Because we have determined that the trial court erred in determining that Mustang’s lien affidavits failed to comply with the requirements of the property code, the trial court’s order granting summary judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
Mustang Tractor & Equipment Co. and Mustang Rental Services, Inc. v. Hartford Accident and Indemnity Company; Hartford Casualty Insurance Company; and White-Spunner Construction, Inc., No. 03-07-00468-CV (Tex.App.- Austin, July 2, 2008)(Opinion by Justice Henson [ PDF ] )(M&M lien, adequacity of line filing, notice) (Before Justices Patterson, Puryear and Henson)
Appeal from 261st District Court of Travis County
O P I N I O N
Mustang Tractor & Equipment Company and Mustang Rental Services, Inc., (collectively, “Mustang”) appeal the trial court’s order granting the motion for summary judgment filed by Hartford Accident and Indemnity Company, Hartford Casualty Insurance Company (collectively, “Hartford”), and White-Spunner Construction, Inc. (“White-Spunner”), to remove four materialman’s liens totaling $115,720.03 that had been filed by Mustang. Hartford and White-Spunner contend that Mustang, in preparing the lien affidavits, failed to comply with the requirements of the property code. Specifically, they argue that the lien affidavits were invalid due to the omission of information regarding when and how pre-lien notice had been provided to the property owner. See Tex. Prop. Code Ann. § 53.054(a)(8) (West 2007). In a single issue on appeal, Mustang asserts that the district court, in determining that omission of the information rendered the liens invalid, erroneously held Mustang to a strict-compliance standard in executing the lien affidavits, rather than the required standard of substantial compliance. We sustain Mustang’s issue and reverse the order granting summary judgment.
BACKGROUND
White-Spunner, a general contractor, agreed to construct a home-improvement center in Austin on property owned by Home Depot USA, Inc., and hired Siteprep, Ltd., as a subcontractor to perform the site-preparation work on the property. Siteprep then leased certain heavy equipment from Mustang in order to perform its site work for the project. When Siteprep failed to fully pay Mustang for its use of the equipment, Mustang sent notices to the property owner, Home Depot, and the general contractor, White-Spunner, stating that Siteprep’s debts to Mustang were unpaid. See id. § 53.056 (a), (b) (requiring that property owner and general contractor be served with notice of subcontractor’s debt before materialman’s liens can be filed). After sending the notices, Mustang timely filed affidavits claiming liens on the property with the county clerk, serving both Home Depot and White-Spunner with copies of the affidavits. See id. §§ 53.052 (requiring that lien affidavit be filed with county clerk in county where property is located), 53.055 (requiring that copies of lien affidavit be provided to property owner and general contractor within five days after affidavit is filed).
Mustang sued Home Depot and White-Spunner for foreclosure of the statutory liens, trapped funds, and statutory retainage. Mustang also brought a claim against White-Spunner for failure to promptly pay pursuant to chapter 28 of the property code. See id. §§ 28.001-.005.
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Following commencement of the suit, Home Depot posted bonds to indemnify and release Mustang’s liens against the property. The Hartford entities, as sureties under the bonds, were then substituted for Home Depot in the pending litigation. On October 26, 2004, Hartford and White-Spunner filed a motion for summary judgment contending that the liens were invalid, which the trial court denied. Approximately two years later, on October 20, 2006, after this court issued its opinion in Milner v. Balcke-Durr, Inc., No. 03-05-00547-CV, 2006 Tex. App. LEXIS 6935 (Tex. App.—Austin Aug. 4, 2006, no pet.) (mem. op.), Hartford and White-Spunner filed a second motion for summary judgment re-urging the grounds that the district court had previously rejected. The district court granted the second motion for summary judgment in favor of Hartford and White-Spunner on all claims, declared that the four liens were invalid, and ordered that the liens be expunged. Mustang now appeals the summary judgment on the foreclosure claim.
STANDARD OF REVIEW
Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The issue in this case is a matter of statutory construction, which is a legal question that we review de novo, ascertaining and giving effect to the legislature’s intent as expressed by the plain and common meaning of the statute’s words. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We must read the statute as a whole, rather than just isolated portions, giving meaning to the language that is consistent with other provisions in the statute. Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 872-73 (Tex. 2005). We must also presume that the legislature intended a reasonable result and avoid construing the statute in ways that lead to foolish or absurd consequences. Wesco Distrib., Inc. v. Westport Group, Inc., 150 S.W.3d 553, 557 (Tex. App.—Austin 2004, no pet.); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581, 584-85 (Tex. App.—Austin 2000, pet. denied).
DISCUSSION
In its sole point of error, Mustang complains that the trial court erroneously applied a strict-compliance standard in determining that Mustang’s lien affidavits were invalid as a result of their failure to include the date and method by which notice was sent to the property owner. See Tex. Prop. Code Ann. § 53.054(a)(8).
The mechanic’s and materialman’s lien statutes, as well as the relevant case law, mandate that a lien affidavit should not be judged by a strict standard but by whether the claimant substantially complied with the statutory requirements. See id. § 53.054 (stating that lien affidavits “must contain substantially” the required information); Occidental Neb. Fed. Sav. Bank v. East End Glass Co., 773 S.W.2d 687, 688 (Tex. App.—San Antonio 1989, no writ) (“For purposes of perfection, only substantial compliance is required in order to fulfill the requirements of the mechanic’s and materialman’s lien statutes.”). This substantial-compliance standard is consistent with the liberal construction generally afforded to mechanic’s and materialman’s lien statutes. See, e.g., First Nat’l Bank in Dallas v. Whirlpool Corp., 517 S.W.2d 262, 269 (Tex. 1974) (“It is well settled that the mechanic’s and materialman’s lien statutes of this State will be liberally construed for the purpose of protecting laborers and materialmen.”).
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Section 53.054 of the property code, which sets forth the requirements of a lien affidavit, provides:
(a) The affidavit must be signed by the person claiming the lien or by another person on the claimant’s behalf and must contain substantially:
(1) a sworn statement of the amount of the claim;
(2) the name and last known address of the owner or reputed owner;
(3) a general statement of the kind of work done and materials furnished by the claimant and, for a claimant other than an original contractor, a statement of each month in which the work was done and materials furnished for which payment is requested;
(4) the name and last known address of the person by whom the claimant was employed or to whom the claimant furnished the materials or labor;
(5) the name and last known address of the original contractor;
(6) a description, legally sufficient for identification, of the property sought to be charged with the lien;
(7) the claimant’s name, mailing address, and, if different, physical address; and
(8) for a claimant other than an original contractor, a statement identifying the date each notice of the claim was sent to the owner and the method by which the notice was sent.
Tex. Prop. Code Ann. § 53.054(a).
The lien affidavits provided by Mustang to the owner and general contractor contained each of the elements listed in section 53.054(a) except the information described in subparagraph 8—the date that notice of the claim was sent to the owner and the method by which notice was sent. However, the notices on their face identify the date and method by which they were sent and the parties do not dispute that the owner received timely notice of the claim. Mustang argues that because omission of the information described in subparagraph 8 was merely a technical defect that did not prejudice the contractor or owner, the lien affidavits substantially complied with the statutory requirements.
The specific issue before this Court is one of first impression, as we have found no cases in which a lien affidavit failed to include the information described in subparagraph 8 of section 53.054(a). In general, courts that have addressed substantial-compliance issues have distinguished between mere technical defects, which can be excused, and those defects that are more substantive in nature and, if overlooked, would read a provision out of the statute or prejudice another party. See, e.g., First Nat’l Bank in Graham v. Sledge, 653 S.W.2d 283, 287 (Tex. 1983) (holding that lien was perfected despite fact that owner was sent only one copy of lien affidavit rather than two copies as required by statute, noting that “we see no harm in failing to provide the owner an extra copy” because general contractor was in bankruptcy); New AAA Apartment Plumbers, Inc. v. DPMC-Briarcliff, L.P., 145 S.W.3d 728, 730 (Tex. App.—Corpus Christi 2004, no pet.) (claimant substantially complied with property code section 53.055 by sending copy of lien affidavit to property owner before, rather than after, affidavit was filed because owner received notice and therefore “the purpose of the statute was fulfilled”); Richardson v. Mid-Cities Drywall, Inc., 968 S.W.2d 512, 515 (Tex. App.—Texarkana 1998, no pet.) (substantial compliance existed where claimant’s mailing address was not included within sworn portion of affidavit but could be found on back of affidavit as address to which document was to be returned); Occidental, 773 S.W.2d at 688 & n.2 (incorrectly sending notice to contractor rather than owner where owner was, for practical purposes, same person as contractor due to “scheme of interlocking corporate shells” constituted mere technical defect that did not preclude finding of substantial compliance); Marathon Metallic Bldg. Co. v. Texas Nat’l Bank of Waco, 534 S.W.2d 743, 747 (Tex. Civ. App.—Waco 1976, no writ) (substantial compliance occurred despite incorrectly naming corporation as property owner when actual owners were individual stockholders and president of named corporation).
Courts have been more willing to excuse a mistake or omission in cases where no party is prejudiced by the defect. See Richardson, 968 S.W.2d at 515 (“The concept is that substantial compliance is shown to exist where no one has been misled to his prejudice.”); Hunt Developers, Inc. v. Western Steel Co., 409 S.W.2d 443, 449 (Tex. Civ. App.—Corpus Christi 1966, no writ) (“[C]ompliance is especially sufficient where no one has been misled to his prejudice. The Legislature did not intend that the materialman should lose his lien through the technicalities of a warning, where the owner was not misled to his prejudice.”).
