Drowning Death Suit against City dismissed on sovereign immunity grounds
City of Austin, Texas v. Trudy Leggett, Individually and as Heir of Nathan Leggett, Deceased, No. 03-07-00345-CV (Tex.App.- Austin, June 12, 2008)(Opinion by Justice Pemberton [ PDF ] )(flooding death, TTCA) (Before Justices Patterson, Puryear and Pemberton)
Appeal from 261st District Court of Travis County
O P I N I O N
At approximately 6 p.m. on November 15, 2001, seventeen year-old Nathan Leggett tragically drowned after attempting to drive through a flooded street in southwest Austin. That afternoon, it was undisputed that the Austin area had been hit by thunderstorms with intense rainfall, hail, tornados and widespread flooding. Nathan's mother, Trudy Leggett, individually and as Nathan's heir, sued the City of Austin for damages under the survival statute and wrongful death act. She alleged that the City's negligent maintenance or design of a stormwater detention pond, located north of the intersection where Nathan drowned, had caused debris to clog a grate covering the pond's designed drainage outlet, resulting in storm waters backing up and ultimately overflowing the pond, flooding the adjacent residential area and causing Nathan's death. (1)
Leggett's suit implicates the City's governmental immunity, the long-established common-law doctrine that categorically bars suits for money damages against municipalities unless the legislature has consented to suit. See, e.g., City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007); Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). (2) Leggett purports to assert claims within the legislative waivers of immunity under the tort claims act for damages claims based on theories of premises defects and "special defects." See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a)-(b) (West Supp. 2007).
Asserting that its immunity against Leggett's claims had not been waived, the City filed a plea to the jurisdiction. The trial court denied the plea, specifically finding "as a matter of law that the condition was a special defect." The City appeals this order. See id. § 51.014(a)(8) (West Supp. 2007). (3)
Concluding that Leggett's suit does not fall within the tort claims act's waivers of immunity, we must reverse and render judgment dismissing the suit for want of subject-matter jurisdiction.
[...]
C O N C U R R I N G O P I N I O N BY JUSTICE PATTERSON
I concur in the judgment and agree with the majority's conclusion that the dispositive issue is whether the City of Austin had actual knowledge of the dangerous condition--flooding in the intersection--at the time of the accident.
The supreme court in City of Corsicana v. Stewart, No. 07-0058, 249 S.W.3d 412, 2008 Tex. LEXIS 218 (Tex. Mar. 28, 2008) (per curiam), decided a similar premise defect case that is dispositive of this appeal.
The supreme court directly addressed the element of a governmental unit's actual knowledge of a dangerous condition to establish waiver under the Texas Tort Claims Act. Id. at *1. In the context of an accident that occurred at a flooded low-water crossing, the claimants presented evidence that the City of Corsicana knew the low-water crossing tended to flood during heavy rainfall and that there had been heavy rainfall at the time of the accident. Id. at *3-4. Despite the City of Corsicana's knowledge of prior flooding at the low-water crossing and heavy rainfall at the time of the accident, the supreme court dismissed the claimants' action for lack of jurisdiction, holding that the claimants failed to raise a fact issue regarding the City of Corsicana's "actual knowledge that a dangerous condition existed at or near the crossing at the time of the accident." Id. at *7-8 ("As the Legislature created an actual, not constructive, knowledge standard for waiver of immunity, we conclude that Plaintiffs failed to raise a fact issue regarding the City's knowledge of a dangerous condition.").
There was no direct evidence that the City of Corsicana knew that the low-water crossing was flooded at or near the time of the accident. Id. at *5.
Similarly, there was no evidence that the City of Austin had actual knowledge that the intersection where the accident occurred was flooded at or near the time of the accident and, more compelling than the facts in City of Corsicana, it was undisputed that the City of Austin did not have knowledge of this intersection having ever flooded on prior occasions--or even of the detention pond flooding or overflowing. Leggett affirmatively asserted this fact in her pleadings: "The location of the drowning of Nathan is not known to have flooded before."
Based on the legal analysis set forth in City of Corsicana that a governmental entity must have "actual knowledge of a dangerous condition" to establish waiver of immunity, see id. at *7-8, I concur in the majority's judgment dismissing Leggett's suit for want of subject-matter jurisdiction.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Filed: June 12, 2008
Friday, June 27, 2008
CRLP Research Boulevard, LLC v. Williamson County Appraisal District
M E M O R A N D U M O P I N I O N
Appellant, CRLP Research Boulevard, LLC, has filed an unopposed motion to dismiss this appeal. We grant the motion and dismiss the appeal. See Tex. R. App. P. 42.1(a)(1).d Travis Central Appraisal District
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed on Appellant's Motion
Filed: June 12, 2008
M E M O R A N D U M O P I N I O N
Appellant, CRLP Research Boulevard, LLC, has filed an unopposed motion to dismiss this appeal. We grant the motion and dismiss the appeal. See Tex. R. App. P. 42.1(a)(1).d Travis Central Appraisal District
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed on Appellant's Motion
Filed: June 12, 2008
Scott, Commissioner of Education, Acting in his Official Capacity v. Driscoll Independent School District
M E M O R A N D U M O P I N I O N
Appellant Robert Scott, acting in his official capacity as Commissioner of Education, has informed this Court that he no longer wishes to pursue this appeal and has filed an unopposed motion to dismiss. We grant appellant's motion and dismiss the appeal. See Tex. R. App. P. 42.1(a).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellant's Motion
Filed: June 12, 2008
DISMISSED ON APPELLANT'S MOTION: Opinion by Justice Patterson [ PDF ] (Before Justices Patterson, Puryear and Henson)
03-08-00221-CV
Robert Scott, Commissioner of Education, Acting in his Official Capacity v. Driscoll Independent School District
Appeal from 261st District Court of Travis County
M E M O R A N D U M O P I N I O N
Appellant Robert Scott, acting in his official capacity as Commissioner of Education, has informed this Court that he no longer wishes to pursue this appeal and has filed an unopposed motion to dismiss. We grant appellant's motion and dismiss the appeal. See Tex. R. App. P. 42.1(a).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellant's Motion
Filed: June 12, 2008
DISMISSED ON APPELLANT'S MOTION: Opinion by Justice Patterson [ PDF ] (Before Justices Patterson, Puryear and Henson)
03-08-00221-CV
Robert Scott, Commissioner of Education, Acting in his Official Capacity v. Driscoll Independent School District
Appeal from 261st District Court of Travis County
In re Rebecca Allred, et al
PER CURIAM
M E M O R A N D U M O P I N I O N
This petition for writ of mandamus is dismissed on relators' motion. All pending motions are dismissed along with the petition.
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: June 12, 2008
DISMISSED: Per Curiam [ PDF ] (Before Chief Justice Law, Justices Pemberton and Waldrop)
03-08-00351-CV
In re Rebecca Allred, et al.--Appeal from 51st District Court of Schleicher County
PER CURIAM
M E M O R A N D U M O P I N I O N
This petition for writ of mandamus is dismissed on relators' motion. All pending motions are dismissed along with the petition.
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: June 12, 2008
DISMISSED: Per Curiam [ PDF ] (Before Chief Justice Law, Justices Pemberton and Waldrop)
03-08-00351-CV
In re Rebecca Allred, et al.--Appeal from 51st District Court of Schleicher County
Premises Liability | Fair v. White Memorial Hospital (Tex.App.- Austin 2008)
Gary Fair slipped and fell on ice that had accumulated outside Temple's Scott and White Memorial Hospital during a winter storm. Mr. Fair and his wife, Linda, sued the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation, Scott and White Properties, Inc., and "Scott and White Memorial Hospital" (collectively "appellees") for damages arising from the injuries Mr. Fair sustained as a result of his
fall.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART: Opinion by Justice Pemberton [ PDF ] (Before Justices Patterson, Pemberton and Waldrop)
03-06-00211-CV
Gary Fair and Linda Fair v. Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation; Scott and White Memorial Hospital; and Scott and White Properties, Inc.
Appeal from 146th District Court of Bell County
The appellees moved for summary judgment on three grounds relevant to this appeal: (1) as a matter of law, the condition of accumulated ice did not pose an unreasonable risk of harm under the principles enunciated in M. O. Dental Lab v. Rape, 139 S.W.3d 671, 672-73 (Tex. 2004) (per curiam), and Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 442-45 (Tex. App.--Eastland 2003, pet. denied), because the ice had accumulated due to natural forces and had remained in its natural state; (2) Mrs. Fair's claims are entirely derivative of Mr. Fair's; and (3) the Scott, Sherwood and Brindley Foundation was the sole owner, occupier or manager of the premises at issue and there is no evidence that Scott and White Properties, Inc. and "Scott and White Memorial Hospital" were. (1) The district court granted appellees' motion in its entirety without stating the grounds and rendered final judgment that the Fairs take nothing on their claims. The Fairs appealed.
Although the Fairs appeal the judgment as to all three appellees, they have not challenged the "no evidence" ground that could support summary judgment for Scott and White Properties, Inc., and "Scott and White Memorial Hospital." Consequently, we will affirm the district court's judgment as to those parties. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Bradley v. State ex rel White, 990 S.W.2d 245, 247 (Tex. 1999). However, because we conclude on this record that the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation ("the Foundation") has not established its entitlement to summary judgment with regard to the Fairs' claims against it, we must reverse that part of the judgment and remand for further proceedings.
We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Knott, 128 S.W.3d at 215. Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Texas Woman's Univ. v. Methodist Hosp., 221 S.W.3d 267, 276 (Tex. App.--Houston [1st Dist.] 2006, no pet.). We may affirm a summary judgment when the record shows that a movant has conclusively disproved at least one element of each of the plaintiff's claims or has established all of the elements of an affirmative defense as to each claim. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 660-61 (Tex. App.--Houston [14th Dist.] 2006, pet. denied). (2)
The Fairs allege that appellees were negligent in failing to exercise ordinary care to discover and make safe or warn of the accumulated ice on which Mr. Fair allegedly slipped and injured himself. This is a theory of premises liability. See In re Tex. Dep't of Transp., 218 S.W.3d 74, 77-78 (Tex. 2007) (distinguishing between premises defect claims and "negligent activity" claims); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (same). Under a premises liability theory, the duty owed by the premises owner or occupier--here, the Foundation--depends upon whether the entrant had the status of an invitee, licensee, or trespasser. For purposes of this summary judgment proceeding, the Foundation does not dispute that both Mr. and Mrs. Fair had the status of invitees. An owner or occupier owes a duty to its invitees to exercise reasonable care to protect them from dangerous conditions on the premises known or discoverable to it. Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This duty, however, "does not make the possessor an insurer of the invitee's safety." Id. To establish the owner or occupier's liability to an invitee for a condition existing on the premises, the following elements must be proven: (1) the owner or occupier had actual or constructive knowledge of a condition on the premises; (2) the condition posed an "unreasonable risk of harm"; (3) the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier's failure to use such care proximately caused the invitee's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Appellees' summary-judgment motion targeted the second element: it contended that, as a matter of law, natural accumulations of ice do not pose an unreasonable risk of harm and that the ice accumulation in which Mr. Fair slipped was in its natural state. (3)
In support of this legal principle, appellees relied on the supreme court's holding in M.O. Dental Lab that "[o]rdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm," 139 S.W.3d at 676, and the Eastland Court of Appeals' earlier holding in Surratt, in which it applied the "Massachusetts Rule" that accumulated ice in its natural condition does not present an unreasonable risk of harm. 102 S.W.3d at 442-45. The Fairs contend that both cases are distinguishable--they observe that M.O. Dental Lab involved mud, not ice, and portray the rationale of Surratt as limited solely to falls occurring in parking lot locations more remote than the site of Mr. Fair's fall. (4) In the alternative, the Fairs urge that appellees did not meet their summary-judgment burden of conclusively demonstrating that the ice at the site of Mr. Fair's fall was in its natural condition at the time of the fall. We agree with the Fairs that appellees did not meet their summary-judgment burden as to whether the ice where Mr. Fair fell was in its natural condition.
In support of their summary-judgment motion, appellees submitted the affidavits of Andy Anderson, Chief Meteorologist at Temple's KCEN television station, and Melissa Frei, Grounds Supervisor at Scott and White Hospital at the time of Mr. Fair's fall. Mr. Anderson, who averred to having 25 years' experience as a meteorologist, stated that "[b]eginning on Monday afternoon, February 24, 2005, an Arctic Cold Front arrived in the Temple, Texas area," and that the temperature fell below freezing (32 degrees Fahrenheit) at 5:30 p.m. "[R]ain began to freeze on contact with exposed surfaces," and "[i]ce pellets were also observed in the area helping create a glaze on sidewalks and roads." "By midnight," Anderson added, ".50" of snow was on the ground, and the temperature had fallen to 25 degrees."
