Buffalo Equities, Ltd. vs. The City of Austin, No. 03-05-00356-CV (Tex.App.- Austin, May 9, 2008) (Opinion by Justice Puryear) (zoning law, regulatory taking, declaratory judgment, ripeness) (Before Justices Patterson, Puryear and Henson)
Buffalo Equities, Ltd. v. The City of Austin
Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN501665, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Buffalo Equities, Ltd. ("BEL") wanted to develop its property for residential and commercial purposes and applied to have its property appropriately re-zoned. Part of the proposed development consisted of improvements to an easement BEL owns that runs across its neighbor's property. The City of Austin agreed to re-zone BEL's property. However, a City employee, Gregory Guernsey, later wrote a letter to BEL informing BEL that its development plans for its easement did not comply with the relevant zoning restrictions on BEL's neighbor's property. Further, Guernsey stated that BEL, as an easement owner, could not file to have its neighbor's property re-zoned.
Rather than appealing Guernsey's determination or seeking approval from the City for its development plans, BEL, in light of Guernsey's letter, filed suit against the City seeking various declarations and arguing that the City's actions constituted an impermissible regulatory taking of BEL's property. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 1997 & Supp. 2007) (declaratory judgment act); Sheffield Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 672-73 (Tex. 2004) (explaining when regulatory taking may occur).
The district court dismissed BEL's regulatory takings claim for lack of jurisdiction and declared that BEL's intended use for the easement did not comply with the zoning restrictions on the property and that an easement owner may not initiate re-zoning procedures. BEL appeals the judgment of the district court. We will dismiss one of BEL's claims for want of subject-matter jurisdiction and affirm the remaining portions of the district court's judgment.
BACKGROUND
BEL owns approximately 119 acres in Travis County. In 1997, it entered into an easement agreement with one of its neighbors, Speedy Stop. (1) Although there are other means of entering and exiting BEL's property, the easement affords BEL access to highway 290--a major highway in Austin--through a driveway (2) over Speedy Stop's property that is part of a signalized intersection with the highway.
BEL wanted to develop a large portion of its property into residential and commercial areas, and in 2000, BEL applied to have its property re-zoned as a "planned unit development" ("PUD"), which is the designation given to "large or complex single or multi-use development that is planned as a single contiguous project and that is under unified control." See Austin, Tex., Code § 25-2-144. The City approved the re-zoning request.
Through discussions BEL had with various City employees about developing the first phase of the PUD, BEL was informed that the City would probably not approve BEL's plans for the first phase of its proposed development. In response to these discussions, BEL asked the City's Development Services Manager, Gregory Guernsey, to issue a statement concerning BEL's plans. Shortly thereafter, Guernsey sent BEL a letter in which he stated that BEL's proposed driveway over the easement did not comply with the zoning restrictions on BEL's neighbor's property. In particular, Guernsey stated that Speedy Stop's property was zoned as a "rural residence district," which is the designation used "for a low density residential use on a lot that is a minimum of one acre," (3) see Austin, Tex., Code § 25-2-54, but concluded that BEL's proposed development for the easement constituted a "commercial driveway." Further, Guernsey opined that BEL could not apply to have Speedy Stop's property re-zoned for commercial purposes because BEL did not own the property. After receiving the letter, BEL asked the City's Zoning and Platting Commission to issue a request to re-zone Speedy Stop's property for commercial purposes, but the Commission denied that request. See id. § 25-2-242 (providing that, among other groups, re-zoning of property may be initiated by City Council, Land Use Commission, and record owner of property).
In 2004, BEL filed suit against the City. In its petition, BEL sought a declaration that the City's rules and regulations do not prohibit the use of the driveway as part of the PUD development. Alternatively, BEL sought a declaration that the owner of an easement may file an application to re-zone the property upon which its easement is located. Finally, BEL brought a regulatory takings claim against the City, asserting that by prohibiting BEL from building the driveway, the City has "unreasonably interfered with [BEL]'s right to use and enjoy" its property. (4)
In response, the City filed a plea to the jurisdiction, contending that the district court did not have jurisdiction over the case because BEL had failed to exhaust its administrative remedies prior to filing suit. In particular, the City argued that BEL failed to properly appeal Guernsey's determination that the proposed development on the easement was a commercial driveway and that the driveway did not comply with the relevant zoning restrictions. Both BEL and the City filed cross-motions for summary judgment.
After reviewing the various motions, the district court dismissed BEL's regulatory takings claim on the ground that the district court did not have jurisdiction to hear the claim. In addition, the district court ordered that BEL's intended use for the driveway and easement did not comply with the relevant zoning restrictions because the zoning for the property on which the easement rests did not match the PUD's zoning restrictions. In particular, the court declared that BEL's intended use for the easement qualified as an "accessory use" to the PUD and that the zoning for accessory uses must be consistent with the zoning for the "principal use." See Austin, Tex., Code §§ 25-2-891 (providing, in relevant part, that accessory use is use that is incidental to and customarily associated with principal use), 25-2-892 (stating that, in general, regulations applicable to principal use apply to accessory use). Furthermore, the court declared that BEL, as an easement owner, may not initiate re-zoning procedures for the property on which its easement rests because BEL was not the "record owner" of the property. BEL appeals the judgment of the district court.
SCOPE AND STANDARD OF REVIEW
The standards for obtaining a traditional summary judgment are well established: the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant's favor. Sergeant Enters., Inc. v. Strayhorn, 112 S.W.3d 241, 245 (Tex. App.--Austin 2003, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)); see Tex. R. Civ. P. 166a(c). If the movant establishes a right to summary judgment, the burden shifts to the nonmovant, who must present summary-judgment evidence to the trial court raising a genuine issue of material fact to preclude summary judgment. Cannon v. Texas Indep. Bank, 1 S.W.3d 218, 223 (Tex. App.--Texarkana 1999, pet. denied). If the evidence raises no more than a surmise or suspicion of a fact in issue, no genuine issue of fact exists to defeat summary judgment. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.--Dallas 2005, no pet.) (citing Wiggins v. Overstreet, 962 S.W.2d 198, 200 (Tex. App.--Houston [14th Dist.] 1998, writ denied)). We review the trial court's decision to grant summary judgment de novo. Sergeant Enters., Inc., 112 S.W.3d at 245 (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)).
When the parties file cross-motions for summary judgment and when the trial court grants one motion and denies the other, the non-prevailing party may appeal the denial of its motion as well as the decision to grant the prevailing party's motion. Id. In this situation, an appellate court should review the summary judgment evidence from both sides and determine all the questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). After reviewing the evidence, the appellate court "should render the judgment that the trial court should have rendered." Id.
DISCUSSION
On appeal, BEL raises three issues. In particular, BEL argues that the district court erred in issuing its first declaration in favor of the City, in declaring that an easement owner may not seek to re-zone the property upon which its easement rests, and in dismissing BEL's regulatory takings claim. In response, the City argues (1) that this Court does not have subject-matter jurisdiction over BEL's first claim because BEL failed to exhaust its administrative remedies before filing this lawsuit, (2) that the district court's second declaration was correct, and (3) that the district court correctly concluded that it did not have jurisdiction over BEL's regulatory takings claim. For the reasons that follow, we conclude that we do not have jurisdiction over BEL's first claim but conclude that the district court's second declaration was proper. We also conclude that the district court's determination that it did not have jurisdiction over BEL's third claim was proper. For ease of reading, we will first address the jurisdictional arguments as they relate to the first and third claim. Finally, we will address the merits of BEL's second claim.
First Declaration
Although it did not file a notice of appeal, the City asserts on appeal that the district court did not have jurisdiction over BEL's first declaration and should have granted its plea to the jurisdiction on that issue. See University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004) (explaining that subject-matter jurisdiction cannot be waived and can be raised for first time on appeal by parties or court and that courts have obligation to ascertain whether jurisdiction exists regardless of whether parties question its existence). A determination of whether a court has jurisdiction over a claim presents a question of law. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
A plea to the jurisdiction "is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction." Sykes, 136 S.W.3d at 638. A plaintiff has the burden of alleging facts that demonstrate that a court has jurisdiction over the claims. See Miranda, 133 S.W.3d at 226. To prevail, a defendant must establish that there is an "incurable jurisdictional defect on the face of the pleadings." City of Austin v. Rangel, 184 S.W.3d 377, 384 (Tex. App.--Austin 2006, no pet.). We construe pleadings in favor of the pleader, but "[i]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend." Miranda, 133 S.W.3d at 226.
The City contends that Guernsey's letter constituted a "use classification" determination that BEL should have appealed if it was unhappy with the determination. The City's code authorizes the director of the Neighborhood Planning and Zoning Department to make use-classification determinations "for an existing or proposed use or activity." See Austin, Tex., Code § 25-2-2. According to the City, the director has delegated this authority to Guernsey. (5) In response to a request by BEL, Guernsey informed BEL that its proposed use of the easement constituted a commercial driveway that did not comply with the zoning restrictions on Speedy Stop's property. The Austin code provides that a party dissatisfied with an "appropriate use classification" determination may appeal the determination to the Board of Adjustment. Austin, Tex., Code § 25-2-2; see also id. § 25-1-182 (specifying 20-day deadline for appealing). Similarly, the local government code provides that the Board of Adjustment may "hear and decide an appeal that alleges error in a[] . . . determination made by an administrative official in the enforcement of" a local zoning ordinance. Tex. Local Gov't Code Ann. § 211.009(a) (West 2008) (emphasis added); see id. § 211.010 (detailing who may file appeal with Board of Adjustment concerning decision made by "administrative official"). Further, the local government code also specifies that after obtaining review by the Board of Adjustment, an aggrieved party may seek judicial review of the Board's determination. Id. § 211.011.
Courts have routinely held that the administrative remedies available under the portions of the local government relevant to this appeal must be exhausted before a party may seek judicial review of a determination made by an administrative official. See, e.g., City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 250 (Tex. App.--San Antonio 2006, pet. denied); Winn v. City of Irving, 770 S.W.2d 10, 11 (Tex. App.--Dallas 1989, no writ); see also Grimes v. Stringer, 957 S.W.2d 865, 869 (Tex. App.--Tyler 1997, pet. denied) (construing phrase "may appeal" in statute to mean that aggrieved party has discretion to appeal determination, but if party elects to, it must be appealed to administrative body specified in statute rather than to court). The requirement of administrative exhaustion compels a party to "pursue all available remedies within the administrative process before seeking judicial relief." Larry Koch, Inc. v. Texas Natural Res. Conservation Comm'n, 52 S.W.3d 833, 839 (Tex. App.--Austin 2001, pet. denied). The failure to comply with this requirement before seeking judicial review deprives a court of jurisdiction to decide the case. Id.
BEL did not appeal Guernsey's determination to the Board of Adjustment. Consequently, the City's position has not officially been determined through the administrative process, and there is no justiciable controversy present. Winn, 770 S.W.2d at 11-12; see El Dorado Amusement Co., 195 S.W.3d at 250.
BEL claims that it was unnecessary for it to exhaust its administrative remedies prior to filing suit because the relief it sought fell within several exceptions to the exhaustion requirement. On appeal, BEL has characterized the declaration it originally sought as a declaration that "the City has no discretion to refuse to accept, process and approve BEL's application based on its new and invalid condition it has imposed on development of the BEL tract and the City has exceeded its authority in so doing." In other words, BEL claims that it is seeking a declaration stating that as a result of the City approving its PUD designation, the City is effectively precluded from improperly imposing a condition on the proposed development of BEL's property at a later stage in the development approval process, e.g., site- or building-permit approval. BEL asserts that resolution of this issue involves, among other things, determinations of pure questions of law and a determination of whether a city employee has exceeded its authority: determinations that BEL claims do not require administrative exhaustion. See Henry v. Kaufman County Dev. Dist. No. 1, 150 S.W.3d 498, 503 (Tex. App.--Austin 2004, pet. granted and case remanded by agr.).
In particular, BEL contends that the resolution of its first issue will involve consideration of whether the City may condition the approval of a site-plan application filed by BEL on "fulfillment of a condition that is not required under either the PUD Ordinance or the Code." Furthermore, BEL alleges that resolution of the issue will involve a determination of whether the City's employees may create new use classifications without approval by the City Council and whether the creation of a new classification is "beyond the scope of" the employee's authority. Specifically, BEL argues that the City's code does not list a "commercial driveway" as a type of "use classification," see Austin, Tex., Code §§ 25-2-1 (describing "major use categories" as "residential, commercial, industrial, civic, and agricultural"), 25-2-4 (listing 69 specific commercial use classifications), and that the creation of this new type of classification was beyond Guernsey's or the director of the Neighborhood Planning and Zoning Department's authority. (6)
As a preliminary matter, we note that BEL's characterization of this issue on appeal differs from what was stated in BEL's original petition, which sought a declaration "that the City of Austin rules and regulations (including the Land Development Code) do not prohibit use of the driveway area identified in the 1997 Driveway Easement Agreement across [rural residentially] zoned property to access the . . . [PUD], regardless of the use in the . . . PUD." This declaration, by its terms, is factually dependent and does not present pure questions of law.
Moreover, the fact that a party suggests that the resolution of the issue as framed on appeal might involve some determinations of law cannot be the end of our jurisdictional inquiry; rather, we must also ascertain whether the determination of the "pure questions of law" specified are in fact questions of law and, if so, whether addressing those questions, on their own, will resolve the actual controversy at issue. A declaration that the City may not impose a condition for approval that is contrary to the City's code will not resolve the controversy over whether Guernsey's determination and a potential decision by the City to forestall development are improper and contrary to the City's code. Similarly, a declaration that the City's employees may not create new use classifications without approval by the City Council will not, on its own, resolve the conflict of whether BEL's proposed improvements to the easement will violate relevant zoning restrictions or whether Guernsey's determination that BEL's intended use for the easement was commercial in nature was inaccurate or improper.