In support of their argument that the omission in the present case is substantive, rather than merely technical, White-Spunner and Hartford cite cases where claimants’ mistakes or omissions were sufficiently defective to be considered a failure to substantially comply with statutory requirements. See Milner, 2006 Tex. App. LEXIS 6935, at *8-9; Wesco, 150 S.W.3d at 553, Mainline Indus. Servs., Inc. v. Inland Enters., Inc., No. 06-00-00020-CV, 2001 Tex. App. LEXIS 2841, at *7-8 (Tex. App.—Texarkana May 2, 2001, no pet.) (not designated for publication); Tribble & Stephens Co. v. Consolidated Servs., Inc., 744 S.W.2d 945, 951 (Tex. App.—San Antonio 1987, writ denied). We find these cases to be distinguishable from the instant suit.
The affidavit at issue in Milner failed to reference the months in which work was performed—the information described in subparagraph 3 of property code section 53.054(a). 2006 Tex. App. LEXIS 6935, at *8. Noting that the issue had not been briefed on appeal, this Court held that compliance with section 53.054(a)(3) “was essential to perfection of [appellant’s] statutory lien.” Id. at *8-9. However, the information required by section 53.054(a)(3) must necessarily be provided in order for a property owner or general contractor to assess the validity of the lien or determine whether it properly complied with the statutory retainage requirements. See Tex. Prop. Code Ann. § 53.054(a)(3) (requiring, “for a claimant other than an original contractor, a statement of each month in which the work was done”). As a result, the failure to provide such information could conceivably mislead an owner or contractor to his prejudice, although, because the issue was not briefed, it is not clear whether the owner or contractor in Milner had actual knowledge of the months in which work was performed. See id. at *8. In contrast, the record in the present case reflects that Home Depot and White-Spunner had actual knowledge of the information at issue—the date and method by which notice had been mailed—and therefore would not have been misled to their prejudice by Mustang’s failure to include such information in the lien affidavits.
Similarly, the affidavit at issue in Mainline, an unpublished case, failed to include a number of items, including the owner’s name and last known address, a general statement of the kind of work done and materials furnished, and the claimant’s mailing address. 2001 Tex. App. LEXIS 2841, at *3. Unlike the affidavit in the present case, which merely omitted a single item in the enumerated list found in section 53.054(a), the affidavit in Mainline excluded nearly half of the listed items, lending support to the holding that the claimant failed to substantially comply with the statute. Furthermore, omission of such items as the owner’s name and address, a statement of work done and materials furnished, and the claimant’s mailing address has far greater potential to mislead the owner or a third party to their prejudice than omission of the date and method by which notice was mailed. As the court notes in Mainline, failure to include the owner’s name and address cannot be considered merely a technical defect, due to “the basic principal behind recording liens with the county, which is to provide constructive notice to third parties.” Id. at *7.
In Wesco, 150 S.W.3d at 555, a materialman’s lien was rendered invalid because the property owner did not receive a pre-lien notice of the claim before the statutory deadline. See Tex. Prop. Code Ann. § 53.056 (requiring pre-lien notice to owner or general contractor). However, unlike the types of technical defects that courts have excused under the substantial-compliance standard, failure to timely provide pre-lien notice to the property owner defeats the purpose of the notice requirements in the mechanic’s and materialman’s lien statutes. See Wesco, 150 S.W.3d at 559 (“The purposes of notice are: (1) to give those parties entitled to notice an opportunity to protect their interests, and (2) to prevent surprise.”). Due to the overwhelming potential for misleading the property owner to his prejudice, a complete failure to provide the owner with timely notice of the claim could reasonably be viewed as falling short of substantial compliance. In the present case, however, there is no such potential to mislead the property owner, as it is undisputed that Mustang delivered the required pre-lien notices within the statutory deadline.
The facts of Tribble, 744 S.W.2d at 951, also involve a claimant failing to provide proper notice to the property owner, although the notice at issue in Tribble was a copy of the filed affidavit, as required by section 53.055 of the property code, rather than the pre-lien notice required by section 53.056. The court held that the lien was invalid because “there is no compliance when no copies [of the affidavit] are sent.” Id. It is clear how failure to provide copies of the affidavit could potentially mislead the owner to his prejudice, as “[t]he purpose of § 53.055 is to ensure that the owner receives actual notice that an affidavit has been filed against the property so that he will be able to take steps to protect himself.” Cabintree, Inc. v. Schneider, 728 S.W.2d 395, 396-97 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d). However, as previously discussed, such a concern that the owner could be misled to his prejudice is simply not an issue in the present case.
Finally, White-Spunner and Hartford argue that the substantial-compliance standard requires, at a minimum, an attempt to comply with each individual statutory requirement, contending that there is no case law suggesting that a claimant can substantially comply after omitting an entire item from the enumerated list found in section 53.054(a). We disagree. In Richardson, 968 S.W.2d at 515, the claimant completely omitted the information required by subparagraph 7 of section 53.054(a)—the claimant’s name and address—from the sworn portion of the affidavit. However, the court noted that the claimant’s address was included in the notice to the clerk regarding where to return the document after recording, as well as on an attachment to the affidavit that was prepared by the clerk. Id. Upon determining that there was no allegation of a lack of notice created by this omission, and therefore no one had been misled to his prejudice, the court concluded that the claimant had substantially complied with the statute. Id. The court reasoned:
If strict compliance were required, the affidavit would fail to perfect the lien. The question of substantial compliance is a different question. The few cases exploring this statute and its predecessors indicate that the statute should be applied liberally to protect all laborers and materialmen. Because the document provides all other required information in the sworn section, and because the mailing address contained on the document accurately provides a means of contact with the claimant (which is the purpose of the address), we find it substantially complies with the statute.
Id.
As in Richardson, the efforts by the claimant in the present case were sufficient to fulfill the purposes of the statute. The parties do not dispute that Mustang provided the owner with pre-lien notices of its claims, which on their face identified the date and method by which they were sent, and there is no allegation that the owner did not receive actual notice of the claims in a timely manner. Because the omission of the date and method by which the notices were sent constitutes a mere technical error, and because there is no risk that anyone was misled to his prejudice as a result of such omission, we hold that Mustang’s lien affidavits substantially complied with the statute.
CONCLUSION
Because we have determined that the trial court erred in determining that Mustang’s lien affidavits failed to comply with the requirements of the property code, the trial court’s order granting summary judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
___________________________________________ Diane M. Henson, Justice
Before Justices Patterson, Puryear and Henson
Reversed and Remanded
Filed: July 2, 2008
Sunday, July 6, 2008
L. Diane Wells v. Joe McCurry--Appeal from 33rd District Court of Burnet CountyDISMISSED ON APPELLANT'S MOTION: Opinion by Chief Justice Law [ PDF ] (Before Chief Justice Law, Justices Pemberton and Waldrop)
03-07-00227-CV
L. Diane Wells v. Joe McCurry--Appeal from 33rd District Court of Burnet County
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 30240-A, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant L. Diane Wells has filed a motion to dismiss her appeal. See Tex. R. App. P. 42.1(a)(1). We grant the motion and dismiss the appeal. See id.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed on Appellant's Motion
Filed: July 2, 2008
03-07-00227-CV
L. Diane Wells v. Joe McCurry--Appeal from 33rd District Court of Burnet County
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 30240-A, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant L. Diane Wells has filed a motion to dismiss her appeal. See Tex. R. App. P. 42.1(a)(1). We grant the motion and dismiss the appeal. See id.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed on Appellant's Motion
Filed: July 2, 2008
PIA | City of Fort Worth, Fisseler v. AG Greg Abbott (Tex.App. - Austin 2008)
This appeal concerns an open-records request involving certain DNA records held by the City of Fort Worth's forensic science laboratory and the interplay between section 552.101 of the Texas Public Information Act (formerly known as the Texas Open Records Act) (1) and subchapter G, chapter 411 of the government code, (2) which prohibits the release of certain DNA records and information contained therein. See Tex. Gov't Code Ann. § 411.153 (West Supp. 2007). After the Attorney General issued a letter ruling concluding that the DNA records held by the City were subject to disclosure under the PIA, appellants the City of Fort Worth and City Manager Dale A. Fisseler (3) filed suit challenging this ruling. Appellees, the Fort Worth Star-Telegram and Melody McDonald, (4) intervened and sought a writ of mandamus to compel the disclosure of information held by the City. The trial court granted appellees' request for a writ of mandamus and ordered the City to disclose the information at issue. Because we conclude that government code section 411.153(b) prohibits the release of information in the DNA records at issue and, therefore, exempts that information from disclosure under the PIA, we reverse the trial court's order granting appellees' request for a writ of mandamus and render judgment in favor of the City.
City of Fort Worth and Dale A. Fisseler, in his Official Capacity as City Manager and as Officer for Public Information v. Greg Abbott, Attorney General of Texas; Fort Worth Star-Telegram and Melody McDonald, No. 03-07-00553-CV (Tex.App.- Austin, July 3, 2008) Opinion by Justice Patterson [ PDF ] (Public Information Act = PIA, Open Records Act, open records request, freedom of information) (Before Justices Patterson, Puryear and Henson)
Appeal from 353rd District Court of Travis County
Disposition: Reversed and rendered
FACTUAL AND PROCEDURAL BACKGROUND
Melody McDonald, a reporter for the Star-Telegram, filed an open-records request with the City requesting "[t]he case file and/or all reports, memorandums or notes from the Fort Worth Police Department's Forensic Science Laboratory" regarding two rape/murder victims. In response to this request, the City sought a ruling from the Attorney General arguing that certain requested information was exempt from disclosure under section 552.101 of the PIA (5) because government code section 411.153(b) (6) prohibits the release of information in a DNA record. See id. § 552.301(a) (West Supp. 2007) (allowing governmental body to seek ruling on disclosure from the Attorney General). The information at issue included four categories of DNA records held by the City's forensic science laboratory: (7)
1) DNA records of the suspect and another convicted offender;
2) DNA records of four individuals who were present at a crime scene and who voluntarily gave samples in order to be excluded as suspects;
3) the court-ordered sample from the second suspect; and
4) DNA records of the victims.