"Winter precipitation continued until the early morning of Tuesday, February 25, 2005," according to Anderson, with ".12" to .55" additional precipitation since midnight." Further, "an additional trace of snow was measured," and "periods of ice pellets and ice fog were observed." Anderson noted that secondary roads across most of Bell County were rendered impassible due to accumulations of 1.5 inches of ice. On February 25, Anderson added, "[t]emperatures fell to 22 degrees shortly after dawn and warmed to only 26 by late afternoon." The temperature did not rise above freezing until the afternoon of Wednesday, February 27, Anderson continued, and the roads were not clear until the following day.
In her affidavit, Frei discussed the impact of the ice storm on the Scott and White grounds in particular. She averred that, as Grounds Supervisor, she was personally present at the hospital on February 24 and 25, 2005, and "personally observed" that an ice storm hit the Temple area on the 24th and caused ice accumulations "in the area, including, but not limited to, the parking lot, road, and steps in front of the Special Treatment Center at the hospital." According to Frei, "All exposed surfaces on the parking lot, road, and steps in this location were covered with ice." Regarding the condition of the ice accumulations at the time and location where Mr. Fair fell, Frei stated that "[t]he ice accumulations were caused by forces of nature, and not by any human action" and that "[t]he accumulations of ice in the parking lot and road remained in their natural state until after Gary Fair is reported to have fallen in this location." Other than to state that the facts within her affidavit "are within my personal knowledge" and that she "personally observed" them in her capacity as Grounds Supervisor, Frei did not elaborate on the basis of her knowledge regarding the condition of the ice at the time and location where Mr. Fair fell.
The Fairs attached to their summary-judgment response excerpts from Frei's deposition in which she testified that she had "no idea" or familiarity regarding the particular incident where Mr. Fair fell and was injured, that she had not been at the scene or been called to the scene, and that she had not heard about the incident during the day on which it occurred. (5)
Frei's deposition testimony controverts her assertions of personal knowledge regarding the condition of the ice accumulations at the time and location where Mr. Fair fell that were contained in her affidavit. Accordingly, Frei's affidavit cannot support summary judgment with regard to whether the ice accumulations where and when Mr. Fair fell were in their natural state. See Tex. R. Civ. P. 166a(c), (f).
Appellees also attached excerpts from Mr. Fair's deposition, in which he described the circumstances of his fall. Regarding the condition of the ice at the site of the fall, appellees point to Mr. Fair's testimony that the location where he fell had not been sanded. This testimony alone does not conclusively establish that the ice where Mr. Fair fell was necessarily in its natural condition.
Appellees did not present any other summary-judgment evidence regarding whether the ice accumulation where and when Mr. Fair fell was in its natural condition. On this record, appellees did not conclusively establish that the ice accumulation was in its natural state and was not an unreasonably dangerous condition. For these reasons, we affirm the district court's summary judgment that the Fairs take nothing on their claims against Scott and White Properties, Inc., and "Scott and White Memorial Hospital," but reverse its judgment that the Fairs take nothing on their claims against the Foundation. We remand for further proceedings consistent with this opinion.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part, Reversed and Remanded in part
Filed: June 13, 2008
1. The Fairs also filed a cross-motion for summary judgment, which the district court denied. The Fairs do not appeal from this ruling, as the grounds they presented in their cross-motion did not overlap with the appellees' three grounds.
2. On appeal, the Fairs filed an appendix to their brief containing what appear to be the entire transcripts from the depositions of Mr. Fair, Scott and White grounds supervisor Melissa Frei, and security department manager Thomas Suhling. Appellees filed a motion to strike any portions of these depositions that had not been included in the summary-judgment record. The Fairs subsequently agreed to this requested relief. We grant the motion and strike all portions of these depositions that were not included in the summary-judgment record.
3. On appeal, appellees assert that, "[e]ven in the absence of Wal-Mart and M.O. Dental Lab, Appellees would have been entitled to summary judgment" because whatever duty they had to warn the Fairs of the risk posed by the ice was obviated by Mr. Fair's admitted awareness of it and "there was nothing to warn him about." However, appellees did not raise this ground in their motion, so we cannot consider it as a basis for affirming the summary judgment. See City of Midland v. O'Bryant, 18 S.W.3d 209, 218 (Tex. 2000).
4. But see Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex. App.--Waco 2006, no pet.) ("In light of M.O. Dental Lab, we see no basis for differentiating between a natural accumulation of ice in the parking lot and one on a sidewalk near a business entrance. Therefore, we hold that the natural accumulation of ice on a sidewalk near the entrance of a business does not pose an unreasonable risk of harm to invitees.").
5. Q: Do you keep records of - Do you have any familiarity with the particular incident where Mr. Fair slipped and fell and was injured?
A: I have no idea.
Q: You weren't at the scene or called to the scene?
A: No, sir.
Q: You never met Mr. Fair?
A: No, sir.
Q: Did you go to the scene - Or did you hear about the accident during the day?
A: No, sir.
fall.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART: Opinion by Justice Pemberton [ PDF ] (Before Justices Patterson, Pemberton and Waldrop)
03-06-00211-CV
Gary Fair and Linda Fair v. Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation; Scott and White Memorial Hospital; and Scott and White Properties, Inc.
Appeal from 146th District Court of Bell County
The appellees moved for summary judgment on three grounds relevant to this appeal: (1) as a matter of law, the condition of accumulated ice did not pose an unreasonable risk of harm under the principles enunciated in M. O. Dental Lab v. Rape, 139 S.W.3d 671, 672-73 (Tex. 2004) (per curiam), and Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 442-45 (Tex. App.--Eastland 2003, pet. denied), because the ice had accumulated due to natural forces and had remained in its natural state; (2) Mrs. Fair's claims are entirely derivative of Mr. Fair's; and (3) the Scott, Sherwood and Brindley Foundation was the sole owner, occupier or manager of the premises at issue and there is no evidence that Scott and White Properties, Inc. and "Scott and White Memorial Hospital" were. (1) The district court granted appellees' motion in its entirety without stating the grounds and rendered final judgment that the Fairs take nothing on their claims. The Fairs appealed.
Although the Fairs appeal the judgment as to all three appellees, they have not challenged the "no evidence" ground that could support summary judgment for Scott and White Properties, Inc., and "Scott and White Memorial Hospital." Consequently, we will affirm the district court's judgment as to those parties. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Bradley v. State ex rel White, 990 S.W.2d 245, 247 (Tex. 1999). However, because we conclude on this record that the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation ("the Foundation") has not established its entitlement to summary judgment with regard to the Fairs' claims against it, we must reverse that part of the judgment and remand for further proceedings.
We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Knott, 128 S.W.3d at 215. Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Texas Woman's Univ. v. Methodist Hosp., 221 S.W.3d 267, 276 (Tex. App.--Houston [1st Dist.] 2006, no pet.). We may affirm a summary judgment when the record shows that a movant has conclusively disproved at least one element of each of the plaintiff's claims or has established all of the elements of an affirmative defense as to each claim. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 660-61 (Tex. App.--Houston [14th Dist.] 2006, pet. denied). (2)
The Fairs allege that appellees were negligent in failing to exercise ordinary care to discover and make safe or warn of the accumulated ice on which Mr. Fair allegedly slipped and injured himself. This is a theory of premises liability. See In re Tex. Dep't of Transp., 218 S.W.3d 74, 77-78 (Tex. 2007) (distinguishing between premises defect claims and "negligent activity" claims); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (same). Under a premises liability theory, the duty owed by the premises owner or occupier--here, the Foundation--depends upon whether the entrant had the status of an invitee, licensee, or trespasser. For purposes of this summary judgment proceeding, the Foundation does not dispute that both Mr. and Mrs. Fair had the status of invitees. An owner or occupier owes a duty to its invitees to exercise reasonable care to protect them from dangerous conditions on the premises known or discoverable to it. Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This duty, however, "does not make the possessor an insurer of the invitee's safety." Id. To establish the owner or occupier's liability to an invitee for a condition existing on the premises, the following elements must be proven: (1) the owner or occupier had actual or constructive knowledge of a condition on the premises; (2) the condition posed an "unreasonable risk of harm"; (3) the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier's failure to use such care proximately caused the invitee's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Appellees' summary-judgment motion targeted the second element: it contended that, as a matter of law, natural accumulations of ice do not pose an unreasonable risk of harm and that the ice accumulation in which Mr. Fair slipped was in its natural state. (3)
In support of this legal principle, appellees relied on the supreme court's holding in M.O. Dental Lab that "[o]rdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm," 139 S.W.3d at 676, and the Eastland Court of Appeals' earlier holding in Surratt, in which it applied the "Massachusetts Rule" that accumulated ice in its natural condition does not present an unreasonable risk of harm. 102 S.W.3d at 442-45. The Fairs contend that both cases are distinguishable--they observe that M.O. Dental Lab involved mud, not ice, and portray the rationale of Surratt as limited solely to falls occurring in parking lot locations more remote than the site of Mr. Fair's fall. (4) In the alternative, the Fairs urge that appellees did not meet their summary-judgment burden of conclusively demonstrating that the ice at the site of Mr. Fair's fall was in its natural condition at the time of the fall. We agree with the Fairs that appellees did not meet their summary-judgment burden as to whether the ice where Mr. Fair fell was in its natural condition.
In support of their summary-judgment motion, appellees submitted the affidavits of Andy Anderson, Chief Meteorologist at Temple's KCEN television station, and Melissa Frei, Grounds Supervisor at Scott and White Hospital at the time of Mr. Fair's fall. Mr. Anderson, who averred to having 25 years' experience as a meteorologist, stated that "[b]eginning on Monday afternoon, February 24, 2005, an Arctic Cold Front arrived in the Temple, Texas area," and that the temperature fell below freezing (32 degrees Fahrenheit) at 5:30 p.m. "[R]ain began to freeze on contact with exposed surfaces," and "[i]ce pellets were also observed in the area helping create a glaze on sidewalks and roads." "By midnight," Anderson added, ".50" of snow was on the ground, and the temperature had fallen to 25 degrees."
"Winter precipitation continued until the early morning of Tuesday, February 25, 2005," according to Anderson, with ".12" to .55" additional precipitation since midnight." Further, "an additional trace of snow was measured," and "periods of ice pellets and ice fog were observed." Anderson noted that secondary roads across most of Bell County were rendered impassible due to accumulations of 1.5 inches of ice. On February 25, Anderson added, "[t]emperatures fell to 22 degrees shortly after dawn and warmed to only 26 by late afternoon." The temperature did not rise above freezing until the afternoon of Wednesday, February 27, Anderson continued, and the roads were not clear until the following day.
In her affidavit, Frei discussed the impact of the ice storm on the Scott and White grounds in particular. She averred that, as Grounds Supervisor, she was personally present at the hospital on February 24 and 25, 2005, and "personally observed" that an ice storm hit the Temple area on the 24th and caused ice accumulations "in the area, including, but not limited to, the parking lot, road, and steps in front of the Special Treatment Center at the hospital." According to Frei, "All exposed surfaces on the parking lot, road, and steps in this location were covered with ice." Regarding the condition of the ice accumulations at the time and location where Mr. Fair fell, Frei stated that "[t]he ice accumulations were caused by forces of nature, and not by any human action" and that "[t]he accumulations of ice in the parking lot and road remained in their natural state until after Gary Fair is reported to have fallen in this location." Other than to state that the facts within her affidavit "are within my personal knowledge" and that she "personally observed" them in her capacity as Grounds Supervisor, Frei did not elaborate on the basis of her knowledge regarding the condition of the ice at the time and location where Mr. Fair fell.
The Fairs attached to their summary-judgment response excerpts from Frei's deposition in which she testified that she had "no idea" or familiarity regarding the particular incident where Mr. Fair fell and was injured, that she had not been at the scene or been called to the scene, and that she had not heard about the incident during the day on which it occurred. (5)
Frei's deposition testimony controverts her assertions of personal knowledge regarding the condition of the ice accumulations at the time and location where Mr. Fair fell that were contained in her affidavit. Accordingly, Frei's affidavit cannot support summary judgment with regard to whether the ice accumulations where and when Mr. Fair fell were in their natural state. See Tex. R. Civ. P. 166a(c), (f).
Appellees also attached excerpts from Mr. Fair's deposition, in which he described the circumstances of his fall. Regarding the condition of the ice at the site of the fall, appellees point to Mr. Fair's testimony that the location where he fell had not been sanded. This testimony alone does not conclusively establish that the ice where Mr. Fair fell was necessarily in its natural condition.
Appellees did not present any other summary-judgment evidence regarding whether the ice accumulation where and when Mr. Fair fell was in its natural condition. On this record, appellees did not conclusively establish that the ice accumulation was in its natural state and was not an unreasonably dangerous condition. For these reasons, we affirm the district court's summary judgment that the Fairs take nothing on their claims against Scott and White Properties, Inc., and "Scott and White Memorial Hospital," but reverse its judgment that the Fairs take nothing on their claims against the Foundation. We remand for further proceedings consistent with this opinion.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part, Reversed and Remanded in part
Filed: June 13, 2008
1. The Fairs also filed a cross-motion for summary judgment, which the district court denied. The Fairs do not appeal from this ruling, as the grounds they presented in their cross-motion did not overlap with the appellees' three grounds.