The first issue on appeal will not be resolved by consideration of pure questions of law and will involve consideration of significant factual matters, rendering it an issue primed for administrative exhaustion. Moreover, because BEL has bypassed the administrative process, we have no way of knowing what the City's ultimate response to BEL's arguments would have been. Although in part of its argument BEL concedes that Guernsey's letter constituted a use determination, albeit an improper one, BEL also argues that the letter could not constitute a use-classification determination. As described previously, the City's code does not specifically list "commercial driveway" as a type of use classification, see Austin, Tex., Code §§ 25-2-1, 25-2-4, and for this reason, BEL contends that the letter did not qualify as a use determination.
Even assuming that the letter was not a use determination and that the letter was in fact just an opinion by one of the City's employees, we would still conclude that we do not have jurisdiction over the case because no justiciable controversy is present. Prior to filing suit, BEL did not file an actual site-plan application, and the City has, therefore, taken no position on whether it would approve an application. See Austin, Tex., Code §§ 25-5-1 (providing, with certain exceptions, that "a site plan must be approved and released under this chapter before: (1) a person may change the use of property; (2) a person may develop property; or (3) the building official may issue a building permit)," 25-5-149 (stating that site-plan applicant may appeal denial of its application to City Council). Consequently, if Guernsey's letter was not a use determination, BEL has asked the district court and this Court to issue an advisory opinion regarding its future rights if the City decides to deny BEL's application, and there is, therefore, no actual controversy to resolve. See Thomas v. City of San Marcos, 477 S.W.2d 322, 324 (Tex. Civ. App.--Austin 1972, no writ) (concluding that when City official sent property owner letter requesting owner cease development of his property, court did not have jurisdiction over claim because owner did not file for permits to build on property and, therefore, had not exhausted administrative remedies).
Accordingly, whether the letter is viewed as a use determination or not, this Court does not have jurisdiction over BEL's first issue. Consequently, we conclude that the district court should have granted the City's plea to the jurisdiction with respect to this issue. Moreover, because BEL admits that it did not appeal Guernsey's determination or file a site-plan application, we conclude that the record affirmatively negates the existence of jurisdiction and that dismissal is appropriate. See Tex. R. App. P. 43.2 (explaining that one of permissible types of appellate judgments is to dismiss); South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 308 (Tex. 2007) (dismissing case after determining court did not have subject-matter jurisdiction over case).
Regulatory Takings Claim
In addition to the declarations sought against the City, BEL also contends that the City's actions constituted a regulatory taking of BEL's property because by "denying [BEL] the ability to build the driveway, [the] City . . . has denied [BEL] all economically viable use of their property and [the] City . . . has unreasonably interfered with [BEL's] right to use and enjoy same." See Rowlett/2000 v. City of Rowlett, 231 S.W.3d 587, 590-91 (Tex. App.--Dallas 2007, no pet.) (explaining that city's passage of ordinance may injure property's value or usefulness, which, in some circumstances, might constitute taking).
To bring a regulatory takings claim, the claim must be ripe for resolution. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998); see also Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998) (explaining that ripeness is necessary component of subject-matter jurisdiction and concerns when a claim may be made). For a regulatory takings claim to be ripe, "there must be a final decision regarding the application of the regulations to the property at issue." Mayhew, 964 S.W.2d at 929. A final decision usually occurs after a development plan has been formally rejected by a city and after the city has rejected the property owner's request for a variance. Id. at 929-30. In this context, the term "variance" is applied flexibly and encompasses permits and other applications that provide relief that is similar to a variance. City of Houston v. Kolb, 982 S.W.2d 949, 952 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). The purpose behind requiring the denial of a variance or similar requested relief is to give the city an opportunity to grant some form of relief or make a policy decision that will abrogate the alleged taking. Id. The requirement of a final decision stems, in part, from the need to have sufficient evidence to be able to compare uses prohibited by the regulation with permissible uses that may be made of the affected property in order to properly ascertain whether a taking has in fact occurred. See Mayhew, 964 S.W.2d at 929.
Although BEL received a letter from a City employee stating that BEL's intended use for the easement did not comply with the relevant zoning restrictions, BEL has not referred us to any regulation or case that equates this type of letter with a rejection of a development plan, that establishes that the receipt of this type of letter forecloses continued development approval through site-plan applications and building-permit applications, or that characterizes this type of letter as a final decision on the matter. (7) On the contrary, the various reports and the ordinance granting the PUD designation all demonstrate that the City has not foreclosed the possibility that BEL will be able to develop the easement in question: quite the contrary, they all contemplate development of the easement. Moreover, even assuming that the letter is a rejection of BEL's development plan, nothing in the record demonstrates that BEL sought a variance or similar relief from Guernsey's determination, and consequently, the City has not issued a denial of the relief requested.
BEL insists that, in this case, it was unnecessary for BEL to file for a variance in order for this Court to have jurisdiction over the claim. Specifically, BEL contends that it is unnecessary for a party to file what amounts to "futile variance requests or re-applications" before filing a takings claim. See id. at 929-30. However, nothing in the letter or the remainder of the record indicates that BEL had been informed that it would have been futile to petition for some type of relief from Guernsey's determination or that Guernsey and other officials would have been unreceptive to BEL's arguments. Furthermore, BEL presented no evidence or testimony from City officials that the City would not have considered allowing for a variance or some other form of relief. See Kolb, 982 S.W.2d at 953-54 (detailing testimony of various officials that it would have been futile for property owner to file for variance because city would not have approved it under any circumstances).
Moreover, the case BEL relies on as demonstrating that it would be futile for BEL to file applications is distinguishable from this case. In Mayhew, the Mayhews requested approval to build between 3,650 and 5,025 properties, but the Mayhews modified their application by asking to develop fewer properties after receiving negative feedback from the town's zoning committee. 964 S.W.2d at 931. Even after the Mayhews made the modification, the town of Sunnyvale denied a planned development application, but the Mayhews did not file for a variance. 964 S.W.2d at 931. In determining that the claim was ripe, the court noted that the Mayhews' proposed modification to their application might have, on its own, satisfied the variance requirement. But even if the modification was not a variance, the court concluded that it still had jurisdiction because the Mayhews alleged that they could not make an additional compromise to the number of properties that were to be developed because any further reduction would render the project economically unviable. Id. at 931-32. In essence, the court concluded that after receiving a rejection by a city, property owners should not be required to submit additional permits for development that would render the development unprofitable before being able to seek judicial relief. Id. at 932. Further, the court indicated that if the Mayhews had not made the economic allegation, the claim might otherwise not be ripe. Id.
Neither of those circumstances is present here. BEL proposed no modification after receiving the letter from Guernsey, and BEL has not demonstrated that any modification to its proposed development would render the development economically undesirable.
For all the reasons previously given, we conclude that the district court correctly determined that it did not have jurisdiction over BEL's regulatory takings claim, affirm that portion of the district court's judgment, and overrule BEL's third issue on appeal.
Second Declaration
In addition to the first declaration previously discussed, (8) BEL also sought a declaration that "an owner of an easement has the right to file an application to re-zone, if necessary, the area subject to such easement." The Austin code lists the individuals and governmental bodies that may file to re-zone property and provides, in relevant part, that zoning or re-zoning may be initiated by "(1) [the City] Council; (2) [the] Land Use Commission; (3) [the] record owner; (4) [the] Historic Landmark Commission, . . . ; or (5) for a proposed historic area (HD) combining district, petition of the owners of at least 60 percent of the land in the proposed district." Austin, Tex., Code § 25-2-242. After construing this portion of the code, the district court issued a declaration stating that because BEL "is not a 'record owner'" of the property on which its easement sits, it "may not . . . initiate zoning or rezoning of [the] property subject to the easement."
On appeal, BEL argues that the district court erred in issuing the declaration and in refusing to make the declaration that BEL originally requested. In making this assertion, BEL contends that as a result of entering into an easement agreement with Speedy Stop, it is a "record owner" of a property interest in Speedy Stop's property. BEL further notes that because it is an easement holder, it has a right to use the easement that is superior to Speedy Stop's, see McDaniel v. Calvert, 875 S.W.2d 482, 485 (Tex. App.--Fort Worth 1994, no writ), and that it has whatever implied rights to the property are necessary "to fairly enjoy the rights expressly granted," see Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 701 (Tex. 2002).
In light of the preceding, BEL insists that the district court's declaration that BEL may not seek to re-zone the property is erroneous and is an inaccurate construction of the City's code that leads to the absurd result that an owner of a tract that has had its property zoned as a PUD will be prohibited from developing its property if the easement that will serve as an entrance to the development is not appropriately zoned but will also be prohibited from filing to have the property re-zoned. Moreover, BEL argues that the City's refusal to accept its zoning modification request is arbitrary, unreasonable, and in excess of its authority.
Resolution of this issue involves construing various City ordinances, which is a question of law reviewed de novo. See Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002); USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex. App.--Austin 2004, pet. denied); see also Coppell v. General Homes Corp., 763 S.W.2d 448, 453 (Tex. App.--Dallas 1988, writ denied) (explaining that courts construe city ordinances in same manner that they construe statutes). When construing ordinances, we must ascertain the intent of the governing body enacting the regulations at issue. Coppell, 763 S.W.2d at 453; see Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). In determining intent, courts should look to the plain meaning of the words used in the ordinances. Coppell, 763 S.W.2d at 43; see Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex. 2000). We presume that every word was deliberately chosen and that excluded words were left out purposely. USA Waste Servs., 150 S.W.3d at 494. When determining intent, the entire regulation, not isolated portions, must be considered. Coppell, 763 S.W.2d at 453; Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998). In determining intent, courts also give serious consideration to an agency's interpretation of a statute that the agency is charged with enforcing provided that the interpretation is reasonable and consistent with the relevant governing regulations. Continental Cas. Co. v. Downs, 81 S.W.3d 803, 807 (Tex. 2002); see City of Austin v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 441-42 (Tex. 2002).
For the reasons that follow, we disagree with BEL. First, the district court's declaration is consistent with the relevant governing regulations. The City's code specifies that a "record owner" may initiate re-zoning procedures. Austin, Tex., Code § 25-2-242. The code defines a record owner as "the owner of real property as shown by the deed records of the county in which the property is located." Id. § 25-1-21(86); see also id. § 25-1-134(B) (explaining that when notice needs to be given to "record owner" of real property, notice may be made "by mailing notice to the owner at the street address of the property or, if the property does not have a street address, to the return address shown on the deed").
Second, the declaration is also consistent with common law principles associated with easements. "[A]n easement is a nonpossessory interest that authorizes its holder to use property for only particular purposes" and constitutes a limited relinquishment of the right of a property owner to exclude others from his property. Krohn, 90 S.W.3d at 700; see Restatement (Third) of Property (Servitudes) § 1.2 cmt. d (distinguishing between easements, which allow owner to only use land for specific purposes, and possessory land interest, which permits owner to use property for any purpose). In other words, an easement is a privilege to use land that is completely distinct from ownership of the land, Hubert v. Davis, 170 S.W.3d 706, 710 (Tex. App.--Tyler 2005, no pet.), and an easement does not convey title to property, Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007); Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 873 (Tex. App.--Austin 1988, writ denied).
Third, the declaration is also consistent with the construction of the regulations made by the agency responsible for administering the City's zoning regulations. According to Guernsey's affidavit, the Neighborhood Planning and Zoning Department, which is responsible for administering the City's zoning regulations, equates the phrase "record owner" with "land owner" or "fee owner." Although BEL may own an easement right, it is not the owner of the property on which its easement rests.
Finally, the declaration is consistent with the terms of the easement in question. An easement is an agreement between a property owner and another party, and for this reason, courts apply basic contract principles of construction when determining the terms of the agreement. Krohn, 90 S.W.3d at 700. The parties' express intentions determine the scope of the easement. Id. The easement agreement at issue here specifies that it "contains the entire agreement between the parties relating to the easements, rights and privileges herein granted and undertaken." The agreement does not mention zoning in any manner and does not bequeath the right to re-zone the property to BEL. (9) Cf. Cross v. Dallas County Flood Control Dist. No. 1, 773 S.W.2d 49, 50 (Tex. App.--Dallas 1989, no writ) (detailing easement requirements, which included requirement that easement owner support all zoning requests and building-permit requests made by property owner).
For these reasons, we are persuaded that the district court properly declared that BEL, as an easement owner, may not seek to re-zone the property on which its easement rests. Accordingly, we overrule BEL's second issue on appeal.
CONCLUSION
In light of the preceding, we dismiss BEL's first issue on appeal and affirm the remainder of the district court's judgment.
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Affirmed in part; Dismissed in part
Filed: May 9, 2008
1. At the time the agreement was entered, Speedy Stop was not the owner of the property in question. However, by the time this lawsuit was filed, Speedy Stop had purchased the property. For ease of reading, we will refer to the owner of the property as Speedy Stop.
2. Although BEL originally characterized the paved portion of the easement as a driveway, it contends on appeal that the strip is actually an "access street." See Austin, Tex., Code § 25-4-157(A)(1) (defining "access street" as "street that provides access to a sub-division by connecting to an external street"). However, because the distinction is not relevant to our ultimate conclusion, we will refer to the strip as a driveway.
3. Although not relevant to the ultimate outcome of this case, we do note that Speedy Stop has engaged in commercial activities on its property for years. See Austin, Tex., Code § 25-2-222 (providing that, in general, property annexed by City will initially be designated as rural residence district regardless of property's actual use).
4. In its petition, BEL also made several claims against Speedy Stop. However, the claims against Speedy Stop were subsequently severed from the claims against the City. This appeal only concerns the claims against the City.
5. BEL does not dispute that the director delegated this authority to Guernsey or argue that this type of delegation is improper.
6. Although we need not reach the merits of whether Guernsey's characterization of the intended use for the easement as a commercial driveway was an improper use classification, we do note that although the code does not specifically include "commercial driveways" in its list of "use classifications," nothing in the code indicates that the list is exhaustive. In fact, section 25-2-2 seems to acknowledge that a proposed use might not fit within one of the enumerated categories. In particular, the section instructs the reviewer to "consider the characteristics of the proposed use and the similarities, if any, of the use to other classified uses." Austin, Tex., Code § 25-2-2(B) (emphasis added). Moreover, the code does include driveways within the description of a specific commercial use classification, which is some indication that the City intended for reviewers to consider driveways as part of a "use classification" determination. See id.
7. It is worth noting again that BEL has not actually filed a site-plan application to develop its property and that, consequently, the City has not formally refused to accept an application.