The Attorney General issued a letter ruling requiring the City to disclose information, including certain DNA records, sought by the Star-Telegram. See Tex. Att'y Gen. ORL2007-02471 (Mar. 5, 2007). The Attorney General rejected the City's argument that section 411.153(b) made the information in DNA records exempt from disclosure under the PIA and concluded that, unless the DNA records were included in the state DNA database maintained by the director of the Texas Department of Public Safety, the information was subject to disclosure under the PIA:
[T]o the extent the submitted information is maintained in the public safety director's database, it must be withheld under section 552.101 of the Government Code in conjunction with section 411.153 of the Government Code. To the extent the submitted information is not maintained in the public safety director's DNA database, it is not confidential under section 552.101 of the Government Code in conjunction with section 411.153, and must be released.
See id.
Because most of the DNA records at issue had not been forwarded by the City to the DPS director for inclusion in the state DNA database, see Tex. Gov't Code Ann. § 411.144(d) (requiring a DNA laboratory to forward DNA records and forensic analyses to the director), the Star-Telegram maintained that those DNA records were subject to disclosure under the Attorney General's ruling. To protect the confidentiality of the information in the DNA records at issue, the City filed suit against the Attorney General to challenge the ruling. See id. § 552.324 (West 2004) (providing for suit against the Attorney General). The Star-Telegram intervened in the City's suit and sought a writ of mandamus to enforce the Attorney General's letter ruling and compel disclosure by the City. See id. § 552.321 (West 2004) (allowing requesting party to seek writ of mandamus for failure to comply with PIA). The trial court granted the Star-Telegram's request for mandamus relief and ordered the City to disclose the information to the extent it was not included in the DNA database maintained by the director of the DPS. By its terms, the trial court's order commands the City to disclose all information in its case file, except the DNA records of the convicted offender, which are maintained in the DPS's DNA database:
[T]he City of Fort Worth shall immediately disclose to Intervenors Fort Worth Star-Telegram and Melody McDonald the requested information made the basis of this suit, which information is described as the case file and/or all reports, memoranda or notes from the Fort Worth Police Department's Forensic Science Laboratory . . . save and except that portion of the requested information which is maintained in the DNA Database, specifically, all DNA records for the convicted offender . . . .
The City appeals from the trial court's order granting appellees' request for a writ of mandamus.
DISCUSSION
On appeal, the City argues that government code section 411.153(b) prohibits the release of information in the DNA records at issue and, therefore, the trial court erred in granting mandamus relief and ordering the City to disclose the DNA records. The Star-Telegram counters that section 411.153 only prohibits the release of DNA records and information included in the state DNA database; therefore, to the extent the information in DNA records held by the City is not included in the state DNA database, it is subject to disclosure under the PIA. Although the Attorney General has since issued conflicting letter rulings on this issue, he has not taken a position on appeal regarding whether the information and DNA records at issue should be released. (8) For the reasons set forth below, we conclude that section 411.153 prohibits the release of information in the DNA records at issue and that the trial court erred in granting appellees' request for mandamus relief and in ordering the City to disclose this information.
Standard of Review
Appeal is the proper remedy for review of the trial court's order granting a writ of mandamus in this context. See Love v. Wilcox, 28 S.W.2d 515, 521 (Tex. 1930); see also In re City of Georgetown, 53 S.W.3d 328, 337 (Tex. 2001) (Hecht, J., concurring). An action for a writ of mandamus initiated in the trial court is a civil action subject to appeal like any other civil suit. See Anderson v. City of Seven Points, 806 S.W.2d 791, 791 n.1 (Tex. 1991); University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.).
Whether information is subject to the PIA and whether an exception to disclosure applies to the information are questions of law involving statutory construction. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000); A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995). We review questions of statutory construction de novo. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003) (appellate courts review matters of statutory construction de novo); In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) (questions of law are always subject to de novo review).
Are the DNA records at issue subject to disclosure under the Public Information Act?
The central issue on appeal is whether certain DNA records held by the City's forensic science laboratory are subject to disclosure under the PIA or whether they are exempt from disclosure based on government code section 411.153(b). The parties do not dispute that DNA records included in the DNA database maintained by the director of the DPS are confidential and not subject to disclosure under the PIA as expressly provided for in government code section 411.153(a). See Tex. Gov't Code Ann. § 411.153(a). The dispute concerns information in DNA records that are not included in the state DNA database--i.e., information in the DNA records of the victims and the DNA records of persons who voluntarily submitted DNA samples to be excluded as suspects in a crime--and whether that information is subject to disclosure under the PIA or whether the release of information in those DNA records is prohibited by government code section 411.153(b).
The issue before us is one of first impression and presents a matter of statutory construction. Our primary goal when construing a statute is to ascertain and give effect to the legislative intent. See City of San Antonio, 111 S.W.3d at 25. 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 begin with the plain language of the statute at issue and apply its common meaning. City of San Antonio, 111 S.W.3d at 25. Where the statutory text is unambiguous, we adopt a construction supported by the statute's plain language, unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999).
In this case, we are called upon to reconcile the legislative mandate that information held by governmental bodies is public information with the legislative directives regarding the confidentiality of DNA records. The PIA states, "It is the policy of this state that each person is entitled unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees." See Tex. Gov't Code Ann. § 552.001 (West 2004). To that end, the PIA provides that "public information is available to the public at a minimum during the normal business hours of the governmental body." Id. § 552.021 (West 2004). The PIA mandates a liberal construction to implement this policy and one that favors a request for information. See id. § 552.001; see also City of Garland, 22 S.W.3d at 357.
A governmental body seeking to withhold requested information must submit a timely request to the Attorney General for a ruling on disclosure and assert those specific exceptions from disclosure that apply. See Tex. Gov't Code Ann. § 552.301. An exception from disclosure is found in section 552.101, which provides that information is excepted from disclosure if it is information considered to be confidential by law. See id. § 552.101 (West 2004). The City contends that government code section 411.153(b) makes confidential information in DNA records, regardless of whether the DNA record is included in the state DNA database maintained by the DPS director.
In its request for a ruling from the Attorney General, the City asserted that government code section 411.153(b) prohibited the release of the DNA records at issue and, therefore, the requested information was exempt from disclosure under section 552.101. See id. §§ 411.153(b); 552.101. Section 411.153(b) is part of a comprehensive statutory scheme enacted by the legislature to govern the collection, use, and dissemination of DNA records collected by law enforcement agencies. See id. §§ 411.141-.154 (West 2005 & Supp. 2007). In subchapter G, chapter 411 of the government code, the legislature created a DNA database that would be "the central depository in the state for DNA records." See id. § 411.142(a). As we interpret subchapter G, we conclude that the legislature envisioned a central depository to be maintained by the DPS director for all DNA records collected by law enforcement agencies throughout the state. Nothing in the statute suggests that local law enforcement agencies may create their own individualized DNA databases without forwarding the information and DNA records to the director for inclusion in the state DNA database established in subchapter G, chapter 411 of the government code. See, e.g., id. §§ 411.142 (establishing DNA database); .143 (purpose of DNA database); .144 (regulating DNA laboratories, requiring laboratories to forward DNA records and forensic analyses to the director, and providing for penalties).
Under the framework of subchapter G, a "DNA laboratory" performs an analysis of samples or specimens received and produces a "DNA record," which is the "result[ ] of a forensic DNA analysis performed by a DNA laboratory." Id. § 411.141(3)-(4) (defining "DNA laboratory" and "DNA record"). The legislature has provided that the state DNA database must be compatible with the national DNA identification index system, or CODIS, used by the FBI so as to permit the useful exchange and storage of DNA records or information derived from those records. Id. § 411.142(f). The legislature has specified those types of DNA records that may be contained in the state DNA database. Id. § 411.142(g). Included among the types of DNA records that may be contained in the state DNA database is "a biological specimen that is legally obtained in the investigation of a crime, regardless of origin." Id. § 411.142(g)(3).
The legislature has delegated authority to the DPS to promulgate standards for the certification of DNA laboratories and procedures for forensic DNA analysis by DNA laboratories to facilitate the exchange of DNA evidence and the use of such evidence in a criminal case. See id. §§ 411.142(h); 144(a). There is no dispute that the City's forensic science laboratory is a certified DNA laboratory within the meaning of subchapter G, chapter 411 of the government code. Section 411.144(d) expressly requires a DNA laboratory conducting a DNA analysis under subchapter G to forward the DNA record of the analysis to the director. See id. § 411.144(d). The legislature has also directed the DPS to promulgate rules establishing procedures to prevent unauthorized access to the DNA database and to allow for the release of DNA records, specimens, or analyses from the DNA database. See id. § 411.147(a). The legislature has further provided that the DPS may only release a DNA sample, analysis, or record in certain circumstances. See id. § 411.147(c).
With regard to the confidentiality of DNA records, the legislature has provided in section 411.153(a) that "[a] DNA record stored in the DNA database is confidential and is not subject to disclosure under the open records law, Chapter 552." Id. § 411.153(a). At the time of the Star-Telegram's request in this case, section 411.153(b) also provided that "[a] person commits an offense if the person knowingly discloses information in a DNA record or information related to a DNA analysis of a sample collected under this subchapter." See Act of May 30, 2005, 79th Leg., R.S., ch.1224, § 15, 2005 Tex. Gen. Laws 3952, 3962 (current version at Tex. Gov't Code Ann. § 411.153 (West Supp. 2007)). (9)
Consistent with the Attorney General's ruling in this case, the Star-Telegram urges that, because the DNA records at issue--i.e., the DNA records of the victims and those who voluntarily gave DNA samples to be excluded as suspects--are not stored in the DNA database, those DNA records are not exempt from disclosure under the PIA. See Tex. Att'y Gen. ORL2007-02471 (2007). By expressly providing that only DNA records in the database are exempt from disclosure under the PIA, the Star-Telegram argues that the legislature intended only to exempt DNA records in the DNA database, and not all DNA records. The City counters that the interpretation urged by the Star-Telegram would render section 411.153(b) meaningless.
