: February 8, 2008
Petition dismissed by agreement
DISMISSED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Pemberton and Waldrop)
03-08-00052-CV
In re Daniel Irons, Steven Traweek, Michael Cohen, Robert Flanakin, and Pathology Resource Consultants, LP--Appeal from 353rd District Court of Travis County
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
Relators Daniel Irons, Steven Traweek, Michael Cohen, Robert Flanakin, and Pathology Resource Consultants, LP have filed an Unopposed Motion to Dismiss Mandamus Petition. In this unopposed motion, relators assert that they have settled their dispute and that the Real Party in Interest does not oppose their motion to dismiss. We vacate our Order signed January 29, 2008, granting relators' Emergency Motion for Temporary Relief, grant relators' Unopposed Motion to Dismiss Mandamus Petition, and dismiss this petition for writ of mandamus.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: February 8, 2008
03-08-00052-CV
In re Daniel Irons, Steven Traweek, Michael Cohen, Robert Flanakin, and Pathology Resource Consultants, LP--Appeal from 353rd District Court of Travis County
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
Relators Daniel Irons, Steven Traweek, Michael Cohen, Robert Flanakin, and Pathology Resource Consultants, LP have filed an Unopposed Motion to Dismiss Mandamus Petition. In this unopposed motion, relators assert that they have settled their dispute and that the Real Party in Interest does not oppose their motion to dismiss. We vacate our Order signed January 29, 2008, granting relators' Emergency Motion for Temporary Relief, grant relators' Unopposed Motion to Dismiss Mandamus Petition, and dismiss this petition for writ of mandamus.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: February 8, 2008
Pro Se Motion for DNA Testing in Capital Murder Case Denied
In re Biegel, No. 03-07-00274-CR (Tex.App.- Austin, Feb. 8, 2008)(Puryear)
AFFIRMED: Opinion by Justice Puryear (Before Justices Patterson, Puryear and Pemberton)
In re Adam Biegel--Appeal from 331st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 990020, HONORABLE BOB PERKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Adam Biegel appeals the district court's order denying his pro se motion for post-conviction forensic DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2007). We will affirm the order.
Biegel is serving the life sentence imposed following his conviction for capital murder. That conviction was affirmed by this Court. See Biegel v. State, No. 03-99-00816-CR, 2001 Tex. App. LEXIS 5950 (Tex. App.--Austin Aug. 30, 2001, pet. ref'd) (not designated for publication). The evidence showed that Biegel, his girlfriend Tammy Fox, and Fox's mother and stepfather conspired to rob the deceased. Acting pursuant to the scheme, Fox lured the deceased to a vacant apartment at the complex where her stepfather was a security guard. Biegel was hiding in the apartment, armed with a hammer and knife supplied by Fox's stepfather and wearing a stocking mask supplied by her mother. Biegel stabbed the deceased several times, inflicting injuries that proved fatal. Biegel took the deceased's wallet, but it contained no money. DNA testing identified the deceased's blood on clothing worn by Biegel and Fox, and on a rope bracelet
worn by Biegel. DNA tests of the bloody knife were inconclusive.
By his motion, Biegel sought DNA testing of the knife and stocking mask, a pair of jeans, and tennis shoes, a backpack, and a tequila bottle found in Fox's parents' apartment. Biegel asserted that this testing would reveal that Fox lied during her testimony and that her stepfather was the person who stabbed the deceased. The trial court overruled the motion, finding that identity was not an issue and that Biegel had not established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B), (2)(A) (West Supp. 2007).
Biegel's motion for DNA testing was properly overruled on procedural grounds. A DNA testing motion must be accompanied by an affidavit containing a statement of facts in support of the motion. Id. art. 64.01(a). Biegel did not submit an affidavit, and his testing motion, although it contained a statement of facts, was not sworn. A DNA testing motion may request testing of evidence that was not previously tested or that can be subjected to newer testing techniques that are reasonably likely to produce more probative results. Id. art. 64.01(b). At least some of the items mentioned in Biegel's motion were tested previously, and Biegel made no effort to demonstrate that newer testing techniques are available.
We also find no merit to Biegel's pro se arguments challenging the court's findings. With respect to the tequila bottle, Biegel urges that fingerprints would show that Fox and the deceased were drinking together before the murder, contrary to Fox's testimony. Whether or not this is true, it has no relevance to the denial of DNA testing. Similarly irrelevant is appellant's assertion that the tennis shoes and the bloody clothing do not fit him, but do fit Fox's stepfather. He does not explain how this could be established by DNA testing. Biegel contends that further DNA testing of the knife and testing of the stocking mask would connect these items to Fox's stepfather. If true, this would merely confirm that the stepfather was part of the conspiracy; it would not exculpate Biegel.
For the reasons stated, we affirm the order denying Biegel's pro se motion for forensic DNA testing.
__________________________________________
David Puryear, Justice
Justices Patterson, Puryear and Pemberton
Affirmed
Filed: February 8, 2008
Do Not Publish
AFFIRMED: Opinion by Justice Puryear (Before Justices Patterson, Puryear and Pemberton)
In re Adam Biegel--Appeal from 331st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 990020, HONORABLE BOB PERKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Adam Biegel appeals the district court's order denying his pro se motion for post-conviction forensic DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2007). We will affirm the order.
Biegel is serving the life sentence imposed following his conviction for capital murder. That conviction was affirmed by this Court. See Biegel v. State, No. 03-99-00816-CR, 2001 Tex. App. LEXIS 5950 (Tex. App.--Austin Aug. 30, 2001, pet. ref'd) (not designated for publication). The evidence showed that Biegel, his girlfriend Tammy Fox, and Fox's mother and stepfather conspired to rob the deceased. Acting pursuant to the scheme, Fox lured the deceased to a vacant apartment at the complex where her stepfather was a security guard. Biegel was hiding in the apartment, armed with a hammer and knife supplied by Fox's stepfather and wearing a stocking mask supplied by her mother. Biegel stabbed the deceased several times, inflicting injuries that proved fatal. Biegel took the deceased's wallet, but it contained no money. DNA testing identified the deceased's blood on clothing worn by Biegel and Fox, and on a rope bracelet
worn by Biegel. DNA tests of the bloody knife were inconclusive.
By his motion, Biegel sought DNA testing of the knife and stocking mask, a pair of jeans, and tennis shoes, a backpack, and a tequila bottle found in Fox's parents' apartment. Biegel asserted that this testing would reveal that Fox lied during her testimony and that her stepfather was the person who stabbed the deceased. The trial court overruled the motion, finding that identity was not an issue and that Biegel had not established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B), (2)(A) (West Supp. 2007).
Biegel's motion for DNA testing was properly overruled on procedural grounds. A DNA testing motion must be accompanied by an affidavit containing a statement of facts in support of the motion. Id. art. 64.01(a). Biegel did not submit an affidavit, and his testing motion, although it contained a statement of facts, was not sworn. A DNA testing motion may request testing of evidence that was not previously tested or that can be subjected to newer testing techniques that are reasonably likely to produce more probative results. Id. art. 64.01(b). At least some of the items mentioned in Biegel's motion were tested previously, and Biegel made no effort to demonstrate that newer testing techniques are available.
We also find no merit to Biegel's pro se arguments challenging the court's findings. With respect to the tequila bottle, Biegel urges that fingerprints would show that Fox and the deceased were drinking together before the murder, contrary to Fox's testimony. Whether or not this is true, it has no relevance to the denial of DNA testing. Similarly irrelevant is appellant's assertion that the tennis shoes and the bloody clothing do not fit him, but do fit Fox's stepfather. He does not explain how this could be established by DNA testing. Biegel contends that further DNA testing of the knife and testing of the stocking mask would connect these items to Fox's stepfather. If true, this would merely confirm that the stepfather was part of the conspiracy; it would not exculpate Biegel.
For the reasons stated, we affirm the order denying Biegel's pro se motion for forensic DNA testing.
__________________________________________
David Puryear, Justice
Justices Patterson, Puryear and Pemberton
Affirmed
Filed: February 8, 2008
Do Not Publish
Ray v. T.D. (Tex.App.- Austin Feb. 7, 2008)
AFFIRMED: Opinion by Justice Pemberton (Before Justices Patterson, Pemberton and Waldrop)
03-06-00242-CV
Hazel Ray, Individually and Executrix of the Estate of Dock L. Dire; Teaneah Jackson, as Next Friend of T. D., a Minor; and Attorney Don R. Caggins, Sr. v. T. D., a Minor
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 189,057-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This appeal involves a dispute over an attorney's claim for fees from the proceeds of a minor settlement. Finding in part that the minor's attorney had no enforceable agreement entitling him to fees from the settlement proceeds, the district court denied the attorney any recovery. The attorney, Don R. Caggins, Sr., brings a single issue asserting that the district court abused its discretion in so ruling. On this record, we cannot conclude that the district court abused its discretion. We will affirm the judgment.
BACKGROUND
In October 2000, Dock L. Dire was killed in an automobile-motorcycle collision with Carroll C. Johnson. At the time of his death, Dire had a minor daughter, T.D. Appellant Teaneah Jackson is T.D.'s mother, while appellant Hazel Ray is Dire's surviving mother and executrix of his estate. Jackson and Ray are residents of Shelby County, Tennessee. Shortly after Dire's death, a guardianship proceeding was filed in the probate court of Shelby County and, on or about January 30, 2001, Ms. Jackson was appointed and qualified as guardian of T.D.'s estate.
In October 2001, Ray, individually and as executrix of Dire's estate, and Jackson, as T.D.'s next friend, filed a "friendly" wrongful death action against Johnson in the district court of Bell County. The action was intended to obtain the court's approval of a settlement wherein Johnson's automobile insurance carrier, State Farm, had agreed to pay the $100,000 limit of Johnson's policy, to be apportioned among the plaintiffs, in exchange for a release. Caggins represented all three plaintiffs. The district court appointed a guardian ad litem, Neale Potts, to represent T.D.'s interests. Various complications delayed efforts to finalize the settlement, including a lien asserted by the federal government for medical care provided to Dire, events in the Tennessee guardianship proceeding, and Caggins's claim for attorney's fees. Eventually, State Farm, on Johnson's behalf, agreed to interplead the $100,000 policy limits, deposit the amount into the court's registry, and bring in the federal government as a third-party defendant.
The parties eventually resolved the lien issue, leaving Caggins's attorney's-fee claim as the sole sticking point in finalizing the settlement and dispensing the funds. (1) On March 21, 2005, Caggins filed a motion for court approval of attorney's fees "in the amount of 33 1/3 of the recovery." Caggins represented that he "has been the sole attorney to prosecute this cause on behalf of all Plaintiffs . . . since November 2000" and that he "has prosecuted the claim whereby policy limits has been tendered by Defendants."
Potts, the guardian ad litem, filed a report with the court in which he objected to Caggins's request:
I have not been able to reach an agreement with Mr. Caggins as to the amount of his fee. It appears to me that this case required very little work by Mr. Caggins to obtain the insurance company's agreement to tender the policy limit. Although on December 23, 2004, I requested that Mr. Caggins furnish me with a copy of his file and a listing or estimation of the time he spent obtaining the settlement, he has declined to do so.
The determination of the amount of attorney's fee[s] due Mr. Caggins is further complicated by the fact that he has represented to [] me throughout this case . . . that he was employed by Teaneah Jackson, the mother of [T.D.], to represent the interests of the child based upon a 40% contingency fee contract. It appears that the only contract executed by Teaneah Jackson is a handwritten letter signed by her, a copy of which is attached hereto. I am not even sure that writing constitutes a contract for legal services. . . .
. . . .
It appears to me that Mr. Caggins may also have various conflicts of interest in representing the various parties in this case. In requesting this Court to allow a fee based upon the percentage of the recovery where no contingency fee contract exists, I believe that Mr. Caggins is taking a position that is adverse to his client, [T.D.]
Mr. Caggins is also representing Hazel Ray, the mother of Dock L. Dire. . . . The three clients of Mr. Caggins have conflicting claims to the $100,000 settlement proceeds, particularly where the damages suffered by [T.D.] as a result of the death of her father far exceed the amount of the settlement proceeds.
. . . .
To Mr. Caggins's credit he has obtained a reduction in the medical lien from $44,353.15 to $29,065.42, resulting in a savings of $15,287.73.
It is my recommendation to the Court that Mr. Caggins's fee should not exceed $12,500.
Potts attached to his report a copy of the Jackson "handwritten letter." It states:
I'm mother of [T.D.] I herein imply [sic] attorney Don Caggins to represent the interests of my daughter [T.D.] for the death of her father Dock L. Dire.
Thanks,
Ms. Teaneah T. Jackson.
The document then listed Jackson's address and contact information and concluded with, "Any questions please feel free to call." The document was not dated, was not signed by Caggins, and did not mention fees or a fee agreement.
Potts also attached a document entitled "Power of Attorney" that was purportedly executed by Caggins and Hazel Ray. The instrument appointed Caggins "as my true and lawful attorney" and provided that he would receive "33 1/3 percent of any collection on settlement before" filing suit and 40 percent "after suit is filed," after deduction for expenses.
Potts asserted in his report that Caggins had not complied with the statutory requirements governing contingent-fee agreements, see Tex. Gov't Code Ann. § 82.065 (West 2005), and that Caggins had violated the disciplinary rules of professional conduct. See Tex. Disciplinary R. Prof'l Conduct 1.04(d) (relating to contingent-fee contracts), 1.06(b) (relating to conflicts of interest), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (West 2005). Potts also argued that by seeking recovery of attorney's fees out of T.D.'s settlement proceeds, Caggins had breached his fiduciary duty to T.D. and that fee forfeiture was an appropriate remedy for such a breach. See Burrow v. Arce, 997 S.W.2d 229, 237-38 (Tex. 1999).
Potts also noted correspondence to the effect that USAA, Dire's automobile insurer, had agreed to pay the $300,000 policy limits on Dire's uninsured/underinsured motorist coverage, and that Caggins was claiming he was due a fee of $100,000 in that action, but that the case had not yet been filed.