8. The City limited its jurisdictional arguments to BEL's first and third issues and does not contend that this Court lacks jurisdiction over BEL's second issue on appeal. However, we note that unlike the first issue, the second issue concerns a pure question of law, rendering the determination appropriate for decision despite the fact that BEL had not exhausted all of its administrative remedies. See Henry v. Kaufman County Dev. Dist. No. 1, 150 S.W.3d 498, 503 (Tex. App.--Austin 2004, pet. granted and case remanded by agr.). Furthermore, prior to filing suit, BEL was informed by a City employee that it would be unable to apply to re-zone Speedy Stop's property, and BEL's petition to the City's Zoning and Platting Commission to issue a request to re-zone Speedy Stop's property was denied. Consequently, there is a "justiciable controversy as to the rights and status of" the parties, and the requested declaration will "actually resolve the controversy." Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004); see Texas Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 154 (Tex. App.--Austin 1998, no pet.) (explaining that justiciable controversy "is one in which a real and substantial controversy exists involving a genuine conflict of tangible interests and not merely a theoretical dispute").
9. In this opinion, we make no comment on whether BEL may sue Speedy Stop to compel Speedy Stop to initiate a zoning request. We only note that the easement did not expressly give BEL the ability to initiate a zoning change.
Monday, May 12, 2008
Rollins-El v. TDFPS (Tex.App.- Austin, 2008)
Rollins-El v. Texas Department of Family and Protective Services, No. 03-07-00010-CV (Tex.App. - Austin, May 8, 2008)(Opinion by Justice Waldrop) (termination of parental rights, TDFPS, DFPS) (Before Chief Justice Law, Justices Waldrop and Henson)
Kevin Jerome Rollins-El v. Texas Department of Family and Protective Services
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 215,278-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Kevin Jerome Rollins-El appeals from the decree terminating his parental rights. He contends that the referring trial court erred by denying him a jury trial de novo, by denying the paternal grandmother's plea in intervention, and by deciding that it had lost plenary power to act on post-judgment motions, including a motion for new trial. We affirm the decree.
Rollins-El raises only procedural complaints regarding the district court's decree. Consequently, we will discuss the underlying facts briefly and focus our review on the procedural posture of the case. Rollins-El was convicted of felony theft and placed on probation in 1992. His probation was revoked in 1993 when he tested positive for cocaine use. In 1998, he was convicted of possession of a firearm by a felon and was sentenced to prison followed by probation. That term of probation was revoked when he pleaded true to a charge of possession of cocaine. In 2002, he assaulted the mother of his first child. In May 2004, he was arrested in Kentucky for assaulting the mother of the children who are the subject of this matter, fleeing and evading arrest, possessing marijuana, and public intoxication.
According to the State's attorney, these charges remained outstanding at the time of the hearing before the trial court. In 2005, he was charged with driving while intoxicated and convicted of possession of cocaine, which led to his incarceration at the time of this proceeding. There was testimony that the children's mother used drugs and occasionally would become transient and lose contact with family members. In his findings of fact, the associate judge found that Rollins-El knew from his previous conviction that drug possession could lead to incarceration and that his 2005 incarceration left the children primarily in the care of "an unstable and drug abusing mother." The trial court found that Rollins-El engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being.
The following procedural events are relevant to this appeal:
October 24, 2006 Associate judge holds hearing on petition to terminate parental rights and orally announces that Rollins-El's rights are terminated
October 26, 2006 Rollins-El files his notice of appeal and requests hearing before district court
November 2, 2006 District court sets case for hearing on November 28, 2006
November 16, 2006 Rollins-El requests jury, asserts indigence, and requests waiver of jury fee;
Rollins-El's attorney moves to withdraw
November 17, 2006 Rollins-El allegedly first receives notice of setting
November 28, 2006 Rollins-El requests continuance, moves to strike nonjury setting;
Court denies these motions
Rollins-El files affidavit/unsworn declaration of indigence;
Court begins hearing lasting through December 1, 2006
December 1, 2006 Wanda Rollins files motion to intervene;
Court orally orders termination of parental rights;
Court grants motion for counsel to withdraw (1)
December 11, 2006 Court signs order terminating parental rights
January 8, 2007 Rollins-El files notice of appeal and agreed motion for additional time to file statement of points on appeal, alleging lack of notice of judgment
January 9, 2007 Rollins-El files motion for new trial and statement of points on appeal
The district court declined to set a hearing on the January motions, writing on them "case on appeal, court has lost its plenary power."
Appellants in termination cases are required to file statements of points they intend to appeal no later than fifteen days after the judgment is signed. Tex. Fam. Code Ann. § 263.405(b) (West Supp. 2007). Appellate courts "may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial." Id. § 263.405(i). The judgment was signed on December 11, 2006, and Rollins-El filed his statement of points on appeal on January 9, 2007, more than fifteen days after the judgment was signed. Although there is no provision expressly permitting an extension of time to file the statement of points, Rollins-El filed an "Agreed Motion for Additional Time to File Statement of Points and Rule 11 Agreement" asserting that he filed his statement late because no notice of the judgment was sent to him. Rollins-El did not, however, obtain a finding from the trial court regarding the date he received notice. See Tex. R. Civ. P. 306a. Strictly interpreting the terms of the family code, we cannot consider the grounds presented in the January 9 statement of points on appeal because that document was not timely filed. (2) Tex. Fam. Code Ann. § 263.405(i); Pool v. Texas Dep't of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.--Houston [1st Dist.] 2007, no pet.).
Because the interests at stake are so important and because the record contains some indication that Rollins-El did not receive timely notice of judgment, we will consider the issues raised in the statement of points on appeal in the interest of justice. We conclude that the issues raised in the statement of points on appeal do not support altering the judgment. Rollins-El complains of the trial court's denials of his request for jury trial, his mother's plea in intervention, and his motion for new trial.
We review a trial court's refusal to grant a jury trial under an abuse-of-discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). We examine the entire record and will find that an abuse of discretion exists if the trial court's decision is arbitrary, unreasonable, and without reference to guiding principles. Id. Under the rules of civil procedure, a court may set contested cases for trial on its own motion or based on a party's written request, provided that the court gives at least 45 days' notice of a first setting for trial, unless the parties agree otherwise. Tex. R. Civ. P. 245. The court will not hold a jury trial unless a written request for a jury trial is filed with the clerk of the court "a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance." Tex. R. Civ. P. 216(a). The jury fee must be deposited with the district clerk within the time for making a written request for a jury trial. Tex. R. Civ. P. 216(b). Instead of paying the fee, the party may within the time for making such deposit file with the clerk, his affidavit to the effect that he is unable to make such deposit and cannot, by the pledge of property or otherwise, obtain the money necessary for that purpose. Tex. R. Civ. P. 217. An inmate in the Texas Department of Corrections may instead file an unsworn declaration to the same effect. Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (West 2005).
Rollins-El contends that the trial court erred by denying his request for a jury trial. He contends that he was not required to file a jury request thirty days in advance of the trial setting because the family code's accelerated timetable rendered that impossible. See Bell Helicopter Textron v. Abbott, 863 S.W.2d 139, 140-41 (Tex. App.--Texarkana 1993, writ denied). In Bell, the trial court gave notice of nonjury trial twenty-six days in advance of trial (received by Bell twenty-four days before trial). Id. at 140. Although Bell had requested a jury early on in the case, Bell did not pay the jury fee until after the original trial date. Id. The Texarkana court held that, because the trial court did not give notice of the first trial setting forty-five days in advance of the trial, the remaining procedural timetable was inapplicable, and Bell's jury demand was deemed timely. Id. at 141 (citing Simpson v. Stem, 822 S.W.2d 323, 324-25 (Tex. App.--Waco 1992, orig. proceeding)). The Simpson opinion further explains that the jury demand, deemed timely because of the trial court's noncompliance with Rule 245, is presumed to have been made a reasonable time ahead of trial. Simpson, 822 S.W.2d at 324. Under Simpson, the presumption of timeliness is rebuttable. Id.
This case is distinct from Bell and Simpson because of the statutory constraints placed on termination cases. Generally, trial in termination cases in which the Department is the conservator must begin within a year of filing. See Tex. Fam. Code Ann. § 263.401 (West Supp. 2007). The family code requires that the referring trial court hear an appeal from an associate judge's ruling in a termination case within thirty days after the appeal to the trial court is filed. Id. § 201.015(f) (West Supp. 2007); see also id. § 101.032(a) (West 2002). This statutory requirement supersedes the rule-based requirement of forty-five days' advance notice of trial setting. See Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (statutes generally prevail in conflict with rules). Otherwise, the referring court would be required to give notice of trial at least fifteen days before the associate judge announced a ruling and, quite likely, before any party gave notice of appeal of that ruling. In contrast to the district courts in Bell and Simpson, the district court's failure in this case to give at least forty-five days' notice of trial was a creature of statute, not error.
Unlike the parties in Bell and Simpson, Rollins-El knew (3) when he filed the notice of appeal from the associate judge's ruling that the district court was required to hear the appeal within thirty days. (4) Even if he was not required to make his jury demand until he received a trial setting--which was sent only twenty-six days before trial--he was required to make the jury demand a reasonable time before trial. Simpson, 822 S.W.2d at 324; see also Tex. R. Civ. P. 216(a).
We find no abuse of discretion in the trial court's denial of the jury demand in this case because the court could reasonably have denied the demand as not having been made or completed within a reasonable time before trial. "It is within the discretion of the trial court to deny a jury trial in the absence of a timely request or payment of a jury fee." Martin v. Black, 909 S.W.2d 192, 197 (Tex. App.--Houston [14th Dist.] 1995, writ denied). Rollins-El did not file a jury demand when appealing to the district court, even though he knew when filing the notice of appeal that it would have to be heard within thirty days and that the case would have to be resolved by February 13, 2007. He demanded a jury on November 16, 2006--twenty-one days after filing his notice of appeal--but did not accompany his jury demand with the jury fee or oath of inability to pay the fee. See Tex. R. Civ. P. 216(b) (fee due at time of jury demand), 217 (oath in lieu of fee due at same time). The Request for Jury Trial filed by counsel asserts that Rollins-El is represented by appointed counsel "because of his indigence"--although the Order Appointing Attorney states that the appointment is made because Rollins-El "is incarcerated" without mentioning his financial status. Rollins-El filed an unsworn declaration of indigence on November 28, 2006--the date of trial, twelve days after filing his jury demand and thirty-three days after appealing the associate judge's ruling. Although the trial court did not state a basis for its denial of the request for jury trial, we conclude that the trial court would not have abused its discretion by denying the request because it was neither made nor completed (i.e., accompanied by the requisite fee or declaration of indigence) a reasonable amount of time before the trial date given the statutory timetables. See Williams v. Williams, 19 S.W.3d 544, 546 (Tex. App.--Fort Worth 2000, pet. denied). We overrule Rollins-El's first issue.
Rollins-El next complains that the court erred by denying Wanda Rollins's plea in intervention. Wanda Rollins, the paternal grandmother of the children, filed her plea in intervention on December 1, 2006--the last day of the hearing. After the plea was denied, she did not file a notice of appeal. An appealing party may not complain of errors that do not injuriously affect it. Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000); see also In re H.M.J.H., 209 S.W.3d 320, 321 (Tex. App.--Dallas 2006, no pet.). While a grandmother may intervene in a suit affecting a parent-child relationship, see McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no pet.), we find no basis for her son to complain on appeal of the trial court's refusal to allow the intervention when she does not herself file a notice of appeal. Rollins-El may not successfully complain of the denial of Wanda's petition in intervention. We overrule his second issue.
In his third issue, Rollins-El contends that the trial court erred by stating that it lost plenary power to consider his post-judgment motions, including his motion for new trial. We review a trial court's denial of a motion for new trial for an abuse of discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006).
Rollins-El's motion for new trial was not timely. In termination cases, the motion for new trial is due within fifteen days after the judgment or order. Tex. Fam. Code Ann. § 263.405(b)(1). There is no provision for extending that deadline in the statute. See id. Except as specified in the rules of procedure, the trial court cannot enlarge the time for filing a motion for new trial under the rules even with the parties' agreement. See Tex. R. Civ. P. 5; Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see also Tex. R. Civ. P. 306a (describing process for proving late notice of judgment). The trial court signed its judgment terminating Rollins-El's parental rights on December 11, 2006. By statute, the motion for new trial was due fifteen days later on December 26, 2006. See Tex. Fam. Code Ann. § 263.405(b)(1). Rollins-El filed his motion for new trial on January 9, 2007. (5) Even if the provisions of Texas Rule of Civil Procedure 306a apply to termination cases, there is no indication that the court was asked to make or made any findings extending the time for filing the motion for new trial. Thus, the motion for new trial was not timely filed and did not extend the trial court's plenary power. Accordingly, the trial court's plenary power expired thirty days after it signed the judgment. See Tex. R. Civ. P. 329b(d), (e).
The record does not demonstrate reversible error with regard to the trial court's notation on the post-judgment motions that it had lost plenary power. The motions were filed on January 9, 2007 and the trial court lost plenary power on January 10, 2007. The notations on the motions are undated, but if they were made any time after January 10, 2007, there is no error. Further, as just discussed, the motion for new trial was untimely filed. The court could not have granted the untimely motion. Although the court could have granted a new trial on its own motion on January 9-10, 2007 on the same grounds raised by Rollins-El's motion, the record before us does not demonstrate that its failure to do so was an abuse of discretion. (6)
We similarly find no reversible error in the court's notation on the statement of points on appeal or the request for findings of fact and conclusions of law that it had lost plenary power. Even if these documents were considered timely filed, the record does not compel a conclusion that the trial court's refusal to consider them harmed Rollins-El. We have considered the issues raised in the statement of points on appeal and have reviewed the record that would have underlain any findings or conclusions. The record does not reveal harmful error on any of the issues Rollins-El raises.
Affirmed.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: May 9, 2008
1. Despite the granting of the motion, the trial counsel who was permitted to withdraw nevertheless currently represents Rollins-El in this appeal.