As previously noted, the Attorney General has rendered conflicting opinions on whether section 411.153(b) exempts DNA records from disclosure under the PIA. Responding to the City's request for an opinion in this case, the Attorney General rejected the City's argument that section 411.153(b) exempted the DNA records at issue or the information in those records from disclosure under the PIA. See id. Since issuing this ruling, however, the Attorney General has issued rulings in at least three other cases finding that section 411.153 exempts DNA records and information in DNA records from disclosure under the PIA. (10) See Tex. Att'y Gen. ORL2008-04899 (Apr. 11, 2008); ORL2008-02901 (Mar. 4, 2008); ORL2008-01706 (Feb. 5, 2008). In these subsequent letter rulings, the Attorney General makes no distinction between DNA records included in the state DNA database and DNA records that are not included in the state DNA database. See id. ORL2008-04899 at 3-4; ORL2008-02901 at 4-5; ORL2008-01706 at 1-2. In letter ruling ORL2008-01706, the Attorney General expressly found that DNA records and information in the Dallas County District Attorney's files were confidential and must be withheld under section 411.153(b). See id. ORL2008-01706 at 2. We recognize that opinions of the Attorney General are persuasive authority and are not controlling on the courts. See Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996); Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 336 (Tex. App.--Austin 2000, pet. denied). Accordingly, we are not bound to follow them--especially in a situation, as here, where the Attorney General has issued conflicting opinions on the same issue. Compare Tex. Att'y Gen. ORL2007-02471 with Tex. Att'y Gen. ORL2008-04899; ORL2008-02901; ORL2008-01706.
We conclude that a plain reading of subchapter G, chapter 411 of the government code prohibits the release of information in DNA records even if the DNA records have yet to be forwarded to the DPS director for inclusion in the state DNA database. The legislature has defined "DNA record" to mean "the results of a forensic DNA analysis performed by a DNA laboratory and, if known, the name of the person who is the subject of the analysis." See Tex. Gov't Code Ann. § 411.141(7). The parties do not dispute that the DNA records at issue meet the definition of "DNA record" in government code section 411.141(7). See id. Nor do they dispute that the director of the DPS is required to establish certain standards and procedures for DNA laboratories or that a DNA laboratory conducting a forensic DNA analysis under subchapter G must forward the DNA record of that analysis to the director. See id. §§ 411.142(h), 411.144(a) (requiring director to establish standards and procedures for DNA laboratories), (d) (requiring laboratory to forward DNA records and analyses to the director). That the City's DNA laboratory has not forwarded the DNA records at issue to the director may be a violation of subchapter G, and may subject the City's DNA laboratory to penalties thereunder, but it does not affect the confidentiality of those DNA records under section 411.153(b). (11)
In section 411.153(a), the legislature expressly provided that DNA records in the state DNA database are not subject to disclosure under the PIA. See id. § 411.153(a). In addition, the legislature recognized that the DNA database maintained by the DPS director may not include all DNA records, much less all of the information in DNA records or information related to a DNA analysis of a sample collected under this subchapter. (12) See id. § 411.153(b). Reading the statute as a whole, we agree that section 411.153(a) exempts DNA records included in the state DNA database from disclosure under the PIA. Id. § 411.153(a). We further conclude that by its use of the phrase "information in a DNA record" the legislature in section 411.153(b) prohibited the release of a broader category of information than DNA records included in the state DNA database. Id. § 411.153(b). We therefore agree with the City that section 411.153(b) protects from disclosure information in a DNA record, even if that DNA record has not been forwarded to the director for inclusion in the state DNA database. See id.
Were we to adopt the Star-Telegram's interpretation of section 411.153, we would be left with the absurd result that only the DNA records of the convicted offender would be exempt from disclosure under the PIA. We do not believe this is what the legislature intended. See University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 & n.20 (Tex. 2004) (recognizing that courts should not construe statutes in a way that leads to absurd results). The City's construction of section 411.153 is consistent with the legislature's comprehensive scheme and purpose in creating the state DNA database. (13) See generally Tex. Gov't Code Ann. §§ 411.141-.154. Because the plain language of section 411.153(b), when read in conjunction with the other provisions in subchapter G, chapter 411 of the government code, prohibits the release of information in a DNA record regardless of whether that DNA record has been forwarded to the DPS director for inclusion in the state DNA database, we conclude that the DNA records at issue, and the information contained therein, are confidential by law and therefore exempt from disclosure under the PIA. See id. §§ 411.153(b), 552.101. Accordingly, we sustain the City's issue on appeal.
CONCLUSION
Because we conclude that section 411.153(b) prohibits the release of information in a DNA record and that the DNA records at issue are therefore exempt from disclosure under the PIA, we reverse the trial court's order granting appellees' request for writ of mandamus and render judgment in favor of the City.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Reversed and Rendered
Filed: July 3, 2008
1. Tex. Gov't Gode Ann. §§ 552.001-.353 (West 2004 & Supp. 2007). For convenience, we cite to the current version of the statute unless noted otherwise.
2. Id. §§ 411.141-.154 (West 2005 & Supp. 2007). For convenience, we cite to the current version of the statute unless noted otherwise.
3. We substitute Dale A. Fisseler, in his official capacity as City Manager and as Officer of Public Information, as the proper party on appeal in place of former City Manager, Charles Boswell. See Tex. R. App. P. 7.2(a) (automatic substitution of public officer).
4. Because their interests align, we refer to appellees the Fort Worth Star-Telegram and Melody McDonald collectively as the "Star-Telegram" unless specifically noted otherwise.
5. Section 552.101 provides that "[i]nformation is excepted from the [disclosure] requirements of Section 552.021 if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Tex. Gov't Code Ann. § 552.101.
6. Section 411.153 is captioned "Confidentiality of DNA Records" and provides:
(a) A DNA record stored in the DNA database is confidential and is not subject to disclosure under the public information law, Chapter 552.
(b) A person commits an offense if the person knowingly discloses to an unauthorized recipient information in a DNA record or information related to a DNA analysis of a sample collected under this subchapter.
(c) An offense under this section is a state jail felony.
(d) A violation under this section constitutes official misconduct.
Id. § 411.153.
7. The record demonstrates that the City contracted with a private laboratory to provide forensic DNA analysis and that the DNA records at issue are contained in the files of this private laboratory. That the information and DNA records are held by a private laboratory does not affect our analysis of the issues presented on appeal because the City retains ownership and a right of access to the information and DNA records. See id. § 552.002(a)(2).
8. Instead, the Attorney General has filed a brief directing this Court to refer to the briefs and arguments submitted by the other parties.
9. Section 411.153 was amended in 2007 to add the phrase "to an unauthorized recipient" after the phrase "knowingly discloses information." See Act of May 23, 2007, 80th Leg., R.S., ch. 760, § 4, 2007 Tex. Gen. Laws 1569, 1571.
10. Although he is a named party in this appeal, the Attorney General has not explained the reasons for this change in his interpretation of section 411.153.
11. By failing to forward the DNA records at issue to the DPS director as required in section 411.144, the City has only served to complicate the decision-making process in this matter. There is no merit in the City's arguments that the DNA records in question cannot be sent to the DPS director for inclusion in the state DNA database. The legislature has expressly provided that DNA records of deceased victims and voluntary donors may be included in the state DNA database. See Tex. Gov't Code Ann. § 411.142(g)(2)-(3); see also id. § 411.149. Moreover, even if federal law prohibits the inclusion of certain DNA records in the national DNA database, there is nothing in subchapter G that prohibits the state from including such records in the state DNA database. Texas law requires only that the state DNA database be compatible with the national database, so as to permit the useful exchange of records and information, not that the records and information stored in the state DNA database be the same as that stored in the national database. See id. § 411.142(f).
12. As one commentator has explained, the reason for this lack of inclusion may be a practical one involving lack of time and money. See Craig M. Cooley, Forensic Science and Capital Punishment Reform: An "Intellectually Honest" Assessment, 17 Geo. Mason U. Civ. Rts. L.J. 299, 309-18 (2007). The increasing reliance on DNA evidence for prosecutions, statutes requiring certain defendants to submit DNA samples, and the expense required to increase DNA laboratory staffing and modernize older facilities has led to a growing backlog of samples that are waiting to be recorded in state and federal DNA databases. See id. An investigation of the DPS in 2000 revealed that just over one-half of the DNA samples received by DPS had been analyzed and recorded. See Paul E. Tracy & Vincent Morgan, Criminology: Big Brother and His Science Kit: DNA Databases for 21st Century Crime Control?, 90 J. Crim. L. & Criminology 635, 643 (2000). Congress has since passed the Debbie Smith DNA Backlog Grant Program to help expedite the inclusion of DNA samples obtained from law enforcement laboratories into the state and federal DNA databases. See 42 U.S.C.A. § 14135 (West 2005).
13. The City's construction is likewise consistent with the Attorney General's subsequent rulings on this issue. See Tex. Att'y Gen. ORL2008-04899 (Apr. 11, 2008); ORL2008-02901 (Mar. 4, 2008); ORL2008-01706 (Feb. 5, 2008).
City of Fort Worth and Dale A. Fisseler, in his Official Capacity as City Manager and as Officer for Public Information v. Greg Abbott, Attorney General of Texas; Fort Worth Star-Telegram and Melody McDonald, No. 03-07-00553-CV (Tex.App.- Austin, July 3, 2008) Opinion by Justice Patterson [ PDF ] (Public Information Act = PIA, Open Records Act, open records request, freedom of information) (Before Justices Patterson, Puryear and Henson)
Appeal from 353rd District Court of Travis County
Disposition: Reversed and rendered
FACTUAL AND PROCEDURAL BACKGROUND
Melody McDonald, a reporter for the Star-Telegram, filed an open-records request with the City requesting "[t]he case file and/or all reports, memorandums or notes from the Fort Worth Police Department's Forensic Science Laboratory" regarding two rape/murder victims. In response to this request, the City sought a ruling from the Attorney General arguing that certain requested information was exempt from disclosure under section 552.101 of the PIA (5) because government code section 411.153(b) (6) prohibits the release of information in a DNA record. See id. § 552.301(a) (West Supp. 2007) (allowing governmental body to seek ruling on disclosure from the Attorney General). The information at issue included four categories of DNA records held by the City's forensic science laboratory: (7)
1) DNA records of the suspect and another convicted offender;
2) DNA records of four individuals who were present at a crime scene and who voluntarily gave samples in order to be excluded as suspects;
3) the court-ordered sample from the second suspect; and
4) DNA records of the victims.