2. On appeal, the Fairs filed an appendix to their brief containing what appear to be the entire transcripts from the depositions of Mr. Fair, Scott and White grounds supervisor Melissa Frei, and security department manager Thomas Suhling. Appellees filed a motion to strike any portions of these depositions that had not been included in the summary-judgment record. The Fairs subsequently agreed to this requested relief. We grant the motion and strike all portions of these depositions that were not included in the summary-judgment record.
3. On appeal, appellees assert that, "[e]ven in the absence of Wal-Mart and M.O. Dental Lab, Appellees would have been entitled to summary judgment" because whatever duty they had to warn the Fairs of the risk posed by the ice was obviated by Mr. Fair's admitted awareness of it and "there was nothing to warn him about." However, appellees did not raise this ground in their motion, so we cannot consider it as a basis for affirming the summary judgment. See City of Midland v. O'Bryant, 18 S.W.3d 209, 218 (Tex. 2000).
4. But see Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex. App.--Waco 2006, no pet.) ("In light of M.O. Dental Lab, we see no basis for differentiating between a natural accumulation of ice in the parking lot and one on a sidewalk near a business entrance. Therefore, we hold that the natural accumulation of ice on a sidewalk near the entrance of a business does not pose an unreasonable risk of harm to invitees.").
5. Q: Do you keep records of - Do you have any familiarity with the particular incident where Mr. Fair slipped and fell and was injured?
A: I have no idea.
Q: You weren't at the scene or called to the scene?
A: No, sir.
Q: You never met Mr. Fair?
A: No, sir.
Q: Did you go to the scene - Or did you hear about the accident during the day?
A: No, sir.
Cole v. Motor Vehicle Board of Tx DOT (Tex.App.- Austin 2008)
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
Cole v. Motor Vehicle Board of the Tx DoT 03-05-00825-CV(Tex.App.- Austin, June 18, 2008)(Opinion by Justice Pemberton [ PDF ]) (Before Chief Justice Law, Justices Patterson and Pemberton)Robert Cole and Bonnie Cole v. Motor Vehicle Board of the Texas Department of Transportation and Georgie Boy Manufacturing, Inc. n/k/a Georgie Boy Manufacturing, LLC--Appeal from 345th District Court of Travis County
M E M O R A N D U M O P I N I O N
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
This proceeding arises in the context of the "hybrid claims resolution process" discussed by the Texas Supreme Court in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222-26 (Tex. 2002). The underlying controversy concerns a 1994 Georgie Boy motor home purchased by the Coles in June 1994. The Coles claim to have encountered numerous problems with the motor home relating chiefly to overheating and handling difficulties. In 1995, the Coles filed suit in Hays County against the dealer who sold them the motor home, Interstate R.V. Center. They later amended their complaint to allege claims against the manufacturer of the vehicle, appellee Georgie Boy, Inc.; the manufacturer of the vehicle's chassis, Spartan Motors, Inc.; and the engine manufacturer, Cummins Engine Company. The Coles asserted claims under the DTPA, alleging, among other theories, breach of warranty. The lawsuit was later abated and, in 2004, the Coles sent the Board a letter "to file a complaint for unresolved warranty issues" under section 2301.204 of the occupations code. (2)
The Board responded with a letter assigning them a "case advisor" and transmitting a form for filing a "Lemon Law" complaint See Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2007). The Coles completed the Lemon Law form and filed it with the Board. The matter was docketed with the Coles designated as "complainant" and the three manufacturers as "respondents." Spartan moved to dismiss the complaint as untimely. The ALJ granted Spartan's motion and dismissed the complaint, ruling that the vehicle warranties had long since expired and that the Coles had "failed to present a prima facie case that would entitle them to relief under Section 2301.204" because the passage of time "rendered attribution of cause with any degree of legal certainty unfeasible." The Coles filed a motion for rehearing with the Board.
In their rehearing motion, the Coles urged that the Texas Supreme Court had decided Subaru while their suit was pending and that "[i]n light of Subaru . . . and the broad language of Section 2301.204 of the Occupations Code, it was prudent, if not mandatory, for the Complainant to attempt to invoke the jurisdiction of the Board pursuant to section 204 prior to trying the pending District Court case." The Board unanimously agreed, granting the Coles' rehearing motion and remanding the matter to the ALJ. Subsequently, the Board gave notice of hearing "under the authority of the Texas Occupations Code Annotated, Section 2301.204 . . . for the purpose of receiving testimony and other evidence from the parties, to determine whether the Respondent[s] ha[ve] failed to conform the Complainant's vehicle to the express warranty applicable to said vehicle by failing to repair or correct defects or conditions which are covered by the warranty on the vehicle, as alleged by Complainant, and to determine if Complainant is entitled to relief as provided by . . . Section 2301.204."
Pursuant to the notice, a contested case hearing was held in which the Coles presented evidence (including the testimony of two experts) and argued that they "have satisfied their burden to win this case. They have shown that defects exist, that they told the Respondents about the defects but that the Respondents failed to repair the defects. So, the Coles should prevail." (3) The ALJ concluded that there had been no warranty violations by the respondents. The ALJ specifically found that Georgie Boy's express warranty had expired in 1995, that the company had not failed to uphold its warranty obligations, and that "[t]he requirements of Section 2301.204 were not met because the Complainants have not proven that any manufacturing related defective conditions currently exist." The Coles moved for rehearing, which the Board denied by a 6-2 vote. The Coles then sought judicial review in the district court. This district court affirmed the Board's order. This appeal followed.
The Coles acknowledge that they are appealing the Board's decision "solely to ensure that the Board's arbitrary and capricious actions [do] not prejudice" the pending lawsuit in Hays County under Subaru. At this juncture, they attempt to portray the Board proceeding they initiated as a "public interest" complaint that the Board had authority only to "investigate" in its "administrative" capacity. According to the Coles, the Board had statutory authority or jurisdiction during this investigation merely to call them as witnesses, but could not act in a "judicial capacity" to adjudicate their complaint, treat them as parties to a contested case or "adversarial action," or make findings and rulings "against" them.
On appeal, the Coles question whether their lawsuit presents code-based issues whose determination by the Board would have binding effect under Subaru. As the Coles acknowledged in their first motion for rehearing before the Board, however, their warranty complaints clearly present code-based issues within the Board's exclusive jurisdiction. See Tex. Occ. Code Ann. §§ 2301.204, .601-.613; see Subaru, 84 S.W.3d at 222-26.
As we have previously observed, "[e]xactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru" that the Board would use in the hybrid claims-resolution process "remains somewhat unclear," Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 148 (Tex. App.--Austin 2005, no pet.), but it remains that the Board has exclusive jurisdiction within this scheme to decide code-based issues. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 102 (Tex. App.--Austin 2004, pet. denied). Moreover, "the legislature has granted the Board wide discretion to fashion the procedural mechanisms through which it exercises its jurisdiction." Id. For example, in Buddy Gregg, another Subaru case, we held that the Board had discretion under its enforcement powers to permit a motor coach dealer to initiate a contested case proceeding to determine licensing issues involving a rival company and to permit the dealer to participate in those proceedings as a party. Id. at 101-02.
Throughout each step of the agency proceedings, the Coles participated as parties in an adversarial, contested-case process, presenting evidence and arguing that they had "satisfied their burden to win this case." Such a process was contemplated by the Board's rules governing complaints regarding warranty performance obligations. 16 Tex. Admin. Code §§ 107.1-.11 (2004). The Coles did not complain of this procedure until they filed their motion for rehearing before the Board. Under Subaru and Buddy Gregg, we reject the Coles' arguments that the Board lacked statutory authority or jurisdiction to adjudicate their code-based warranty issues through the procedure it utilized. We accordingly overrule the Coles' issues (4) and affirm the district court's judgment.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: June 18, 2008
1. Because most of the underlying proceedings predated the legislature's 2005 abolition of the Board and transfer of its functions to the motor vehicle division of the department of transportation, we will refer to the agency as the Board. See Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.01, sec. 2301.002(2), (10), 2005 Tex. Gen. Laws 778, 839.
2. The Coles' letter actually referenced "Section 2.04 of the Motor Vehicle Commission Code." The Coles acknowledge that, as is apparent from their subsequent filings, they intended to invoke section 2301.204 of the occupations code. Tex. Occ. Code Ann. § 2301.204(a) (West 2004).
Section 2310.204 provides:
§ 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT.
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
3. Complainants' Closing Argument, at 2.
4. In addition to their two issues, the Coles assert in their statement of facts that "[t]he Manufacturers . . . failed to provide substantial evidence." To the extent the Coles intend this as a challenge to whether substantial evidence supports the Board's order, we agree with the Board that the Coles have waived it by failing to identify any specific findings of fact or conclusions of law they contend are not supported by the evidence. See Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied).
Cole v. Motor Vehicle Board of the Tx DoT 03-05-00825-CV(Tex.App.- Austin, June 18, 2008)(Opinion by Justice Pemberton [ PDF ]) (Before Chief Justice Law, Justices Patterson and Pemberton)Robert Cole and Bonnie Cole v. Motor Vehicle Board of the Texas Department of Transportation and Georgie Boy Manufacturing, Inc. n/k/a Georgie Boy Manufacturing, LLC--Appeal from 345th District Court of Travis County
M E M O R A N D U M O P I N I O N
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
This proceeding arises in the context of the "hybrid claims resolution process" discussed by the Texas Supreme Court in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222-26 (Tex. 2002). The underlying controversy concerns a 1994 Georgie Boy motor home purchased by the Coles in June 1994. The Coles claim to have encountered numerous problems with the motor home relating chiefly to overheating and handling difficulties. In 1995, the Coles filed suit in Hays County against the dealer who sold them the motor home, Interstate R.V. Center. They later amended their complaint to allege claims against the manufacturer of the vehicle, appellee Georgie Boy, Inc.; the manufacturer of the vehicle's chassis, Spartan Motors, Inc.; and the engine manufacturer, Cummins Engine Company. The Coles asserted claims under the DTPA, alleging, among other theories, breach of warranty. The lawsuit was later abated and, in 2004, the Coles sent the Board a letter "to file a complaint for unresolved warranty issues" under section 2301.204 of the occupations code. (2)
The Board responded with a letter assigning them a "case advisor" and transmitting a form for filing a "Lemon Law" complaint See Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2007). The Coles completed the Lemon Law form and filed it with the Board. The matter was docketed with the Coles designated as "complainant" and the three manufacturers as "respondents." Spartan moved to dismiss the complaint as untimely. The ALJ granted Spartan's motion and dismissed the complaint, ruling that the vehicle warranties had long since expired and that the Coles had "failed to present a prima facie case that would entitle them to relief under Section 2301.204" because the passage of time "rendered attribution of cause with any degree of legal certainty unfeasible." The Coles filed a motion for rehearing with the Board.
In their rehearing motion, the Coles urged that the Texas Supreme Court had decided Subaru while their suit was pending and that "[i]n light of Subaru . . . and the broad language of Section 2301.204 of the Occupations Code, it was prudent, if not mandatory, for the Complainant to attempt to invoke the jurisdiction of the Board pursuant to section 204 prior to trying the pending District Court case." The Board unanimously agreed, granting the Coles' rehearing motion and remanding the matter to the ALJ. Subsequently, the Board gave notice of hearing "under the authority of the Texas Occupations Code Annotated, Section 2301.204 . . . for the purpose of receiving testimony and other evidence from the parties, to determine whether the Respondent[s] ha[ve] failed to conform the Complainant's vehicle to the express warranty applicable to said vehicle by failing to repair or correct defects or conditions which are covered by the warranty on the vehicle, as alleged by Complainant, and to determine if Complainant is entitled to relief as provided by . . . Section 2301.204."
Pursuant to the notice, a contested case hearing was held in which the Coles presented evidence (including the testimony of two experts) and argued that they "have satisfied their burden to win this case. They have shown that defects exist, that they told the Respondents about the defects but that the Respondents failed to repair the defects. So, the Coles should prevail." (3) The ALJ concluded that there had been no warranty violations by the respondents. The ALJ specifically found that Georgie Boy's express warranty had expired in 1995, that the company had not failed to uphold its warranty obligations, and that "[t]he requirements of Section 2301.204 were not met because the Complainants have not proven that any manufacturing related defective conditions currently exist." The Coles moved for rehearing, which the Board denied by a 6-2 vote. The Coles then sought judicial review in the district court. This district court affirmed the Board's order. This appeal followed.