Caggins filed a one-page response to the ad litem's report in which he stated, "There does not exist nor have their [sic] ever existed a conflict of interest between any of my clients." Caggins also expressed surprise at Potts's position that he was entitled to only a $12,500 fee, claiming that he had understood Potts to have already agreed to a $25,000 fee, only $8,333.33 short of the $33,333.33 Caggins had claimed.
A hearing was held on April 1, 2005. The only evidence presented, in addition to Potts's ad litem report, was a December 29, 2004 letter from Potts, introduced by Caggins, in which the ad litem had suggested a distribution of the settlement proceeds whereby Caggins would receive $25,000 in attorney's fees. Potts explained that he had written this letter based on Caggins's representations throughout the litigation that he actually had an enforceable 40% contingent-fee agreement. According to Potts, he did not ascertain the true nature of Caggins's agreements until later, "probably two weeks prior to the date of my report."
Potts explained generally that his recommendation of a $12,500 fee--"if the court is going to allow a fee"--was "based upon the reduction of the government lien and . . . some work by Mr. Caggins in obtaining the settlement." Potts added, however, that he had been "unable to obtain a copy of Mr. Caggins's file to review and . . . a listing of his time in this case . . .and it's been difficult for me to come to an--even a recommendation for fees."
During the hearing, the district court expressed reservations that Caggins had an enforceable fee agreement, but added that "before I gut a lawyer on his entire fee, I'm going to take this matter under advisement and look at it very carefully." Two weeks after the hearing, the district court advised the parties by letter that it had "determined that Mr. Caggins is not entitled to any attorney's fees out of the settlement proceeds."
Subsequently, USAA filed a plea in intervention to interplead the $300,000 limits of Dire's
underinsured motorist coverage. The district court later granted the intervention.
In September, the district court signed a judgment approving the settlement between the plaintiffs and Johnson, dividing most of the $100,000 settlement proceeds among the plaintiffs, releasing Johnson, but reserving the disputed amount of Caggins's attorney's-fee claim. The court ordered $53,333 deposited in the court's registry for the benefit of T.D. pending further orders of the court or to be held until T.D.'s eighteenth birthday. The amount apparently included (1) $20,000, the amount of a structured-settlement for T.D.'s benefit; and (2) $33,333, the amount of Caggins's attorney's-fee claim against the settlement proceeds.
Potts filed a motion to withdraw all funds held in the court's registry and forward them to the registry of the Tennessee probate court. Caggins objected to the withdrawal of all of the funds, arguing that the district court had not rendered a judgment regarding his entitlement to attorney's fees from the $300,000 tendered to the court by USAA. (2)
A hearing was held on January 13, 2006. On that date, for the first time, Caggins presented two typewritten documents, each titled "Contingent Fee Contract," one of which was between himself and Hazel Ray, while the other was between himself and Jackson, as T.D.'s next friend. Both contracts were dated January 6, 2006, but purported to relate back to the commencement of Caggins's representation on November 16, 2000. The contracts provided for 33 1/3 percent of any gross recovery before any court action is filed, 40 percent of any gross recovery after the action is filed, but before commencement of trial, 45 percent of any gross recovery after commencement of trial, and 50 percent of any gross recovery after the filing of any appeal by any party. Caggins introduced these documents into evidence and asserted that they rendered moot any dispute regarding the enforceability of his earlier purported fee agreements. Caggins acknowledged that the two contracts were signed on January 6 and that he did not know whether Jackson had obtained authorization from the Tennessee probate court to execute her contract on T.D.'s behalf. Potts, on T.D.'s behalf, urged that these instruments were unenforceable, violated ethics rules, and breached Caggins's fiduciary duty to T.D.
Caggins also presented some brief testimony touching on the legal services he had provided to T.D. and the other plaintiffs. The following is his entire testimony regarding that matter:
. . . I represented not only the minor in this matter, but the estate of the daughter and also the surviving mother who is Hazel Ray. So, not only did I represent the minor, but I also represented the estate and Ms. Hazel Ray.
. . . .
The record will reflect that all of the work for the Plaintiff has been performed by me or my law firm, all of the investigative work. I made four trips to Memphis, Tennessee. I made approximately 13 trips from Houston to Bell County, the--the only attorney that represented the interest of the minor, the interest of the estate, or the interest of the surviving mother has been myself.
. . . The maximum amount of recovery has been recovered from the available funds and policies in this matter.
. . . .
I performed all of the work, Judge.
Johnson's counsel also stipulated on the record that Caggins had been the only attorney representing the plaintiffs' personal injury claims and that he had worked with no other attorney or other person acting on the plaintiffs' behalf. (3)
On cross-examination, Potts elicited Caggins's admission that Potts had asked for a copy of Caggins's files, a time sheet, or a compilation of the number of hours Caggins had spent on the case so Potts could determine how much work Caggins had put into the case. Caggins acknowledged that he had not provided that information.
At the hearing's conclusion, the district court invited additional briefing on the attorney's-fee issue. It ultimately rendered final judgment that Caggins was "not entitled to receive any attorney's fees from the settlement proceeds on deposit in the Registry of this Court." The district court further ordered that all funds in excess of the $133,333.33 claimed as attorney's fees (the $33,333.33 Caggins claimed from the State Farm proceeds plus the $100,000 he claimed from the USAA proceeds) be transferred to the probate court in Shelby County, Tennessee and that the $133,333.33 claimed as attorney's fees be placed in an interest-bearing account in the district court's registry pending further order of the district court. The district court entered the following pertinent findings of fact based on the evidence presented at the two hearings:
6. . . . . No evidence has been presented to this Court that the Probate Court in Shelby County, Tennessee has authorized Teaneah Jackson to enter into a contract with Attorney Caggins for the representation of the minor, [T.D.]
. . . .
9. On April 1, 2005, . . . the court received evidence and heard argument with regard to whether or not attorney's fees could be collected or charged as they related to the funds distributed to the minor plaintiff. . . [Caggins] represented to the court that he was the attorney for the minor plaintiff. . . . In support of his motion [for attorney's fees], Mr. Caggins offered the following evidence:
a. A handwritten unverified document purportedly signed by Teaneah Jackson [quoted, attached, and incorporated].
b. A document entitled "Power of Attorney" purportedly executed by Hazel Matthew Ray . . . .[attached and incorporated].
c. In response to Mr. Caggins's motion, the ad litem, Mr. Potts, offered his report which was accepted as evidence and testimony and is included herein [attached].
At hearings before the court on April 1, 2005 and January 13, 2006, Mr. Caggins declined to allow his case file to be examined by the attorney ad litem, declined to furnish a time sheet showing the time spent on the case and declined to give an estimate of the number of hours spent in representation of the case.
The parties were notified by the Court in a letter dated April 14, 2005 that the Court had determined that Mr. Caggins was not entitled to any attorney's fees from the settlement [letter attached and incorporated].
. . . .
13. No sufficient evidence has been presented to this court to support a legally binding claim for the recovery of attorney's fees of and from the proceeds to be distributed to the minor plaintiff, [T.D.]
14. Attorney Don R. Caggins, Sr., is claiming that he is entitled to a percentage of the amounts to be distributed to the Minor Plaintiff, [T.D.] and is not seeking compensation for his hourly work based on an hourly rate.
15. No legally enforceable written agreement has been presented to the Court or offered as evidence to support a claim for a contingency fee or percentage recovery for attorney's fees out of the funds to be distributed to the Minor Plaintiff, [T.D.]
. . . .
19. There is an inherent conflict of interest when an attorney represents multiple parties asserting claims against the same settlement proceeds if the damages suffered by the parties exceeds the amount of the settlement proceeds.
20. There is no evidence that each affected or potentially affected client consented to representation by Attorney Don R. Caggins, Sr., after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation of the Plaintiffs and the advantages involved, if any.
21. . . . . The [January 6, 2006] Contract [attached and incorporated] was obtained after Mr. Caggins had received notice from this Court in its letter of April 14, 2005 that he was not entitled to any attorney's fees in this case from the settlement proceeds of the minor, [T.D.]
The district court also made the following conclusions of law:
2. The court finds that the evidence presented in support of Attorney Caggins's motion is insufficient to establish a legal right to recover attorney's fees with regards to the funds distributed to the minor, [T.D.], herein.
3. The court finds that there is no legally enforceable contract for attorney's fees between Attorney Caggins and the minor plaintiff, [T.D.]
4. The court finds that no one with legal capacity to retain an attorney on behalf of the minor Plaintiff, [T.D.], ever entered into a proper contract protecting her interest prior to settlement of the claims approved by this Court.
5. The court finds that the evidence presented by the attorney ad litem, Neale Potts, is sufficient to support a finding that a conflict of interest [existed] between the parties purportedly represented by Don R. Caggins, Sr. and that no evidence indicating a full disclosure of said conflict has ever been presented to this Court or the alleged clients of Don R. Caggins, Sr. Specifically, rule 1.06 of the Texas Disciplinary Rules of Professional Conduct precludes Attorney Caggins's effort to seek attorney's fees with regard to the funds agreed to be distributed to the minor plaintiff [T.D.]
6. Attorney Don R. Caggins, Sr. has breached his fiduciary duty to his client by attempting to establish that he is entitled to a contingent attorney's fee through the execution of the Contingent Fee Contract dated January 6, 2006 after being previously advised that he was not entitled to a contingent attorney's fee in the Court's letter of April 14, 2005.
7. The settlements and Judgments herein are approved and are in the best interest of the Minor, [T.D.]
8. It is in the best interest of the Minor, [T.D.], that no attorney's fees be awarded to Attorney Don R. Caggins, Sr., herein.
This appeal followed.
DISCUSSION
In his single issue, Caggins argues that the district court abused its discretion by "denying plaintiffs' counsel recovery of attorney's fees though plaintiffs' counsel represented all plaintiffs in this cause of action," in allowing "recovery to all plaintiffs without compensation to plaintiffs' counsel," and by "fail[ing] to exercise its discretion in and determined an equitable distribution of attorney's fees as reasonable and necessary payment . . . for counsel's representation of the minor child and remaining plaintiffs." As best we can discern, Caggins asserts on appeal three theories as to why the district court abused its discretion in refusing to award him attorney's fees: (1) Caggins had an enforceable attorney's-fee agreement (i.e., he challenges the sufficiency of the evidence supporting the district court's findings to the contrary) (4); (2) Potts, the ad litem, was barred by quasi-estoppel from challenging the enforceability of these agreements; and (3) quantum meruit. (5) Caggins prays that he "is entitled to recover reasonable and necessary attorney's fees which are customary to the facts, to-wit, 33 1/3% of the proceeds of the recovery now held in the registry of the district clerk of Bell County, Texas."
Standard of review
Generally, we review a trial court's decision to either grant or deny recovery of attorney's fees under an abuse of discretion standard. EMC Mortg. Corp. v. Davis, 167 S.W.3d 406, 418 (Tex. App.--Austin 2005, pet. denied). The ultimate test for abuse of discretion is whether the ruling was unreasonable or arbitrary or made "without reference to any guiding rules or principles." Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)). When reviewing a trial court's decision under this standard, we must view the evidence in the light most favorable to the trial court's ruling and indulge every presumption in its favor. Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 444 (Tex App.--Houston [14th Dist.] 2003, no pet.); Phillips & Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex. App.--Houston [1st Dist.] 1996, no writ). Legal- and factual-sufficiency issues may be subsumed within this inquiry. Specifically, we may consider both whether the trial court had sufficient information (i.e., sufficient evidence) upon which to exercise its discretion and, if so, whether the trial court abused the exercise of its discretion based on that information. See Cordova v. Sw. Bell Yellow Pages, Inc., 148 S.W.3d 441, 445-46 (Tex. App.--El Paso 2004, no pet.). Where, as here, the trial court made findings of fact and conclusions of law, the evidentiary-sufficiency component of the inquiry is focused on those findings. See Tex. R. Civ. P. 299. (6)
Contract
For a contingent-fee contract to be enforceable, it must satisfy section 82.065 of the government code:
(a) A contingent fee contract for legal services must be in writing and signed by the attorney and client.
(b) A contingent fee contract for legal services is voidable by the client if it is procured as a result of conduct violating the laws of this state or the Disciplinary Rules of the State Bar of Texas regarding barratry by attorneys or other persons.
Tex. Gov't Code Ann. § 82.065. A contingent-fee contract must also satisfy the requirements of rule 1.04(d) of the disciplinary rules of professional conduct:
A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined. If there is to be a differentiation in the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated. The agreement shall state the litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.
Tex. Disciplinary R. Prof'l Conduct 1.04(d).
The district court found that there was no evidence the Tennessee probate court had authorized Jackson, T.D.'s guardian since January 2001, to execute a contract with Caggins on T.D.'s behalf. Furthermore, the "handwritten unverified document purportedly signed by Teaneah Jackson," mentions nothing about attorney's fees. And, although the "Power of Attorney" purportedly executed by Hazel Ray does mention attorney's fees, it does not reflect that Ray executed the document other than in her own behalf. On the face of each document, neither is an enforceable contract entitling Caggins to attorney's fees from the settlement proceeds paid to T.D.
As for the January 6, 2006 contract, the district court found that at the time of execution, Caggins had a conflict of interest with T.D. arising from their competing claims to the finite settlement proceeds and that Caggins had failed to comply with the disciplinary rules in obtaining his client's consent after disclosure. The district court further found that Caggins previously had been notified by letter "that the Court had determinated that Mr. Caggins was not entitled to any attorney's fees from the settlement proceeds" and concluded that Caggins breached his fiduciary duty to his client by procuring the January 6, 2006 contract "after being previously advised that he was not entitled to a contingent attorney's fee." These findings and conclusions, which Caggins does not explicitly challenge, support the district court's finding that the instrument was unenforceable.
The evidence is legally and factually sufficient to support the district court's findings that Caggins had no enforceable agreement entitling him to attorney's fees from the minor settlement proceeds. The district court did not abuse its discretion in refusing to award Caggins attorney's fees from the settlement proceeds based on those findings.