The Attorney General issued a letter ruling requiring the City to disclose information, including certain DNA records, sought by the Star-Telegram. See Tex. Att'y Gen. ORL2007-02471 (Mar. 5, 2007). The Attorney General rejected the City's argument that section 411.153(b) made the information in DNA records exempt from disclosure under the PIA and concluded that, unless the DNA records were included in the state DNA database maintained by the director of the Texas Department of Public Safety, the information was subject to disclosure under the PIA:
[T]o the extent the submitted information is maintained in the public safety director's database, it must be withheld under section 552.101 of the Government Code in conjunction with section 411.153 of the Government Code. To the extent the submitted information is not maintained in the public safety director's DNA database, it is not confidential under section 552.101 of the Government Code in conjunction with section 411.153, and must be released.
See id.
Because most of the DNA records at issue had not been forwarded by the City to the DPS director for inclusion in the state DNA database, see Tex. Gov't Code Ann. § 411.144(d) (requiring a DNA laboratory to forward DNA records and forensic analyses to the director), the Star-Telegram maintained that those DNA records were subject to disclosure under the Attorney General's ruling. To protect the confidentiality of the information in the DNA records at issue, the City filed suit against the Attorney General to challenge the ruling. See id. § 552.324 (West 2004) (providing for suit against the Attorney General). The Star-Telegram intervened in the City's suit and sought a writ of mandamus to enforce the Attorney General's letter ruling and compel disclosure by the City. See id. § 552.321 (West 2004) (allowing requesting party to seek writ of mandamus for failure to comply with PIA). The trial court granted the Star-Telegram's request for mandamus relief and ordered the City to disclose the information to the extent it was not included in the DNA database maintained by the director of the DPS. By its terms, the trial court's order commands the City to disclose all information in its case file, except the DNA records of the convicted offender, which are maintained in the DPS's DNA database:
[T]he City of Fort Worth shall immediately disclose to Intervenors Fort Worth Star-Telegram and Melody McDonald the requested information made the basis of this suit, which information is described as the case file and/or all reports, memoranda or notes from the Fort Worth Police Department's Forensic Science Laboratory . . . save and except that portion of the requested information which is maintained in the DNA Database, specifically, all DNA records for the convicted offender . . . .
The City appeals from the trial court's order granting appellees' request for a writ of mandamus.
DISCUSSION
On appeal, the City argues that government code section 411.153(b) prohibits the release of information in the DNA records at issue and, therefore, the trial court erred in granting mandamus relief and ordering the City to disclose the DNA records. The Star-Telegram counters that section 411.153 only prohibits the release of DNA records and information included in the state DNA database; therefore, to the extent the information in DNA records held by the City is not included in the state DNA database, it is subject to disclosure under the PIA. Although the Attorney General has since issued conflicting letter rulings on this issue, he has not taken a position on appeal regarding whether the information and DNA records at issue should be released. (8) For the reasons set forth below, we conclude that section 411.153 prohibits the release of information in the DNA records at issue and that the trial court erred in granting appellees' request for mandamus relief and in ordering the City to disclose this information.
Standard of Review
Appeal is the proper remedy for review of the trial court's order granting a writ of mandamus in this context. See Love v. Wilcox, 28 S.W.2d 515, 521 (Tex. 1930); see also In re City of Georgetown, 53 S.W.3d 328, 337 (Tex. 2001) (Hecht, J., concurring). An action for a writ of mandamus initiated in the trial court is a civil action subject to appeal like any other civil suit. See Anderson v. City of Seven Points, 806 S.W.2d 791, 791 n.1 (Tex. 1991); University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.).
Whether information is subject to the PIA and whether an exception to disclosure applies to the information are questions of law involving statutory construction. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000); A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995). We review questions of statutory construction de novo. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003) (appellate courts review matters of statutory construction de novo); In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) (questions of law are always subject to de novo review).
Are the DNA records at issue subject to disclosure under the Public Information Act?
The central issue on appeal is whether certain DNA records held by the City's forensic science laboratory are subject to disclosure under the PIA or whether they are exempt from disclosure based on government code section 411.153(b). The parties do not dispute that DNA records included in the DNA database maintained by the director of the DPS are confidential and not subject to disclosure under the PIA as expressly provided for in government code section 411.153(a). See Tex. Gov't Code Ann. § 411.153(a). The dispute concerns information in DNA records that are not included in the state DNA database--i.e., information in the DNA records of the victims and the DNA records of persons who voluntarily submitted DNA samples to be excluded as suspects in a crime--and whether that information is subject to disclosure under the PIA or whether the release of information in those DNA records is prohibited by government code section 411.153(b).
The issue before us is one of first impression and presents a matter of statutory construction. Our primary goal when construing a statute is to ascertain and give effect to the legislative intent. See City of San Antonio, 111 S.W.3d at 25. 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 begin with the plain language of the statute at issue and apply its common meaning. City of San Antonio, 111 S.W.3d at 25. Where the statutory text is unambiguous, we adopt a construction supported by the statute's plain language, unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999).
In this case, we are called upon to reconcile the legislative mandate that information held by governmental bodies is public information with the legislative directives regarding the confidentiality of DNA records. The PIA states, "It is the policy of this state that each person is entitled unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees." See Tex. Gov't Code Ann. § 552.001 (West 2004). To that end, the PIA provides that "public information is available to the public at a minimum during the normal business hours of the governmental body." Id. § 552.021 (West 2004). The PIA mandates a liberal construction to implement this policy and one that favors a request for information. See id. § 552.001; see also City of Garland, 22 S.W.3d at 357.
A governmental body seeking to withhold requested information must submit a timely request to the Attorney General for a ruling on disclosure and assert those specific exceptions from disclosure that apply. See Tex. Gov't Code Ann. § 552.301. An exception from disclosure is found in section 552.101, which provides that information is excepted from disclosure if it is information considered to be confidential by law. See id. § 552.101 (West 2004). The City contends that government code section 411.153(b) makes confidential information in DNA records, regardless of whether the DNA record is included in the state DNA database maintained by the DPS director.
In its request for a ruling from the Attorney General, the City asserted that government code section 411.153(b) prohibited the release of the DNA records at issue and, therefore, the requested information was exempt from disclosure under section 552.101. See id. §§ 411.153(b); 552.101. Section 411.153(b) is part of a comprehensive statutory scheme enacted by the legislature to govern the collection, use, and dissemination of DNA records collected by law enforcement agencies. See id. §§ 411.141-.154 (West 2005 & Supp. 2007). In subchapter G, chapter 411 of the government code, the legislature created a DNA database that would be "the central depository in the state for DNA records." See id. § 411.142(a). As we interpret subchapter G, we conclude that the legislature envisioned a central depository to be maintained by the DPS director for all DNA records collected by law enforcement agencies throughout the state. Nothing in the statute suggests that local law enforcement agencies may create their own individualized DNA databases without forwarding the information and DNA records to the director for inclusion in the state DNA database established in subchapter G, chapter 411 of the government code. See, e.g., id. §§ 411.142 (establishing DNA database); .143 (purpose of DNA database); .144 (regulating DNA laboratories, requiring laboratories to forward DNA records and forensic analyses to the director, and providing for penalties).
Under the framework of subchapter G, a "DNA laboratory" performs an analysis of samples or specimens received and produces a "DNA record," which is the "result[ ] of a forensic DNA analysis performed by a DNA laboratory." Id. § 411.141(3)-(4) (defining "DNA laboratory" and "DNA record"). The legislature has provided that the state DNA database must be compatible with the national DNA identification index system, or CODIS, used by the FBI so as to permit the useful exchange and storage of DNA records or information derived from those records. Id. § 411.142(f). The legislature has specified those types of DNA records that may be contained in the state DNA database. Id. § 411.142(g). Included among the types of DNA records that may be contained in the state DNA database is "a biological specimen that is legally obtained in the investigation of a crime, regardless of origin." Id. § 411.142(g)(3).
The legislature has delegated authority to the DPS to promulgate standards for the certification of DNA laboratories and procedures for forensic DNA analysis by DNA laboratories to facilitate the exchange of DNA evidence and the use of such evidence in a criminal case. See id. §§ 411.142(h); 144(a). There is no dispute that the City's forensic science laboratory is a certified DNA laboratory within the meaning of subchapter G, chapter 411 of the government code. Section 411.144(d) expressly requires a DNA laboratory conducting a DNA analysis under subchapter G to forward the DNA record of the analysis to the director. See id. § 411.144(d). The legislature has also directed the DPS to promulgate rules establishing procedures to prevent unauthorized access to the DNA database and to allow for the release of DNA records, specimens, or analyses from the DNA database. See id. § 411.147(a). The legislature has further provided that the DPS may only release a DNA sample, analysis, or record in certain circumstances. See id. § 411.147(c).