The Coles acknowledge that they are appealing the Board's decision "solely to ensure that the Board's arbitrary and capricious actions [do] not prejudice" the pending lawsuit in Hays County under Subaru. At this juncture, they attempt to portray the Board proceeding they initiated as a "public interest" complaint that the Board had authority only to "investigate" in its "administrative" capacity. According to the Coles, the Board had statutory authority or jurisdiction during this investigation merely to call them as witnesses, but could not act in a "judicial capacity" to adjudicate their complaint, treat them as parties to a contested case or "adversarial action," or make findings and rulings "against" them.
On appeal, the Coles question whether their lawsuit presents code-based issues whose determination by the Board would have binding effect under Subaru. As the Coles acknowledged in their first motion for rehearing before the Board, however, their warranty complaints clearly present code-based issues within the Board's exclusive jurisdiction. See Tex. Occ. Code Ann. §§ 2301.204, .601-.613; see Subaru, 84 S.W.3d at 222-26.
As we have previously observed, "[e]xactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru" that the Board would use in the hybrid claims-resolution process "remains somewhat unclear," Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 148 (Tex. App.--Austin 2005, no pet.), but it remains that the Board has exclusive jurisdiction within this scheme to decide code-based issues. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 102 (Tex. App.--Austin 2004, pet. denied). Moreover, "the legislature has granted the Board wide discretion to fashion the procedural mechanisms through which it exercises its jurisdiction." Id. For example, in Buddy Gregg, another Subaru case, we held that the Board had discretion under its enforcement powers to permit a motor coach dealer to initiate a contested case proceeding to determine licensing issues involving a rival company and to permit the dealer to participate in those proceedings as a party. Id. at 101-02.
Throughout each step of the agency proceedings, the Coles participated as parties in an adversarial, contested-case process, presenting evidence and arguing that they had "satisfied their burden to win this case." Such a process was contemplated by the Board's rules governing complaints regarding warranty performance obligations. 16 Tex. Admin. Code §§ 107.1-.11 (2004). The Coles did not complain of this procedure until they filed their motion for rehearing before the Board. Under Subaru and Buddy Gregg, we reject the Coles' arguments that the Board lacked statutory authority or jurisdiction to adjudicate their code-based warranty issues through the procedure it utilized. We accordingly overrule the Coles' issues (4) and affirm the district court's judgment.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: June 18, 2008
1. Because most of the underlying proceedings predated the legislature's 2005 abolition of the Board and transfer of its functions to the motor vehicle division of the department of transportation, we will refer to the agency as the Board. See Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.01, sec. 2301.002(2), (10), 2005 Tex. Gen. Laws 778, 839.
2. The Coles' letter actually referenced "Section 2.04 of the Motor Vehicle Commission Code." The Coles acknowledge that, as is apparent from their subsequent filings, they intended to invoke section 2301.204 of the occupations code. Tex. Occ. Code Ann. § 2301.204(a) (West 2004).
Section 2310.204 provides:
§ 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT.
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
3. Complainants' Closing Argument, at 2.
4. In addition to their two issues, the Coles assert in their statement of facts that "[t]he Manufacturers . . . failed to provide substantial evidence." To the extent the Coles intend this as a challenge to whether substantial evidence supports the Board's order, we agree with the Board that the Coles have waived it by failing to identify any specific findings of fact or conclusions of law they contend are not supported by the evidence. See Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied).
Juvenile law | Transfer to the TDCJ for the completion of determinate sentence
Juvenile Court Procedure
During the time a person is committed to the TYC, the Commission may request the court to release the person to supervision or transfer the person to the TDCJ. See Tex. Fam. Code Ann. § 54.11(a). Section 54.11 provides that when a juvenile is given a determinate sentence, upon the TYC’s request to transfer the juvenile to the TDCJ, the trial court is required to hold a hearing. Id. At the conclusion of the hearing, the trial court may either order the return of the juvenile to the TYC or the transfer of the juvenile to the custody of the TDCJ for the completion of his sentence. Id. § 54.11(i). If the Commission requests that the person be released to adult parole, the trial court may return the person to the TYC with or without approval to release that person under supervision. Id. § 54.11(j). If the Commission requests that a person be transferred to the TDCJ, the trial court may return the person to the TYC or order that he be transferred to the TDCJ. Id. § 54.11(i).
In the Matter of T. G. No. 03-07-00543-CV (Tex.App. - Austin, June 19, 2008)(Opinion by Justice Patterson [ PDF ] ) (Before Justices Patterson, Puryear and Henson)In the Matter of T. G.--Appeal from County Court at Law No. 1 of Bell County
Appeal from County Court at Law No. 1 of Bell County
In making a determination regarding transfer of a juvenile offender to the TDCJ, a trialcourt may consider: (1) the experiences and character of the person before and after commitmentto the TYC; (2) the nature of the penal offense and the manner in which it was committed; (3) theabilities of the person to contribute to society; (4) the protection of the victim or the victim’s family;(5) the recommendations of the TYC and the prosecuting attorney; (6) the best interests of theperson; and (7) any other factor relevant to the issue to be decided. See Tex. Fam. Code Ann.§ 54.11(k) (West Supp. 2007).
A child committed to the TYC on a determinate sentence must remain at the TYC for a minimum period of time before release or transfer. See Tex. Hum. Res. Code Ann. § 61.081 (West Supp. 2007); Former HR Code § 61.084. The minimum length of stay depends upon the seriousness of the offense for which the child was committed. See Tex. Hum. Res. Code Ann. § 61.081.
For those who were committed to the Commission under a determinate sentence, as T.G. was here, transfer was automatic on the person’s twenty-first birthday—now his nineteenth birthday with the amendment—if the person had not already been discharged or transferred. See SB 103, 2007 Tex. Gen. Laws at 449 (amending human resources code to provide for automatic transfer at age nineteen instead of twenty-one).
OPIONION
T.G., a juvenile, was adjudicated delinquent, given a determinate sentence, and remanded to the custody of the Texas Youth Commission (TYC or Commission). This is an appeal from a juvenile court order transferring T.G. from the TYC to the custody of the Institutional Division of the Texas Department of Criminal Justice (TDCJ). With the passage of Senate Bill 103, Act of May 25, 2007, 80th Leg., R.S., ch. 263, 2007 Tex. Gen. Laws 421 (effectiveJune 8, 2007) (hereafter “SB 103”). Because several provisions of the family code and the humanresources code have been amended, we cite to the current version of the statute, unless a particularamendment is relevant to the disposition of this appeal. effective June 8, 2007, which reduced the age of youth who are eligible for confinement at the TYC from twenty-one to nineteen years of age, the question presented is whether the juvenile court retained jurisdiction to hold a transfer hearing for a juvenile’s transfer to the TDCJ for confinement if the juvenile (i) had been held pursuant to a determinate sentence felony adjudication, (ii) had not completed a minimum length of stay, and (iii) had not yet reached twenty-one years of age but was nineteen years of age when the statute became effective. In two issues on appeal, T.G. urges that the juvenile court was without authority to hold a transfer hearing and, upon the effective date of the statute, the Commission had no discretion but to transfer him to the custody of the TDCJ to serve the remainder of his sentence on parole. Because the Texas Family Code provides for the juvenile court to retain jurisdiction over the juvenile for transfer or release “without regard to the age of the person,” see Tex. Fam. Code Ann. § 51.0411 (West 2002), we hold that the court had jurisdiction and further that it did not abuse its discretion in ordering the transfer of T.G. to the custody of the TDCJ to serve the remainder of his determinate sentence.
BACKGROUND
In 2005, the State filed an original determinate sentencing petition alleging that T.G. had engaged in delinquent conduct by committing aggravated sexual assault of a child.
See Tex. Penal Code Ann. § 22.021 (West Supp. 2007). T.G. pleaded true to the charge, and the juvenile court adjudicated him as being a child who had engaged in delinquent conduct. Following a disposition hearing, the court committed T.G. to the TYC for a twelve-year determinate sentence.
A determinate sentence is one in which the court specifies the term of commitment in theTYC with a possible transfer to the TDCJ. See generally Tex. Fam. Code Ann. § 54.04(d)(3)(West Supp. 2007) (allowing the court to specify the term of commitment based on the degree ofdelinquent conduct).
See Tex. Fam. Code Ann. §§ 53.045(a), 54.04(d)(3) (West Supp. 2007); Act of May 27, 1979, 66th Leg., R.S., ch. 842, 1979 Tex. Gen. Laws 2333, 2390, amended by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.19, 1997 Tex. Gen. Laws 327, 442 (hereafter “Former HR Code § 61.084”) (current version at Tex. Hum. Res. Code Ann. § 61.084 (West Supp. 2007)).
The parties stipulated to the facts relevant to this appeal. Having been born on May 3, 1988, T.G. turned nineteen years old on May 3, 2007, while still in the custody of the TYC. On July 2, 2007, the TYC requested the court to hold a transfer hearing. On July 10, the State filed a Motion for a Release and Transfer Hearing pursuant to section 61.079 of the Texas Human Resources Code
See Act of May 27, 1987, 70th Leg., R.S., ch. 385, § 17, 1987 Tex. Gen. Laws 1891, 1898,amended by Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 61, 1995 Tex. Gen. Laws 2517, 2572-73 (hereafter “Former HR Code § 61.079”) (current version at Tex. Hum. Res. Code Ann. § 61.079(West Supp. 2007)). and section 54.11(b) and (d) of the Texas Family Code
See Tex. Fam. Code Ann. § 54.11(b), (c) (West Supp. 2007).Close and the court granted the motion. At the conclusion of the transfer hearing held in August 2007, the court rendered an order with findings of fact and conclusions of law directing that T.G. be transferred to the TDCJ.
Findings of Fact and Conclusions of Law
The court’s findings of fact and conclusions of law included the following:
5.that at the time of T.Y.C.’s request for “transfer,” juvenile had already reached (19) years of age;
6.that at the time of T.Y.C.’s request on 7-2-07, T.Y.C. could not have previously released the juvenile from its custody without the trial court’s approval, because juvenile:
(a)had not served the minimum (3) year length of stay at T.Y.C. for a Family Code, Sec. 54.04(d)(3) Determinate Sentence commitment, pursuant to Texas Human Resources Code, Sec. 61.081(f)(2);
(b) nor had juvenile served and discharged his twelve (12) year sentence pursuant to Texas Human Resources Code, Sec. 61.084(b);
7.that Senate Bill No. 103 (an Act) relating to the Texas Youth Commission was passed by both houses, effective immediately on June 8, 2007; [and]
8.that on the effective date of said act, (June 8, 2007), while in lawful custody, the juvenile had already reached the age of (19) years.
The court concluded that at the time of adjudication and commitment, the court maintained the exclusive, original jurisdiction of T.G. pursuant to sections 51.04(a), 51.0411, and 54.11(a) and (h) of the family code and section 61.079(a) of the human resources code. See Tex. Fam. Code Ann. §§ 51.04(a), 51.0411 (West 2002), 54.11(a), (h) (West Supp. 2007); Former HR Code § 61.079(a). The court further concluded that the provisions of SB 103 were prospective in their effect, that the legislature did not intend for SB 103 to have retroactive effect, and that the law in effect when the child was adjudicated continued in effect. With respect to his transfer, the court further found that T.G. should be transferred to the TDCJ to serve the remainder of his twelve-year determinate sentence:
22.that at the time of this release hearing, [T.G.] had served approximately 21 months of his twelve (12) year sentence at the Texas Youth Commission, which 21 months do not include his 81 days pre-trial detention in the Bell County Juvenile Detention Center, and:
23.that the Respondent, [T.G.] is still in need of rehabilitation,
24.that the Juvenile-Respondent [T.G.] is at high risk to re-offend,
25.that the juvenile’s conduct and the welfare and safety of the community at large, as well as the T.Y.C. community, requires transfer, and;
26.that it is therefore in the best interest of [T.G.] and the welfare of the community at large, that [T.G.] be transferred to the Institutional Division of the Texas Department of Criminal Justice . . . to serve the remainder of his twelve (12) year determinate sentence.
The Controversy
SB 103, which was effective on June 8, 2007, reduced the age of youth who are eligible for confinement at the TYC from twenty-one years of age to nineteen. See SB 103, 2007 Tex. Gen. Laws at 446-47 (amending human resources code section 61.079), 449 (amending human resources code section 61.084). Because he was already nineteen at the time this change went into effect, T.G. contends that the juvenile court had no authority and was without jurisdiction to hold a transfer hearing and that the court abused its authority in ordering his transfer to the TDCJ for the completion of his determinate sentence. T.G. contends that he was entitled instead to mandatory release on parole.
DISCUSSION
In two issues, T.G. urges that (i) amendments to section 61.084 of the human resources code in SB 103 lowered the maximum age of confinement and the mandatory parole age from twenty-one to nineteen years of age and that he was entitled to immediate release without a hearing because he was nineteen at the time of the change and (ii) amendments to section 61.079 of the human resources code lowered the maximum age at which the TYC could request that T.G. be transferred from twenty-one to nineteen years of age and, because he was nineteen, the TYC did not have authority to request a transfer and the court lacked authority to hold a hearing or to order a transfer. T.G. does not challenge the original imposition of his determinate sentence.