2. Rollins-El also filed two other notices of appeal: (1) October 26, 2006, from the associate judge's order, and (2) November 16, 2006, after the trial court adopted the associate judge's proposed order. Even if these documents were construed as a statement of points on appeal prematurely filed, they present nothing for our review because they do not contain the points he raises in this appeal. The points Rollins-El raises in this appeal bear on actions or inactions of the trial court occurring after both notices were filed.
3. All persons are presumed to know the law and are charged with knowledge of provisions of statutes. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 n.3 (Tex. 1990).
4. The court set a trial date thirty-three days after the notice of appeal was filed. Although a referring trial court should hear a party's appeal within thirty days of the associate judge's ruling, the failure to do so will not deprive the court of jurisdiction over the case. Harrell v. Harrell, 986 S.W.2d 629, 631 (Tex. App.--El Paso 1998, no pet.).
5. Even if the Bell County courthouse was closed on December 26, 2006, Rollins-El's motion for new trial filed on January 9, 2007, was untimely because it was filed more than 15 days after the judgment was signed on December 11, 2007.
6. In his motion for new trial, Rollins-El essentially requests reconsideration of trial court decisions. He complains that the trial court erred by denying his request for jury trial and his mother's plea in intervention and not naming her permanent managing conservator, by concluding that the Department made reasonable efforts to return his children to him or to his mother, by finding the evidence factually sufficient that he had knowingly placed or allowed the children to remain in conditions or with people that endangered the children's well-being, and by concluding that the evidence supported a conclusion that termination is in the best interests of the children. We find no abuse of discretion in the trial court's failure to grant a new trial on its own motion.
One different ground raised in the motion for new trial is Rollins-El's assertion that the final hearing date was improperly accelerated "in violation of Texas Family Code §§ 262.2015 (authorizing acceleration if certain aggravating factors are present) and 263.401 (requiring dismissal unless trial begins within a year after the Department becomes temporary managing conservator)." Although there were statements at trial that the case was placed on the "fast track," this acceleration is not apparent from the record as it was heard by the district court less than ninety days before the deadline for dismissing the case. Further, it is not clear how any acceleration was or would have been improper or how any acceleration harmed Rollins-El. We do not find an error in not granting a new trial on these grounds.
Kevin Jerome Rollins-El v. Texas Department of Family and Protective Services
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 215,278-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Kevin Jerome Rollins-El appeals from the decree terminating his parental rights. He contends that the referring trial court erred by denying him a jury trial de novo, by denying the paternal grandmother's plea in intervention, and by deciding that it had lost plenary power to act on post-judgment motions, including a motion for new trial. We affirm the decree.
Rollins-El raises only procedural complaints regarding the district court's decree. Consequently, we will discuss the underlying facts briefly and focus our review on the procedural posture of the case. Rollins-El was convicted of felony theft and placed on probation in 1992. His probation was revoked in 1993 when he tested positive for cocaine use. In 1998, he was convicted of possession of a firearm by a felon and was sentenced to prison followed by probation. That term of probation was revoked when he pleaded true to a charge of possession of cocaine. In 2002, he assaulted the mother of his first child. In May 2004, he was arrested in Kentucky for assaulting the mother of the children who are the subject of this matter, fleeing and evading arrest, possessing marijuana, and public intoxication.
According to the State's attorney, these charges remained outstanding at the time of the hearing before the trial court. In 2005, he was charged with driving while intoxicated and convicted of possession of cocaine, which led to his incarceration at the time of this proceeding. There was testimony that the children's mother used drugs and occasionally would become transient and lose contact with family members. In his findings of fact, the associate judge found that Rollins-El knew from his previous conviction that drug possession could lead to incarceration and that his 2005 incarceration left the children primarily in the care of "an unstable and drug abusing mother." The trial court found that Rollins-El engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being.
The following procedural events are relevant to this appeal:
October 24, 2006 Associate judge holds hearing on petition to terminate parental rights and orally announces that Rollins-El's rights are terminated
October 26, 2006 Rollins-El files his notice of appeal and requests hearing before district court
November 2, 2006 District court sets case for hearing on November 28, 2006
November 16, 2006 Rollins-El requests jury, asserts indigence, and requests waiver of jury fee;
Rollins-El's attorney moves to withdraw
November 17, 2006 Rollins-El allegedly first receives notice of setting
November 28, 2006 Rollins-El requests continuance, moves to strike nonjury setting;
Court denies these motions
Rollins-El files affidavit/unsworn declaration of indigence;
Court begins hearing lasting through December 1, 2006
December 1, 2006 Wanda Rollins files motion to intervene;
Court orally orders termination of parental rights;
Court grants motion for counsel to withdraw (1)
December 11, 2006 Court signs order terminating parental rights
January 8, 2007 Rollins-El files notice of appeal and agreed motion for additional time to file statement of points on appeal, alleging lack of notice of judgment
January 9, 2007 Rollins-El files motion for new trial and statement of points on appeal
The district court declined to set a hearing on the January motions, writing on them "case on appeal, court has lost its plenary power."
Appellants in termination cases are required to file statements of points they intend to appeal no later than fifteen days after the judgment is signed. Tex. Fam. Code Ann. § 263.405(b) (West Supp. 2007). Appellate courts "may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial." Id. § 263.405(i). The judgment was signed on December 11, 2006, and Rollins-El filed his statement of points on appeal on January 9, 2007, more than fifteen days after the judgment was signed. Although there is no provision expressly permitting an extension of time to file the statement of points, Rollins-El filed an "Agreed Motion for Additional Time to File Statement of Points and Rule 11 Agreement" asserting that he filed his statement late because no notice of the judgment was sent to him. Rollins-El did not, however, obtain a finding from the trial court regarding the date he received notice. See Tex. R. Civ. P. 306a. Strictly interpreting the terms of the family code, we cannot consider the grounds presented in the January 9 statement of points on appeal because that document was not timely filed. (2) Tex. Fam. Code Ann. § 263.405(i); Pool v. Texas Dep't of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.--Houston [1st Dist.] 2007, no pet.).
Because the interests at stake are so important and because the record contains some indication that Rollins-El did not receive timely notice of judgment, we will consider the issues raised in the statement of points on appeal in the interest of justice. We conclude that the issues raised in the statement of points on appeal do not support altering the judgment. Rollins-El complains of the trial court's denials of his request for jury trial, his mother's plea in intervention, and his motion for new trial.
We review a trial court's refusal to grant a jury trial under an abuse-of-discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). We examine the entire record and will find that an abuse of discretion exists if the trial court's decision is arbitrary, unreasonable, and without reference to guiding principles. Id. Under the rules of civil procedure, a court may set contested cases for trial on its own motion or based on a party's written request, provided that the court gives at least 45 days' notice of a first setting for trial, unless the parties agree otherwise. Tex. R. Civ. P. 245. The court will not hold a jury trial unless a written request for a jury trial is filed with the clerk of the court "a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance." Tex. R. Civ. P. 216(a). The jury fee must be deposited with the district clerk within the time for making a written request for a jury trial. Tex. R. Civ. P. 216(b). Instead of paying the fee, the party may within the time for making such deposit file with the clerk, his affidavit to the effect that he is unable to make such deposit and cannot, by the pledge of property or otherwise, obtain the money necessary for that purpose. Tex. R. Civ. P. 217. An inmate in the Texas Department of Corrections may instead file an unsworn declaration to the same effect. Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (West 2005).
Rollins-El contends that the trial court erred by denying his request for a jury trial. He contends that he was not required to file a jury request thirty days in advance of the trial setting because the family code's accelerated timetable rendered that impossible. See Bell Helicopter Textron v. Abbott, 863 S.W.2d 139, 140-41 (Tex. App.--Texarkana 1993, writ denied). In Bell, the trial court gave notice of nonjury trial twenty-six days in advance of trial (received by Bell twenty-four days before trial). Id. at 140. Although Bell had requested a jury early on in the case, Bell did not pay the jury fee until after the original trial date. Id. The Texarkana court held that, because the trial court did not give notice of the first trial setting forty-five days in advance of the trial, the remaining procedural timetable was inapplicable, and Bell's jury demand was deemed timely. Id. at 141 (citing Simpson v. Stem, 822 S.W.2d 323, 324-25 (Tex. App.--Waco 1992, orig. proceeding)). The Simpson opinion further explains that the jury demand, deemed timely because of the trial court's noncompliance with Rule 245, is presumed to have been made a reasonable time ahead of trial. Simpson, 822 S.W.2d at 324. Under Simpson, the presumption of timeliness is rebuttable. Id.
This case is distinct from Bell and Simpson because of the statutory constraints placed on termination cases. Generally, trial in termination cases in which the Department is the conservator must begin within a year of filing. See Tex. Fam. Code Ann. § 263.401 (West Supp. 2007). The family code requires that the referring trial court hear an appeal from an associate judge's ruling in a termination case within thirty days after the appeal to the trial court is filed. Id. § 201.015(f) (West Supp. 2007); see also id. § 101.032(a) (West 2002). This statutory requirement supersedes the rule-based requirement of forty-five days' advance notice of trial setting. See Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (statutes generally prevail in conflict with rules). Otherwise, the referring court would be required to give notice of trial at least fifteen days before the associate judge announced a ruling and, quite likely, before any party gave notice of appeal of that ruling. In contrast to the district courts in Bell and Simpson, the district court's failure in this case to give at least forty-five days' notice of trial was a creature of statute, not error.
Unlike the parties in Bell and Simpson, Rollins-El knew (3) when he filed the notice of appeal from the associate judge's ruling that the district court was required to hear the appeal within thirty days. (4) Even if he was not required to make his jury demand until he received a trial setting--which was sent only twenty-six days before trial--he was required to make the jury demand a reasonable time before trial. Simpson, 822 S.W.2d at 324; see also Tex. R. Civ. P. 216(a).
We find no abuse of discretion in the trial court's denial of the jury demand in this case because the court could reasonably have denied the demand as not having been made or completed within a reasonable time before trial. "It is within the discretion of the trial court to deny a jury trial in the absence of a timely request or payment of a jury fee." Martin v. Black, 909 S.W.2d 192, 197 (Tex. App.--Houston [14th Dist.] 1995, writ denied). Rollins-El did not file a jury demand when appealing to the district court, even though he knew when filing the notice of appeal that it would have to be heard within thirty days and that the case would have to be resolved by February 13, 2007. He demanded a jury on November 16, 2006--twenty-one days after filing his notice of appeal--but did not accompany his jury demand with the jury fee or oath of inability to pay the fee. See Tex. R. Civ. P. 216(b) (fee due at time of jury demand), 217 (oath in lieu of fee due at same time). The Request for Jury Trial filed by counsel asserts that Rollins-El is represented by appointed counsel "because of his indigence"--although the Order Appointing Attorney states that the appointment is made because Rollins-El "is incarcerated" without mentioning his financial status. Rollins-El filed an unsworn declaration of indigence on November 28, 2006--the date of trial, twelve days after filing his jury demand and thirty-three days after appealing the associate judge's ruling. Although the trial court did not state a basis for its denial of the request for jury trial, we conclude that the trial court would not have abused its discretion by denying the request because it was neither made nor completed (i.e., accompanied by the requisite fee or declaration of indigence) a reasonable amount of time before the trial date given the statutory timetables. See Williams v. Williams, 19 S.W.3d 544, 546 (Tex. App.--Fort Worth 2000, pet. denied). We overrule Rollins-El's first issue.
Rollins-El next complains that the court erred by denying Wanda Rollins's plea in intervention. Wanda Rollins, the paternal grandmother of the children, filed her plea in intervention on December 1, 2006--the last day of the hearing. After the plea was denied, she did not file a notice of appeal. An appealing party may not complain of errors that do not injuriously affect it. Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000); see also In re H.M.J.H., 209 S.W.3d 320, 321 (Tex. App.--Dallas 2006, no pet.). While a grandmother may intervene in a suit affecting a parent-child relationship, see McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no pet.), we find no basis for her son to complain on appeal of the trial court's refusal to allow the intervention when she does not herself file a notice of appeal. Rollins-El may not successfully complain of the denial of Wanda's petition in intervention. We overrule his second issue.
In his third issue, Rollins-El contends that the trial court erred by stating that it lost plenary power to consider his post-judgment motions, including his motion for new trial. We review a trial court's denial of a motion for new trial for an abuse of discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006).
Rollins-El's motion for new trial was not timely. In termination cases, the motion for new trial is due within fifteen days after the judgment or order. Tex. Fam. Code Ann. § 263.405(b)(1). There is no provision for extending that deadline in the statute. See id. Except as specified in the rules of procedure, the trial court cannot enlarge the time for filing a motion for new trial under the rules even with the parties' agreement. See Tex. R. Civ. P. 5; Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see also Tex. R. Civ. P. 306a (describing process for proving late notice of judgment). The trial court signed its judgment terminating Rollins-El's parental rights on December 11, 2006. By statute, the motion for new trial was due fifteen days later on December 26, 2006. See Tex. Fam. Code Ann. § 263.405(b)(1). Rollins-El filed his motion for new trial on January 9, 2007. (5) Even if the provisions of Texas Rule of Civil Procedure 306a apply to termination cases, there is no indication that the court was asked to make or made any findings extending the time for filing the motion for new trial. Thus, the motion for new trial was not timely filed and did not extend the trial court's plenary power. Accordingly, the trial court's plenary power expired thirty days after it signed the judgment. See Tex. R. Civ. P. 329b(d), (e).
The record does not demonstrate reversible error with regard to the trial court's notation on the post-judgment motions that it had lost plenary power. The motions were filed on January 9, 2007 and the trial court lost plenary power on January 10, 2007. The notations on the motions are undated, but if they were made any time after January 10, 2007, there is no error. Further, as just discussed, the motion for new trial was untimely filed. The court could not have granted the untimely motion. Although the court could have granted a new trial on its own motion on January 9-10, 2007 on the same grounds raised by Rollins-El's motion, the record before us does not demonstrate that its failure to do so was an abuse of discretion. (6)
We similarly find no reversible error in the court's notation on the statement of points on appeal or the request for findings of fact and conclusions of law that it had lost plenary power. Even if these documents were considered timely filed, the record does not compel a conclusion that the trial court's refusal to consider them harmed Rollins-El. We have considered the issues raised in the statement of points on appeal and have reviewed the record that would have underlain any findings or conclusions. The record does not reveal harmful error on any of the issues Rollins-El raises.