Equitable theories
On appeal, Caggins attempts to raise quasi-estoppel as a counter-defense barring Potts's right to raise, on T.D.'s behalf, defenses to enforcement of Caggins's purported fee agreements. Quasi-estoppel precludes a party from asserting, to another's detriment, a right inconsistent with a position he has previously taken. See Enochs v. Brown, 872 S.W.2d 312, 317 (Tex. App.--Austin 1994, no writ). The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one in which he accepted a benefit. Id. Caggins did not raise quasi-estoppel in the district court, however, nor did he seek findings of fact and conclusions of law regarding that theory. As the party with the burden of proving quasi-estoppel, Caggins's failure to seek findings and conclusions regarding that theory waives it. See Intec Systems, Inc. v. Lowrey, 230 S.W.3d 913, 918-19 (Tex. App.--Dallas 2007, no pet.).
Caggins also claims that he is entitled to attorney's fees under quantum meruit. To recover under quantum meruit, a claimant must prove that: (1) valuable services were rendered; (2) for the person sought to be charged; (3) the services were accepted, used, and enjoyed by the person sought to be charged; and (4) the acceptance, use, and enjoyment was under such circumstances as reasonably notified the person sought to be charged that the claimant, in performing such services, was expecting to be paid by the person sought to be charged. See Enochs, 872 S.W.2d at 321. Although we cannot find in the record that Caggins ever explicitly invoked "quantum meruit" in the district court, Caggins did raise arguments and present proof going to the substance of such a theory. He testified (and Johnson's attorney concurred) that he had been the plaintiffs' sole attorney during the prosecution of their claim; that he had performed some unspecified work in connection with State Farm and USAA's agreements to pay policy limits; that the ad litem, Potts, credited him with the federal government's $15,287.73 reduction in its medical lien and had recommended a $12,500 fee for that work and other efforts in connection with the State Farm payment (although Potts did not elaborate on the bases for these conclusions, and acknowledged that Caggins had refused to provide him an objective measure of the value of Caggins's services); and that Caggins had made several trips from Houston to Memphis and Bell County. The district court, further, made two findings to the effect that Caggins had failed to meet his burden of proving the reasonable value of his services to T.D.: Caggins (1) "declined to allow his case file to be examined by the attorney ad litem, declined to furnish a time sheet showing the time spent on the case and declined to give an estimate of the number of hours spent in representation of the case," and (2) "is claiming that he is entitled to a percentage of the amounts to be distributed to the Minor Plaintiff . . . and is not seeking compensation for his hourly work based on an hourly rate." In the absence of any attempt by Caggins to quantify the value of any legal services he provided T.D. beyond his bare reliance on a claimed contingent-fee percentage, (7) the district court did not abuse its discretion in refusing to award Caggins attorney's fees under quantum meruit. See Hoover Slovacek L.L.P. v. Walton, 206 S.W.3d 557, 565-66 (Tex. 2006) (holding that law firm "no longer has a claim for quantum meruit" arising from services provided under a contingent-fee contract where it had failed to present evidence of the reasonable value of those services); cf. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997) (bare contingent-fee percentage is insufficient evidence of reasonable and necessary attorney's fees).
CONCLUSION
We overrule Caggins's issue on appeal and affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: February 7, 2008
1. The record reflects that Caggins also asserted a similar attorney's-fee claim in the Tennessee guardianship proceeding. The Tennessee court held that the district court here had sole jurisdiction to adjudicate Caggins's entitlement to fees from the settlement proceeds.
2. Caggins also filed a motion to modify the judgment to clarify that the district court had denied his request for fees from the State Farm policy proceeds and that the $53,333.33 in the court's registry "are pending further Order of the Court and the outcome of the Court's denial of any attorney's fee to plaintiff's counsel . . . asserted as 1/3 interest ($33,333.33) of the $100,000 settlement or they will be held until [T.D.'s] 18th birthday."
3. Specifically, Johnson's counsel stated:
[F]rom the outset the claim was presented on behalf of the named Plaintiffs by attorney Don R. Caggins. I worked with no other attorney throughout the process and worked with no other person on behalf of the Plaintiffs in terms of handling and settling their personal injury claims. The only person who's claimed to have represented them in that capacity has been Don R. Caggins.
4. Caggins argues that he "was cloaked in authorization for representation of the appellants in the prosecution of their claims as evidenced by the contracts initially entered into in November of 2000 and the contract executed in an effort to relate back to the original . . ." and that "the refusal of the court to allow payment of any kind under any agreement is an abuse of discretion." He elsewhere asserts that "Jackson . . . acted on behalf of the child and authorized counsel to represent her in recovery of damages, offers her telephone number . . . address . . . and invited that any (one) with questions please feel free to call," and that Ray "had boldly included . . . the specific amount of 33 1/3% of any collection before suit is filed and 40% stated after." We will construe these assertions as a challenge to the district court's underlying findings that Caggins had no enforceable contract for fees and its exercise of discretion to deny fees in light of those findings.
5. Caggins states that the settlement "was based on the work product of appellent's [sic] counsel" and that "[t]he court's exercise of its discretion could have allowed some determination of actual contract by analysis or quantum meruit in attempting to prevent appellant[']s total lockout of payment of fees and the unjust enrichment of all plaintiffs."
6. Caggins asserts in his brief that "the court in its Findings of Facts and Conclusions of Law declared that they were entered without grounds and solely within the discretion of the court. (C.R.- 153-155)." The citation references one of the proposed findings of fact and conclusions of law that Caggins filed--"The denial of plaintiff's counsel's attorney's fees is made within the Court's discretion and without stated grounds." The district court did not adopt or make any such finding.
7. Nor does Caggins contend that he has conclusively proven the other elements of quantum meruit. See Tex. R. Civ. P. 297 (where trial court has made findings regarding one or more elements of a claim or defense, omitted unrequested elements, when supported by the evidence, are presumed in support of the judgment).
03-06-00242-CV
Hazel Ray, Individually and Executrix of the Estate of Dock L. Dire; Teaneah Jackson, as Next Friend of T. D., a Minor; and Attorney Don R. Caggins, Sr. v. T. D., a Minor
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 189,057-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This appeal involves a dispute over an attorney's claim for fees from the proceeds of a minor settlement. Finding in part that the minor's attorney had no enforceable agreement entitling him to fees from the settlement proceeds, the district court denied the attorney any recovery. The attorney, Don R. Caggins, Sr., brings a single issue asserting that the district court abused its discretion in so ruling. On this record, we cannot conclude that the district court abused its discretion. We will affirm the judgment.
BACKGROUND
In October 2000, Dock L. Dire was killed in an automobile-motorcycle collision with Carroll C. Johnson. At the time of his death, Dire had a minor daughter, T.D. Appellant Teaneah Jackson is T.D.'s mother, while appellant Hazel Ray is Dire's surviving mother and executrix of his estate. Jackson and Ray are residents of Shelby County, Tennessee. Shortly after Dire's death, a guardianship proceeding was filed in the probate court of Shelby County and, on or about January 30, 2001, Ms. Jackson was appointed and qualified as guardian of T.D.'s estate.
In October 2001, Ray, individually and as executrix of Dire's estate, and Jackson, as T.D.'s next friend, filed a "friendly" wrongful death action against Johnson in the district court of Bell County. The action was intended to obtain the court's approval of a settlement wherein Johnson's automobile insurance carrier, State Farm, had agreed to pay the $100,000 limit of Johnson's policy, to be apportioned among the plaintiffs, in exchange for a release. Caggins represented all three plaintiffs. The district court appointed a guardian ad litem, Neale Potts, to represent T.D.'s interests. Various complications delayed efforts to finalize the settlement, including a lien asserted by the federal government for medical care provided to Dire, events in the Tennessee guardianship proceeding, and Caggins's claim for attorney's fees. Eventually, State Farm, on Johnson's behalf, agreed to interplead the $100,000 policy limits, deposit the amount into the court's registry, and bring in the federal government as a third-party defendant.
The parties eventually resolved the lien issue, leaving Caggins's attorney's-fee claim as the sole sticking point in finalizing the settlement and dispensing the funds. (1) On March 21, 2005, Caggins filed a motion for court approval of attorney's fees "in the amount of 33 1/3 of the recovery." Caggins represented that he "has been the sole attorney to prosecute this cause on behalf of all Plaintiffs . . . since November 2000" and that he "has prosecuted the claim whereby policy limits has been tendered by Defendants."
Potts, the guardian ad litem, filed a report with the court in which he objected to Caggins's request:
I have not been able to reach an agreement with Mr. Caggins as to the amount of his fee. It appears to me that this case required very little work by Mr. Caggins to obtain the insurance company's agreement to tender the policy limit. Although on December 23, 2004, I requested that Mr. Caggins furnish me with a copy of his file and a listing or estimation of the time he spent obtaining the settlement, he has declined to do so.
The determination of the amount of attorney's fee[s] due Mr. Caggins is further complicated by the fact that he has represented to [] me throughout this case . . . that he was employed by Teaneah Jackson, the mother of [T.D.], to represent the interests of the child based upon a 40% contingency fee contract. It appears that the only contract executed by Teaneah Jackson is a handwritten letter signed by her, a copy of which is attached hereto. I am not even sure that writing constitutes a contract for legal services. . . .
. . . .
It appears to me that Mr. Caggins may also have various conflicts of interest in representing the various parties in this case. In requesting this Court to allow a fee based upon the percentage of the recovery where no contingency fee contract exists, I believe that Mr. Caggins is taking a position that is adverse to his client, [T.D.]
Mr. Caggins is also representing Hazel Ray, the mother of Dock L. Dire. . . . The three clients of Mr. Caggins have conflicting claims to the $100,000 settlement proceeds, particularly where the damages suffered by [T.D.] as a result of the death of her father far exceed the amount of the settlement proceeds.
. . . .
To Mr. Caggins's credit he has obtained a reduction in the medical lien from $44,353.15 to $29,065.42, resulting in a savings of $15,287.73.
It is my recommendation to the Court that Mr. Caggins's fee should not exceed $12,500.
Potts attached to his report a copy of the Jackson "handwritten letter." It states:
I'm mother of [T.D.] I herein imply [sic] attorney Don Caggins to represent the interests of my daughter [T.D.] for the death of her father Dock L. Dire.
Thanks,
Ms. Teaneah T. Jackson.
The document then listed Jackson's address and contact information and concluded with, "Any questions please feel free to call." The document was not dated, was not signed by Caggins, and did not mention fees or a fee agreement.
Potts also attached a document entitled "Power of Attorney" that was purportedly executed by Caggins and Hazel Ray. The instrument appointed Caggins "as my true and lawful attorney" and provided that he would receive "33 1/3 percent of any collection on settlement before" filing suit and 40 percent "after suit is filed," after deduction for expenses.
Potts asserted in his report that Caggins had not complied with the statutory requirements governing contingent-fee agreements, see Tex. Gov't Code Ann. § 82.065 (West 2005), and that Caggins had violated the disciplinary rules of professional conduct. See Tex. Disciplinary R. Prof'l Conduct 1.04(d) (relating to contingent-fee contracts), 1.06(b) (relating to conflicts of interest), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (West 2005). Potts also argued that by seeking recovery of attorney's fees out of T.D.'s settlement proceeds, Caggins had breached his fiduciary duty to T.D. and that fee forfeiture was an appropriate remedy for such a breach. See Burrow v. Arce, 997 S.W.2d 229, 237-38 (Tex. 1999).
Potts also noted correspondence to the effect that USAA, Dire's automobile insurer, had agreed to pay the $300,000 policy limits on Dire's uninsured/underinsured motorist coverage, and that Caggins was claiming he was due a fee of $100,000 in that action, but that the case had not yet been filed.
Caggins filed a one-page response to the ad litem's report in which he stated, "There does not exist nor have their [sic] ever existed a conflict of interest between any of my clients." Caggins also expressed surprise at Potts's position that he was entitled to only a $12,500 fee, claiming that he had understood Potts to have already agreed to a $25,000 fee, only $8,333.33 short of the $33,333.33 Caggins had claimed.
A hearing was held on April 1, 2005. The only evidence presented, in addition to Potts's ad litem report, was a December 29, 2004 letter from Potts, introduced by Caggins, in which the ad litem had suggested a distribution of the settlement proceeds whereby Caggins would receive $25,000 in attorney's fees. Potts explained that he had written this letter based on Caggins's representations throughout the litigation that he actually had an enforceable 40% contingent-fee agreement. According to Potts, he did not ascertain the true nature of Caggins's agreements until later, "probably two weeks prior to the date of my report."
Potts explained generally that his recommendation of a $12,500 fee--"if the court is going to allow a fee"--was "based upon the reduction of the government lien and . . . some work by Mr. Caggins in obtaining the settlement." Potts added, however, that he had been "unable to obtain a copy of Mr. Caggins's file to review and . . . a listing of his time in this case . . .and it's been difficult for me to come to an--even a recommendation for fees."
During the hearing, the district court expressed reservations that Caggins had an enforceable fee agreement, but added that "before I gut a lawyer on his entire fee, I'm going to take this matter under advisement and look at it very carefully." Two weeks after the hearing, the district court advised the parties by letter that it had "determined that Mr. Caggins is not entitled to any attorney's fees out of the settlement proceeds."
Subsequently, USAA filed a plea in intervention to interplead the $300,000 limits of Dire's
underinsured motorist coverage. The district court later granted the intervention.
In September, the district court signed a judgment approving the settlement between the plaintiffs and Johnson, dividing most of the $100,000 settlement proceeds among the plaintiffs, releasing Johnson, but reserving the disputed amount of Caggins's attorney's-fee claim. The court ordered $53,333 deposited in the court's registry for the benefit of T.D. pending further orders of the court or to be held until T.D.'s eighteenth birthday. The amount apparently included (1) $20,000, the amount of a structured-settlement for T.D.'s benefit; and (2) $33,333, the amount of Caggins's attorney's-fee claim against the settlement proceeds.