Standard of Review
A review of the trial court’s decision as to whether the court had authority to hold a transfer hearing upon the TYC’s request—after the change of law and after T.G. became nineteen years of age—presents a matter of statutory construction, which we review de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). When construing a statute, our primary goal is to determine and give effect to the legislature’s intent. Id. To determine legislative intent, we look to the statute as a whole, as opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).
We review the trial court’s decision to transfer a juvenile from the TYC to the TDCJ under an abuse of discretion standard. In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet. denied). In determining whether the trial court abused its discretion, we must consider the entire record to determine if the trial court acted without reference to guiding rules and principles. Id.
Juvenile Court Procedure
During the time a person is committed to the TYC, the Commission may request the court to release the person to supervision or transfer the person to the TDCJ. See Tex. Fam. Code Ann. § 54.11(a). Section 54.11 provides that when a juvenile is given a determinate sentence, upon the TYC’s request to transfer the juvenile to the TDCJ, the trial court is required to hold a hearing. Id. At the conclusion of the hearing, the trial court may either order the return of the juvenile to the TYC or the transfer of the juvenile to the custody of the TDCJ for the completion of his sentence. Id. § 54.11(i). If the Commission requests that the person be released to adult parole, the trial court may return the person to the TYC with or without approval to release that person under supervision. Id. § 54.11(j). If the Commission requests that a person be transferred to the TDCJ, the trial court may return the person to the TYC or order that he be transferred to the TDCJ. Id. § 54.11(i).
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In making a determination regarding transfer of a juvenile offender to the TDCJ, a trialcourt may consider: (1) the experiences and character of the person before and after commitmentto the TYC; (2) the nature of the penal offense and the manner in which it was committed; (3) theabilities of the person to contribute to society; (4) the protection of the victim or the victim’s family;(5) the recommendations of the TYC and the prosecuting attorney; (6) the best interests of theperson; and (7) any other factor relevant to the issue to be decided. See Tex. Fam. Code Ann.§ 54.11(k) (West Supp. 2007).Close A child committed to the TYC on a determinate sentence must remain at the TYC for a minimum period of time before release or transfer. See Tex. Hum. Res. Code Ann. § 61.081 (West Supp. 2007); Former HR Code § 61.084. The minimum length of stay depends upon the seriousness of the offense for which the child was committed. See Tex. Hum. Res. Code Ann. § 61.081.
For those who were committed to the Commission under a determinate sentence, as T.G. was here, transfer was automatic on the person’s twenty-first birthday—now his nineteenth birthday with the amendment—if the person had not already been discharged or transferred. See SB 103, 2007 Tex. Gen. Laws at 449 (amending human resources code to provide for automatic transfer at age nineteen instead of twenty-one).
The Statutes
This appeal concerns the interplay primarily between the amendments to two statutory provisions—sections 61.079 and 61.084 of the Texas Human Resources Code—by the enactment of SB 103, “an act relating to the Texas Youth Commission and the prosecution of certain offenses and delinquent conduct in the Texas Youth Commission and certain other criminal agencies,” which was passed and became effective on June 8, 2007. Providing for the referral of violent juvenile offenders for transfer to the TDCJ, before it was amended, section 61.079(a) provided in relevant part:
(a)After a child sentenced to commitment under Section 54.04(d)(3), 54.04(m), or 54.05(f), Family Code, becomes 16 years of age but before the child becomes 21 years of age, the commission may refer the child to the juvenile court that entered the order of commitment for approval of the child’s transfer to the institutional division of the Texas Department of Criminal Justice if:
(1)the child has not completed the sentence; and
(2)the child’s conduct, regardless of whether the child was released under supervision under Section 61.081, indicates that the welfare of the community requires the transfer . . . .
Former HR Code § 61.079(a) (emphasis added). Effective June 8, 2007, section 61.079(a) was amended to require the Commission to make a transfer referral to the juvenile court “before the child becomes 19 years of age.” See SB 103, 2007 Tex. Gen. Laws at 446-47 (emphasis added).
Section 61.084(g) was also amended by SB 103 in 2007. Prior to its amendment, section 61.084(g) provided:
The commission shall transfer a person who has been sentenced under a determinate sentence to commitment under Section 54.04(d)(3), 54.04(m), or 54.05(f), Family Code, or who has been returned to the commission under Section 54.11(i)(1), Family Code, to the custody of the pardons and paroles division of the Texas Department of Criminal Justice on the person’s 21st birthday, if the person has not already been discharged or transferred, to serve the remainder of the person’s sentence on parole as provided by Section 508.156, Government Code.
Former HR Code § 61.084(g) (emphasis added). As with section 61.079(a), section 61.084(g) was amended to change “21st birthday” to “19th birthday.” See SB 103, 2007 Tex. Gen. Laws at 449.
As reflected in a December 2007 report prepared at the direction of the Commission’s acting executive director, Dimitria Pope, the parties agree that one purpose of SB 103 was to reduce the population of youth in the TYC. See Tex. Youth Comm’n, State Leaders, Legislators, Parents, Employees, and Communities are Making a Difference at the Texas Youth Commission: A Report on the Progress & Impact of Senate Bill 103, at 4 (Dec. 1 2007). The report also addressed the effect the change in age would have on the institution population. Id. at 8-10. Youths who committed a misdemeanor were no longer to be eligible for placement in the TYC. Id. at 6, 10. As to the effect of the age change on its population, the report stated:
[Y]outh who are 19 years of age or older who committed their offense prior to the effective date of the law change and who have also completed their minimum length of stay may be eligible for release consideration from the TYC.
Id. at 10 (emphasis added). Later in the report when it expressly addressed offenders serving a determinate sentence and the effect of the reduction of eligibility age for confinement at TYC, the report concluded:
With the passage of the bill on June 8, 2007, an unintended consequence was that there were 159 sentenced youth confined in TYC that appeared to be eligible for immediate release. However, in reviewing the case files of these youth, many had not reached their minimum period of confinement.
Id. at 23.
Jurisdiction
Appellant urges that he “should never have been the subject of a transfer hearing” and that section 61.084 required a mandatory transfer to the TDCJ on parole for any child in the custody of the TYC who was under a determinate sentence and over the age of nineteen. Appellant fails to acknowledge the jurisdictional provision in juvenile cases that gives the juvenile court “exclusive original jurisdiction over proceedings under this title.” See Tex. Fam. Code Ann. § 51.04(a).
In construing a statute, our primary objective is to give effect to the legislature’s intent. City of San Antonio, 111 S.W.3d at 25. We are to construe a statute according to its plain language, unless the language is ambiguous or the interpretation would lead to absurd results that the legislature could not have intended. Williams v. State, Nos. PD-1948-06, 1949-06, & 1950-06, 2008 Tex. Crim. App. LEXIS 639, at *11 (Tex. Crim. App. May 14, 2008) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). “Whether or not the statute is considered ambiguous on its face,” we may consider the “object sought to be obtained,” the “circumstances under which the statute was enacted,” the “legislative history,” and the “consequences of a particular construction.” Tex. Gov’t Code Ann. § 311.023(1)-(3), (5) (West 2005). We presume that “a just and reasonable result is intended,” and the “public interest is favored over any private interest.” Id. § 311.021(3), (5) (West 2005). Against this background, we must determine whether the legislature in SB 103 sought to divest the juvenile court of jurisdiction when the juvenile turned nineteen and require a mandatory transfer of individuals still in the custody of the TYC who had reached the age of nineteen under the amended statute.
We conclude that the juvenile court retained jurisdiction of juveniles committed to the custody of the TYC under chapter 51 of the family code. The family code squarely addresses the jurisdiction of the juvenile court in sections 51.04 and 51.0411. See Tex. Fam. Code Ann. §§ 51.04, .0411. Section 51.04(a) provides for the juvenile court to exercise jurisdiction over juvenile cases as follows:
(a)This title covers the proceedings in all cases involving the delinquent conduct or conduct indicating a need for supervision engaged in by a person who was a child within the meaning of this title at the time the person engaged in the conduct, and, . . . the juvenile court has exclusive original jurisdiction over proceedings under this title.
Id. § 51.04(a). Section 51.0411 then speaks to the court’s retention of jurisdiction in transfer proceedings:
The court retains jurisdiction over a person, without regard to the age of the person, who is referred to the court under Section 54.11 for transfer to the Texas Department of Criminal Justice or release under supervision.
Id. § 51.0411 (emphasis added). Section 51.0411 makes clear that the court had jurisdiction over T.G. for purposes of the transfer hearing, even though he turned nineteen years of age before the referral occurred.
Other related provisions provide for the retention of jurisdiction by the juvenile court “without regard to the age of the person.” See, e.g., Tex. Fam. Code Ann. §§ 51.041, .0412 (West Supp. 2007). For example, section 51.041 provides for the court to retain jurisdiction if the court’s order “is reversed or modified and the case remanded to the court by the appellate court.” Id. § 51.041. Likewise, section 51.0412 provides for the court to retain jurisdiction if the adjudication or disposition proceeding or proceeding to modify disposition was not completed as long as the petition, motion to modify, or motion for transfer was filed while the juvenile was younger than eighteen years of age and the prosecutor exercised due diligence in an attempt to complete the proceedings. Id. § 51.0412. Each of these provisions applies “without regard to the age of the person.” Id. §§ 51.041, .0412. We find it significant that SB 103 did not amend any of these jurisdictional provisions. See SB 103, 2007 Tex. Gen. Laws at 424-27 (providing for amendments to the family code).
We thus conclude that SB 103 did not alter the juvenile court’s jurisdiction over transfer proceedings because it did not address these provisions. Even after the passage of SB 103, the juvenile court’s jurisdiction in transfer proceedings remains governed by chapter 51 of the family code. See Tex. Fam. Code Ann. § 51.0411.
Do the Provisions of Senate Bill 103 Apply Retrospectively?
T.G. contends that, because the provisions of SB 103 are to be immediately effective, he must either be discharged or transferred to the TDCJ to serve the remainder of his sentence on parole. See SB 103, § 53, 2007 Tex. Gen. Laws at 449 (amending human resources code section 61.084(g)); Tex. Gov’t Code Ann. § 508.156 (West Supp. 2007). He contends that the TYC’s referral request is governed by the new versions of sections 61.079(a) and 61.084(g) rather than by the versions in existence when his determinate sentence was initially imposed. We disagree.
“A statute is presumed to be prospective in its operation unless expressly made retrospective.” Tex. Gov’t Code Ann. § 311.022 (West 2005); see also Tex. Const. art. I, § 16 (“No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”). Statutes are only applied retroactively if the statutory language provides that the legislature intended that the statute be retroactive. Merchants Fast Motor Lines, Inc. v. Railroad Comm’n, 573 S.W.2d 502, 504 (Tex. 1978); State v. Humble Oil & Ref. Co., 169 S.W.2d 707, 708-09 (Tex. 1943).
In addition to the constitution and the general presumption that statutes apply only prospectively, we are informed by the plain language of SB 103. Certain provisions of SB 103 specify that it applies only prospectively. See, e.g., SB 103, § 67, 2007 Tex. Gen. Laws at 455. Section 67, relating to family code section 54.052 (credit for time spent in detention facility for child with determinate sentence) and human resources code section 61.0841(c) (determinate sentence parole), specifies that the changes in those sections “appl[y] only to conduct for which a child is adjudicated on or after the effective date of this Act.” See id. Thus, family code section 54.052 and the addition of the language in section 61.0841(c) that the TDCJ “shall grant credit for sentence time served by a person at the commission and in a juvenile detention facility, as recorded by the commission . . . in computing the person’s eligibility for parole and discharge from the department” are to be applied only prospectively. See id. Section 67 further provides:
A child who is adjudicated on or after the effective date of this Act is governed by the law in effect when the child was adjudicated, and the former law is continued in effect for that purpose.
Id.
Likewise, the legislature expressly made one provision of SB 103 retrospective. Section 65 provides:
A person committed to the Texas Youth Commission on the basis of conduct constituting the commission of an offense of the grade of misdemeanor under Subdivision (2), Subsection (d), Section 54.05, Family Code, as it existed before the effective date of this Act, must be discharged from the custody of the Texas Youth Commission not later than the person’s 19th birthday.
Id., § 65, 2007 Tex. Gen. Laws at 455 (emphasis added). That the legislature knew how to make a provision retrospective is clear. It is equally clear that the legislature sought only to effect an immediate discharge from the TYC for those persons who had committed a misdemeanor. It necessarily follows that the legislature did not intend to discharge or release to parole a person such as T.G. who had committed a felony and had received a determinate sentence.