Affirmed.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: May 9, 2008
1. Despite the granting of the motion, the trial counsel who was permitted to withdraw nevertheless currently represents Rollins-El in this appeal.
2. Rollins-El also filed two other notices of appeal: (1) October 26, 2006, from the associate judge's order, and (2) November 16, 2006, after the trial court adopted the associate judge's proposed order. Even if these documents were construed as a statement of points on appeal prematurely filed, they present nothing for our review because they do not contain the points he raises in this appeal. The points Rollins-El raises in this appeal bear on actions or inactions of the trial court occurring after both notices were filed.
3. All persons are presumed to know the law and are charged with knowledge of provisions of statutes. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 n.3 (Tex. 1990).
4. The court set a trial date thirty-three days after the notice of appeal was filed. Although a referring trial court should hear a party's appeal within thirty days of the associate judge's ruling, the failure to do so will not deprive the court of jurisdiction over the case. Harrell v. Harrell, 986 S.W.2d 629, 631 (Tex. App.--El Paso 1998, no pet.).
5. Even if the Bell County courthouse was closed on December 26, 2006, Rollins-El's motion for new trial filed on January 9, 2007, was untimely because it was filed more than 15 days after the judgment was signed on December 11, 2007.
6. In his motion for new trial, Rollins-El essentially requests reconsideration of trial court decisions. He complains that the trial court erred by denying his request for jury trial and his mother's plea in intervention and not naming her permanent managing conservator, by concluding that the Department made reasonable efforts to return his children to him or to his mother, by finding the evidence factually sufficient that he had knowingly placed or allowed the children to remain in conditions or with people that endangered the children's well-being, and by concluding that the evidence supported a conclusion that termination is in the best interests of the children. We find no abuse of discretion in the trial court's failure to grant a new trial on its own motion.
One different ground raised in the motion for new trial is Rollins-El's assertion that the final hearing date was improperly accelerated "in violation of Texas Family Code §§ 262.2015 (authorizing acceleration if certain aggravating factors are present) and 263.401 (requiring dismissal unless trial begins within a year after the Department becomes temporary managing conservator)." Although there were statements at trial that the case was placed on the "fast track," this acceleration is not apparent from the record as it was heard by the district court less than ninety days before the deadline for dismissing the case. Further, it is not clear how any acceleration was or would have been improper or how any acceleration harmed Rollins-El. We do not find an error in not granting a new trial on these grounds.
No second appeal of small-claims court judgment
Appeal from county court to court of appeals not authorized where county court proceeding was appeal from small-claims court judgment.
J. D. Gulley v. Philip Sueoka, No. 03-07-00287-CV (Tex.App.- Austin, May 8, 2008)(Opinion by Justice Henson (DWOJ, lack of appellate jurisdiction) Before Justices Patterson, Puryear and Henson. J. D. Gulley v. Philip Sueoka--Appeal from County Court at Law No. 3 of Bell County
M E M O R A N D U M O P I N I O NThis is an appeal from the county court at law's judgment declaring that the breach-of-contract claim brought by J.D. Gulley was barred by res judicata. However, because it is clear from the record that Gulley's suit originated in small claims court, we have no jurisdiction to hear Gulley's appeal and must therefore dismiss for want of jurisdiction. See Tex. Gov't Code Ann. § 28.053(d) (West 2004); Tex. R. App. P. 60.2(a).
DISCUSSION
Gulley represents in his appellate brief that his initial suit was heard in justice court
and appealed to the county court at law. However, the clerk's record establishes that Gulley's original petition was filed, and judgment was entered, in Small Claims Court of Precinct 1, Bell County, Texas, which had jurisdiction over the suit. See Tex. Gov't Code Ann. § 28.003 (West Supp. 2007).
The judgment is captioned "IN THE SMALL CLAIMS COURT" and bears the seal of the small claims court, see id. § 28.006 (West 2004), and Gulley's petition substantially complies with the form for actions in small claims court. Id. § 28.012.
Under the government code, a dissatisfied party may appeal the judgment of the small claims court to the county court or county court at law, id. § 28.052(a) (West Supp. 2007), but the judgment on appeal is "final." Id. § 28.053(d) (West 2004). The Texas Supreme Court has interpreted this provision to mean that the judgment of a county court or county court at law is "final and not appealable." Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex. 2005) (emphasis added). Thus, "under section 28.053(d) of the Texas Government Code, the courts of appeals lack jurisdiction over cases originally filed in the small claims court." Id. at 752; see also Lister v. Walters, No. 06-07-00137-CV, 2008 Tex. App. LEXIS 1351, at *4-5 (Tex. App.--Texarkana Feb. 22, 2008, no pet. h.) (holding that court lacked jurisdiction to consider appeal, noting that although several documents in record were captioned "In Justice Court" and several contained seal of justice court, plaintiff's petition was captioned "In Small Claims Court" and petition complied with form for actions in small claims court).
Accordingly, we dismiss the appeal for want of jurisdiction.
__________________________________________
Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: May 9, 2008
Monica Ramirez v. TDFPS Texas Department of Family and Protective Services 03-08-00084-CV DISMISSED ON APPELLANT'S MOTION: Opinion by Justice Patterson (Before Justices Patterson, Puryear and Henson)
03-08-00084-CV
Monica Ramirez v. Texas Department of Family and Protective Services
Appeal from 198th District Court of McCulloch County
M E M O R A N D U M O P I N I O N
Appellant Monica Ramirez has filed a motion to dismiss her appeal of a trial court's findings and order, dated January 22, 2008, from a section 263.405(d) hearing. See Tex. Fam. Code Ann. § 263.405(d) (West Supp. 2007). We grant appellant's motion and dismiss the appeal. See Tex. R. App. P. 42.1(a). (1)
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellant's Motion
Filed: May 9, 2008
1. In December 2007, the trial court entered a final judgment terminating Ramirez's parental rights. Ramirez filed a statement of points on appeal on January 8 and an amended statement of points on appeal on January 16. The trial court in its January order denied Ramirez's motion to extend time to file a statement of points on appeal from the termination judgment. See Tex. Fam. Code Ann. § 263.405(b)(2) (West Supp. 2007). Ramirez then filed with this Court, a motion to extend the time to file her statement of points on appeal, and this Court, on February 6, granted her motion, extending the time to file her statement of points on appeal to January 17. Ramirez, on February 12, filed in the trial court, a motion for rehearing and new trial from the January findings and orders based in part on the timeliness of her statement of points on appeal after the extension from this Court. The trial court thereafter held a section 263.405(d) hearing in February, entering findings and an order dated February 27, 2008. Ramirez has filed a notice of appeal from the February findings and order that remains pending in this Court as appellate cause number 03-08-00150-CV. Her appeal from the termination of her parental rights also remains pending in this Court as appellate cause number 03-08-00021-CV.
03-08-00084-CV
Monica Ramirez v. Texas Department of Family and Protective Services
Appeal from 198th District Court of McCulloch County
M E M O R A N D U M O P I N I O N
Appellant Monica Ramirez has filed a motion to dismiss her appeal of a trial court's findings and order, dated January 22, 2008, from a section 263.405(d) hearing. See Tex. Fam. Code Ann. § 263.405(d) (West Supp. 2007). We grant appellant's motion and dismiss the appeal. See Tex. R. App. P. 42.1(a). (1)
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellant's Motion
Filed: May 9, 2008
1. In December 2007, the trial court entered a final judgment terminating Ramirez's parental rights. Ramirez filed a statement of points on appeal on January 8 and an amended statement of points on appeal on January 16. The trial court in its January order denied Ramirez's motion to extend time to file a statement of points on appeal from the termination judgment. See Tex. Fam. Code Ann. § 263.405(b)(2) (West Supp. 2007). Ramirez then filed with this Court, a motion to extend the time to file her statement of points on appeal, and this Court, on February 6, granted her motion, extending the time to file her statement of points on appeal to January 17. Ramirez, on February 12, filed in the trial court, a motion for rehearing and new trial from the January findings and orders based in part on the timeliness of her statement of points on appeal after the extension from this Court. The trial court thereafter held a section 263.405(d) hearing in February, entering findings and an order dated February 27, 2008. Ramirez has filed a notice of appeal from the February findings and order that remains pending in this Court as appellate cause number 03-08-00150-CV. Her appeal from the termination of her parental rights also remains pending in this Court as appellate cause number 03-08-00021-CV.
Rodriguez v. TDFPS (Tex.App.- Austin, May 8, 2008)
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services, No. 03-07-00467-CV (Tex.App.- Austin, May 8, 2008)(Opinion by Justice Waldrop) (TDFPS suits, SAPCR, supervised vistiation, limited access, pro se litigants) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services--Appeal from 421st District Court of Caldwell County
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 06-FL-018, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Mark Rodriguez and Carmen Rodriguez appeal from the final order in this suit affecting the parent-child relationship with their daughter, B. R. (1) The order appointed the Department of Family and Protective Services (FPS) as the permanent managing conservator and appointed both appellants as possessory conservators with limited visitation rights. Appellants complain that the trial court relied on hearsay, as well as fraudulent and unsubstantiated evidence. They also assert that the court made erroneous decisions and incorrectly required Mark Rodriguez to undergo sex offender therapy. We affirm.
The record on appeal consists only of the clerk's record. Appellants did not request the preparation of a reporter's record. They assert that no reporter was present during the final set of hearings, but that the judge presiding recorded proceedings on her laptop computer. Appellants assert that the clerk's record provides adequate evidence to support their complaints, rejecting FPS's argument that the absence of a reporter's record prevents this Court from reversing the order because we cannot review the evidence admitted at the trial.
Appellants also filed a Motion for Appellate Court to Provide Alternatives to Court Reporter's Record if Court Reporter Record is Required by Appellate Court, which this Court denied. In that motion, they asserted that, although they did not request a reporter, the absence of a reporter was a denial of their right to a fair hearing. They asserted that the clerk's office failed to include exhibits as requested. (2) The motion states that, despite the absence of these exhibits:
Appellants believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions. The undersigned requests that should the Appeals
Court mandate a transcript of the final hearing, then the Appellants request either:
• The Appeals Court to utilize the digital recording available from the Caldwell County court or
• Allow the Appellants' discretion on a partial transcription of the final hearing day of the six day trial.
Appellants asserted in the motion that preparation of the full reporter's record would be several thousand dollars and beyond their financial resources.
We overruled appellants' motion because their motion essentially asked this Court to decide for appellants how to pursue this appeal. This Court is a neutral arbiter and cannot direct a party's strategic decisions. (3) Under the rules, appellants have the burden of making many decisions, including what issues to present, what relief to request, what portions of the trial court record to request be included in the record on appeal, and how to craft a brief that best serves their interest. See Tex. R. App. P. 34.6(b), 38.1. The appellate court does not "mandate" a reporter's record absent the party's request and the reporter's failure to provide it. Appellants chose not to request the reporter's record, stating that they "believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions." Appellants have chosen to rely on materials in the clerk's record to support their issues presented, as is their prerogative. See Tex. R. App. P. 37.3(c).
In the absence of a reporter's record from a bench trial, a court must presume that the omitted proceedings are relevant to and support the trial court's judgment. Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 538 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Therefore, this Court must presume that (1) the trial court properly exercised its discretion to hear evidence regarding all of the issues, whether appealed or not, and (2) the trial court heard evidence that is legally sufficient to support its judgment. Id. This standard arguably would require that we affirm the final order without further deliberation. However, because of the importance of the rights at stake in this child custody case and because the clerk's record includes statements and affidavits, we will examine the issues presented in light of the documents in the clerk's record.
The clerk's record contains statements made to law enforcement by Carmen Rodriguez, appellants' children, and a neighbor about specific incidents and general conditions in the Rodriguez home. The taking of statements was apparently prompted by a report to a neighbor by appellants' 19-year-old daughter, J. R., of severe neglect, sexual and physical abuse, and long-term physical and emotional isolation. Authorities were contacted, and the family gave written statements.
In a statement dated January 8, 2006, Carmen recounted an incident in July 2003 in which "Mark was trying to hurt [her older daughters] and [an older son] was protecting [them]. . . . Mark is a violent person and frequently emotionally abusive. I did not know he was molesting my daughter [J. R.] until today."
According to their 25-year-old daughter, Monique, Mark "forces himself" on female family members, which she describes by saying "his presence makes [the girls in the family] and my mom uncomfortable and he will not leave them alone." The altercation Carmen recounted was, according to Monique's statement, prompted by Mark's increasingly heated inquiries into credit card balances. She also reported that "yesterday, January 7, 2005, I found out that [sisters J. R., C. R., and B. R.] were asked by Mark to take off their clothes so he can take pictures of them naked." (4)
Appellants' 28-year-old son, Lorran, corroborated the story about the credit card altercation. He added the detail that, before the altercation, Mark was angry because a friend of Carmen's--who Mark believed was advising her to divorce Mark--had called the house. Lorran also recounted an incident in which Mark asked Lorran and a sibling to get a gun and shoot him. Lorran said that J. R. told him that Mark tried to get the sisters to take nude photographs. Lorran said that his grandmother feared that Mark was going to hurt the remaining children if they stayed with him.
Appellants' 24-year-old daughter, Chantre, gave her account of the credit card altercation. She did not remember the details of the conversation, but she did recall Mark's anger and the tension as their brother attempted to block Mark's path to the daughters' room. She recalled getting between the men and preventing a physical struggle.
Appellants' 21-year-old son, Einnar, stated that Mark showed the three youngest sisters a pornographic magazine in 2000. He also wrote that Mark "reportedly molested them according to my 3 youngest sisters." Einnar stated that Mark tried to get the girls to join a strip club so that Mark could quit his job.