Potts filed a motion to withdraw all funds held in the court's registry and forward them to the registry of the Tennessee probate court. Caggins objected to the withdrawal of all of the funds, arguing that the district court had not rendered a judgment regarding his entitlement to attorney's fees from the $300,000 tendered to the court by USAA. (2)
A hearing was held on January 13, 2006. On that date, for the first time, Caggins presented two typewritten documents, each titled "Contingent Fee Contract," one of which was between himself and Hazel Ray, while the other was between himself and Jackson, as T.D.'s next friend. Both contracts were dated January 6, 2006, but purported to relate back to the commencement of Caggins's representation on November 16, 2000. The contracts provided for 33 1/3 percent of any gross recovery before any court action is filed, 40 percent of any gross recovery after the action is filed, but before commencement of trial, 45 percent of any gross recovery after commencement of trial, and 50 percent of any gross recovery after the filing of any appeal by any party. Caggins introduced these documents into evidence and asserted that they rendered moot any dispute regarding the enforceability of his earlier purported fee agreements. Caggins acknowledged that the two contracts were signed on January 6 and that he did not know whether Jackson had obtained authorization from the Tennessee probate court to execute her contract on T.D.'s behalf. Potts, on T.D.'s behalf, urged that these instruments were unenforceable, violated ethics rules, and breached Caggins's fiduciary duty to T.D.
Caggins also presented some brief testimony touching on the legal services he had provided to T.D. and the other plaintiffs. The following is his entire testimony regarding that matter:
. . . I represented not only the minor in this matter, but the estate of the daughter and also the surviving mother who is Hazel Ray. So, not only did I represent the minor, but I also represented the estate and Ms. Hazel Ray.
. . . .
The record will reflect that all of the work for the Plaintiff has been performed by me or my law firm, all of the investigative work. I made four trips to Memphis, Tennessee. I made approximately 13 trips from Houston to Bell County, the--the only attorney that represented the interest of the minor, the interest of the estate, or the interest of the surviving mother has been myself.
. . . The maximum amount of recovery has been recovered from the available funds and policies in this matter.
. . . .
I performed all of the work, Judge.
Johnson's counsel also stipulated on the record that Caggins had been the only attorney representing the plaintiffs' personal injury claims and that he had worked with no other attorney or other person acting on the plaintiffs' behalf. (3)
On cross-examination, Potts elicited Caggins's admission that Potts had asked for a copy of Caggins's files, a time sheet, or a compilation of the number of hours Caggins had spent on the case so Potts could determine how much work Caggins had put into the case. Caggins acknowledged that he had not provided that information.
At the hearing's conclusion, the district court invited additional briefing on the attorney's-fee issue. It ultimately rendered final judgment that Caggins was "not entitled to receive any attorney's fees from the settlement proceeds on deposit in the Registry of this Court." The district court further ordered that all funds in excess of the $133,333.33 claimed as attorney's fees (the $33,333.33 Caggins claimed from the State Farm proceeds plus the $100,000 he claimed from the USAA proceeds) be transferred to the probate court in Shelby County, Tennessee and that the $133,333.33 claimed as attorney's fees be placed in an interest-bearing account in the district court's registry pending further order of the district court. The district court entered the following pertinent findings of fact based on the evidence presented at the two hearings:
6. . . . . No evidence has been presented to this Court that the Probate Court in Shelby County, Tennessee has authorized Teaneah Jackson to enter into a contract with Attorney Caggins for the representation of the minor, [T.D.]
. . . .
9. On April 1, 2005, . . . the court received evidence and heard argument with regard to whether or not attorney's fees could be collected or charged as they related to the funds distributed to the minor plaintiff. . . [Caggins] represented to the court that he was the attorney for the minor plaintiff. . . . In support of his motion [for attorney's fees], Mr. Caggins offered the following evidence:
a. A handwritten unverified document purportedly signed by Teaneah Jackson [quoted, attached, and incorporated].
b. A document entitled "Power of Attorney" purportedly executed by Hazel Matthew Ray . . . .[attached and incorporated].
c. In response to Mr. Caggins's motion, the ad litem, Mr. Potts, offered his report which was accepted as evidence and testimony and is included herein [attached].
At hearings before the court on April 1, 2005 and January 13, 2006, Mr. Caggins declined to allow his case file to be examined by the attorney ad litem, declined to furnish a time sheet showing the time spent on the case and declined to give an estimate of the number of hours spent in representation of the case.
The parties were notified by the Court in a letter dated April 14, 2005 that the Court had determined that Mr. Caggins was not entitled to any attorney's fees from the settlement [letter attached and incorporated].
. . . .
13. No sufficient evidence has been presented to this court to support a legally binding claim for the recovery of attorney's fees of and from the proceeds to be distributed to the minor plaintiff, [T.D.]
14. Attorney Don R. Caggins, Sr., is claiming that he is entitled to a percentage of the amounts to be distributed to the Minor Plaintiff, [T.D.] and is not seeking compensation for his hourly work based on an hourly rate.
15. No legally enforceable written agreement has been presented to the Court or offered as evidence to support a claim for a contingency fee or percentage recovery for attorney's fees out of the funds to be distributed to the Minor Plaintiff, [T.D.]
. . . .
19. There is an inherent conflict of interest when an attorney represents multiple parties asserting claims against the same settlement proceeds if the damages suffered by the parties exceeds the amount of the settlement proceeds.
20. There is no evidence that each affected or potentially affected client consented to representation by Attorney Don R. Caggins, Sr., after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation of the Plaintiffs and the advantages involved, if any.
21. . . . . The [January 6, 2006] Contract [attached and incorporated] was obtained after Mr. Caggins had received notice from this Court in its letter of April 14, 2005 that he was not entitled to any attorney's fees in this case from the settlement proceeds of the minor, [T.D.]
The district court also made the following conclusions of law:
2. The court finds that the evidence presented in support of Attorney Caggins's motion is insufficient to establish a legal right to recover attorney's fees with regards to the funds distributed to the minor, [T.D.], herein.
3. The court finds that there is no legally enforceable contract for attorney's fees between Attorney Caggins and the minor plaintiff, [T.D.]
4. The court finds that no one with legal capacity to retain an attorney on behalf of the minor Plaintiff, [T.D.], ever entered into a proper contract protecting her interest prior to settlement of the claims approved by this Court.
5. The court finds that the evidence presented by the attorney ad litem, Neale Potts, is sufficient to support a finding that a conflict of interest [existed] between the parties purportedly represented by Don R. Caggins, Sr. and that no evidence indicating a full disclosure of said conflict has ever been presented to this Court or the alleged clients of Don R. Caggins, Sr. Specifically, rule 1.06 of the Texas Disciplinary Rules of Professional Conduct precludes Attorney Caggins's effort to seek attorney's fees with regard to the funds agreed to be distributed to the minor plaintiff [T.D.]
6. Attorney Don R. Caggins, Sr. has breached his fiduciary duty to his client by attempting to establish that he is entitled to a contingent attorney's fee through the execution of the Contingent Fee Contract dated January 6, 2006 after being previously advised that he was not entitled to a contingent attorney's fee in the Court's letter of April 14, 2005.
7. The settlements and Judgments herein are approved and are in the best interest of the Minor, [T.D.]
8. It is in the best interest of the Minor, [T.D.], that no attorney's fees be awarded to Attorney Don R. Caggins, Sr., herein.
This appeal followed.
DISCUSSION
In his single issue, Caggins argues that the district court abused its discretion by "denying plaintiffs' counsel recovery of attorney's fees though plaintiffs' counsel represented all plaintiffs in this cause of action," in allowing "recovery to all plaintiffs without compensation to plaintiffs' counsel," and by "fail[ing] to exercise its discretion in and determined an equitable distribution of attorney's fees as reasonable and necessary payment . . . for counsel's representation of the minor child and remaining plaintiffs." As best we can discern, Caggins asserts on appeal three theories as to why the district court abused its discretion in refusing to award him attorney's fees: (1) Caggins had an enforceable attorney's-fee agreement (i.e., he challenges the sufficiency of the evidence supporting the district court's findings to the contrary) (4); (2) Potts, the ad litem, was barred by quasi-estoppel from challenging the enforceability of these agreements; and (3) quantum meruit. (5) Caggins prays that he "is entitled to recover reasonable and necessary attorney's fees which are customary to the facts, to-wit, 33 1/3% of the proceeds of the recovery now held in the registry of the district clerk of Bell County, Texas."
Standard of review
Generally, we review a trial court's decision to either grant or deny recovery of attorney's fees under an abuse of discretion standard. EMC Mortg. Corp. v. Davis, 167 S.W.3d 406, 418 (Tex. App.--Austin 2005, pet. denied). The ultimate test for abuse of discretion is whether the ruling was unreasonable or arbitrary or made "without reference to any guiding rules or principles." Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)). When reviewing a trial court's decision under this standard, we must view the evidence in the light most favorable to the trial court's ruling and indulge every presumption in its favor. Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 444 (Tex App.--Houston [14th Dist.] 2003, no pet.); Phillips & Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex. App.--Houston [1st Dist.] 1996, no writ). Legal- and factual-sufficiency issues may be subsumed within this inquiry. Specifically, we may consider both whether the trial court had sufficient information (i.e., sufficient evidence) upon which to exercise its discretion and, if so, whether the trial court abused the exercise of its discretion based on that information. See Cordova v. Sw. Bell Yellow Pages, Inc., 148 S.W.3d 441, 445-46 (Tex. App.--El Paso 2004, no pet.). Where, as here, the trial court made findings of fact and conclusions of law, the evidentiary-sufficiency component of the inquiry is focused on those findings. See Tex. R. Civ. P. 299. (6)
Contract
For a contingent-fee contract to be enforceable, it must satisfy section 82.065 of the government code:
(a) A contingent fee contract for legal services must be in writing and signed by the attorney and client.
(b) A contingent fee contract for legal services is voidable by the client if it is procured as a result of conduct violating the laws of this state or the Disciplinary Rules of the State Bar of Texas regarding barratry by attorneys or other persons.
Tex. Gov't Code Ann. § 82.065. A contingent-fee contract must also satisfy the requirements of rule 1.04(d) of the disciplinary rules of professional conduct:
A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined. If there is to be a differentiation in the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated. The agreement shall state the litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.
Tex. Disciplinary R. Prof'l Conduct 1.04(d).
The district court found that there was no evidence the Tennessee probate court had authorized Jackson, T.D.'s guardian since January 2001, to execute a contract with Caggins on T.D.'s behalf. Furthermore, the "handwritten unverified document purportedly signed by Teaneah Jackson," mentions nothing about attorney's fees. And, although the "Power of Attorney" purportedly executed by Hazel Ray does mention attorney's fees, it does not reflect that Ray executed the document other than in her own behalf. On the face of each document, neither is an enforceable contract entitling Caggins to attorney's fees from the settlement proceeds paid to T.D.
As for the January 6, 2006 contract, the district court found that at the time of execution, Caggins had a conflict of interest with T.D. arising from their competing claims to the finite settlement proceeds and that Caggins had failed to comply with the disciplinary rules in obtaining his client's consent after disclosure. The district court further found that Caggins previously had been notified by letter "that the Court had determinated that Mr. Caggins was not entitled to any attorney's fees from the settlement proceeds" and concluded that Caggins breached his fiduciary duty to his client by procuring the January 6, 2006 contract "after being previously advised that he was not entitled to a contingent attorney's fee." These findings and conclusions, which Caggins does not explicitly challenge, support the district court's finding that the instrument was unenforceable.
The evidence is legally and factually sufficient to support the district court's findings that Caggins had no enforceable agreement entitling him to attorney's fees from the minor settlement proceeds. The district court did not abuse its discretion in refusing to award Caggins attorney's fees from the settlement proceeds based on those findings.
Equitable theories
On appeal, Caggins attempts to raise quasi-estoppel as a counter-defense barring Potts's right to raise, on T.D.'s behalf, defenses to enforcement of Caggins's purported fee agreements. Quasi-estoppel precludes a party from asserting, to another's detriment, a right inconsistent with a position he has previously taken. See Enochs v. Brown, 872 S.W.2d 312, 317 (Tex. App.--Austin 1994, no writ). The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one in which he accepted a benefit. Id. Caggins did not raise quasi-estoppel in the district court, however, nor did he seek findings of fact and conclusions of law regarding that theory. As the party with the burden of proving quasi-estoppel, Caggins's failure to seek findings and conclusions regarding that theory waives it. See Intec Systems, Inc. v. Lowrey, 230 S.W.3d 913, 918-19 (Tex. App.--Dallas 2007, no pet.).
Caggins also claims that he is entitled to attorney's fees under quantum meruit. To recover under quantum meruit, a claimant must prove that: (1) valuable services were rendered; (2) for the person sought to be charged; (3) the services were accepted, used, and enjoyed by the person sought to be charged; and (4) the acceptance, use, and enjoyment was under such circumstances as reasonably notified the person sought to be charged that the claimant, in performing such services, was expecting to be paid by the person sought to be charged. See Enochs, 872 S.W.2d at 321. Although we cannot find in the record that Caggins ever explicitly invoked "quantum meruit" in the district court, Caggins did raise arguments and present proof going to the substance of such a theory. He testified (and Johnson's attorney concurred) that he had been the plaintiffs' sole attorney during the prosecution of their claim; that he had performed some unspecified work in connection with State Farm and USAA's agreements to pay policy limits; that the ad litem, Potts, credited him with the federal government's $15,287.73 reduction in its medical lien and had recommended a $12,500 fee for that work and other efforts in connection with the State Farm payment (although Potts did not elaborate on the bases for these conclusions, and acknowledged that Caggins had refused to provide him an objective measure of the value of Caggins's services); and that Caggins had made several trips from Houston to Memphis and Bell County. The district court, further, made two findings to the effect that Caggins had failed to meet his burden of proving the reasonable value of his services to T.D.: Caggins (1) "declined to allow his case file to be examined by the attorney ad litem, declined to furnish a time sheet showing the time spent on the case and declined to give an estimate of the number of hours spent in representation of the case," and (2) "is claiming that he is entitled to a percentage of the amounts to be distributed to the Minor Plaintiff . . . and is not seeking compensation for his hourly work based on an hourly rate." In the absence of any attempt by Caggins to quantify the value of any legal services he provided T.D. beyond his bare reliance on a claimed contingent-fee percentage, (7) the district court did not abuse its discretion in refusing to award Caggins attorney's fees under quantum meruit. See Hoover Slovacek L.L.P. v. Walton, 206 S.W.3d 557, 565-66 (Tex. 2006) (holding that law firm "no longer has a claim for quantum meruit" arising from services provided under a contingent-fee contract where it had failed to present evidence of the reasonable value of those services); cf. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997) (bare contingent-fee percentage is insufficient evidence of reasonable and necessary attorney's fees).