With regard to the confidentiality of DNA records, the legislature has provided in section 411.153(a) that "[a] DNA record stored in the DNA database is confidential and is not subject to disclosure under the open records law, Chapter 552." Id. § 411.153(a). At the time of the Star-Telegram's request in this case, section 411.153(b) also provided that "[a] person commits an offense if the person knowingly discloses information in a DNA record or information related to a DNA analysis of a sample collected under this subchapter." See Act of May 30, 2005, 79th Leg., R.S., ch.1224, § 15, 2005 Tex. Gen. Laws 3952, 3962 (current version at Tex. Gov't Code Ann. § 411.153 (West Supp. 2007)). (9)
Consistent with the Attorney General's ruling in this case, the Star-Telegram urges that, because the DNA records at issue--i.e., the DNA records of the victims and those who voluntarily gave DNA samples to be excluded as suspects--are not stored in the DNA database, those DNA records are not exempt from disclosure under the PIA. See Tex. Att'y Gen. ORL2007-02471 (2007). By expressly providing that only DNA records in the database are exempt from disclosure under the PIA, the Star-Telegram argues that the legislature intended only to exempt DNA records in the DNA database, and not all DNA records. The City counters that the interpretation urged by the Star-Telegram would render section 411.153(b) meaningless.
As previously noted, the Attorney General has rendered conflicting opinions on whether section 411.153(b) exempts DNA records from disclosure under the PIA. Responding to the City's request for an opinion in this case, the Attorney General rejected the City's argument that section 411.153(b) exempted the DNA records at issue or the information in those records from disclosure under the PIA. See id. Since issuing this ruling, however, the Attorney General has issued rulings in at least three other cases finding that section 411.153 exempts DNA records and information in DNA records from disclosure under the PIA. (10) See Tex. Att'y Gen. ORL2008-04899 (Apr. 11, 2008); ORL2008-02901 (Mar. 4, 2008); ORL2008-01706 (Feb. 5, 2008). In these subsequent letter rulings, the Attorney General makes no distinction between DNA records included in the state DNA database and DNA records that are not included in the state DNA database. See id. ORL2008-04899 at 3-4; ORL2008-02901 at 4-5; ORL2008-01706 at 1-2. In letter ruling ORL2008-01706, the Attorney General expressly found that DNA records and information in the Dallas County District Attorney's files were confidential and must be withheld under section 411.153(b). See id. ORL2008-01706 at 2. We recognize that opinions of the Attorney General are persuasive authority and are not controlling on the courts. See Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996); Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 336 (Tex. App.--Austin 2000, pet. denied). Accordingly, we are not bound to follow them--especially in a situation, as here, where the Attorney General has issued conflicting opinions on the same issue. Compare Tex. Att'y Gen. ORL2007-02471 with Tex. Att'y Gen. ORL2008-04899; ORL2008-02901; ORL2008-01706.
We conclude that a plain reading of subchapter G, chapter 411 of the government code prohibits the release of information in DNA records even if the DNA records have yet to be forwarded to the DPS director for inclusion in the state DNA database. The legislature has defined "DNA record" to mean "the results of a forensic DNA analysis performed by a DNA laboratory and, if known, the name of the person who is the subject of the analysis." See Tex. Gov't Code Ann. § 411.141(7). The parties do not dispute that the DNA records at issue meet the definition of "DNA record" in government code section 411.141(7). See id. Nor do they dispute that the director of the DPS is required to establish certain standards and procedures for DNA laboratories or that a DNA laboratory conducting a forensic DNA analysis under subchapter G must forward the DNA record of that analysis to the director. See id. §§ 411.142(h), 411.144(a) (requiring director to establish standards and procedures for DNA laboratories), (d) (requiring laboratory to forward DNA records and analyses to the director). That the City's DNA laboratory has not forwarded the DNA records at issue to the director may be a violation of subchapter G, and may subject the City's DNA laboratory to penalties thereunder, but it does not affect the confidentiality of those DNA records under section 411.153(b). (11)
In section 411.153(a), the legislature expressly provided that DNA records in the state DNA database are not subject to disclosure under the PIA. See id. § 411.153(a). In addition, the legislature recognized that the DNA database maintained by the DPS director may not include all DNA records, much less all of the information in DNA records or information related to a DNA analysis of a sample collected under this subchapter. (12) See id. § 411.153(b). Reading the statute as a whole, we agree that section 411.153(a) exempts DNA records included in the state DNA database from disclosure under the PIA. Id. § 411.153(a). We further conclude that by its use of the phrase "information in a DNA record" the legislature in section 411.153(b) prohibited the release of a broader category of information than DNA records included in the state DNA database. Id. § 411.153(b). We therefore agree with the City that section 411.153(b) protects from disclosure information in a DNA record, even if that DNA record has not been forwarded to the director for inclusion in the state DNA database. See id.
Were we to adopt the Star-Telegram's interpretation of section 411.153, we would be left with the absurd result that only the DNA records of the convicted offender would be exempt from disclosure under the PIA. We do not believe this is what the legislature intended. See University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 & n.20 (Tex. 2004) (recognizing that courts should not construe statutes in a way that leads to absurd results). The City's construction of section 411.153 is consistent with the legislature's comprehensive scheme and purpose in creating the state DNA database. (13) See generally Tex. Gov't Code Ann. §§ 411.141-.154. Because the plain language of section 411.153(b), when read in conjunction with the other provisions in subchapter G, chapter 411 of the government code, prohibits the release of information in a DNA record regardless of whether that DNA record has been forwarded to the DPS director for inclusion in the state DNA database, we conclude that the DNA records at issue, and the information contained therein, are confidential by law and therefore exempt from disclosure under the PIA. See id. §§ 411.153(b), 552.101. Accordingly, we sustain the City's issue on appeal.
CONCLUSION
Because we conclude that section 411.153(b) prohibits the release of information in a DNA record and that the DNA records at issue are therefore exempt from disclosure under the PIA, we reverse the trial court's order granting appellees' request for writ of mandamus and render judgment in favor of the City.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Reversed and Rendered
Filed: July 3, 2008
1. Tex. Gov't Gode Ann. §§ 552.001-.353 (West 2004 & Supp. 2007). For convenience, we cite to the current version of the statute unless noted otherwise.
2. Id. §§ 411.141-.154 (West 2005 & Supp. 2007). For convenience, we cite to the current version of the statute unless noted otherwise.
3. We substitute Dale A. Fisseler, in his official capacity as City Manager and as Officer of Public Information, as the proper party on appeal in place of former City Manager, Charles Boswell. See Tex. R. App. P. 7.2(a) (automatic substitution of public officer).
4. Because their interests align, we refer to appellees the Fort Worth Star-Telegram and Melody McDonald collectively as the "Star-Telegram" unless specifically noted otherwise.
5. Section 552.101 provides that "[i]nformation is excepted from the [disclosure] requirements of Section 552.021 if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Tex. Gov't Code Ann. § 552.101.
6. Section 411.153 is captioned "Confidentiality of DNA Records" and provides:
(a) A DNA record stored in the DNA database is confidential and is not subject to disclosure under the public information law, Chapter 552.
(b) A person commits an offense if the person knowingly discloses to an unauthorized recipient information in a DNA record or information related to a DNA analysis of a sample collected under this subchapter.
(c) An offense under this section is a state jail felony.
(d) A violation under this section constitutes official misconduct.
Id. § 411.153.
7. The record demonstrates that the City contracted with a private laboratory to provide forensic DNA analysis and that the DNA records at issue are contained in the files of this private laboratory. That the information and DNA records are held by a private laboratory does not affect our analysis of the issues presented on appeal because the City retains ownership and a right of access to the information and DNA records. See id. § 552.002(a)(2).
8. Instead, the Attorney General has filed a brief directing this Court to refer to the briefs and arguments submitted by the other parties.
9. Section 411.153 was amended in 2007 to add the phrase "to an unauthorized recipient" after the phrase "knowingly discloses information." See Act of May 23, 2007, 80th Leg., R.S., ch. 760, § 4, 2007 Tex. Gen. Laws 1569, 1571.
10. Although he is a named party in this appeal, the Attorney General has not explained the reasons for this change in his interpretation of section 411.153.
11. By failing to forward the DNA records at issue to the DPS director as required in section 411.144, the City has only served to complicate the decision-making process in this matter. There is no merit in the City's arguments that the DNA records in question cannot be sent to the DPS director for inclusion in the state DNA database. The legislature has expressly provided that DNA records of deceased victims and voluntary donors may be included in the state DNA database. See Tex. Gov't Code Ann. § 411.142(g)(2)-(3); see also id. § 411.149. Moreover, even if federal law prohibits the inclusion of certain DNA records in the national DNA database, there is nothing in subchapter G that prohibits the state from including such records in the state DNA database. Texas law requires only that the state DNA database be compatible with the national database, so as to permit the useful exchange of records and information, not that the records and information stored in the state DNA database be the same as that stored in the national database. See id. § 411.142(f).
12. As one commentator has explained, the reason for this lack of inclusion may be a practical one involving lack of time and money. See Craig M. Cooley, Forensic Science and Capital Punishment Reform: An "Intellectually Honest" Assessment, 17 Geo. Mason U. Civ. Rts. L.J. 299, 309-18 (2007). The increasing reliance on DNA evidence for prosecutions, statutes requiring certain defendants to submit DNA samples, and the expense required to increase DNA laboratory staffing and modernize older facilities has led to a growing backlog of samples that are waiting to be recorded in state and federal DNA databases. See id. An investigation of the DPS in 2000 revealed that just over one-half of the DNA samples received by DPS had been analyzed and recorded. See Paul E. Tracy & Vincent Morgan, Criminology: Big Brother and His Science Kit: DNA Databases for 21st Century Crime Control?, 90 J. Crim. L. & Criminology 635, 643 (2000). Congress has since passed the Debbie Smith DNA Backlog Grant Program to help expedite the inclusion of DNA samples obtained from law enforcement laboratories into the state and federal DNA databases. See 42 U.S.C.A. § 14135 (West 2005).
13. The City's construction is likewise consistent with the Attorney General's subsequent rulings on this issue. See Tex. Att'y Gen. ORL2008-04899 (Apr. 11, 2008); ORL2008-02901 (Mar. 4, 2008); ORL2008-01706 (Feb. 5, 2008).