J. R. wrote that Mark physically abused her and her mother and "had been into child pornograp[hy] and molesting children as far back as I remember." She also stated that she and her siblings were victims. She wrote that she had been "forced to do sexual acts with" Mark "since I was 8-16 years old." She stated that he threatened her when she questioned their activities and became violent when she asked him to stop. She also recounted an incident in 2000 during which Mark drove her and her sisters to an isolated area, tied them down, and molested them individually. She wrote about more sexual assaults on her that occurred in 2001. She said that she eventually demanded that he stop, which he did, but that she stayed in the home to protect her sisters. Nevertheless, J. R. stated that Mark "started taking my two younger sisters alone in the van [he] currently has, I suspected he was abusing or molesting them because they would come back fearful & upset, soon later had suicidal thoughts & talk." Her account of the July 2003 incident included her memory that Mark threatened them with a shotgun. She stated, "This man has certainly the stalke[r] personality, that's why all fear him or reporting for help, it needs t[o] stop for my family's sake as well [as] others who are in danger, possibly other children."
Appellants' then-16-year-old daughter, C. R., confirmed that, six years earlier, Mark asked her and her sisters to pose nude for photographs so they could be rich. She testified that, in 2001, she and her siblings opened Mark's bag and found a magazine with pornographic images of 12-year-old girls. Mark was angry when he found the children and yelled at them. He yelled at J. R. and asked her "What did you see?" When she did not answer, he shook her and threw her down. She also recalled the July 2003 altercation, but did not recount a discussion preceding it. She did write that Mark yelled and was choking Lorran, then that Lorran began choking Mark. C. R. also recounted seeing Mark try to touch J. R.'s breast once while he was driving and J. R. was seated next to him in the front seat, and another time while they were watching a movie at home. C. R. stated that she did not see such behavior at other times but that J. R. "has told me it has happened more."
These allegations prompted authorities to arrest Mark for sexual assault and to ask further questions. Carmen stated that she did not believe J. R.'s accusations of sexual assault. Based on the initial allegations and Carmen's refusal to believe them, FPS removed the then-minor children--16-year-old C. R. and 13-year-old B. R.--from the parents' home.
Family members, including Mark and J. R., filed affidavits in February 2006 that explain, modify, or retract the statements they gave in January 2006.
Mark denied or explained why the allegations in the family's January statements did not support removal of the remaining minor children. He asserted that he did not fit the profile of a sexual abuser and that J. R. did not exhibit behaviors of a victim. He said that she demanded a lot of attention and persuaded the other girls to lie about him on January 7, 2006. He asserted that J. R.'s statement tracked the family code statutes as if a checklist had been used when neighbors assisted her in preparing her statement. Mark said that the July 2003 altercation was the result of financial and marital stress, that no gun was involved, that no choking or fistfight occurred, and that it was simply a wrestling match that was over in a few minutes. He said that the magazine that C. R. reported finding in his bag was not child pornography because that is illegal and not obtainable at the New Braunfels convenience store where the magazine was purchased, and that the photo was of a subject with a child-like face. Mark contended that the allegations were not supported by a preponderance of evidence and did not support removal of the children.
In Carmen's affidavit, she averred that she never saw J. R. show behaviors typical of abuse
victims. Carmen is a registered nurse. She asserted that J. R. is outgoing and has a good relationship with Mark. Carmen stated that she did not know what to say in her written statement, but that the detective who questioned her and her family for five hours insisted that they put something down. She said that her statement that "'[h]e is a violent person' refers to the incident when he damaged a dog kennel during a temper flare up when my daughter [J. R.] disrespectfully said Mark 'ate like a pig' on his birthday in April 2002." Otherwise, she had not seen him be violent. Her statement that Mark was "frequently emotionally abusive" referred only to his insistence on remaining married despite her "constantly asking for us to separate." Since their debts had been discharged in bankruptcy in January 2006, she said the stress had eased and she believed their marriage could work.
Lorran filed an affidavit in which he denied that Mark ever pointed a gun at anyone. He said he had never seen pornography in their house, their vehicle, or computers, nor had he seen Mark naked. He said he generally tends to disregard his grandmother's statements as outlandish. He corroborated Mark's version of the July 2003 altercation as being overreactions by him and his father, and said that no weapons, choking, punching, fist fighting or kicking was involved. Lorran said that, since J. R. told him about Mark's request that the girls be photographed nude, he had watched their interactions. He said he had noticed no unusual or inappropriate affection or conversation between Mark and J. R. Lorran said that J. R. demands attention and is prone to lying. He recounted several of J. R.'s outbursts, including one in which her father was repairing a shower, and J. R. began throwing his tools and screaming "get out," claiming that Mark had beat her cat with tools; Lorran found the cat uninjured. Lorran said that once, when J. R.'s bike got a flat tire, she refused his offer of a ride home, claiming that he had "summoned devils out to cause her tire to go flat."
Monique also elaborated on her statement. She said she mentioned the July 2003 altercation because the detective "insisted we put something down on paper or it would look suspicious." When she said her mother received most of the emotional abuse, she meant that Mark is very persistent about wanting to talk problems out, in contrast to Carmen, who does not like to talk when she is upset. Monique wrote that massive credit card debt was a source of tension. She wrote that her statement that Mark "forces himself on the girls" referred to his persistence in maintaining communication and his desire to spend time with them on his days off. She said she had never seen him with pornography and had never heard the accusations about his desire to take nude photographs of the younger girls before January 2006.
Chantre also averred that she wrote something down in her statement just to appease the detective. She added that Mark never threatened them with a gun. She denied ever seeing her sisters with unexplained injuries. She said that J. R. was always very vocal and would have complained had something been wrong. Chantre wrote that J. R. was very emotional and susceptible to uncontrolled emotional outbursts over trivial events. Chantre wrote that she had never seen or heard any sexual abuse and had not seen her father naked.
J. R. later filed an affidavit in which she recanted all of her accusations. She described in great detail how she used the opportunity provided by her neighbor's belief that abuse was occurring in the house as a way to get Mark to stop looking at pornography. She said that her neighbor was obsessed with her family and believed that God had sent her to protect the Rodriguez children--to the extent that she had moved from another town at the insistence of audible disembodied voices. J. R. stated that she embellished the facts by alleging that her father's pornography was of children, by inventing the allegation that he wanted to take nude photographs of her and her sisters, and by inventing the allegation that he sexually abused her. She averred that she made up these allegations hoping to shock her father into renouncing pornography. She stated that she had been manipulated by others and that, when she realized the true effect of her false allegations, she regretted and recanted them. She stated that her neighbor threatened that God would reject J. R. if she recanted her testimony.
Carmen later filed a complaint with the Texas Department of State Health Services regarding actions by licensed substance abuse counselor Carrie Roper. Carmen asserted that Roper conspired with her neighbor to persuade J. R. that she had repressed memories of sexual abuse. Carmen also asserted that Roper's giving J. R. a book on the theory of repressed memories as well as associated counseling, violated state licensure laws barring counseling personal friends.
Carmen filed a complaint with the Texas State Board of Medical Examiners that her father-in-law, Dr. J. A. Rodriguez, violated his professional responsibilities and duties prompted by his interaction with J. R. According to the complaint, Dr. Rodriguez is an 81-year-old retired physician who received e-mails from J. R. in which she claimed Mark had physically and sexually abused her. Carmen complained that, instead of reporting the allegations of abuse to authorities or to the family, Dr. Rodriguez corresponded with J. R., "diagnosing Mark (via what [J. R.] said in her e-mails) as being 'mentally ill', 'he will kill someone if he gets into a rage' and 'I am afraid for the safety of the family.'" Carmen then reported that Dr. Rodriguez disagreed with their choice to home-school their children and had not maintained regular communication with the family during her marriage to Mark. She asserted that Dr. Rodriguez changed his views of J. R. when he learned that J. R was making some sort of allegations against him, deeming J. R. "'bipolar', 'paranoid schizophrenic', and 'crazy' and 'if you let her back in your house watch your back because she will put a knife in your chest.'" Carmen complained that Dr. Rodriguez engaged in unprofessional conduct in his e-mail communications with J. R. and violated his duty to report J. R.'s allegations if he believed them.
A service plan was adopted that allowed the girls to live at home with their mother, provided they had no contact with the males in the family. The plan required that the parents attend various types of classes and counseling, which they did. After finding that appellants had violated the court's requirement that they not discuss the case with their children, the court removed the children from their mother's home and directed FPS to place them. The males in the family were then permitted to return to the family's home. A subsequent order prohibited Mark from having contact with the two girls. (5) Before the final hearing, C. R. turned eighteen and was no longer a subject of this proceeding. Each appellant had legal counsel who were later allowed to withdraw because appellants no longer wished to retain them.
The final order under appeal here establishes FPS as the permanent managing conservator for B. R., naming appellants possessory conservators. The order permits Carmen to have weekly supervised visits with B. R. as well as unsupervised visits "upon the recommendation of a therapist. Mrs. Rodriguez may choose the therapist." The order permits Mark to have supervised visits with B. R. "until the criminal case is resolved. Once his criminal case is resolved he may continue to have supervised visits only if he attends sex offender therapy." According to appellants, the criminal charges against Mark were dismissed two days after the final hearing in this case.
Appellants present several issues. They contend that the trial court erred by (1) relying heavily on hearsay, conjecture, and unsupported evidence, (2) using only fraudulent, selective evidence, (3) validating FPS's actions in removing the children without a court order or following proper procedures, (4) determining that Carmen failed to supervise and was not protective without establishing that abuse occurred, (5) requiring Mark to undergo sex offender therapy, and (6) relying heavily on the report by FPS's expert, Matthew Ferrara, which they allege was based solely on conclusions relying on the veracity of J. R.'s original accusations.
In their first issue, appellants complain that "hearsay was the major part of the evidence presented in the form of emails, perjured testimony, suppressed documents and unsupported accusations against the appellants." We do not know what documents were admitted as evidence during the trial. Nevertheless, we find no error if the evidence complained of was the documents in the clerk's record. The rules of evidence provide that error cannot be shown in a ruling admitting or excluding evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context" or, "[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." See Tex. R. Evid. 103(a). The rules of appellate procedure similarly require the following:
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a). The record before us does not contain any objections to the evidence. We find no indication that evidence was suppressed, or that suppressed evidence was considered. Whether evidence is credible or supported generally affects the weight accorded the evidence. For the court to be required to entirely disregard evidence, an objection or other means of exclusion had to be made. No error is shown by the court's consideration of unobjected-to evidence.
In their second issue, appellants contend that "fraudulent evidence was used to fundamentally deny fair procedures before child removal, a right included in procedural due process." The substance of the argument in their brief pertains to FPS's use of evidence derived from J. R.'s original accusations that Mark sexually assaulted her, even though she later recanted those accusations. Appellants contend that suppression by the prosecution of material evidence that is favorable to an accused violates due process, as does a prosecutor's knowing presentation of false testimony or failure to correct testimony he knows is false. This is not a prosecution, however, and more to the point, the record before us does not demonstrate that J. R.'s statements recanting her January statements were suppressed, that FPS's attorney knew that J. R.'s original accusation was false, or that the original accusation is necessarily false. At least one of J. R.'s contrary statements, her affidavit dated June 8, 2006, is in the clerk's record. More may have been admitted at trial, but we do not have that record before us. Recantation of an earlier statement--however forceful or repeated--does not necessarily make the earlier statement false. The recantation itself may be false. (6) The resolution of the contradiction is a credibility issue for the factfinder. The Department did not commit fraud or violate anyone's rights merely by offering a recanted statement and, on this record, the court did not err by admitting or considering it.
In their third issue, appellants contend that "the Fourth Amendment was violated (among many others) since there was no probable cause established for child removal." Appellants complain that FPS did not conduct a sufficiently thorough investigation before removing C. R. and B. R. from their home. (7) Appellants assert that FPS lacked probable cause to seize the children on January 11, 2006, and that there was no evidence the children were in imminent danger. It is not entirely clear how the evidentiary basis for the initial removal relates to any alleged error in the final order rendered after a full hearing. Nevertheless, we will examine whether FPS had any sound basis for removing the children on January 11, 2006.
A qualified person can remove children without a court order under limited circumstances, including based "on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that" either "there is an immediate danger to the physical health or safety of the child" or "that the child has been the victim of sexual abuse." Tex. Fam. Code Ann. § 262.104(a) (West Supp. 2007). In statements to a Caldwell County Sheriff's Office investigator dated January 8, 2006, the family members recounted or reported hearing of incidents of Mark making threats, physically assaulting one child, encouraging then-minor girls to pose nude for pictures, and sexually abusing at least one girl. In her affidavit in support of FPS's original petition, filed January 13, 2006, FPS specialist Marijo Shearin recounted the statements the family had given, supplemented by additional reports of abuse and statements taken from the younger daughters in interviews at the children's advocacy center. Shearin also reported that, on January 11, 2006, Carmen reported that she had posted bond for Mark after his arrest for sexual assault and stated that she did not believe J. R.'s accusations of sexual abuse. Shearin concluded that there was an immediate danger to the children in the home because of the reported abuse by Mark and his probable imminent return to the home. The information Shearin described in her affidavit does not appear materially different from the information she had on January 11, 2006, when she made the decision to remove the children from the home. We conclude that appellants have not shown error in the initial removal requiring reversal of the trial court's final order.
In their fourth issue, appellants contend that, "without established abuse, there can be no failure to supervise and protect." This appears to be a challenge to the sufficiency of the evidence to support the trial court's decision not to name Carmen as a managing conservator and specifically references the failure to establish sexual abuse by Mark. They also argue that Caldwell County unlawfully suppressed J. R.'s affidavit of nonprosecution and petition to rescind a fraudulently obtained protective order.