CONCLUSION
We overrule Caggins's issue on appeal and affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: February 7, 2008
1. The record reflects that Caggins also asserted a similar attorney's-fee claim in the Tennessee guardianship proceeding. The Tennessee court held that the district court here had sole jurisdiction to adjudicate Caggins's entitlement to fees from the settlement proceeds.
2. Caggins also filed a motion to modify the judgment to clarify that the district court had denied his request for fees from the State Farm policy proceeds and that the $53,333.33 in the court's registry "are pending further Order of the Court and the outcome of the Court's denial of any attorney's fee to plaintiff's counsel . . . asserted as 1/3 interest ($33,333.33) of the $100,000 settlement or they will be held until [T.D.'s] 18th birthday."
3. Specifically, Johnson's counsel stated:
[F]rom the outset the claim was presented on behalf of the named Plaintiffs by attorney Don R. Caggins. I worked with no other attorney throughout the process and worked with no other person on behalf of the Plaintiffs in terms of handling and settling their personal injury claims. The only person who's claimed to have represented them in that capacity has been Don R. Caggins.
4. Caggins argues that he "was cloaked in authorization for representation of the appellants in the prosecution of their claims as evidenced by the contracts initially entered into in November of 2000 and the contract executed in an effort to relate back to the original . . ." and that "the refusal of the court to allow payment of any kind under any agreement is an abuse of discretion." He elsewhere asserts that "Jackson . . . acted on behalf of the child and authorized counsel to represent her in recovery of damages, offers her telephone number . . . address . . . and invited that any (one) with questions please feel free to call," and that Ray "had boldly included . . . the specific amount of 33 1/3% of any collection before suit is filed and 40% stated after." We will construe these assertions as a challenge to the district court's underlying findings that Caggins had no enforceable contract for fees and its exercise of discretion to deny fees in light of those findings.
5. Caggins states that the settlement "was based on the work product of appellent's [sic] counsel" and that "[t]he court's exercise of its discretion could have allowed some determination of actual contract by analysis or quantum meruit in attempting to prevent appellant[']s total lockout of payment of fees and the unjust enrichment of all plaintiffs."
6. Caggins asserts in his brief that "the court in its Findings of Facts and Conclusions of Law declared that they were entered without grounds and solely within the discretion of the court. (C.R.- 153-155)." The citation references one of the proposed findings of fact and conclusions of law that Caggins filed--"The denial of plaintiff's counsel's attorney's fees is made within the Court's discretion and without stated grounds." The district court did not adopt or make any such finding.
7. Nor does Caggins contend that he has conclusively proven the other elements of quantum meruit. See Tex. R. Civ. P. 297 (where trial court has made findings regarding one or more elements of a claim or defense, omitted unrequested elements, when supported by the evidence, are presumed in support of the judgment).
Dunn v. PUC (Tex. App.- Austin, Feb. 7, 2008)
AFFIRMED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)
03-06-00699-CV
Jim Dunn and Ellen Dunn v. Public Utility Commission of Texas and Oncor Electric Delivery Company--Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-04-001246, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
O P I N I O N
This is an appeal of an order of the Public Utility Commission of Texas ("PUC") amending Appellee Oncor Electric Delivery Company's (1) certificate of convenience and necessity to allow the construction of a power transmission line that will cross the property of Appellants Jim and Ellen Dunn. The Dunns complain that the PUC's findings as to the existence of endangered species habitat on their property as well as the impact of the construction of the proposed transmission line on that habitat were not supported by substantial evidence, and that the PUC acted arbitrarily and capriciously in finding that the route of the proposed transmission line complied with PUC Substantive Rule 25.101(c)(6)(D), which requires that--to the extent reasonable within engineering constraints--the line be routed to moderate its impact on affected landowners and to parallel existing rights-of-way and property boundary lines. The district court affirmed the PUC's order. We affirm the judgment of the district court.
BACKGROUND
Oncor is an investor-owned electric utility company. On December 31, 2002, Oncor filed an application with the PUC to amend its certificate of convenience and necessity ("CCN") to construct a 15.7-mile, 138-kilovolt, single-circuit transmission line in western Bell County and southern Coryell County (the "Project"). Oncor's application included six potential routes for the Project--a preferred route and five alternative routes. The preferred route runs through the Dunns' property along a proposed 70-foot-wide easement. (2)
After an administrative hearing before the State Office of Administrative Hearings in September 2003, in which the City of Copperas Cove and other potentially affected landowners (including the Dunns) intervened, the administrative law judge prepared a Proposal for Decision granting Oncor's application to amend its CCN and approving the preferred route for the location of the transmission line. The PUC adopted the administrative law judge's Proposal for Decision in its entirety, including findings of fact and conclusions of law, in a final order signed February 3, 2004. The Dunns filed a motion for rehearing with the PUC. No Commissioner voted to consider the motion for rehearing, and the PUC's order became final on March 15, 2004. The Dunns timely appealed the PUC's order to the district court. The district court entered judgment affirming the PUC order. The Dunns appeal from the judgment of the district court.
The Dunns have two complaints on appeal. First, the Dunns take issue with the PUC's analysis of the impact of the preferred route on endangered species whose habitats are in the vicinity of the route. Specifically, the Dunns argue that the PUC's findings of fact relating to the environmental impact of the preferred route on protected habitat are not supported by substantial evidence. Second, the Dunns argue the PUC was obligated by rule to select a route that followed a greater percentage of existing rights-of-way and property boundary lines than the preferred route, and the PUC's failure to do so was arbitrary, capricious, an abuse of discretion, and not supported by substantial evidence.
Standard of Review
We review the PUC's findings of fact under the substantial evidence standard of review. See Tex. Util. Code Ann. § 15.001 (West 2007); Reliant Energy, Inc. v. Public Util. Comm'n, 153 S.W.3d 174, 184 (Tex. App.--Austin 2004, no pet.). We presume that the PUC's order is supported by substantial evidence, and the Dunns have the burden to demonstrate otherwise. ASAP Paging, Inc. v. Public Util. Comm'n, 213 S.W.3d 380, 392 (Tex. App.--Austin 2006, pet. denied).
An administrative decision is supported by substantial evidence if the evidence as a whole is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action. Texas State Bd. of Dental Exam'rs v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). Substantial evidence requires "only more than a mere scintilla," and the evidence on the record actually may preponderate against the decision of the agency and nonetheless amount to substantial evidence. Railroad Comm'n v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex. 1995). We may not substitute our judgment for that of the agency on the weight of the evidence. ASAP Paging, 213 S.W.3d at 392. The test is not whether in our view the agency reached the correct conclusion but whether some reasonable basis exists in the record for the agency's action. Id. at 393. We will consider an administrative agency's decision to be arbitrary and capricious or an abuse of discretion if the agency reaches a completely unreasonable result after weighing the relevant factors established by the legislature. See City of El Paso v. Public Util. Comm'n, 883 S.W.2d 179, 184 (Tex. 1994).
Environmental Integrity
Under the Public Utility Regulatory Act ("PURA"), an electric utility must obtain a CCN from the PUC in order to install, operate, or extend electric utility service to the public. See Tex. Util. Code Ann. § 37.051 (West 2007). To approve an application to obtain or amend a CCN, the PUC must find that the proposed CCN is "necessary for the service, accommodation, convenience, or safety of the public." Id. § 37.056(a) (West 2007). Section 37.056(c) of the PURA sets forth the criteria according to which the PUC is to make its determination:
The commission shall grant each certificate on a nondiscriminatory basis after considering:
(1) the adequacy of existing service;
(2) the need for additional service;
(3) the effect of granting the certificate on the recipient of the certificate and any electric utility serving the proximate area; and
(4) other factors, such as:
(A) community values;
(B) recreational and park areas;
(C) historical and aesthetic values;
(D) environmental integrity; and
(E) the probable improvement of service or lowering of cost to consumers in the area if the certificate is granted.
Act of May 8, 1997, 75th Leg., R.S., ch. 166, § 1, sec. 37.056(c), 1997 Tex. Gen. Laws 713, 787 (amended 2003) (current version at Tex. Util. Code Ann. § 37.056(c) (West 2007)). (3)
The PUC determined that the Project was "necessary for the service, accommodation, convenience, and safety of the public within the meaning of PURA [section] 37.056, taking into consideration the factors set out in PURA [section] 37.056(b) and (c)," and, therefore, approved Oncor's application and selection of the preferred route.
The Dunns' first and second issues on appeal question the PUC's consideration of the "environmental integrity" factor. The PUC's findings of fact regarding environmental integrity are as follows:
38. Construction and operations of the Proposed Project on the Preferred Route will have minor impact on natural and human resources. Most of the Preferred Route will be constructed on pastureland, existing rights-of-way, or along property lines.
39. Burns & McDonnell contacted the United States Department of the Interior Fish and Wildlife Service (USFWS) and the Texas Parks and Wildlife Department (TPWD) to obtain information regarding the possibility of encountering any endangered or threatened species in the affected area.
40. There are no known threatened or endangered plant species occurring within the study area.
41. The black-capped vireo and the golden-cheeked warbler are classified by the USFWS as endangered species protected by the Endangered Species Act.
42. The black-capped vireo and the golden-cheeked warbler nest in the woodlands of Fort Hood Military Reservation.
43. USFWS has not designated a critical habitat for either the black-capped vireo or the golden-cheeked warbler.
44. Neither the black-capped vireo nor the golden-cheeked warbler habitat is crossed by Oncor's proposed routes.
45. USFWS advised Oncor that if suitable habitat exists along the Preferred Route, Oncor should conduct breeding season surveys to determine if the area is actually being used by the vireo and warbler and if either of them does occur in the area, select a route to avoid coming within 300 feet of occupied habitat. Alternatively, in the absence of a breeding season survey, Oncor should conduct activities outside the breeding season (i.e. avoid construction activities between March 1-September 1). In areas of suitable habitat, to avoid adverse impacts on this habitat, USFWS recommends that the maximum clearing width be 16 feet or less.
46. The process of transmission line construction and operation is not likely to have a negative impact on endangered or threatened wildlife species the area of the Proposed Project.
Central to the environmental integrity inquiry was the impact of the preferred route on the black-capped vireo and the golden-cheeked warbler, both classified as endangered species. The Dunns take issue with the PUC's findings that the preferred route will not cross either the black-capped vireo's or the golden-cheeked warbler's habitat and that the preferred route's construction and operation are "not likely to have a negative impact" on the endangered species.
The Dunns assert that the PUC's findings of fact on environmental impact are not supported by substantial evidence. The Dunns also assert that the findings of fact do not reasonably support the PUC's conclusion that the Project's preferred route satisfies PURA section 37.056.
All parties agreed that occupied habitat of both the black-capped vireo and the golden-cheeked warbler existed in the western portions of the Fort Hood Military Reservation. There was also no dispute that the preferred route, as it crossed through undeveloped property neighboring the Dunns' property as well as the Dunns' property, traveled just outside the western boundary of the Fort Hood Military Reservation. However, there was no evidence that occupied habitat was present on the preferred route or on the Dunns' property. Cyril Welter, a senior project manager for Burns & McDonnell Engineering Company Inc., the engineering and environmental consulting firm hired by Oncor for the Project, testified that there were "a couple" of known occurrences of the birds approximately 400 feet from the preferred route. The Dunns' expert witness on the environmental impact of the preferred route, wildlife biologist Allison Arnold, testified that because a population of the endangered birds existed on the Fort Hood Military Reservation it was "highly likely" that areas crossed by the preferred route could become occupied in the future. She also testified that although there was no known population of the endangered birds on the preferred route, it is possible that occupied habitat existed along the route but was, as yet, undiscovered. However, Arnold acknowledged that she could not say that occupied habitat currently existed along the preferred route, and that without an on-ground habitat assessment, there was no way to know for sure. Arnold had not conducted such an assessment, and Welter testified that the standard practice was for such assessments to be conducted once the PUC has approved a route.
The Dunns argue that the PUC's finding of fact to the effect that the preferred route did not cross habitat of either the black-capped vireo or the golden-cheeked warbler is inconsistent with the state of the evidence, which reflects that while there was no evidence that the preferred route crossed occupied habitat, it was acknowledged by experts on both sides that previously unknown occupied habitat might exist along the route, and that an on-ground habitat assessment would be needed to rule it out. However, the PUC's finding of fact is supported by the record. There was no evidence of the existence of occupied habitat along the preferred route. Thus, as of the date of the PUC's order, there was no basis for the PUC to find that occupied habitat existed along the route.
In light of the undisputed evidence in this record, the Dunns' complaint on appeal is not so much that the PUC's findings of fact are not supported by substantial evidence--indeed, a finding that the preferred route crossed occupied habitat would not have been supported by any evidence--but, rather, that the PUC should have included limiting language in its findings such as "given the current data" or "as of this time" because there was evidence that undiscovered occupied habitat might currently exist along the preferred route and/or occupied habitat might develop along the preferred route in the future. In fact, the PUC accounted for such possibilities in Ordering Paragraphs 2 and 3 of its final order:
2. Oncor shall perform a habitat assessment for the black-capped vireo and the golden-cheeked warbler . . . on the Preferred Route running close to the northwest boundary of Fort Hood Military Reservation to determine if the Preferred Route crosses the habitat of either bird.
3. If Oncor finds that the Preferred Route crosses the habitat of either bird, Oncor shall: (1) comply with the recommendations of the United States Department of Interior Fish and Wildlife Service, as specified in Finding of Fact No. 45; (2) make minor modifications to the centerline of the route with landowner approval in order to avoid the habitat; or (3) take such other action as is recommended by the United States Fish and Wildlife Service and agreed to by Oncor.
Thus, the PUC's findings of fact are consistent with the state of the record before it, and the ordering paragraphs take into account the possibility that unknown occupied habitat may be discovered in the process of constructing the transmission line.