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To the extent T.G. argues that the legislature intended for all of SB 103 to applyretrospectively merely because the legislature made one provision in SB 103 apply retrospectively,see SB 103, § 65, 2007 Tex. Gen. Laws at 455, we reject that argument. Nowhere in SB 103 did thelegislature expressly provide that the amendments to human resources code sections 61.079 and61.084 apply retrospectively. See In re M.C.C., 187 S.W.3d 383, 384-85 (Tex. 2006) (followinggeneral rule that statute is to be applied retrospectively only if statutory language demonstrateslegislative intent to do so); Ex parte Mangrum, 564 S.W.2d 751, 758 (Tex. Crim. App. 1978)(general rule of prospective application applies in the absence of express statement to the contraryby the legislature).Close We conclude that the legislature intended for the amendments to human resources code sections 61.079 and 61.084 to operate only prospectively.
CONCLUSION
We overrule T.G.’s issues and affirm the trial court’s order of disposition.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: June 19, 2008
AFFIRMED: Opinion by Justice Patterson [ PDF ] (Before Justices Patterson, Puryear and Henson)
03-07-00543-CV
In the Matter of T. G.--Appeal from County Court at Law No. 1 of Bell County
During the time a person is committed to the TYC, the Commission may request the court to release the person to supervision or transfer the person to the TDCJ. See Tex. Fam. Code Ann. § 54.11(a). Section 54.11 provides that when a juvenile is given a determinate sentence, upon the TYC’s request to transfer the juvenile to the TDCJ, the trial court is required to hold a hearing. Id. At the conclusion of the hearing, the trial court may either order the return of the juvenile to the TYC or the transfer of the juvenile to the custody of the TDCJ for the completion of his sentence. Id. § 54.11(i). If the Commission requests that the person be released to adult parole, the trial court may return the person to the TYC with or without approval to release that person under supervision. Id. § 54.11(j). If the Commission requests that a person be transferred to the TDCJ, the trial court may return the person to the TYC or order that he be transferred to the TDCJ. Id. § 54.11(i).
In the Matter of T. G. No. 03-07-00543-CV (Tex.App. - Austin, June 19, 2008)(Opinion by Justice Patterson [ PDF ] ) (Before Justices Patterson, Puryear and Henson)In the Matter of T. G.--Appeal from County Court at Law No. 1 of Bell County
Appeal from County Court at Law No. 1 of Bell County
In making a determination regarding transfer of a juvenile offender to the TDCJ, a trialcourt may consider: (1) the experiences and character of the person before and after commitmentto the TYC; (2) the nature of the penal offense and the manner in which it was committed; (3) theabilities of the person to contribute to society; (4) the protection of the victim or the victim’s family;(5) the recommendations of the TYC and the prosecuting attorney; (6) the best interests of theperson; and (7) any other factor relevant to the issue to be decided. See Tex. Fam. Code Ann.§ 54.11(k) (West Supp. 2007).
A child committed to the TYC on a determinate sentence must remain at the TYC for a minimum period of time before release or transfer. See Tex. Hum. Res. Code Ann. § 61.081 (West Supp. 2007); Former HR Code § 61.084. The minimum length of stay depends upon the seriousness of the offense for which the child was committed. See Tex. Hum. Res. Code Ann. § 61.081.
For those who were committed to the Commission under a determinate sentence, as T.G. was here, transfer was automatic on the person’s twenty-first birthday—now his nineteenth birthday with the amendment—if the person had not already been discharged or transferred. See SB 103, 2007 Tex. Gen. Laws at 449 (amending human resources code to provide for automatic transfer at age nineteen instead of twenty-one).
OPIONION
T.G., a juvenile, was adjudicated delinquent, given a determinate sentence, and remanded to the custody of the Texas Youth Commission (TYC or Commission). This is an appeal from a juvenile court order transferring T.G. from the TYC to the custody of the Institutional Division of the Texas Department of Criminal Justice (TDCJ). With the passage of Senate Bill 103, Act of May 25, 2007, 80th Leg., R.S., ch. 263, 2007 Tex. Gen. Laws 421 (effectiveJune 8, 2007) (hereafter “SB 103”). Because several provisions of the family code and the humanresources code have been amended, we cite to the current version of the statute, unless a particularamendment is relevant to the disposition of this appeal. effective June 8, 2007, which reduced the age of youth who are eligible for confinement at the TYC from twenty-one to nineteen years of age, the question presented is whether the juvenile court retained jurisdiction to hold a transfer hearing for a juvenile’s transfer to the TDCJ for confinement if the juvenile (i) had been held pursuant to a determinate sentence felony adjudication, (ii) had not completed a minimum length of stay, and (iii) had not yet reached twenty-one years of age but was nineteen years of age when the statute became effective. In two issues on appeal, T.G. urges that the juvenile court was without authority to hold a transfer hearing and, upon the effective date of the statute, the Commission had no discretion but to transfer him to the custody of the TDCJ to serve the remainder of his sentence on parole. Because the Texas Family Code provides for the juvenile court to retain jurisdiction over the juvenile for transfer or release “without regard to the age of the person,” see Tex. Fam. Code Ann. § 51.0411 (West 2002), we hold that the court had jurisdiction and further that it did not abuse its discretion in ordering the transfer of T.G. to the custody of the TDCJ to serve the remainder of his determinate sentence.
BACKGROUND
In 2005, the State filed an original determinate sentencing petition alleging that T.G. had engaged in delinquent conduct by committing aggravated sexual assault of a child.
See Tex. Penal Code Ann. § 22.021 (West Supp. 2007). T.G. pleaded true to the charge, and the juvenile court adjudicated him as being a child who had engaged in delinquent conduct. Following a disposition hearing, the court committed T.G. to the TYC for a twelve-year determinate sentence.
A determinate sentence is one in which the court specifies the term of commitment in theTYC with a possible transfer to the TDCJ. See generally Tex. Fam. Code Ann. § 54.04(d)(3)(West Supp. 2007) (allowing the court to specify the term of commitment based on the degree ofdelinquent conduct).
See Tex. Fam. Code Ann. §§ 53.045(a), 54.04(d)(3) (West Supp. 2007); Act of May 27, 1979, 66th Leg., R.S., ch. 842, 1979 Tex. Gen. Laws 2333, 2390, amended by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.19, 1997 Tex. Gen. Laws 327, 442 (hereafter “Former HR Code § 61.084”) (current version at Tex. Hum. Res. Code Ann. § 61.084 (West Supp. 2007)).
The parties stipulated to the facts relevant to this appeal. Having been born on May 3, 1988, T.G. turned nineteen years old on May 3, 2007, while still in the custody of the TYC. On July 2, 2007, the TYC requested the court to hold a transfer hearing. On July 10, the State filed a Motion for a Release and Transfer Hearing pursuant to section 61.079 of the Texas Human Resources Code
See Act of May 27, 1987, 70th Leg., R.S., ch. 385, § 17, 1987 Tex. Gen. Laws 1891, 1898,amended by Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 61, 1995 Tex. Gen. Laws 2517, 2572-73 (hereafter “Former HR Code § 61.079”) (current version at Tex. Hum. Res. Code Ann. § 61.079(West Supp. 2007)). and section 54.11(b) and (d) of the Texas Family Code
See Tex. Fam. Code Ann. § 54.11(b), (c) (West Supp. 2007).Close and the court granted the motion. At the conclusion of the transfer hearing held in August 2007, the court rendered an order with findings of fact and conclusions of law directing that T.G. be transferred to the TDCJ.
Findings of Fact and Conclusions of Law
The court’s findings of fact and conclusions of law included the following:
5.that at the time of T.Y.C.’s request for “transfer,” juvenile had already reached (19) years of age;
6.that at the time of T.Y.C.’s request on 7-2-07, T.Y.C. could not have previously released the juvenile from its custody without the trial court’s approval, because juvenile:
(a)had not served the minimum (3) year length of stay at T.Y.C. for a Family Code, Sec. 54.04(d)(3) Determinate Sentence commitment, pursuant to Texas Human Resources Code, Sec. 61.081(f)(2);
(b) nor had juvenile served and discharged his twelve (12) year sentence pursuant to Texas Human Resources Code, Sec. 61.084(b);
7.that Senate Bill No. 103 (an Act) relating to the Texas Youth Commission was passed by both houses, effective immediately on June 8, 2007; [and]
8.that on the effective date of said act, (June 8, 2007), while in lawful custody, the juvenile had already reached the age of (19) years.
The court concluded that at the time of adjudication and commitment, the court maintained the exclusive, original jurisdiction of T.G. pursuant to sections 51.04(a), 51.0411, and 54.11(a) and (h) of the family code and section 61.079(a) of the human resources code. See Tex. Fam. Code Ann. §§ 51.04(a), 51.0411 (West 2002), 54.11(a), (h) (West Supp. 2007); Former HR Code § 61.079(a). The court further concluded that the provisions of SB 103 were prospective in their effect, that the legislature did not intend for SB 103 to have retroactive effect, and that the law in effect when the child was adjudicated continued in effect. With respect to his transfer, the court further found that T.G. should be transferred to the TDCJ to serve the remainder of his twelve-year determinate sentence:
22.that at the time of this release hearing, [T.G.] had served approximately 21 months of his twelve (12) year sentence at the Texas Youth Commission, which 21 months do not include his 81 days pre-trial detention in the Bell County Juvenile Detention Center, and:
23.that the Respondent, [T.G.] is still in need of rehabilitation,
24.that the Juvenile-Respondent [T.G.] is at high risk to re-offend,
25.that the juvenile’s conduct and the welfare and safety of the community at large, as well as the T.Y.C. community, requires transfer, and;
26.that it is therefore in the best interest of [T.G.] and the welfare of the community at large, that [T.G.] be transferred to the Institutional Division of the Texas Department of Criminal Justice . . . to serve the remainder of his twelve (12) year determinate sentence.
The Controversy
SB 103, which was effective on June 8, 2007, reduced the age of youth who are eligible for confinement at the TYC from twenty-one years of age to nineteen. See SB 103, 2007 Tex. Gen. Laws at 446-47 (amending human resources code section 61.079), 449 (amending human resources code section 61.084). Because he was already nineteen at the time this change went into effect, T.G. contends that the juvenile court had no authority and was without jurisdiction to hold a transfer hearing and that the court abused its authority in ordering his transfer to the TDCJ for the completion of his determinate sentence. T.G. contends that he was entitled instead to mandatory release on parole.
DISCUSSION
In two issues, T.G. urges that (i) amendments to section 61.084 of the human resources code in SB 103 lowered the maximum age of confinement and the mandatory parole age from twenty-one to nineteen years of age and that he was entitled to immediate release without a hearing because he was nineteen at the time of the change and (ii) amendments to section 61.079 of the human resources code lowered the maximum age at which the TYC could request that T.G. be transferred from twenty-one to nineteen years of age and, because he was nineteen, the TYC did not have authority to request a transfer and the court lacked authority to hold a hearing or to order a transfer. T.G. does not challenge the original imposition of his determinate sentence.
Standard of Review
A review of the trial court’s decision as to whether the court had authority to hold a transfer hearing upon the TYC’s request—after the change of law and after T.G. became nineteen years of age—presents a matter of statutory construction, which we review de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). When construing a statute, our primary goal is to determine and give effect to the legislature’s intent. Id. To determine legislative intent, we look to the statute as a whole, as opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).
We review the trial court’s decision to transfer a juvenile from the TYC to the TDCJ under an abuse of discretion standard. In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet. denied). In determining whether the trial court abused its discretion, we must consider the entire record to determine if the trial court acted without reference to guiding rules and principles. Id.
Juvenile Court Procedure
During the time a person is committed to the TYC, the Commission may request the court to release the person to supervision or transfer the person to the TDCJ. See Tex. Fam. Code Ann. § 54.11(a). Section 54.11 provides that when a juvenile is given a determinate sentence, upon the TYC’s request to transfer the juvenile to the TDCJ, the trial court is required to hold a hearing. Id. At the conclusion of the hearing, the trial court may either order the return of the juvenile to the TYC or the transfer of the juvenile to the custody of the TDCJ for the completion of his sentence. Id. § 54.11(i). If the Commission requests that the person be released to adult parole, the trial court may return the person to the TYC with or without approval to release that person under supervision. Id. § 54.11(j). If the Commission requests that a person be transferred to the TDCJ, the trial court may return the person to the TYC or order that he be transferred to the TDCJ. Id. § 54.11(i).
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In making a determination regarding transfer of a juvenile offender to the TDCJ, a trialcourt may consider: (1) the experiences and character of the person before and after commitmentto the TYC; (2) the nature of the penal offense and the manner in which it was committed; (3) theabilities of the person to contribute to society; (4) the protection of the victim or the victim’s family;(5) the recommendations of the TYC and the prosecuting attorney; (6) the best interests of theperson; and (7) any other factor relevant to the issue to be decided. See Tex. Fam. Code Ann.§ 54.11(k) (West Supp. 2007).Close A child committed to the TYC on a determinate sentence must remain at the TYC for a minimum period of time before release or transfer. See Tex. Hum. Res. Code Ann. § 61.081 (West Supp. 2007); Former HR Code § 61.084. The minimum length of stay depends upon the seriousness of the offense for which the child was committed. See Tex. Hum. Res. Code Ann. § 61.081.