Restricted Appeal | Luna v. Runyon (Tex.App.- Austin, 2008)
The court of appeals modifies the district court's judgment to delete the award of "reasonable and necessary attorney's fees based upon the one-third contingency fee applicable to this case in the amount of $544,863.89," and instead award $158,185.27 in attorney's fees. As modified, the judgment is affirmed.
Richard Luna, Individually and d/b/a Richard's Machine Services v. Daniel C. Runyon and Auto, Bus & Truck, LP, No. 03-06-00615-CV (Tex.App. - Austin July 3, 2008)(Opinion by Justice Pemberton [ PDF ] )(restricted appeal) (Before Justices Patterson, Appeal from 53rd District Court of Travis County - Affirmed as reformed
M E M O R A N D U M O P I N I O N
This is a restricted appeal from a summary judgment. Appellees Daniel C. Runyon and Auto, Bus & Truck, LP (Runyon) are in the business of providing air-conditioning and automotive service work. Appellant Richard Luna was formerly employed by Runyon. The record reflects a bitter underlying dispute in which Runyon accused Luna, while still its employee, of stealing, embezzling, or misusing Runyon's property and pursuing Runyon's customers to benefit Luna's own business. In addition to pressing criminal charges, (1) Runyon sued Luna for damages, alleging breach of his employment contract, conversion, tortious interference with contractual relations, and breach of fiduciary duty.
Runyon filed a traditional motion for summary judgment on all of its claims, relying on Luna's failure to respond or object to requests for admissions. Runyon attached and incorporated by reference a copy of the requests to its summary-judgment motion, along with a signed certified mail return receipt, or "green card," reflecting delivery of the requests to "Richard Luna, Richard's Machine Shop," at a Cedar Park street address. The address corresponded to Luna's last known mailing address, as expressly found by the district court several months earlier in an order permitting Luna's then-counsel to withdraw. In the same order, the district court had ordered that all further notices in the cause should either be delivered to Luna in person or sent to him at that address via certified mail. The green card attached to Runyon's summary-judgment motion was signed by a "C.G. Murphy."
Luna did not respond to Runyon's summary-judgment motion. The district court granted the motion, specifically confirming that the requests for admissions were deemed admitted; permanently enjoined Luna from performing work for certain Runyon customers; and awarded Runyon $581,852.66 in actual damages, $1 million in punitive damages, and $544,862.89 in attorney's fees. With the exception of the attorney's fee award, the relief awarded was consistent with the admissions made as a result of Luna's failure to respond to the requests for admissions.
Luna brings three issues on appeal. He complains that the district court erred in granting summary judgment because (1) the summary-judgment motion did not adequately specify the grounds on which Runyon was relying, (2) Runyon failed to meet his burden of establishing that Luna had been served with the requests for admissions, and (3) the judgment "was tainted by fraud on the court and otherwise fails to serve the interests of justice." We will modify the attorney's fee award and, as modified, affirm the judgment.
STANDARD OF REVIEW
A party filing a restricted appeal must demonstrate that (1) he filed the appeal within six months of the date the judgment was rendered; (2) he was a party to the suit; (3) he did not "participate" in the hearing that resulted in the judgment complained of or file any post-judgment motions or appeals; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). (2) Only the fourth issue--whether there is error apparent on the face of the record--is in dispute here.
To determine whether there is error on the face of the record, we review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). (3) 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.).
To be entitled to summary judgment, a plaintiff must conclusively establish all elements of his cause of action as a matter of law. Time Out Grocery v. The Vanguard Group, Inc., 187 S.W.3d 41, 42 (Tex. App.--Dallas 2005, no pet.) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam)). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889, 891 (Tex. App.--Dallas 2005, pet. denied).
ANALYSIS
Failure to timely respond to a request for admission results in its being considered admitted without further action by the court, often referred to as being "deemed admitted." See Tex. R. Civ. P. 198.2(a) (30-day response deadline), (c) ("If a response is not timely served, the request is considered admitted without necessity of court order."). Deemed admissions may support summary judgment. See, e.g., Acevedo v. Comm'n for Lawyer Discipline, 131 S.W.3d 99, 105 (Tex. App.--San Antonio 2004, pet. denied). Unless the party who failed to respond to a request for admissions obtains a court order setting aside the deemed admissions--which Luna did not attempt to do here (4)
--they constitute judicial admissions that bind the party and render inadmissible contrary trial or summary-judgment evidence. See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989); Jones v. Citibank, N.A., 235 S.W.3d 333, 337 (Tex. App.--Fort Worth 2007, no pet.).
In his second issue, Luna contends that Runyon failed to establish that it served him with the requests for admissions. Luna acknowledges that Runyon certified its compliance with rule 21a of the Texas Rules of Civil Procedure, giving rise to a presumption that he received the requests. See Tex. R. Civ. P. 21a; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (observing that this presumption has the force of a rule of law). Luna did not present evidence to controvert this presumption. See Huggins, 724 S.W.2d at 780 (observing that presumption that notice sent in compliance with rule 21a was received by the intended recipient is not evidence and that it "vanishes" when opposing evidence is introduced). Instead, Luna argues on appeal that the certified mail "green card" introduced by Runyon is evidence of non-receipt. Although Luna does not dispute that the signed green card is evidence that the requests were actually received at his last known address, he urges that the fact that he did not personally sign the green card controverts the presumption of receipt and renders service "fatally defective and invalid." We disagree. Luna, again, did not present evidence of non-receipt. The mere fact that the green card indicating receipt at Luna's address was signed by "C.G. Murphy" provides no greater support for the inference that Luna did not receive the requests than for the inference that he did receive them. See Thomas v. Ray, 889 S.W.2d 237, 238-39 (Tex. 1994) (requiring "verified proof" of non-receipt to overcome presumption); cf. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (presumption of receipt overcome when party's counsel "provided affidavits averring that they never received" documents allegedly served); Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.--Austin 2001, no pet.) (green card signed by another person did not raise fact issue regarding receipt in face of sworn proof of non-receipt). Accordingly, the green card is not evidence of Luna's non-receipt, see City of Keller v. Wilson, 168 S.W.3d 802, 813-14 (Tex. 2005) (explaining equal-inference rule), and we must give effect to rule 21a's presumption that he received the requests. We overrule Luna's second issue.
In his first issue, Luna argues that Runyon's summary-judgment motion failed to state the "grounds" on which it was based to the extent required by Tex. R. Civ. P. 166a(c) and McConnell v. Southside Independent School District, 858 S.W.2d 337, 340-41 (Tex. 1993). Luna's complaint seems to be that Runyon's motion did not enumerate each element of each of its causes of action or tie each element to specific admissions. We disagree that Runyon's motion failed to state its grounds adequately. Summary-judgment "grounds" refer simply to the "reasons entitling the movant to summary judgment." McConnell, 858 S.W.2d at 339 n.2. Here, Runyon stated in its motion that it was entitled to judgment as a matter of law because it had served requests for admission on Luna, Luna had failed to respond, the requests were accordingly deemed admitted, and these admissions "were dispositive of all issues in the case." Further, Runyon attached a copy of the requests and incorporated them into its motion. Deemed admissions constitute binding judicial admissions unless and until the affected party obtains an order setting them aside. See Marshall, 767 S.W.2d at 700. Runyon's motion gave Luna notice of the reason why it claimed entitlement to summary judgment: there were deemed admissions against him that, unless set aside, would entitle Runyon to judgment as a matter of law on all of its claims. Contrary to Luna's arguments, Runyon's motion is distinguishable from a mere statement that it was entitled to judgment as a matter of law on "all causes of action asserted," see Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990), or a "general reference to a voluminous record." See Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.--Fort Worth 2004, pet. denied). We overrule Luna's first issue.
In his third issue, Luna complains of various aspects of the underlying dispute that are outside the record. Within our scope of review, however, Luna points out that the district court's summary judgment awarded Runyon "reasonable and necessary attorney's fees based upon the one-third contingency fee applicable to this case in the amount of $544,863.89." The sole summary-judgment evidence regarding attorney's fees is an admission that "[a] reasonable attorney's fee in this case is $158,185.27" and that Runyon "should be awarded $158,185.27 for their attorney's fees." On this record, we agree that the district court erred in awarding attorney's fees based on a percentage contingency calculation that was neither admitted nor otherwise in evidence. We will sustain Luna's third issue to the extent of holding that the district court's award of attorney's fees should be modified to award the amount supported by the evidence, $158,185.27.
CONCLUSION
We modify the district court's judgment to delete the award of "reasonable and necessary attorney's fees based upon the one-third contingency fee applicable to this case in the amount of $544,863.89," and instead award $158,185.27 in attorney's fees. As modified, we affirm the judgment.
____________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Modified and, as Modified, Affirmed
Filed: July 3, 2008
1. Luna acknowledges that he pled no contest to Class A misdemeanor theft charges and received deferred adjudication in connection with this dispute.
2. The first three requirements are jurisdictional and will cut off a party's right to seek relief by way of a restricted appeal if they are not met. Aviation Composite Techs., Inc. v. CLB Corp., 131 S.W.3d 181, 184 (Tex. App.--Fort Worth 2004, no pet.).
3. The "face of the record" in a restricted appeal means the entire record in a case, including, as applicable, the clerk's record and reporter's record. See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 559 (Tex. App.--Austin 2004, no pet.) (citing Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam)). Error "apparent" on that record means that proof of the error must actually appear in the record and cannot be inferred from the record. Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (mere absence of proof that notice of intent to dismiss suit for want of prosecution was sent to plaintiff was not proof "apparent on the face of the record" that plaintiff, in fact, did not receive such notice); Alexander, 134 S.W.3d at 849-50 (same). If, based on the summary-judgment record, the district court erred in granting summary judgment, such error would be "apparent on the face of the record." In other words, appellate courts apply the same standards when reviewing traditional summary judgments in both ordinary appeals and restricted appeals. See Lester v. Capital Indus., Inc., 153 S.W.3d 93, 95 (Tex. App.--San Antonio 2004, no pet.); see also Mora v. Southwestern Bell Media, Inc., 763 S.W.2d 527, 528 (Tex. App.--El Paso 1988, no writ) (applying same standard of review to reverse summary judgment in appeal by writ of error as in ordinary appeal); Ridgeline, Inc. v. Crow-Gottesman-Shafer No. 1, 734 S.W.2d 114, 116-17 (Tex. App.--Austin 1987, no writ) (same); Davis v. Hughes Drilling Co., 667 S.W.2d 183, 184 (Tex. App.--Texarkana 1983, no writ) (same); Tex. R. App. P. 30 (statutes pertaining to former writ of error appeals to the courts of appeals apply to restricted appeals).