Furthermore, environmental integrity is only one factor that the PUC may consider under PURA section 37.056(c). The PUC also weighed evidence indicating that there was a need for additional transmission capacity in the Copperas Cove area, that the Project was the best option to meet that need, and that the preferred route would adequately address community concerns about proximity to residences and visibility (the top two concerns identified in a public questionnaire from Oncor's August 24, 2000 "open house" meeting), would pass near the fewest number of recreational areas, parks, historical and archeological sites, commercial buildings, and churches, and would result in a lower cost passed on to consumers. We will not substitute our judgment for that of the PUC on whether the mere potential of an environmental integrity issue should outweigh the PUC's findings of fact on such other statutory factors. "None of the statutory factors is intended to be absolute in the sense that any one shall prevail in all possible circumstances." Public Util. Comm'n v. Texland Elec. Co., 701 S.W.2d 261, 267 (Tex. App.--Austin 1985, writ ref'd n.r.e.).
Use of Existing Rights-of-Way
In their third issue, the Dunns challenge the PUC's conclusion of law relating to the use of existing rights-of-way for the preferred route:
7. Pursuant to P.U.C. Subst. R. 25.101(c)(6)(D), the Preferred Route parallels existing road, pipeline, and transmission line rights-of-way for the majority of its length.
Given that the preferred route parallels existing rights-of-way, property lines, or other natural or cultural features for seventy-two percent of its length, the Dunns acknowledge that the conclusion of law is accurate. However, because two of the alternate routes proposed by Oncor (4) paralleled existing rights-of-way for eighty-four percent and eighty-eight percent of the length of their routes, respectively, the Dunns argue that the PUC's determination that the selection of the preferred route complies with PUC Substantive Rule 25.101(c)(6)(D) is not supported by substantial evidence. The implication of the Dunns' argument is that if there is evidence in the record that an alternate route will utilize a higher percentage of existing rights-of-way, selection of any other route will not be supported by substantial evidence regardless of other factors.
The rule, however, does not support such exclusive reliance on the numerical percentage of existing rights-of-way used or paralleled by the chosen route. PUC Substantive Rule 25.101(c)(6)(D) provides as follows:
A new transmission line shall meet the criteria in [PURA section] 37.056 and considering those criteria, engineering constraints, and costs, shall be routed to the extent reasonable to moderate the impact on the affected community and directly affected landowners unless grid reliability and security dictate otherwise. The following factors shall be considered . . . :
(i) whether the preferred and alternate routes utilize existing compatible rights-of-way, including the use of vacant positions on existing multiple-circuit transmission lines;
(ii) whether the preferred and alternate routes parallel existing compatible rights-of-way; and
(iii) whether the preferred and alternate routes parallel property lines or other natural or cultural features.
26 Tex. Reg. 8022 (2001), repealed in part and amended in part by 27 Tex. Reg. 10022 (2002) (former 16 Tex. Admin. Code § 25.101(c)(6)(D)) (Tex. Pub. Util. Comm'n). (5) The plain language of the rule grants the PUC authority to consider and weigh a variety of factors--engineering constraints, costs, grid reliability, and security, along with the criteria in PURA section 37.056--in addition to the use of existing rights-of-way in determining the most reasonable route for a transmission line. As with environmental integrity, no one factor controls or is dispositive. The PUC is expressly directed to consider the various factors and their impact on landowners to the extent reasonable. (6) There is substantial evidence in the record that the preferred route takes into consideration and makes reasonable accommodation for all of the various factors required by the applicable statutes and rules involved in locating the transmission line at issue. We find there is substantial evidence in the record to support the PUC's finding of fact relating to the use of existing rights-of-way for the approved route of the transmission line.
CONCLUSION
We hold that the PUC's findings of fact and conclusions of law relating to environmental integrity and the utilization of existing rights-of-way are supported by substantial evidence, and did not result in an order that was arbitrary, capricious, or an abuse of discretion. We affirm the judgment of the district court.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: February 7, 2008
1. Appellee Oncor Electric Delivery Company changed its name to TXU Electric Delivery Company soon after the Dunns filed their suit in the district court in 2004 attacking the PUC's order. On April 24, 2007, after the Dunns filed their appeal in this Court, Appellee changed its name back to Oncor Electric Delivery Company.
2. The Dunns' property in question is an approximately 33-acre, rectangular tract that straddles the boundary between Bell and Coryell Counties just south of the city of Copperas Cove. The U.S. Army's Fort Hood Military Reservation adjoins the Dunns' property on the east and northeast. There is one house on the property. Mrs. Dunn testified that she has made the property her home since 1989.
3. In 2003, section 37.056(c) of the PURA was amended to include another factor for the PUC's consideration--the effect of granting the certificate on the state's ability to meet the renewable energy goals established by PURA section 39.904(a). See Act of May 28, 2003, 78th Leg., R.S., ch. 295, § 2, 2003 Tex. Gen. Laws 1264. The new factor does not apply in this case because Oncor filed its application with the PUC before the statutory amendment.
4. Neither of the two alternate routes crossed the Dunns' property.
5. The PUC amended PUC Substantive Rule 25.101 effective January 1, 2003, moving the provision at issue from subsection (c)(6)(D) to subsection (b)(3)(B). See 16 Tex. Admin. Code § 25.101(b)(3)(B) (2005) (Tex. Pub. Util. Comm'n, Certification Criteria). Because Oncor filed its application with the PUC prior to such effective date, we consider the pre-amendment version of the rule.
6. We note that the final percentage of the preferred route's use of existing rights-of-way and property lines may be higher than the percentage reflected in the record. Oncor noted in its briefing that negotiations with property owners regarding the placement of its facilities on their properties would continue and some adjustments to the route could be made to accommodate certain requests by property owners. Specifically, Oncor suggested that realigning the preferred route to the eastern property line of the Dunn property might be a "viable routing modification." While it does not eliminate the transmission line from running on or near the Dunns' property, such an adjustment or accommodation might well mitigate or moderate the impact of the selected route on the Dunns.
03-06-00699-CV
Jim Dunn and Ellen Dunn v. Public Utility Commission of Texas and Oncor Electric Delivery Company--Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-04-001246, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
O P I N I O N
This is an appeal of an order of the Public Utility Commission of Texas ("PUC") amending Appellee Oncor Electric Delivery Company's (1) certificate of convenience and necessity to allow the construction of a power transmission line that will cross the property of Appellants Jim and Ellen Dunn. The Dunns complain that the PUC's findings as to the existence of endangered species habitat on their property as well as the impact of the construction of the proposed transmission line on that habitat were not supported by substantial evidence, and that the PUC acted arbitrarily and capriciously in finding that the route of the proposed transmission line complied with PUC Substantive Rule 25.101(c)(6)(D), which requires that--to the extent reasonable within engineering constraints--the line be routed to moderate its impact on affected landowners and to parallel existing rights-of-way and property boundary lines. The district court affirmed the PUC's order. We affirm the judgment of the district court.
BACKGROUND
Oncor is an investor-owned electric utility company. On December 31, 2002, Oncor filed an application with the PUC to amend its certificate of convenience and necessity ("CCN") to construct a 15.7-mile, 138-kilovolt, single-circuit transmission line in western Bell County and southern Coryell County (the "Project"). Oncor's application included six potential routes for the Project--a preferred route and five alternative routes. The preferred route runs through the Dunns' property along a proposed 70-foot-wide easement. (2)
After an administrative hearing before the State Office of Administrative Hearings in September 2003, in which the City of Copperas Cove and other potentially affected landowners (including the Dunns) intervened, the administrative law judge prepared a Proposal for Decision granting Oncor's application to amend its CCN and approving the preferred route for the location of the transmission line. The PUC adopted the administrative law judge's Proposal for Decision in its entirety, including findings of fact and conclusions of law, in a final order signed February 3, 2004. The Dunns filed a motion for rehearing with the PUC. No Commissioner voted to consider the motion for rehearing, and the PUC's order became final on March 15, 2004. The Dunns timely appealed the PUC's order to the district court. The district court entered judgment affirming the PUC order. The Dunns appeal from the judgment of the district court.
The Dunns have two complaints on appeal. First, the Dunns take issue with the PUC's analysis of the impact of the preferred route on endangered species whose habitats are in the vicinity of the route. Specifically, the Dunns argue that the PUC's findings of fact relating to the environmental impact of the preferred route on protected habitat are not supported by substantial evidence. Second, the Dunns argue the PUC was obligated by rule to select a route that followed a greater percentage of existing rights-of-way and property boundary lines than the preferred route, and the PUC's failure to do so was arbitrary, capricious, an abuse of discretion, and not supported by substantial evidence.
Standard of Review
We review the PUC's findings of fact under the substantial evidence standard of review. See Tex. Util. Code Ann. § 15.001 (West 2007); Reliant Energy, Inc. v. Public Util. Comm'n, 153 S.W.3d 174, 184 (Tex. App.--Austin 2004, no pet.). We presume that the PUC's order is supported by substantial evidence, and the Dunns have the burden to demonstrate otherwise. ASAP Paging, Inc. v. Public Util. Comm'n, 213 S.W.3d 380, 392 (Tex. App.--Austin 2006, pet. denied).
An administrative decision is supported by substantial evidence if the evidence as a whole is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action. Texas State Bd. of Dental Exam'rs v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). Substantial evidence requires "only more than a mere scintilla," and the evidence on the record actually may preponderate against the decision of the agency and nonetheless amount to substantial evidence. Railroad Comm'n v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex. 1995). We may not substitute our judgment for that of the agency on the weight of the evidence. ASAP Paging, 213 S.W.3d at 392. The test is not whether in our view the agency reached the correct conclusion but whether some reasonable basis exists in the record for the agency's action. Id. at 393. We will consider an administrative agency's decision to be arbitrary and capricious or an abuse of discretion if the agency reaches a completely unreasonable result after weighing the relevant factors established by the legislature. See City of El Paso v. Public Util. Comm'n, 883 S.W.2d 179, 184 (Tex. 1994).
Environmental Integrity
Under the Public Utility Regulatory Act ("PURA"), an electric utility must obtain a CCN from the PUC in order to install, operate, or extend electric utility service to the public. See Tex. Util. Code Ann. § 37.051 (West 2007). To approve an application to obtain or amend a CCN, the PUC must find that the proposed CCN is "necessary for the service, accommodation, convenience, or safety of the public." Id. § 37.056(a) (West 2007). Section 37.056(c) of the PURA sets forth the criteria according to which the PUC is to make its determination:
The commission shall grant each certificate on a nondiscriminatory basis after considering:
(1) the adequacy of existing service;
(2) the need for additional service;
(3) the effect of granting the certificate on the recipient of the certificate and any electric utility serving the proximate area; and
(4) other factors, such as:
(A) community values;
(B) recreational and park areas;
(C) historical and aesthetic values;
(D) environmental integrity; and
(E) the probable improvement of service or lowering of cost to consumers in the area if the certificate is granted.
Act of May 8, 1997, 75th Leg., R.S., ch. 166, § 1, sec. 37.056(c), 1997 Tex. Gen. Laws 713, 787 (amended 2003) (current version at Tex. Util. Code Ann. § 37.056(c) (West 2007)). (3)
The PUC determined that the Project was "necessary for the service, accommodation, convenience, and safety of the public within the meaning of PURA [section] 37.056, taking into consideration the factors set out in PURA [section] 37.056(b) and (c)," and, therefore, approved Oncor's application and selection of the preferred route.
The Dunns' first and second issues on appeal question the PUC's consideration of the "environmental integrity" factor. The PUC's findings of fact regarding environmental integrity are as follows:
38. Construction and operations of the Proposed Project on the Preferred Route will have minor impact on natural and human resources. Most of the Preferred Route will be constructed on pastureland, existing rights-of-way, or along property lines.
39. Burns & McDonnell contacted the United States Department of the Interior Fish and Wildlife Service (USFWS) and the Texas Parks and Wildlife Department (TPWD) to obtain information regarding the possibility of encountering any endangered or threatened species in the affected area.
40. There are no known threatened or endangered plant species occurring within the study area.
41. The black-capped vireo and the golden-cheeked warbler are classified by the USFWS as endangered species protected by the Endangered Species Act.
42. The black-capped vireo and the golden-cheeked warbler nest in the woodlands of Fort Hood Military Reservation.
43. USFWS has not designated a critical habitat for either the black-capped vireo or the golden-cheeked warbler.
44. Neither the black-capped vireo nor the golden-cheeked warbler habitat is crossed by Oncor's proposed routes.
45. USFWS advised Oncor that if suitable habitat exists along the Preferred Route, Oncor should conduct breeding season surveys to determine if the area is actually being used by the vireo and warbler and if either of them does occur in the area, select a route to avoid coming within 300 feet of occupied habitat. Alternatively, in the absence of a breeding season survey, Oncor should conduct activities outside the breeding season (i.e. avoid construction activities between March 1-September 1). In areas of suitable habitat, to avoid adverse impacts on this habitat, USFWS recommends that the maximum clearing width be 16 feet or less.
46. The process of transmission line construction and operation is not likely to have a negative impact on endangered or threatened wildlife species the area of the Proposed Project.
Central to the environmental integrity inquiry was the impact of the preferred route on the black-capped vireo and the golden-cheeked warbler, both classified as endangered species. The Dunns take issue with the PUC's findings that the preferred route will not cross either the black-capped vireo's or the golden-cheeked warbler's habitat and that the preferred route's construction and operation are "not likely to have a negative impact" on the endangered species.
The Dunns assert that the PUC's findings of fact on environmental impact are not supported by substantial evidence. The Dunns also assert that the findings of fact do not reasonably support the PUC's conclusion that the Project's preferred route satisfies PURA section 37.056.
All parties agreed that occupied habitat of both the black-capped vireo and the golden-cheeked warbler existed in the western portions of the Fort Hood Military Reservation. There was also no dispute that the preferred route, as it crossed through undeveloped property neighboring the Dunns' property as well as the Dunns' property, traveled just outside the western boundary of the Fort Hood Military Reservation. However, there was no evidence that occupied habitat was present on the preferred route or on the Dunns' property. Cyril Welter, a senior project manager for Burns & McDonnell Engineering Company Inc., the engineering and environmental consulting firm hired by Oncor for the Project, testified that there were "a couple" of known occurrences of the birds approximately 400 feet from the preferred route. The Dunns' expert witness on the environmental impact of the preferred route, wildlife biologist Allison Arnold, testified that because a population of the endangered birds existed on the Fort Hood Military Reservation it was "highly likely" that areas crossed by the preferred route could become occupied in the future. She also testified that although there was no known population of the endangered birds on the preferred route, it is possible that occupied habitat existed along the route but was, as yet, undiscovered. However, Arnold acknowledged that she could not say that occupied habitat currently existed along the preferred route, and that without an on-ground habitat assessment, there was no way to know for sure. Arnold had not conducted such an assessment, and Welter testified that the standard practice was for such assessments to be conducted once the PUC has approved a route.