For those who were committed to the Commission under a determinate sentence, as T.G. was here, transfer was automatic on the person’s twenty-first birthday—now his nineteenth birthday with the amendment—if the person had not already been discharged or transferred. See SB 103, 2007 Tex. Gen. Laws at 449 (amending human resources code to provide for automatic transfer at age nineteen instead of twenty-one).
The Statutes
This appeal concerns the interplay primarily between the amendments to two statutory provisions—sections 61.079 and 61.084 of the Texas Human Resources Code—by the enactment of SB 103, “an act relating to the Texas Youth Commission and the prosecution of certain offenses and delinquent conduct in the Texas Youth Commission and certain other criminal agencies,” which was passed and became effective on June 8, 2007. Providing for the referral of violent juvenile offenders for transfer to the TDCJ, before it was amended, section 61.079(a) provided in relevant part:
(a)After a child sentenced to commitment under Section 54.04(d)(3), 54.04(m), or 54.05(f), Family Code, becomes 16 years of age but before the child becomes 21 years of age, the commission may refer the child to the juvenile court that entered the order of commitment for approval of the child’s transfer to the institutional division of the Texas Department of Criminal Justice if:
(1)the child has not completed the sentence; and
(2)the child’s conduct, regardless of whether the child was released under supervision under Section 61.081, indicates that the welfare of the community requires the transfer . . . .
Former HR Code § 61.079(a) (emphasis added). Effective June 8, 2007, section 61.079(a) was amended to require the Commission to make a transfer referral to the juvenile court “before the child becomes 19 years of age.” See SB 103, 2007 Tex. Gen. Laws at 446-47 (emphasis added).
Section 61.084(g) was also amended by SB 103 in 2007. Prior to its amendment, section 61.084(g) provided:
The commission shall transfer a person who has been sentenced under a determinate sentence to commitment under Section 54.04(d)(3), 54.04(m), or 54.05(f), Family Code, or who has been returned to the commission under Section 54.11(i)(1), Family Code, to the custody of the pardons and paroles division of the Texas Department of Criminal Justice on the person’s 21st birthday, if the person has not already been discharged or transferred, to serve the remainder of the person’s sentence on parole as provided by Section 508.156, Government Code.
Former HR Code § 61.084(g) (emphasis added). As with section 61.079(a), section 61.084(g) was amended to change “21st birthday” to “19th birthday.” See SB 103, 2007 Tex. Gen. Laws at 449.
As reflected in a December 2007 report prepared at the direction of the Commission’s acting executive director, Dimitria Pope, the parties agree that one purpose of SB 103 was to reduce the population of youth in the TYC. See Tex. Youth Comm’n, State Leaders, Legislators, Parents, Employees, and Communities are Making a Difference at the Texas Youth Commission: A Report on the Progress & Impact of Senate Bill 103, at 4 (Dec. 1 2007). The report also addressed the effect the change in age would have on the institution population. Id. at 8-10. Youths who committed a misdemeanor were no longer to be eligible for placement in the TYC. Id. at 6, 10. As to the effect of the age change on its population, the report stated:
[Y]outh who are 19 years of age or older who committed their offense prior to the effective date of the law change and who have also completed their minimum length of stay may be eligible for release consideration from the TYC.
Id. at 10 (emphasis added). Later in the report when it expressly addressed offenders serving a determinate sentence and the effect of the reduction of eligibility age for confinement at TYC, the report concluded:
With the passage of the bill on June 8, 2007, an unintended consequence was that there were 159 sentenced youth confined in TYC that appeared to be eligible for immediate release. However, in reviewing the case files of these youth, many had not reached their minimum period of confinement.
Id. at 23.
Jurisdiction
Appellant urges that he “should never have been the subject of a transfer hearing” and that section 61.084 required a mandatory transfer to the TDCJ on parole for any child in the custody of the TYC who was under a determinate sentence and over the age of nineteen. Appellant fails to acknowledge the jurisdictional provision in juvenile cases that gives the juvenile court “exclusive original jurisdiction over proceedings under this title.” See Tex. Fam. Code Ann. § 51.04(a).
In construing a statute, our primary objective is to give effect to the legislature’s intent. City of San Antonio, 111 S.W.3d at 25. We are to construe a statute according to its plain language, unless the language is ambiguous or the interpretation would lead to absurd results that the legislature could not have intended. Williams v. State, Nos. PD-1948-06, 1949-06, & 1950-06, 2008 Tex. Crim. App. LEXIS 639, at *11 (Tex. Crim. App. May 14, 2008) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). “Whether or not the statute is considered ambiguous on its face,” we may consider the “object sought to be obtained,” the “circumstances under which the statute was enacted,” the “legislative history,” and the “consequences of a particular construction.” Tex. Gov’t Code Ann. § 311.023(1)-(3), (5) (West 2005). We presume that “a just and reasonable result is intended,” and the “public interest is favored over any private interest.” Id. § 311.021(3), (5) (West 2005). Against this background, we must determine whether the legislature in SB 103 sought to divest the juvenile court of jurisdiction when the juvenile turned nineteen and require a mandatory transfer of individuals still in the custody of the TYC who had reached the age of nineteen under the amended statute.
We conclude that the juvenile court retained jurisdiction of juveniles committed to the custody of the TYC under chapter 51 of the family code. The family code squarely addresses the jurisdiction of the juvenile court in sections 51.04 and 51.0411. See Tex. Fam. Code Ann. §§ 51.04, .0411. Section 51.04(a) provides for the juvenile court to exercise jurisdiction over juvenile cases as follows:
(a)This title covers the proceedings in all cases involving the delinquent conduct or conduct indicating a need for supervision engaged in by a person who was a child within the meaning of this title at the time the person engaged in the conduct, and, . . . the juvenile court has exclusive original jurisdiction over proceedings under this title.
Id. § 51.04(a). Section 51.0411 then speaks to the court’s retention of jurisdiction in transfer proceedings:
The court retains jurisdiction over a person, without regard to the age of the person, who is referred to the court under Section 54.11 for transfer to the Texas Department of Criminal Justice or release under supervision.
Id. § 51.0411 (emphasis added). Section 51.0411 makes clear that the court had jurisdiction over T.G. for purposes of the transfer hearing, even though he turned nineteen years of age before the referral occurred.
Other related provisions provide for the retention of jurisdiction by the juvenile court “without regard to the age of the person.” See, e.g., Tex. Fam. Code Ann. §§ 51.041, .0412 (West Supp. 2007). For example, section 51.041 provides for the court to retain jurisdiction if the court’s order “is reversed or modified and the case remanded to the court by the appellate court.” Id. § 51.041. Likewise, section 51.0412 provides for the court to retain jurisdiction if the adjudication or disposition proceeding or proceeding to modify disposition was not completed as long as the petition, motion to modify, or motion for transfer was filed while the juvenile was younger than eighteen years of age and the prosecutor exercised due diligence in an attempt to complete the proceedings. Id. § 51.0412. Each of these provisions applies “without regard to the age of the person.” Id. §§ 51.041, .0412. We find it significant that SB 103 did not amend any of these jurisdictional provisions. See SB 103, 2007 Tex. Gen. Laws at 424-27 (providing for amendments to the family code).
We thus conclude that SB 103 did not alter the juvenile court’s jurisdiction over transfer proceedings because it did not address these provisions. Even after the passage of SB 103, the juvenile court’s jurisdiction in transfer proceedings remains governed by chapter 51 of the family code. See Tex. Fam. Code Ann. § 51.0411.
Do the Provisions of Senate Bill 103 Apply Retrospectively?
T.G. contends that, because the provisions of SB 103 are to be immediately effective, he must either be discharged or transferred to the TDCJ to serve the remainder of his sentence on parole. See SB 103, § 53, 2007 Tex. Gen. Laws at 449 (amending human resources code section 61.084(g)); Tex. Gov’t Code Ann. § 508.156 (West Supp. 2007). He contends that the TYC’s referral request is governed by the new versions of sections 61.079(a) and 61.084(g) rather than by the versions in existence when his determinate sentence was initially imposed. We disagree.
“A statute is presumed to be prospective in its operation unless expressly made retrospective.” Tex. Gov’t Code Ann. § 311.022 (West 2005); see also Tex. Const. art. I, § 16 (“No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”). Statutes are only applied retroactively if the statutory language provides that the legislature intended that the statute be retroactive. Merchants Fast Motor Lines, Inc. v. Railroad Comm’n, 573 S.W.2d 502, 504 (Tex. 1978); State v. Humble Oil & Ref. Co., 169 S.W.2d 707, 708-09 (Tex. 1943).
In addition to the constitution and the general presumption that statutes apply only prospectively, we are informed by the plain language of SB 103. Certain provisions of SB 103 specify that it applies only prospectively. See, e.g., SB 103, § 67, 2007 Tex. Gen. Laws at 455. Section 67, relating to family code section 54.052 (credit for time spent in detention facility for child with determinate sentence) and human resources code section 61.0841(c) (determinate sentence parole), specifies that the changes in those sections “appl[y] only to conduct for which a child is adjudicated on or after the effective date of this Act.” See id. Thus, family code section 54.052 and the addition of the language in section 61.0841(c) that the TDCJ “shall grant credit for sentence time served by a person at the commission and in a juvenile detention facility, as recorded by the commission . . . in computing the person’s eligibility for parole and discharge from the department” are to be applied only prospectively. See id. Section 67 further provides:
A child who is adjudicated on or after the effective date of this Act is governed by the law in effect when the child was adjudicated, and the former law is continued in effect for that purpose.
Id.
Likewise, the legislature expressly made one provision of SB 103 retrospective. Section 65 provides:
A person committed to the Texas Youth Commission on the basis of conduct constituting the commission of an offense of the grade of misdemeanor under Subdivision (2), Subsection (d), Section 54.05, Family Code, as it existed before the effective date of this Act, must be discharged from the custody of the Texas Youth Commission not later than the person’s 19th birthday.
Id., § 65, 2007 Tex. Gen. Laws at 455 (emphasis added). That the legislature knew how to make a provision retrospective is clear. It is equally clear that the legislature sought only to effect an immediate discharge from the TYC for those persons who had committed a misdemeanor. It necessarily follows that the legislature did not intend to discharge or release to parole a person such as T.G. who had committed a felony and had received a determinate sentence.
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To the extent T.G. argues that the legislature intended for all of SB 103 to applyretrospectively merely because the legislature made one provision in SB 103 apply retrospectively,see SB 103, § 65, 2007 Tex. Gen. Laws at 455, we reject that argument. Nowhere in SB 103 did thelegislature expressly provide that the amendments to human resources code sections 61.079 and61.084 apply retrospectively. See In re M.C.C., 187 S.W.3d 383, 384-85 (Tex. 2006) (followinggeneral rule that statute is to be applied retrospectively only if statutory language demonstrateslegislative intent to do so); Ex parte Mangrum, 564 S.W.2d 751, 758 (Tex. Crim. App. 1978)(general rule of prospective application applies in the absence of express statement to the contraryby the legislature).Close We conclude that the legislature intended for the amendments to human resources code sections 61.079 and 61.084 to operate only prospectively.
CONCLUSION
We overrule T.G.’s issues and affirm the trial court’s order of disposition.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: June 19, 2008
AFFIRMED: Opinion by Justice Patterson [ PDF ] (Before Justices Patterson, Puryear and Henson)
03-07-00543-CV
In the Matter of T. G.--Appeal from County Court at Law No. 1 of Bell County
Cedars Entertainment, L.P. has filed its Unopposed Motion to Dismiss Appeal. We grant the motion and dismiss this appeal.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed on Appellant's Motion
Filed: June 19, 2008
DISMISSED ON APPELLANT'S MOTION: Opinion by Justice Waldrop [ PDF ]
(Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00378-CV
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed on Appellant's Motion
Filed: June 19, 2008
DISMISSED ON APPELLANT'S MOTION: Opinion by Justice Waldrop [ PDF ]
(Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00378-CV
Thursday, June 26, 2008
Employment Discrimination | Deocariza v. Central Texas College District (Tex.App.- Austin 2008)
Deocariza v. Central Texas College District, No. 03-06-00653-CV (Tex.App.- June 19, 2008) (Opinion by Justice Pemberton [ PDF ] )
(public employment law, discrimination claim rejected)
(Before Justices Patterson, Pemberton and Waldrop) Conrad G. Deocariza v. Central Texas College District
Appeal from 146th District Court of Bell County
M E M O R A N D U M O P I N I O N
Conrad Deocariza sued his former employer, Central Texas College District ("CTCD"), alleging that he was denied a promotion and later terminated because he is a Pacific Islander, see Tex. Lab. Code Ann. § 21.051 (West 2005), and that he was terminated in retaliation for complaining about discrimination in the promotion. Id. § 21.055 (West 2005). CTCD sought summary judgment on traditional and "no evidence" grounds challenging various elements of Deocariza's discrimination and retaliation claims. CTCD also asserted that limitations barred Deocariza's claims and that the after-acquired evidence doctrine precluded the remedies of reinstatement and front pay and limited any back pay award to the period between February 14, 2004, (the date he was terminated) and October 12, 2004, (the date CTCD learned through discovery that Deocariza had past employment problems that he had not disclosed on his CTCD job applications). (1) The district court granted summary judgment in favor of CTCD without specifying the grounds on which it relied. Deocariza appeals.