The primary consideration in conservatorship cases is the best interest of the child. Tex. Fam. Code Ann. § 153.002 (West 2002). A parent (or both parents) will be appointed sole (or joint) managing conservator "unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Id. § 153.131(a). FPS's burden of proof is preponderance of the evidence. Id. § 105.005; see also In re W.M., 172 S.W.3d 718, 724 (Tex. App.--Fort Worth 2005, no pet.). The standard of review for determinations of a child's best interest and conservatorship is abuse of discretion. Id. An abuse of discretion occurs only when the court acts arbitrarily, unreasonably, or without regard to guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
The record before us does not demonstrate that the trial court abused its discretion by refusing to make Carmen a managing conservator. The trial court was required to assess the best interest of the child, not merely whether Mark sexually abused one of the daughters and Carmen ignored it. We do not know what evidence was admitted at trial. The clerk's record contains the original statements from the family and others discussing various incidents of emotional, physical, and sexual abuse. It also contains reports that Carmen rejected J. R.'s accusations. The record also contains affidavits from family members explaining, contradicting, or withdrawing their original statements. Where conflicting evidence is in the record, the trial court as factfinder must resolve the conflict. Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 266 (Tex. 1969); Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex. App.--Dallas 2007, no pet.). We must defer to the factfinder's credibility determinations, particularly when custody is at issue. See Sotelo v. Gonzales, 170 S.W.3d 783, 789 (Tex. App.--El Paso 2005, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). On the record presented to us, we cannot say that the trial court abused its discretion when determining from the evidence before it that the best interest of the child was better served by not having her parents as managing conservators.
In their sixth issue, appellants contend that "Dr. Matthew Ferrara's findings, conclusions and recommendations are not valid since they were based on outcry victim's false allegations of sexual abuse which are unsupported by medical evidence." This issue apparently relates to the sufficiency of the evidence underlying the trial court's order because the trial court ordered that B. R. "NOT be placed with her parents unless recommended by Dr. Matthew Ferrara." Appellants do not cite this Court to a report by Dr. Ferrara in the record. Appellants assert that, in late 2006, Dr. Ferrara strongly recommended sex offender treatment for Mark as an assurance that he is safe with children. Appellants assert that this report did not refer to the later affidavits or motions by J. R. and others contradicting the initial claims of sexual and other abuse. Appellants also assert that Dr. Ferrara strongly encouraged Mark to take a polygraph examination, after which the administrator opined that Mark's performance indicated deception--though about what precisely the record is not clear. In addition to attacking the reliability of polygraphs, appellants contend that Mark suffered an anxiety or panic attack from the administration of the test. He also contends that FPS workers used psycho-sexual evaluation tools on him that are not appropriate for persons who have not admitted guilt. We cannot evaluate the validity of Dr. Ferrara's findings on the record before us. As we have concluded above, without reference to Dr. Ferrara's findings, the record before us does not show an abuse of discretion in the court's conservatorship decision. Even if Dr. Ferrara's findings are flawed, reliance on them would not necessarily show reversible error.
In their fifth issue, appellants assert that, "since the father did not abuse the child as established by lack of objective findings, requiring the father to make an admission by court ordered sex offender therapy would be asking the father to lie and commit perjury." Appellants argue that Mark is being placed in the untenable position of remaining silent in court-ordered therapy, resulting in the loss of his child, or falsely confessing to abuse, resulting in a loss of liberty. He equates this to court-ordered confession. We do not agree that attending therapy is equivalent to an admission that he has committed abuse. Mark is not being prosecuted for sexual assault and the conservatorship decision has been made without any express finding regarding sexual abuse. There is no showing that the court-ordered therapy requires that Mark confess to sexual abuse. The therapist may instead conclude that Mark did not commit any sexual abuse and, with Mark's permission, inform the trial court of that conclusion. In any event, Mark could not commit perjury in his therapy sessions because he would not be under oath or an inmate making an unsworn declaration. See Tex. Penal Code Ann. § 37.02 (West 2003) (defining perjury). Appellants' fifth issue does not present reversible error.
We affirm the trial court's order.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 8, 2008
1. Appellants proceeded pro se in the trial court and appear pro se on appeal.
2. Exhibits offered or admitted at trial properly accompany the reporter's record and must be requested from the reporter. See Tex. R. App. P. 34.6(b)(1).
3. Appellants' pro se status does not affect this Court's role. "Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
4. The 2005 date noted in the statement appears to be an error. The statement was dated January 8, 2006.
5. Appellants asserted in their status report that this change was the result of Mark taking a polygraph examination at which the examiner determined there was deception indicated. Appellants contended that the result was due to Mark's anxiety when placed in unfamiliar processes or situations akin to being in a dentist's chair, which he finds difficult.
6. While the premise that a recantation, rather than the original statement, may be false is self-evident, it has been noted that child victims of familial sexual assault may feel unique pressure to make a false recantation. See Gonzales v. State, 4 S.W.3d 406, 418 (Tex. App.--Waco 1999, no pet.).
7. Appellants also assert that the removal deprived the children of due process under the Fifth and Fourteenth Amendments. The children are not named parties to this appeal and their rights cannot be asserted by the parents as individuals, which is the only way that appellants have appealed.
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services--Appeal from 421st District Court of Caldwell County
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 06-FL-018, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Mark Rodriguez and Carmen Rodriguez appeal from the final order in this suit affecting the parent-child relationship with their daughter, B. R. (1) The order appointed the Department of Family and Protective Services (FPS) as the permanent managing conservator and appointed both appellants as possessory conservators with limited visitation rights. Appellants complain that the trial court relied on hearsay, as well as fraudulent and unsubstantiated evidence. They also assert that the court made erroneous decisions and incorrectly required Mark Rodriguez to undergo sex offender therapy. We affirm.
The record on appeal consists only of the clerk's record. Appellants did not request the preparation of a reporter's record. They assert that no reporter was present during the final set of hearings, but that the judge presiding recorded proceedings on her laptop computer. Appellants assert that the clerk's record provides adequate evidence to support their complaints, rejecting FPS's argument that the absence of a reporter's record prevents this Court from reversing the order because we cannot review the evidence admitted at the trial.
Appellants also filed a Motion for Appellate Court to Provide Alternatives to Court Reporter's Record if Court Reporter Record is Required by Appellate Court, which this Court denied. In that motion, they asserted that, although they did not request a reporter, the absence of a reporter was a denial of their right to a fair hearing. They asserted that the clerk's office failed to include exhibits as requested. (2) The motion states that, despite the absence of these exhibits:
Appellants believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions. The undersigned requests that should the Appeals
Court mandate a transcript of the final hearing, then the Appellants request either:
• The Appeals Court to utilize the digital recording available from the Caldwell County court or
• Allow the Appellants' discretion on a partial transcription of the final hearing day of the six day trial.
Appellants asserted in the motion that preparation of the full reporter's record would be several thousand dollars and beyond their financial resources.
We overruled appellants' motion because their motion essentially asked this Court to decide for appellants how to pursue this appeal. This Court is a neutral arbiter and cannot direct a party's strategic decisions. (3) Under the rules, appellants have the burden of making many decisions, including what issues to present, what relief to request, what portions of the trial court record to request be included in the record on appeal, and how to craft a brief that best serves their interest. See Tex. R. App. P. 34.6(b), 38.1. The appellate court does not "mandate" a reporter's record absent the party's request and the reporter's failure to provide it. Appellants chose not to request the reporter's record, stating that they "believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions." Appellants have chosen to rely on materials in the clerk's record to support their issues presented, as is their prerogative. See Tex. R. App. P. 37.3(c).
In the absence of a reporter's record from a bench trial, a court must presume that the omitted proceedings are relevant to and support the trial court's judgment. Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 538 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Therefore, this Court must presume that (1) the trial court properly exercised its discretion to hear evidence regarding all of the issues, whether appealed or not, and (2) the trial court heard evidence that is legally sufficient to support its judgment. Id. This standard arguably would require that we affirm the final order without further deliberation. However, because of the importance of the rights at stake in this child custody case and because the clerk's record includes statements and affidavits, we will examine the issues presented in light of the documents in the clerk's record.
The clerk's record contains statements made to law enforcement by Carmen Rodriguez, appellants' children, and a neighbor about specific incidents and general conditions in the Rodriguez home. The taking of statements was apparently prompted by a report to a neighbor by appellants' 19-year-old daughter, J. R., of severe neglect, sexual and physical abuse, and long-term physical and emotional isolation. Authorities were contacted, and the family gave written statements.
In a statement dated January 8, 2006, Carmen recounted an incident in July 2003 in which "Mark was trying to hurt [her older daughters] and [an older son] was protecting [them]. . . . Mark is a violent person and frequently emotionally abusive. I did not know he was molesting my daughter [J. R.] until today."
According to their 25-year-old daughter, Monique, Mark "forces himself" on female family members, which she describes by saying "his presence makes [the girls in the family] and my mom uncomfortable and he will not leave them alone." The altercation Carmen recounted was, according to Monique's statement, prompted by Mark's increasingly heated inquiries into credit card balances. She also reported that "yesterday, January 7, 2005, I found out that [sisters J. R., C. R., and B. R.] were asked by Mark to take off their clothes so he can take pictures of them naked." (4)
Appellants' 28-year-old son, Lorran, corroborated the story about the credit card altercation. He added the detail that, before the altercation, Mark was angry because a friend of Carmen's--who Mark believed was advising her to divorce Mark--had called the house. Lorran also recounted an incident in which Mark asked Lorran and a sibling to get a gun and shoot him. Lorran said that J. R. told him that Mark tried to get the sisters to take nude photographs. Lorran said that his grandmother feared that Mark was going to hurt the remaining children if they stayed with him.
Appellants' 24-year-old daughter, Chantre, gave her account of the credit card altercation. She did not remember the details of the conversation, but she did recall Mark's anger and the tension as their brother attempted to block Mark's path to the daughters' room. She recalled getting between the men and preventing a physical struggle.
Appellants' 21-year-old son, Einnar, stated that Mark showed the three youngest sisters a pornographic magazine in 2000. He also wrote that Mark "reportedly molested them according to my 3 youngest sisters." Einnar stated that Mark tried to get the girls to join a strip club so that Mark could quit his job.
J. R. wrote that Mark physically abused her and her mother and "had been into child pornograp[hy] and molesting children as far back as I remember." She also stated that she and her siblings were victims. She wrote that she had been "forced to do sexual acts with" Mark "since I was 8-16 years old." She stated that he threatened her when she questioned their activities and became violent when she asked him to stop. She also recounted an incident in 2000 during which Mark drove her and her sisters to an isolated area, tied them down, and molested them individually. She wrote about more sexual assaults on her that occurred in 2001. She said that she eventually demanded that he stop, which he did, but that she stayed in the home to protect her sisters. Nevertheless, J. R. stated that Mark "started taking my two younger sisters alone in the van [he] currently has, I suspected he was abusing or molesting them because they would come back fearful & upset, soon later had suicidal thoughts & talk." Her account of the July 2003 incident included her memory that Mark threatened them with a shotgun. She stated, "This man has certainly the stalke[r] personality, that's why all fear him or reporting for help, it needs t[o] stop for my family's sake as well [as] others who are in danger, possibly other children."
Appellants' then-16-year-old daughter, C. R., confirmed that, six years earlier, Mark asked her and her sisters to pose nude for photographs so they could be rich. She testified that, in 2001, she and her siblings opened Mark's bag and found a magazine with pornographic images of 12-year-old girls. Mark was angry when he found the children and yelled at them. He yelled at J. R. and asked her "What did you see?" When she did not answer, he shook her and threw her down. She also recalled the July 2003 altercation, but did not recount a discussion preceding it. She did write that Mark yelled and was choking Lorran, then that Lorran began choking Mark. C. R. also recounted seeing Mark try to touch J. R.'s breast once while he was driving and J. R. was seated next to him in the front seat, and another time while they were watching a movie at home. C. R. stated that she did not see such behavior at other times but that J. R. "has told me it has happened more."
These allegations prompted authorities to arrest Mark for sexual assault and to ask further questions. Carmen stated that she did not believe J. R.'s accusations of sexual assault. Based on the initial allegations and Carmen's refusal to believe them, FPS removed the then-minor children--16-year-old C. R. and 13-year-old B. R.--from the parents' home.
Family members, including Mark and J. R., filed affidavits in February 2006 that explain, modify, or retract the statements they gave in January 2006.
Mark denied or explained why the allegations in the family's January statements did not support removal of the remaining minor children. He asserted that he did not fit the profile of a sexual abuser and that J. R. did not exhibit behaviors of a victim. He said that she demanded a lot of attention and persuaded the other girls to lie about him on January 7, 2006. He asserted that J. R.'s statement tracked the family code statutes as if a checklist had been used when neighbors assisted her in preparing her statement. Mark said that the July 2003 altercation was the result of financial and marital stress, that no gun was involved, that no choking or fistfight occurred, and that it was simply a wrestling match that was over in a few minutes. He said that the magazine that C. R. reported finding in his bag was not child pornography because that is illegal and not obtainable at the New Braunfels convenience store where the magazine was purchased, and that the photo was of a subject with a child-like face. Mark contended that the allegations were not supported by a preponderance of evidence and did not support removal of the children.
In Carmen's affidavit, she averred that she never saw J. R. show behaviors typical of abuse
victims. Carmen is a registered nurse. She asserted that J. R. is outgoing and has a good relationship with Mark. Carmen stated that she did not know what to say in her written statement, but that the detective who questioned her and her family for five hours insisted that they put something down. She said that her statement that "'[h]e is a violent person' refers to the incident when he damaged a dog kennel during a temper flare up when my daughter [J. R.] disrespectfully said Mark 'ate like a pig' on his birthday in April 2002." Otherwise, she had not seen him be violent. Her statement that Mark was "frequently emotionally abusive" referred only to his insistence on remaining married despite her "constantly asking for us to separate." Since their debts had been discharged in bankruptcy in January 2006, she said the stress had eased and she believed their marriage could work.
Lorran filed an affidavit in which he denied that Mark ever pointed a gun at anyone. He said he had never seen pornography in their house, their vehicle, or computers, nor had he seen Mark naked. He said he generally tends to disregard his grandmother's statements as outlandish. He corroborated Mark's version of the July 2003 altercation as being overreactions by him and his father, and said that no weapons, choking, punching, fist fighting or kicking was involved. Lorran said that, since J. R. told him about Mark's request that the girls be photographed nude, he had watched their interactions. He said he had noticed no unusual or inappropriate affection or conversation between Mark and J. R. Lorran said that J. R. demands attention and is prone to lying. He recounted several of J. R.'s outbursts, including one in which her father was repairing a shower, and J. R. began throwing his tools and screaming "get out," claiming that Mark had beat her cat with tools; Lorran found the cat uninjured. Lorran said that once, when J. R.'s bike got a flat tire, she refused his offer of a ride home, claiming that he had "summoned devils out to cause her tire to go flat."