The Dunns argue that the PUC's finding of fact to the effect that the preferred route did not cross habitat of either the black-capped vireo or the golden-cheeked warbler is inconsistent with the state of the evidence, which reflects that while there was no evidence that the preferred route crossed occupied habitat, it was acknowledged by experts on both sides that previously unknown occupied habitat might exist along the route, and that an on-ground habitat assessment would be needed to rule it out. However, the PUC's finding of fact is supported by the record. There was no evidence of the existence of occupied habitat along the preferred route. Thus, as of the date of the PUC's order, there was no basis for the PUC to find that occupied habitat existed along the route.
In light of the undisputed evidence in this record, the Dunns' complaint on appeal is not so much that the PUC's findings of fact are not supported by substantial evidence--indeed, a finding that the preferred route crossed occupied habitat would not have been supported by any evidence--but, rather, that the PUC should have included limiting language in its findings such as "given the current data" or "as of this time" because there was evidence that undiscovered occupied habitat might currently exist along the preferred route and/or occupied habitat might develop along the preferred route in the future. In fact, the PUC accounted for such possibilities in Ordering Paragraphs 2 and 3 of its final order:
2. Oncor shall perform a habitat assessment for the black-capped vireo and the golden-cheeked warbler . . . on the Preferred Route running close to the northwest boundary of Fort Hood Military Reservation to determine if the Preferred Route crosses the habitat of either bird.
3. If Oncor finds that the Preferred Route crosses the habitat of either bird, Oncor shall: (1) comply with the recommendations of the United States Department of Interior Fish and Wildlife Service, as specified in Finding of Fact No. 45; (2) make minor modifications to the centerline of the route with landowner approval in order to avoid the habitat; or (3) take such other action as is recommended by the United States Fish and Wildlife Service and agreed to by Oncor.
Thus, the PUC's findings of fact are consistent with the state of the record before it, and the ordering paragraphs take into account the possibility that unknown occupied habitat may be discovered in the process of constructing the transmission line.
Furthermore, environmental integrity is only one factor that the PUC may consider under PURA section 37.056(c). The PUC also weighed evidence indicating that there was a need for additional transmission capacity in the Copperas Cove area, that the Project was the best option to meet that need, and that the preferred route would adequately address community concerns about proximity to residences and visibility (the top two concerns identified in a public questionnaire from Oncor's August 24, 2000 "open house" meeting), would pass near the fewest number of recreational areas, parks, historical and archeological sites, commercial buildings, and churches, and would result in a lower cost passed on to consumers. We will not substitute our judgment for that of the PUC on whether the mere potential of an environmental integrity issue should outweigh the PUC's findings of fact on such other statutory factors. "None of the statutory factors is intended to be absolute in the sense that any one shall prevail in all possible circumstances." Public Util. Comm'n v. Texland Elec. Co., 701 S.W.2d 261, 267 (Tex. App.--Austin 1985, writ ref'd n.r.e.).
Use of Existing Rights-of-Way
In their third issue, the Dunns challenge the PUC's conclusion of law relating to the use of existing rights-of-way for the preferred route:
7. Pursuant to P.U.C. Subst. R. 25.101(c)(6)(D), the Preferred Route parallels existing road, pipeline, and transmission line rights-of-way for the majority of its length.
Given that the preferred route parallels existing rights-of-way, property lines, or other natural or cultural features for seventy-two percent of its length, the Dunns acknowledge that the conclusion of law is accurate. However, because two of the alternate routes proposed by Oncor (4) paralleled existing rights-of-way for eighty-four percent and eighty-eight percent of the length of their routes, respectively, the Dunns argue that the PUC's determination that the selection of the preferred route complies with PUC Substantive Rule 25.101(c)(6)(D) is not supported by substantial evidence. The implication of the Dunns' argument is that if there is evidence in the record that an alternate route will utilize a higher percentage of existing rights-of-way, selection of any other route will not be supported by substantial evidence regardless of other factors.
The rule, however, does not support such exclusive reliance on the numerical percentage of existing rights-of-way used or paralleled by the chosen route. PUC Substantive Rule 25.101(c)(6)(D) provides as follows:
A new transmission line shall meet the criteria in [PURA section] 37.056 and considering those criteria, engineering constraints, and costs, shall be routed to the extent reasonable to moderate the impact on the affected community and directly affected landowners unless grid reliability and security dictate otherwise. The following factors shall be considered . . . :
(i) whether the preferred and alternate routes utilize existing compatible rights-of-way, including the use of vacant positions on existing multiple-circuit transmission lines;
(ii) whether the preferred and alternate routes parallel existing compatible rights-of-way; and
(iii) whether the preferred and alternate routes parallel property lines or other natural or cultural features.
26 Tex. Reg. 8022 (2001), repealed in part and amended in part by 27 Tex. Reg. 10022 (2002) (former 16 Tex. Admin. Code § 25.101(c)(6)(D)) (Tex. Pub. Util. Comm'n). (5) The plain language of the rule grants the PUC authority to consider and weigh a variety of factors--engineering constraints, costs, grid reliability, and security, along with the criteria in PURA section 37.056--in addition to the use of existing rights-of-way in determining the most reasonable route for a transmission line. As with environmental integrity, no one factor controls or is dispositive. The PUC is expressly directed to consider the various factors and their impact on landowners to the extent reasonable. (6) There is substantial evidence in the record that the preferred route takes into consideration and makes reasonable accommodation for all of the various factors required by the applicable statutes and rules involved in locating the transmission line at issue. We find there is substantial evidence in the record to support the PUC's finding of fact relating to the use of existing rights-of-way for the approved route of the transmission line.
CONCLUSION
We hold that the PUC's findings of fact and conclusions of law relating to environmental integrity and the utilization of existing rights-of-way are supported by substantial evidence, and did not result in an order that was arbitrary, capricious, or an abuse of discretion. We affirm the judgment of the district court.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: February 7, 2008
1. Appellee Oncor Electric Delivery Company changed its name to TXU Electric Delivery Company soon after the Dunns filed their suit in the district court in 2004 attacking the PUC's order. On April 24, 2007, after the Dunns filed their appeal in this Court, Appellee changed its name back to Oncor Electric Delivery Company.
2. The Dunns' property in question is an approximately 33-acre, rectangular tract that straddles the boundary between Bell and Coryell Counties just south of the city of Copperas Cove. The U.S. Army's Fort Hood Military Reservation adjoins the Dunns' property on the east and northeast. There is one house on the property. Mrs. Dunn testified that she has made the property her home since 1989.
3. In 2003, section 37.056(c) of the PURA was amended to include another factor for the PUC's consideration--the effect of granting the certificate on the state's ability to meet the renewable energy goals established by PURA section 39.904(a). See Act of May 28, 2003, 78th Leg., R.S., ch. 295, § 2, 2003 Tex. Gen. Laws 1264. The new factor does not apply in this case because Oncor filed its application with the PUC before the statutory amendment.
4. Neither of the two alternate routes crossed the Dunns' property.
5. The PUC amended PUC Substantive Rule 25.101 effective January 1, 2003, moving the provision at issue from subsection (c)(6)(D) to subsection (b)(3)(B). See 16 Tex. Admin. Code § 25.101(b)(3)(B) (2005) (Tex. Pub. Util. Comm'n, Certification Criteria). Because Oncor filed its application with the PUC prior to such effective date, we consider the pre-amendment version of the rule.
6. We note that the final percentage of the preferred route's use of existing rights-of-way and property lines may be higher than the percentage reflected in the record. Oncor noted in its briefing that negotiations with property owners regarding the placement of its facilities on their properties would continue and some adjustments to the route could be made to accommodate certain requests by property owners. Specifically, Oncor suggested that realigning the preferred route to the eastern property line of the Dunn property might be a "viable routing modification." While it does not eliminate the transmission line from running on or near the Dunns' property, such an adjustment or accommodation might well mitigate or moderate the impact of the selected route on the Dunns.
Evading Arrest: Ceballos v. State (Tex.App.- Austin, Feb. 7, 2008)
Samuel Ceballos v. The State of Texas
Appeal from 264th District Court of Bell CountyMODIFIED AND, AS MODIFIED, AFFIRMED: Opinion by Justice Henson (Before Chief Justice Law, Justices Puryear and Henson)
03-06-00578-CR
Samuel Ceballos v. The State of Texas
Appeal from 264th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 59458, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
O P I N I O N
On May 4, 2006, Samuel Ceballos pleaded guilty to evading arrest using a motor vehicle, enhanced to a third-degree felony by Ceballos's previous conviction for evading arrest. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007). Ceballos pleaded true to the enhancement allegations, and he was sentenced to ten years' imprisonment and ordered to pay all court costs, court-appointed attorney's fees, and restitution as conditions of his parole. Ceballos argues on appeal that the trial court erred in assessing his sentence, which he argues should have come within the range for a state jail felony rather than a third-degree felony, because the date of his prior conviction preceded the legislature's amendment of the statute creating the third-degree felony offense. He also seeks modification of the judgment on the basis that the trial court did not have the authority to order parole conditions. We will modify the judgment and affirm the judgment as modified.
BACKGROUND
On April 3, 2006, Temple police arrested Ceballos for evading arrest or detention in a motor vehicle. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007). He was charged by information with the enhanced third-degree felony offense of evading arrest, having previously been convicted of misdemeanor evading arrest on August 17, 2001. After waiving indictment and a jury trial, Ceballos pleaded guilty, admitting to both the offense charged and the prior evading-arrest conviction.
In the intervening time between Ceballos's previous conviction for evading arrest and the enhanced felony conviction that is the subject of this appeal, the statute governing punishment for the enhanced felony offense was amended by the legislature. Prior to that amendment, the offense of evading arrest with a motor vehicle enhanced by a prior conviction was characterized as a state jail felony. Act of June 17, 2001, 77th Leg., R.S., ch. 1480, § 1, 2001 Tex. Gen. Laws 5265 (amended 2001) (current version at Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007)). The statute as amended defines the same offense as a third-degree felony. Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007). The amendment became effective on September 1, 2001.
In his first issue on appeal, Ceballos argues that his punishment in this case should be governed by the pre-amendment law. He contends that his conviction should be reversed as to punishment and remanded to the trial court for punishment as a state jail felony. In his second issue, Ceballos argues that the trial court exceeded its authority by placing impermissible conditions on his parole and seeks reform of the judgment entered.
DISCUSSION
Punishment
We first address Ceballos's arguments concerning the assessment of punishment as a third-degree felony. His assertion that he should be punished under the pre-amendment version of section 38.04 is a matter of statutory construction, which is a legal question that we review de novo. See Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).
Prior to its amendment, the penal code provided that evading arrest was a state jail felony if the actor had been previously convicted under this section. Tex. Penal Code Ann. § 38.04(b)(2) (West 2000) (amended 2001). The current version of section 38.04 states, in pertinent part,
(b) An offense under this section is a Class B misdemeanor,
except that the offense is:
. . .
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight and
the actor has been previously convicted under this section.
Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007) (emphasis added).
Ceballos maintains that the words "under this section" require that his prior evading arrest conviction must have come under section 38.04 as amended in order for the third-degree felony enhancement provision to apply. In support of his reading, he cites the historical and statutory note to the amended statute, which provides that an offense is committed before the effective date of the statute "if any element of the offense occurs before the effective date." See Tex. Penal Code Ann. § 38.04 historical note (West Supp. 2007) [Act of June 17, 2001, 77th Leg., R.S., ch. 1480, § 2, 2001 Tex. Gen. Laws 5265, 5265]. He argues that, because the prior conviction is an element of the enhanced crime, the date of his prior conviction is an additional element that must be proved by the State in order to sustain his conviction in this case. Therefore, since his previous conviction occurred prior to the effective date of the amended statute, Ceballos argues that he has not been previously convicted "under this section" and must be punished only for a state jail felony.
Ceballos acknowledges that the court of criminal appeals, having heard a similar argument in reference to the offense of unlawful possession of a firearm by a felon in Mason v. State, 980 S.W.2d 635 (Tex. Crim. App. 1998), declined to hold that the date of the prior offense was an element of the enhanced crime. He also notes that the Waco Court of Appeals, when faced with this same issue under section 38.04, adopted the reasoning of Mason in interpreting the enhancement provision of the evading-arrest statute. See Powell v. State, 151 S.W.3d 646, 654 (Tex. App.--Waco 2004), rev'd on other grounds, 189 S.W.3d 285 (Tex. Crim. App. 2006).
Nonetheless, Ceballos urges us to distinguish Mason and ignore Powell, arguing that the language of section 38.04 requires that he must have been previously convicted "under this section" if the offense is to rise to the level of a third-degree felony. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007). Because we agree with the court of criminal appeals's reasoning in Mason and believe that it is equally applicable to this case, we reject Ceballos's contention that the date of his prior conviction is an element of the enhanced offense of evading arrest.
In Mason, the defendant argued that he could not be prosecuted for the offense of unlawful possession of a firearm by a felon because the date of his prior felony conviction was an element of the offense that occurred before the statute's effective date. Mason, 980 S.W.2d at 641. The court of criminal appeals rejected Mason's argument and ruled that he was subject to prosecution under the existing version of the statute, reasoning that not every issue to which the State has the burden of proof is an "element of an offense." Id. The court went on to state that only Mason's status as a felon, and not the date on which his prior felony conviction occurred, could be viewed as an element of the crime. Id. at 640. To hold otherwise "would result in the absurd consequence of omitting all felons who committed their prior felonies before [the effective date of the amendment]." Id.
Likewise, as the State correctly points out, it is Ceballos's status as one who has been previously convicted of evading arrest, and not the date of that previous conviction, which is relevant for enhancement purposes. Ceballos has suggested no rational reason that we should distinguish between offenders whose prior evading-arrest convictions occurred before September 1, 2001, and those whose convictions came down afterward. Based on the reasoning of Mason and the plain language of section 38.04, we hold that Ceballos was properly sentenced within the range for a third-degree felony.