Deocariza does not dispute that partial summary judgment was appropriate under the after-acquired evidence doctrine but contends that fact issues preclude summary judgment as to his surviving claim for back-pay damages for the period between February 14 and October 12, 2003.
We disagree, and will affirm the district court's judgment.
(public employment law, discrimination claim rejected)
(Before Justices Patterson, Pemberton and Waldrop) Conrad G. Deocariza v. Central Texas College District
Appeal from 146th District Court of Bell County
M E M O R A N D U M O P I N I O N
Conrad Deocariza sued his former employer, Central Texas College District ("CTCD"), alleging that he was denied a promotion and later terminated because he is a Pacific Islander, see Tex. Lab. Code Ann. § 21.051 (West 2005), and that he was terminated in retaliation for complaining about discrimination in the promotion. Id. § 21.055 (West 2005). CTCD sought summary judgment on traditional and "no evidence" grounds challenging various elements of Deocariza's discrimination and retaliation claims. CTCD also asserted that limitations barred Deocariza's claims and that the after-acquired evidence doctrine precluded the remedies of reinstatement and front pay and limited any back pay award to the period between February 14, 2004, (the date he was terminated) and October 12, 2004, (the date CTCD learned through discovery that Deocariza had past employment problems that he had not disclosed on his CTCD job applications). (1) The district court granted summary judgment in favor of CTCD without specifying the grounds on which it relied. Deocariza appeals.
Deocariza does not dispute that partial summary judgment was appropriate under the after-acquired evidence doctrine but contends that fact issues preclude summary judgment as to his surviving claim for back-pay damages for the period between February 14 and October 12, 2003.
We disagree, and will affirm the district court's judgment.
Justice Patterson Concurs in Dognapping Case
Augillard v. Madura, No. 03-07-00541-CV (Tex.App.- Austin, June 24, 2008) (animal law, custody fight over dog decided on the basis of DNA evidence) (Majority Opinion by Justice Henson ) [ PDF ] )
CONCURRING OPINION BY JUSTICE PATTERSON
I concur in the judgment only.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Filed: June 20, 2008
CONCURRING OPINION: Concurring Opinion by Justice Patterson [ PDF ] (Before Justices Patterson, Puryear and Henson)
03-07-00541-CV Shalanda Augillard v. Tiffany Madura and Richard Toro--Appeal from 274th District Court of Hays County
CONCURRING OPINION BY JUSTICE PATTERSON
I concur in the judgment only.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Filed: June 20, 2008
CONCURRING OPINION: Concurring Opinion by Justice Patterson [ PDF ] (Before Justices Patterson, Puryear and Henson)
03-07-00541-CV Shalanda Augillard v. Tiffany Madura and Richard Toro--Appeal from 274th District Court of Hays County
Pet Custody Dispute | Conversion of the Dog
Kidnapping (dog-napping) case gets appellate attention.
Majority acknowledges - in dicta - that it's about more than just property, at least for dog lovers.
Augillard v. Madura and Richard Toro, No. 03-07-00541-CV (Tex.App.- Austin, June 24, 2008)(Opinion by Justice Henson ) [ PDF ] )(animal law, tort of conversion re: dog) (Before Justices Patterson, Puryear and Henson)Shalanda Augillard v. Tiffany Madura and Richard Toro
Appeal from 274th District Court of Hays County
Disposition: Reversed and rendered
O P I N I O N
This appeal arises from a suit for conversion filed by Shalanda Augillard alleging that Tiffany Madura and Richard Toro wrongfully exercised dominion and control over Augillard’s black cocker spaniel, Jazz, who was recovered from New Orleans, her dog, Hope Floats (“Hope”), is not the same dog that Augillard lost in the flood.
The circumstances following the hurricane have been well documented, particularly concerning the effects on New Orleans’s pet population:
Hurricane Katrina made landfall at 6:10 a.m. on August 29, 2005. Within hoursLouisiana’s levee system was overtopped and breached. By August 31, eightypercent of New Orleans was under water. The media bombarded the public withimages and stories of animals stranded alone amidst the devastation. These accountspoignantly conveyed the message that our national policies and laws were severelyflawed when it came to animals and disasters.
Megan McNabb, Pets in the Eye of the Storm: Hurricane Katrina Floods the Courts With Pet Custody Disputes, 14 Animal L. 71, 72 (2007) (citations omitted).
Madura responded that while she did adopt a dog that had been rescued from New Orleans, her dog, Hope Floats (“Hope”), is not the same dog that Augillard lost in the flood. The case was tried before the court, which found that Augillard failed to prove by a preponderance of the evidence that the dog in question was Jazz and entered judgment in favor of Madura. Augillard asserts on appeal that the trial court erred in disregarding conclusive evidence, including forensic DNA analysis, establishing that Hope and Jazz are the same dog and in denying Augillard’s request for injunctive relief. In two points of error, Augillard challenges the legal and factual sufficiency of the evidence supporting the trial court’s judgment. Because we conclude that the evidence is legally insufficient, we reverse and render judgment in favor of Augillard.
See remainder of opinion by cliching Augillard v. Madura (Tex.App. - Austin 2008) (or download pdf version on court's web site)
Majority acknowledges - in dicta - that it's about more than just property, at least for dog lovers.
Augillard v. Madura and Richard Toro, No. 03-07-00541-CV (Tex.App.- Austin, June 24, 2008)(Opinion by Justice Henson ) [ PDF ] )(animal law, tort of conversion re: dog) (Before Justices Patterson, Puryear and Henson)Shalanda Augillard v. Tiffany Madura and Richard Toro
Appeal from 274th District Court of Hays County
Disposition: Reversed and rendered
O P I N I O N
This appeal arises from a suit for conversion filed by Shalanda Augillard alleging that Tiffany Madura and Richard Toro wrongfully exercised dominion and control over Augillard’s black cocker spaniel, Jazz, who was recovered from New Orleans, her dog, Hope Floats (“Hope”), is not the same dog that Augillard lost in the flood.
The circumstances following the hurricane have been well documented, particularly concerning the effects on New Orleans’s pet population:
Hurricane Katrina made landfall at 6:10 a.m. on August 29, 2005. Within hoursLouisiana’s levee system was overtopped and breached. By August 31, eightypercent of New Orleans was under water. The media bombarded the public withimages and stories of animals stranded alone amidst the devastation. These accountspoignantly conveyed the message that our national policies and laws were severelyflawed when it came to animals and disasters.
Megan McNabb, Pets in the Eye of the Storm: Hurricane Katrina Floods the Courts With Pet Custody Disputes, 14 Animal L. 71, 72 (2007) (citations omitted).
Madura responded that while she did adopt a dog that had been rescued from New Orleans, her dog, Hope Floats (“Hope”), is not the same dog that Augillard lost in the flood. The case was tried before the court, which found that Augillard failed to prove by a preponderance of the evidence that the dog in question was Jazz and entered judgment in favor of Madura. Augillard asserts on appeal that the trial court erred in disregarding conclusive evidence, including forensic DNA analysis, establishing that Hope and Jazz are the same dog and in denying Augillard’s request for injunctive relief. In two points of error, Augillard challenges the legal and factual sufficiency of the evidence supporting the trial court’s judgment. Because we conclude that the evidence is legally insufficient, we reverse and render judgment in favor of Augillard.
See remainder of opinion by cliching Augillard v. Madura (Tex.App. - Austin 2008) (or download pdf version on court's web site)
Denial of Petition for Mandamus in One Line
ORIGINAL PROCEEDING FROM COMAL COUNTY
M E M O R A N D U M O P I N I O N
The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Filed: June 25, 2008
MOTION OR WRIT DENIED: Opinion by Justice Patterson (Before Chief Justice Law, Justices Patterson and Puryear)
03-08-00407-CV
In re Lisa Marie Lambeck-Beavers--Appeal from 22nd District Court of Comal County
M E M O R A N D U M O P I N I O N
The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Filed: June 25, 2008
MOTION OR WRIT DENIED: Opinion by Justice Patterson (Before Chief Justice Law, Justices Patterson and Puryear)
03-08-00407-CV
In re Lisa Marie Lambeck-Beavers--Appeal from 22nd District Court of Comal County
Allandale Neighborhood Assn. v. City of Austin (Tex.App.- Austin 2008)
Allandale Neighborhood Association v. The City of Austin (Tex.App.- Austin, June 26, 2008)(Opinion by Justice Puryear (Before Justices Patterson, Puryear and Henson)
03-08-00318-CV
Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.
Appeal from 200th District Court of Travis County
M E M O R A N D U M O P I N I O N
Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).
___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008
03-08-00318-CV
Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.
Appeal from 200th District Court of Travis County
M E M O R A N D U M O P I N I O N
Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).
___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008
Allandale Neighborhood Association v. The City of Austin (Tex.App.- Austin, June 26, 2008)(Opinion by Justice Puryear [ PDF ] (Before Justices Patterson, Puryear and Henson)
03-08-00318-CV
Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.--Appeal from 200th District Court of Travis County
M E M O R A N D U M O P I N I O N
Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).
___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008
03-08-00318-CV
Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.--Appeal from 200th District Court of Travis County
M E M O R A N D U M O P I N I O N
Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).
___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008
Allandale Neighborhood Association v. The City of Austin (Tex.App.- Austin, June 26, 2008)(Opinion by Justice Puryear [ PDF ] (Before Justices Patterson, Puryear and Henson)
03-08-00318-CV
Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.--Appeal from 200th District Court of Travis County
M E M O R A N D U M O P I N I O N
Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).
___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008
03-08-00318-CV
Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.--Appeal from 200th District Court of Travis County
M E M O R A N D U M O P I N I O N
Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).
___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008
DTPA | Realtor | Pleasant v. Bradford (Tex.App.- Austin, 2008)
Allandale Neighborhood Association v. The City of Austin (Tex.App.- Austin, June 26, 2008)(Opinion by Justice Puryear)(voluntary dismissal) (Before Justices Patterson, Puryear and Henson)
03-08-00318-CV
Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.--Appeal from 200th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-07-001957, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).
___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008
03-08-00318-CV
Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.--Appeal from 200th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-07-001957, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).
___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008
About the Austin Texas Cases Blog: Update
I have gotten a little behind in posting case opinions, but will try to catch up. Will post the most recent decisions first, and then work backwards.
This blog has now been in existence for more than a year. It currently has a Google PageRank of 2/10 and new posts are typically indexed promptly by Googlebot and show up in organic results in general web searches, rather than merely in searches of blogs. This makes the Third Court opinions much more accessible than they currently are on the court's own website, which does not get indexed by search engines unless there are multiple incoming links to a particular URL (usually a newsworthy case, such as the YFZ mandamus). When that happens the anchor text (usually the case style depending on the webmasters or bloggers that create the link) appears on the search results page, but no snippet of the actual text. This blog gets part, if not all, of the opinion text crawled and indexed, but it also hot-links all posted opinions and appellate docket sheets on the Texas Judiciary server, so visitors can go to the original source of the document and view it with the original formatting.
On a different note, there has been some confusion on the part of readers/users about the underlying motives and the purposes of the blog, and some rather unpleasant anti-lawyer diatribe which I'd rather not even quote or grace with much comment. Let me just note that I am not using this blog to solicit clients for lawsuits. I am not even a lawyer. I am a social scientist by training and an avid "student" of the law, and occasional commentator.
The Blogmaster
This blog has now been in existence for more than a year. It currently has a Google PageRank of 2/10 and new posts are typically indexed promptly by Googlebot and show up in organic results in general web searches, rather than merely in searches of blogs. This makes the Third Court opinions much more accessible than they currently are on the court's own website, which does not get indexed by search engines unless there are multiple incoming links to a particular URL (usually a newsworthy case, such as the YFZ mandamus). When that happens the anchor text (usually the case style depending on the webmasters or bloggers that create the link) appears on the search results page, but no snippet of the actual text. This blog gets part, if not all, of the opinion text crawled and indexed, but it also hot-links all posted opinions and appellate docket sheets on the Texas Judiciary server, so visitors can go to the original source of the document and view it with the original formatting.
On a different note, there has been some confusion on the part of readers/users about the underlying motives and the purposes of the blog, and some rather unpleasant anti-lawyer diatribe which I'd rather not even quote or grace with much comment. Let me just note that I am not using this blog to solicit clients for lawsuits. I am not even a lawyer. I am a social scientist by training and an avid "student" of the law, and occasional commentator.
The Blogmaster
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