Monique also elaborated on her statement. She said she mentioned the July 2003 altercation because the detective "insisted we put something down on paper or it would look suspicious." When she said her mother received most of the emotional abuse, she meant that Mark is very persistent about wanting to talk problems out, in contrast to Carmen, who does not like to talk when she is upset. Monique wrote that massive credit card debt was a source of tension. She wrote that her statement that Mark "forces himself on the girls" referred to his persistence in maintaining communication and his desire to spend time with them on his days off. She said she had never seen him with pornography and had never heard the accusations about his desire to take nude photographs of the younger girls before January 2006.
Chantre also averred that she wrote something down in her statement just to appease the detective. She added that Mark never threatened them with a gun. She denied ever seeing her sisters with unexplained injuries. She said that J. R. was always very vocal and would have complained had something been wrong. Chantre wrote that J. R. was very emotional and susceptible to uncontrolled emotional outbursts over trivial events. Chantre wrote that she had never seen or heard any sexual abuse and had not seen her father naked.
J. R. later filed an affidavit in which she recanted all of her accusations. She described in great detail how she used the opportunity provided by her neighbor's belief that abuse was occurring in the house as a way to get Mark to stop looking at pornography. She said that her neighbor was obsessed with her family and believed that God had sent her to protect the Rodriguez children--to the extent that she had moved from another town at the insistence of audible disembodied voices. J. R. stated that she embellished the facts by alleging that her father's pornography was of children, by inventing the allegation that he wanted to take nude photographs of her and her sisters, and by inventing the allegation that he sexually abused her. She averred that she made up these allegations hoping to shock her father into renouncing pornography. She stated that she had been manipulated by others and that, when she realized the true effect of her false allegations, she regretted and recanted them. She stated that her neighbor threatened that God would reject J. R. if she recanted her testimony.
Carmen later filed a complaint with the Texas Department of State Health Services regarding actions by licensed substance abuse counselor Carrie Roper. Carmen asserted that Roper conspired with her neighbor to persuade J. R. that she had repressed memories of sexual abuse. Carmen also asserted that Roper's giving J. R. a book on the theory of repressed memories as well as associated counseling, violated state licensure laws barring counseling personal friends.
Carmen filed a complaint with the Texas State Board of Medical Examiners that her father-in-law, Dr. J. A. Rodriguez, violated his professional responsibilities and duties prompted by his interaction with J. R. According to the complaint, Dr. Rodriguez is an 81-year-old retired physician who received e-mails from J. R. in which she claimed Mark had physically and sexually abused her. Carmen complained that, instead of reporting the allegations of abuse to authorities or to the family, Dr. Rodriguez corresponded with J. R., "diagnosing Mark (via what [J. R.] said in her e-mails) as being 'mentally ill', 'he will kill someone if he gets into a rage' and 'I am afraid for the safety of the family.'" Carmen then reported that Dr. Rodriguez disagreed with their choice to home-school their children and had not maintained regular communication with the family during her marriage to Mark. She asserted that Dr. Rodriguez changed his views of J. R. when he learned that J. R was making some sort of allegations against him, deeming J. R. "'bipolar', 'paranoid schizophrenic', and 'crazy' and 'if you let her back in your house watch your back because she will put a knife in your chest.'" Carmen complained that Dr. Rodriguez engaged in unprofessional conduct in his e-mail communications with J. R. and violated his duty to report J. R.'s allegations if he believed them.
A service plan was adopted that allowed the girls to live at home with their mother, provided they had no contact with the males in the family. The plan required that the parents attend various types of classes and counseling, which they did. After finding that appellants had violated the court's requirement that they not discuss the case with their children, the court removed the children from their mother's home and directed FPS to place them. The males in the family were then permitted to return to the family's home. A subsequent order prohibited Mark from having contact with the two girls. (5) Before the final hearing, C. R. turned eighteen and was no longer a subject of this proceeding. Each appellant had legal counsel who were later allowed to withdraw because appellants no longer wished to retain them.
The final order under appeal here establishes FPS as the permanent managing conservator for B. R., naming appellants possessory conservators. The order permits Carmen to have weekly supervised visits with B. R. as well as unsupervised visits "upon the recommendation of a therapist. Mrs. Rodriguez may choose the therapist." The order permits Mark to have supervised visits with B. R. "until the criminal case is resolved. Once his criminal case is resolved he may continue to have supervised visits only if he attends sex offender therapy." According to appellants, the criminal charges against Mark were dismissed two days after the final hearing in this case.
Appellants present several issues. They contend that the trial court erred by (1) relying heavily on hearsay, conjecture, and unsupported evidence, (2) using only fraudulent, selective evidence, (3) validating FPS's actions in removing the children without a court order or following proper procedures, (4) determining that Carmen failed to supervise and was not protective without establishing that abuse occurred, (5) requiring Mark to undergo sex offender therapy, and (6) relying heavily on the report by FPS's expert, Matthew Ferrara, which they allege was based solely on conclusions relying on the veracity of J. R.'s original accusations.
In their first issue, appellants complain that "hearsay was the major part of the evidence presented in the form of emails, perjured testimony, suppressed documents and unsupported accusations against the appellants." We do not know what documents were admitted as evidence during the trial. Nevertheless, we find no error if the evidence complained of was the documents in the clerk's record. The rules of evidence provide that error cannot be shown in a ruling admitting or excluding evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context" or, "[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." See Tex. R. Evid. 103(a). The rules of appellate procedure similarly require the following:
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a). The record before us does not contain any objections to the evidence. We find no indication that evidence was suppressed, or that suppressed evidence was considered. Whether evidence is credible or supported generally affects the weight accorded the evidence. For the court to be required to entirely disregard evidence, an objection or other means of exclusion had to be made. No error is shown by the court's consideration of unobjected-to evidence.
In their second issue, appellants contend that "fraudulent evidence was used to fundamentally deny fair procedures before child removal, a right included in procedural due process." The substance of the argument in their brief pertains to FPS's use of evidence derived from J. R.'s original accusations that Mark sexually assaulted her, even though she later recanted those accusations. Appellants contend that suppression by the prosecution of material evidence that is favorable to an accused violates due process, as does a prosecutor's knowing presentation of false testimony or failure to correct testimony he knows is false. This is not a prosecution, however, and more to the point, the record before us does not demonstrate that J. R.'s statements recanting her January statements were suppressed, that FPS's attorney knew that J. R.'s original accusation was false, or that the original accusation is necessarily false. At least one of J. R.'s contrary statements, her affidavit dated June 8, 2006, is in the clerk's record. More may have been admitted at trial, but we do not have that record before us. Recantation of an earlier statement--however forceful or repeated--does not necessarily make the earlier statement false. The recantation itself may be false. (6) The resolution of the contradiction is a credibility issue for the factfinder. The Department did not commit fraud or violate anyone's rights merely by offering a recanted statement and, on this record, the court did not err by admitting or considering it.
In their third issue, appellants contend that "the Fourth Amendment was violated (among many others) since there was no probable cause established for child removal." Appellants complain that FPS did not conduct a sufficiently thorough investigation before removing C. R. and B. R. from their home. (7) Appellants assert that FPS lacked probable cause to seize the children on January 11, 2006, and that there was no evidence the children were in imminent danger. It is not entirely clear how the evidentiary basis for the initial removal relates to any alleged error in the final order rendered after a full hearing. Nevertheless, we will examine whether FPS had any sound basis for removing the children on January 11, 2006.
A qualified person can remove children without a court order under limited circumstances, including based "on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that" either "there is an immediate danger to the physical health or safety of the child" or "that the child has been the victim of sexual abuse." Tex. Fam. Code Ann. § 262.104(a) (West Supp. 2007). In statements to a Caldwell County Sheriff's Office investigator dated January 8, 2006, the family members recounted or reported hearing of incidents of Mark making threats, physically assaulting one child, encouraging then-minor girls to pose nude for pictures, and sexually abusing at least one girl. In her affidavit in support of FPS's original petition, filed January 13, 2006, FPS specialist Marijo Shearin recounted the statements the family had given, supplemented by additional reports of abuse and statements taken from the younger daughters in interviews at the children's advocacy center. Shearin also reported that, on January 11, 2006, Carmen reported that she had posted bond for Mark after his arrest for sexual assault and stated that she did not believe J. R.'s accusations of sexual abuse. Shearin concluded that there was an immediate danger to the children in the home because of the reported abuse by Mark and his probable imminent return to the home. The information Shearin described in her affidavit does not appear materially different from the information she had on January 11, 2006, when she made the decision to remove the children from the home. We conclude that appellants have not shown error in the initial removal requiring reversal of the trial court's final order.
In their fourth issue, appellants contend that, "without established abuse, there can be no failure to supervise and protect." This appears to be a challenge to the sufficiency of the evidence to support the trial court's decision not to name Carmen as a managing conservator and specifically references the failure to establish sexual abuse by Mark. They also argue that Caldwell County unlawfully suppressed J. R.'s affidavit of nonprosecution and petition to rescind a fraudulently obtained protective order.
The primary consideration in conservatorship cases is the best interest of the child. Tex. Fam. Code Ann. § 153.002 (West 2002). A parent (or both parents) will be appointed sole (or joint) managing conservator "unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Id. § 153.131(a). FPS's burden of proof is preponderance of the evidence. Id. § 105.005; see also In re W.M., 172 S.W.3d 718, 724 (Tex. App.--Fort Worth 2005, no pet.). The standard of review for determinations of a child's best interest and conservatorship is abuse of discretion. Id. An abuse of discretion occurs only when the court acts arbitrarily, unreasonably, or without regard to guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
The record before us does not demonstrate that the trial court abused its discretion by refusing to make Carmen a managing conservator. The trial court was required to assess the best interest of the child, not merely whether Mark sexually abused one of the daughters and Carmen ignored it. We do not know what evidence was admitted at trial. The clerk's record contains the original statements from the family and others discussing various incidents of emotional, physical, and sexual abuse. It also contains reports that Carmen rejected J. R.'s accusations. The record also contains affidavits from family members explaining, contradicting, or withdrawing their original statements. Where conflicting evidence is in the record, the trial court as factfinder must resolve the conflict. Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 266 (Tex. 1969); Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex. App.--Dallas 2007, no pet.). We must defer to the factfinder's credibility determinations, particularly when custody is at issue. See Sotelo v. Gonzales, 170 S.W.3d 783, 789 (Tex. App.--El Paso 2005, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). On the record presented to us, we cannot say that the trial court abused its discretion when determining from the evidence before it that the best interest of the child was better served by not having her parents as managing conservators.
In their sixth issue, appellants contend that "Dr. Matthew Ferrara's findings, conclusions and recommendations are not valid since they were based on outcry victim's false allegations of sexual abuse which are unsupported by medical evidence." This issue apparently relates to the sufficiency of the evidence underlying the trial court's order because the trial court ordered that B. R. "NOT be placed with her parents unless recommended by Dr. Matthew Ferrara." Appellants do not cite this Court to a report by Dr. Ferrara in the record. Appellants assert that, in late 2006, Dr. Ferrara strongly recommended sex offender treatment for Mark as an assurance that he is safe with children. Appellants assert that this report did not refer to the later affidavits or motions by J. R. and others contradicting the initial claims of sexual and other abuse. Appellants also assert that Dr. Ferrara strongly encouraged Mark to take a polygraph examination, after which the administrator opined that Mark's performance indicated deception--though about what precisely the record is not clear. In addition to attacking the reliability of polygraphs, appellants contend that Mark suffered an anxiety or panic attack from the administration of the test. He also contends that FPS workers used psycho-sexual evaluation tools on him that are not appropriate for persons who have not admitted guilt. We cannot evaluate the validity of Dr. Ferrara's findings on the record before us. As we have concluded above, without reference to Dr. Ferrara's findings, the record before us does not show an abuse of discretion in the court's conservatorship decision. Even if Dr. Ferrara's findings are flawed, reliance on them would not necessarily show reversible error.
In their fifth issue, appellants assert that, "since the father did not abuse the child as established by lack of objective findings, requiring the father to make an admission by court ordered sex offender therapy would be asking the father to lie and commit perjury." Appellants argue that Mark is being placed in the untenable position of remaining silent in court-ordered therapy, resulting in the loss of his child, or falsely confessing to abuse, resulting in a loss of liberty. He equates this to court-ordered confession. We do not agree that attending therapy is equivalent to an admission that he has committed abuse. Mark is not being prosecuted for sexual assault and the conservatorship decision has been made without any express finding regarding sexual abuse. There is no showing that the court-ordered therapy requires that Mark confess to sexual abuse. The therapist may instead conclude that Mark did not commit any sexual abuse and, with Mark's permission, inform the trial court of that conclusion. In any event, Mark could not commit perjury in his therapy sessions because he would not be under oath or an inmate making an unsworn declaration. See Tex. Penal Code Ann. § 37.02 (West 2003) (defining perjury). Appellants' fifth issue does not present reversible error.
We affirm the trial court's order.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 8, 2008
1. Appellants proceeded pro se in the trial court and appear pro se on appeal.
2. Exhibits offered or admitted at trial properly accompany the reporter's record and must be requested from the reporter. See Tex. R. App. P. 34.6(b)(1).
3. Appellants' pro se status does not affect this Court's role. "Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
4. The 2005 date noted in the statement appears to be an error. The statement was dated January 8, 2006.
5. Appellants asserted in their status report that this change was the result of Mark taking a polygraph examination at which the examiner determined there was deception indicated. Appellants contended that the result was due to Mark's anxiety when placed in unfamiliar processes or situations akin to being in a dentist's chair, which he finds difficult.
6. While the premise that a recantation, rather than the original statement, may be false is self-evident, it has been noted that child victims of familial sexual assault may feel unique pressure to make a false recantation. See Gonzales v. State, 4 S.W.3d 406, 418 (Tex. App.--Waco 1999, no pet.).
7. Appellants also assert that the removal deprived the children of due process under the Fifth and Fourteenth Amendments. The children are not named parties to this appeal and their rights cannot be asserted by the parents as individuals, which is the only way that appellants have appealed.
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