In adopting this interpretation of section 38.04, we join the other two courts of appeals who have addressed this issue with respect to the evading-arrest statute. See Powell, 151 S.W.3d at 654; Thomas v. State, No. 07-03-0198-CR, 2005 Tex. App. LEXIS 3929, at *4-5 (Tex. App.--Amarillo May 18, 2005, no pet.) (mem. op., not designated for publication) (distinguishing between "elements" of offense set out in § 38.04(a) and grade of offense prescribed by § 38.04(b)). (1) Ceballos cites to no authority, nor could we find any, where a court has interpreted the date of the previous conviction to be an element of the enhanced offense under section 38.04. We overrule Ceballos's first point of error.
Parole Conditions
We now address Ceballos's second point of error concerning the trial court's imposition of parole conditions. In addition to imposing a ten-year prison sentence, the written judgment contains a provision which reads, "PAROLE CONDITION: DEFENDANT ORDERED BY COURT TO PAY COURT COSTS, ATTORNEY FEES, FINES, AND RESTITUTION AS A CONDITION OF PAROLE."
Ceballos argues that the trial court erred by ordering him to pay court costs, attorney's fees, and restitution because trial courts lack the authority to place conditions on a convicted defendant's parole. He also argues that restitution is not appropriate in this case, presumably because there is no alleged victim to whom restitution should be paid. The State concedes that the authority to place conditions on parole is solely within the purview of the Board of Pardons and Paroles but does not address Ceballos's contention that he should not pay restitution.
We agree that the executive branch alone has the authority to place conditions on parole and that, as a general rule, a trial court cannot order a parole condition. See Tex. Gov't Code Ann. § 508.221 (West 2004); see also Bray v. State, 179 S.W.3d 725, 729 (Tex. App.--Fort Worth 2005, no pet.). However, as the parties acknowledge, a trial court does have the authority to recommend parole conditions for the Board to consider. See McNeill, 991 S.W.2d 300, 302 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd, untimely filed). Accordingly, we strike the language conditioning parole upon the payment of court costs, fines, and attorney's fees and modify the judgment to reflect that the trial court recommends that the Board of Pardons and Parole order Ceballos to pay court costs, fines, and attorney's fees. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.--Dallas 1991, writ ref'd).
With regard to restitution, the Texas Code of Criminal Procedure authorizes the sentencing court to order payment of restitution to any victim of the offense. Tex. Code Crim. Proc. Ann. art. 42.037(a) (West 2006). However, restitution can be ordered only for an injury resulting from the offense charged and can be made only to the victim, except where justice dictates payment be made to a person or party who has compensated the victim for the loss. Gonzalez v. State, 954 S.W.2d 98, 106 (Tex. App.--San Antonio 1997, no pet.). Furthermore, due process requires a factual basis in the record for the amount of restitution ordered. Martin v. State, 874 S.W.2d 674, 676 (Tex. Crim. App. 1994). There must be sufficient evidence in the record to support the order of restitution. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980).
In this case, there is no evidence in the record to support the order of restitution or to indicate that there was any victim to whom restitution should be made under the definition of "victim" in article 56.32 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 56.32(a)(11) (West Supp. 2007) ("victim" means individual who suffers personal injury or death as result of criminally injurious conduct). We therefore reform the trial court's judgment to delete those portions awarding restitution. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).
CONCLUSION
Having sustained in part Ceballos's point of error regarding parole conditions and having overruled his point of error contesting punishment, we modify the judgment to strike mention of restitution and to read as follows: "The court recommends that as a condition of parole the defendant pay court costs, fines, and attorney's fees."
As modified, we affirm the judgment of the trial court.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Modified and, as Modified, Affirmed
Filed: February 7, 2008
Publish
1. See also Cannady v. State, 11 S.W.3d 205, 208 (Tex. Crim. App. 2000) (addressing same argument with respect to penal code section 19.03 and holding defendant's status of serving a life sentence at time of present offense, and not date on which he committed crime for which he was serving life sentence, is element of statute); Manning v. State, 112 S.W.3d 740, 743-44 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd) (addressing same argument and holding same with regard to enhancement provision in penal code section 22.01).
Appeal from 264th District Court of Bell CountyMODIFIED AND, AS MODIFIED, AFFIRMED: Opinion by Justice Henson (Before Chief Justice Law, Justices Puryear and Henson)
03-06-00578-CR
Samuel Ceballos v. The State of Texas
Appeal from 264th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 59458, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
O P I N I O N
On May 4, 2006, Samuel Ceballos pleaded guilty to evading arrest using a motor vehicle, enhanced to a third-degree felony by Ceballos's previous conviction for evading arrest. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007). Ceballos pleaded true to the enhancement allegations, and he was sentenced to ten years' imprisonment and ordered to pay all court costs, court-appointed attorney's fees, and restitution as conditions of his parole. Ceballos argues on appeal that the trial court erred in assessing his sentence, which he argues should have come within the range for a state jail felony rather than a third-degree felony, because the date of his prior conviction preceded the legislature's amendment of the statute creating the third-degree felony offense. He also seeks modification of the judgment on the basis that the trial court did not have the authority to order parole conditions. We will modify the judgment and affirm the judgment as modified.
BACKGROUND
On April 3, 2006, Temple police arrested Ceballos for evading arrest or detention in a motor vehicle. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007). He was charged by information with the enhanced third-degree felony offense of evading arrest, having previously been convicted of misdemeanor evading arrest on August 17, 2001. After waiving indictment and a jury trial, Ceballos pleaded guilty, admitting to both the offense charged and the prior evading-arrest conviction.
In the intervening time between Ceballos's previous conviction for evading arrest and the enhanced felony conviction that is the subject of this appeal, the statute governing punishment for the enhanced felony offense was amended by the legislature. Prior to that amendment, the offense of evading arrest with a motor vehicle enhanced by a prior conviction was characterized as a state jail felony. Act of June 17, 2001, 77th Leg., R.S., ch. 1480, § 1, 2001 Tex. Gen. Laws 5265 (amended 2001) (current version at Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007)). The statute as amended defines the same offense as a third-degree felony. Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007). The amendment became effective on September 1, 2001.
In his first issue on appeal, Ceballos argues that his punishment in this case should be governed by the pre-amendment law. He contends that his conviction should be reversed as to punishment and remanded to the trial court for punishment as a state jail felony. In his second issue, Ceballos argues that the trial court exceeded its authority by placing impermissible conditions on his parole and seeks reform of the judgment entered.
DISCUSSION
Punishment
We first address Ceballos's arguments concerning the assessment of punishment as a third-degree felony. His assertion that he should be punished under the pre-amendment version of section 38.04 is a matter of statutory construction, which is a legal question that we review de novo. See Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).
Prior to its amendment, the penal code provided that evading arrest was a state jail felony if the actor had been previously convicted under this section. Tex. Penal Code Ann. § 38.04(b)(2) (West 2000) (amended 2001). The current version of section 38.04 states, in pertinent part,
(b) An offense under this section is a Class B misdemeanor,
except that the offense is:
. . .
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight and
the actor has been previously convicted under this section.
Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007) (emphasis added).
Ceballos maintains that the words "under this section" require that his prior evading arrest conviction must have come under section 38.04 as amended in order for the third-degree felony enhancement provision to apply. In support of his reading, he cites the historical and statutory note to the amended statute, which provides that an offense is committed before the effective date of the statute "if any element of the offense occurs before the effective date." See Tex. Penal Code Ann. § 38.04 historical note (West Supp. 2007) [Act of June 17, 2001, 77th Leg., R.S., ch. 1480, § 2, 2001 Tex. Gen. Laws 5265, 5265]. He argues that, because the prior conviction is an element of the enhanced crime, the date of his prior conviction is an additional element that must be proved by the State in order to sustain his conviction in this case. Therefore, since his previous conviction occurred prior to the effective date of the amended statute, Ceballos argues that he has not been previously convicted "under this section" and must be punished only for a state jail felony.
Ceballos acknowledges that the court of criminal appeals, having heard a similar argument in reference to the offense of unlawful possession of a firearm by a felon in Mason v. State, 980 S.W.2d 635 (Tex. Crim. App. 1998), declined to hold that the date of the prior offense was an element of the enhanced crime. He also notes that the Waco Court of Appeals, when faced with this same issue under section 38.04, adopted the reasoning of Mason in interpreting the enhancement provision of the evading-arrest statute. See Powell v. State, 151 S.W.3d 646, 654 (Tex. App.--Waco 2004), rev'd on other grounds, 189 S.W.3d 285 (Tex. Crim. App. 2006).
Nonetheless, Ceballos urges us to distinguish Mason and ignore Powell, arguing that the language of section 38.04 requires that he must have been previously convicted "under this section" if the offense is to rise to the level of a third-degree felony. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2007). Because we agree with the court of criminal appeals's reasoning in Mason and believe that it is equally applicable to this case, we reject Ceballos's contention that the date of his prior conviction is an element of the enhanced offense of evading arrest.
In Mason, the defendant argued that he could not be prosecuted for the offense of unlawful possession of a firearm by a felon because the date of his prior felony conviction was an element of the offense that occurred before the statute's effective date. Mason, 980 S.W.2d at 641. The court of criminal appeals rejected Mason's argument and ruled that he was subject to prosecution under the existing version of the statute, reasoning that not every issue to which the State has the burden of proof is an "element of an offense." Id. The court went on to state that only Mason's status as a felon, and not the date on which his prior felony conviction occurred, could be viewed as an element of the crime. Id. at 640. To hold otherwise "would result in the absurd consequence of omitting all felons who committed their prior felonies before [the effective date of the amendment]." Id.
Likewise, as the State correctly points out, it is Ceballos's status as one who has been previously convicted of evading arrest, and not the date of that previous conviction, which is relevant for enhancement purposes. Ceballos has suggested no rational reason that we should distinguish between offenders whose prior evading-arrest convictions occurred before September 1, 2001, and those whose convictions came down afterward. Based on the reasoning of Mason and the plain language of section 38.04, we hold that Ceballos was properly sentenced within the range for a third-degree felony.
In adopting this interpretation of section 38.04, we join the other two courts of appeals who have addressed this issue with respect to the evading-arrest statute. See Powell, 151 S.W.3d at 654; Thomas v. State, No. 07-03-0198-CR, 2005 Tex. App. LEXIS 3929, at *4-5 (Tex. App.--Amarillo May 18, 2005, no pet.) (mem. op., not designated for publication) (distinguishing between "elements" of offense set out in § 38.04(a) and grade of offense prescribed by § 38.04(b)). (1) Ceballos cites to no authority, nor could we find any, where a court has interpreted the date of the previous conviction to be an element of the enhanced offense under section 38.04. We overrule Ceballos's first point of error.
Parole Conditions
We now address Ceballos's second point of error concerning the trial court's imposition of parole conditions. In addition to imposing a ten-year prison sentence, the written judgment contains a provision which reads, "PAROLE CONDITION: DEFENDANT ORDERED BY COURT TO PAY COURT COSTS, ATTORNEY FEES, FINES, AND RESTITUTION AS A CONDITION OF PAROLE."
Ceballos argues that the trial court erred by ordering him to pay court costs, attorney's fees, and restitution because trial courts lack the authority to place conditions on a convicted defendant's parole. He also argues that restitution is not appropriate in this case, presumably because there is no alleged victim to whom restitution should be paid. The State concedes that the authority to place conditions on parole is solely within the purview of the Board of Pardons and Paroles but does not address Ceballos's contention that he should not pay restitution.
We agree that the executive branch alone has the authority to place conditions on parole and that, as a general rule, a trial court cannot order a parole condition. See Tex. Gov't Code Ann. § 508.221 (West 2004); see also Bray v. State, 179 S.W.3d 725, 729 (Tex. App.--Fort Worth 2005, no pet.). However, as the parties acknowledge, a trial court does have the authority to recommend parole conditions for the Board to consider. See McNeill, 991 S.W.2d 300, 302 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd, untimely filed). Accordingly, we strike the language conditioning parole upon the payment of court costs, fines, and attorney's fees and modify the judgment to reflect that the trial court recommends that the Board of Pardons and Parole order Ceballos to pay court costs, fines, and attorney's fees. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.--Dallas 1991, writ ref'd).
With regard to restitution, the Texas Code of Criminal Procedure authorizes the sentencing court to order payment of restitution to any victim of the offense. Tex. Code Crim. Proc. Ann. art. 42.037(a) (West 2006). However, restitution can be ordered only for an injury resulting from the offense charged and can be made only to the victim, except where justice dictates payment be made to a person or party who has compensated the victim for the loss. Gonzalez v. State, 954 S.W.2d 98, 106 (Tex. App.--San Antonio 1997, no pet.). Furthermore, due process requires a factual basis in the record for the amount of restitution ordered. Martin v. State, 874 S.W.2d 674, 676 (Tex. Crim. App. 1994). There must be sufficient evidence in the record to support the order of restitution. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980).
In this case, there is no evidence in the record to support the order of restitution or to indicate that there was any victim to whom restitution should be made under the definition of "victim" in article 56.32 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 56.32(a)(11) (West Supp. 2007) ("victim" means individual who suffers personal injury or death as result of criminally injurious conduct). We therefore reform the trial court's judgment to delete those portions awarding restitution. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).
CONCLUSION
Having sustained in part Ceballos's point of error regarding parole conditions and having overruled his point of error contesting punishment, we modify the judgment to strike mention of restitution and to read as follows: "The court recommends that as a condition of parole the defendant pay court costs, fines, and attorney's fees."
As modified, we affirm the judgment of the trial court.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Modified and, as Modified, Affirmed
Filed: February 7, 2008
Publish
1. See also Cannady v. State, 11 S.W.3d 205, 208 (Tex. Crim. App. 2000) (addressing same argument with respect to penal code section 19.03 and holding defendant's status of serving a life sentence at time of present offense, and not date on which he committed crime for which he was serving life sentence, is element of statute); Manning v. State, 112 S.W.3d 740, 743-44 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd) (addressing same argument and holding same with regard to enhancement provision in penal code section 22.01).
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