4. See Tex. R. Civ. P. 198.3; Wheeler v. Green, 157 S.W.3d 439, 442-44 (Tex. 2005) (per curiam).
Richard Luna, Individually and d/b/a Richard's Machine Services v. Daniel C. Runyon and Auto, Bus & Truck, LP, No. 03-06-00615-CV (Tex.App. - Austin July 3, 2008)(Opinion by Justice Pemberton [ PDF ] )(restricted appeal) (Before Justices Patterson, Appeal from 53rd District Court of Travis County - Affirmed as reformed
M E M O R A N D U M O P I N I O N
This is a restricted appeal from a summary judgment. Appellees Daniel C. Runyon and Auto, Bus & Truck, LP (Runyon) are in the business of providing air-conditioning and automotive service work. Appellant Richard Luna was formerly employed by Runyon. The record reflects a bitter underlying dispute in which Runyon accused Luna, while still its employee, of stealing, embezzling, or misusing Runyon's property and pursuing Runyon's customers to benefit Luna's own business. In addition to pressing criminal charges, (1) Runyon sued Luna for damages, alleging breach of his employment contract, conversion, tortious interference with contractual relations, and breach of fiduciary duty.
Runyon filed a traditional motion for summary judgment on all of its claims, relying on Luna's failure to respond or object to requests for admissions. Runyon attached and incorporated by reference a copy of the requests to its summary-judgment motion, along with a signed certified mail return receipt, or "green card," reflecting delivery of the requests to "Richard Luna, Richard's Machine Shop," at a Cedar Park street address. The address corresponded to Luna's last known mailing address, as expressly found by the district court several months earlier in an order permitting Luna's then-counsel to withdraw. In the same order, the district court had ordered that all further notices in the cause should either be delivered to Luna in person or sent to him at that address via certified mail. The green card attached to Runyon's summary-judgment motion was signed by a "C.G. Murphy."
Luna did not respond to Runyon's summary-judgment motion. The district court granted the motion, specifically confirming that the requests for admissions were deemed admitted; permanently enjoined Luna from performing work for certain Runyon customers; and awarded Runyon $581,852.66 in actual damages, $1 million in punitive damages, and $544,862.89 in attorney's fees. With the exception of the attorney's fee award, the relief awarded was consistent with the admissions made as a result of Luna's failure to respond to the requests for admissions.
Luna brings three issues on appeal. He complains that the district court erred in granting summary judgment because (1) the summary-judgment motion did not adequately specify the grounds on which Runyon was relying, (2) Runyon failed to meet his burden of establishing that Luna had been served with the requests for admissions, and (3) the judgment "was tainted by fraud on the court and otherwise fails to serve the interests of justice." We will modify the attorney's fee award and, as modified, affirm the judgment.
STANDARD OF REVIEW
A party filing a restricted appeal must demonstrate that (1) he filed the appeal within six months of the date the judgment was rendered; (2) he was a party to the suit; (3) he did not "participate" in the hearing that resulted in the judgment complained of or file any post-judgment motions or appeals; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). (2) Only the fourth issue--whether there is error apparent on the face of the record--is in dispute here.
To determine whether there is error on the face of the record, we review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). (3) 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.).
To be entitled to summary judgment, a plaintiff must conclusively establish all elements of his cause of action as a matter of law. Time Out Grocery v. The Vanguard Group, Inc., 187 S.W.3d 41, 42 (Tex. App.--Dallas 2005, no pet.) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam)). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889, 891 (Tex. App.--Dallas 2005, pet. denied).
ANALYSIS
Failure to timely respond to a request for admission results in its being considered admitted without further action by the court, often referred to as being "deemed admitted." See Tex. R. Civ. P. 198.2(a) (30-day response deadline), (c) ("If a response is not timely served, the request is considered admitted without necessity of court order."). Deemed admissions may support summary judgment. See, e.g., Acevedo v. Comm'n for Lawyer Discipline, 131 S.W.3d 99, 105 (Tex. App.--San Antonio 2004, pet. denied). Unless the party who failed to respond to a request for admissions obtains a court order setting aside the deemed admissions--which Luna did not attempt to do here (4)
--they constitute judicial admissions that bind the party and render inadmissible contrary trial or summary-judgment evidence. See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989); Jones v. Citibank, N.A., 235 S.W.3d 333, 337 (Tex. App.--Fort Worth 2007, no pet.).
In his second issue, Luna contends that Runyon failed to establish that it served him with the requests for admissions. Luna acknowledges that Runyon certified its compliance with rule 21a of the Texas Rules of Civil Procedure, giving rise to a presumption that he received the requests. See Tex. R. Civ. P. 21a; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (observing that this presumption has the force of a rule of law). Luna did not present evidence to controvert this presumption. See Huggins, 724 S.W.2d at 780 (observing that presumption that notice sent in compliance with rule 21a was received by the intended recipient is not evidence and that it "vanishes" when opposing evidence is introduced). Instead, Luna argues on appeal that the certified mail "green card" introduced by Runyon is evidence of non-receipt. Although Luna does not dispute that the signed green card is evidence that the requests were actually received at his last known address, he urges that the fact that he did not personally sign the green card controverts the presumption of receipt and renders service "fatally defective and invalid." We disagree. Luna, again, did not present evidence of non-receipt. The mere fact that the green card indicating receipt at Luna's address was signed by "C.G. Murphy" provides no greater support for the inference that Luna did not receive the requests than for the inference that he did receive them. See Thomas v. Ray, 889 S.W.2d 237, 238-39 (Tex. 1994) (requiring "verified proof" of non-receipt to overcome presumption); cf. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (presumption of receipt overcome when party's counsel "provided affidavits averring that they never received" documents allegedly served); Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.--Austin 2001, no pet.) (green card signed by another person did not raise fact issue regarding receipt in face of sworn proof of non-receipt). Accordingly, the green card is not evidence of Luna's non-receipt, see City of Keller v. Wilson, 168 S.W.3d 802, 813-14 (Tex. 2005) (explaining equal-inference rule), and we must give effect to rule 21a's presumption that he received the requests. We overrule Luna's second issue.
In his first issue, Luna argues that Runyon's summary-judgment motion failed to state the "grounds" on which it was based to the extent required by Tex. R. Civ. P. 166a(c) and McConnell v. Southside Independent School District, 858 S.W.2d 337, 340-41 (Tex. 1993). Luna's complaint seems to be that Runyon's motion did not enumerate each element of each of its causes of action or tie each element to specific admissions. We disagree that Runyon's motion failed to state its grounds adequately. Summary-judgment "grounds" refer simply to the "reasons entitling the movant to summary judgment." McConnell, 858 S.W.2d at 339 n.2. Here, Runyon stated in its motion that it was entitled to judgment as a matter of law because it had served requests for admission on Luna, Luna had failed to respond, the requests were accordingly deemed admitted, and these admissions "were dispositive of all issues in the case." Further, Runyon attached a copy of the requests and incorporated them into its motion. Deemed admissions constitute binding judicial admissions unless and until the affected party obtains an order setting them aside. See Marshall, 767 S.W.2d at 700. Runyon's motion gave Luna notice of the reason why it claimed entitlement to summary judgment: there were deemed admissions against him that, unless set aside, would entitle Runyon to judgment as a matter of law on all of its claims. Contrary to Luna's arguments, Runyon's motion is distinguishable from a mere statement that it was entitled to judgment as a matter of law on "all causes of action asserted," see Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990), or a "general reference to a voluminous record." See Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.--Fort Worth 2004, pet. denied). We overrule Luna's first issue.
In his third issue, Luna complains of various aspects of the underlying dispute that are outside the record. Within our scope of review, however, Luna points out that the district court's summary judgment awarded Runyon "reasonable and necessary attorney's fees based upon the one-third contingency fee applicable to this case in the amount of $544,863.89." The sole summary-judgment evidence regarding attorney's fees is an admission that "[a] reasonable attorney's fee in this case is $158,185.27" and that Runyon "should be awarded $158,185.27 for their attorney's fees." On this record, we agree that the district court erred in awarding attorney's fees based on a percentage contingency calculation that was neither admitted nor otherwise in evidence. We will sustain Luna's third issue to the extent of holding that the district court's award of attorney's fees should be modified to award the amount supported by the evidence, $158,185.27.
CONCLUSION
We modify the district court's judgment to delete the award of "reasonable and necessary attorney's fees based upon the one-third contingency fee applicable to this case in the amount of $544,863.89," and instead award $158,185.27 in attorney's fees. As modified, we affirm the judgment.
____________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Modified and, as Modified, Affirmed
Filed: July 3, 2008
1. Luna acknowledges that he pled no contest to Class A misdemeanor theft charges and received deferred adjudication in connection with this dispute.
2. The first three requirements are jurisdictional and will cut off a party's right to seek relief by way of a restricted appeal if they are not met. Aviation Composite Techs., Inc. v. CLB Corp., 131 S.W.3d 181, 184 (Tex. App.--Fort Worth 2004, no pet.).
3. The "face of the record" in a restricted appeal means the entire record in a case, including, as applicable, the clerk's record and reporter's record. See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 559 (Tex. App.--Austin 2004, no pet.) (citing Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam)). Error "apparent" on that record means that proof of the error must actually appear in the record and cannot be inferred from the record. Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (mere absence of proof that notice of intent to dismiss suit for want of prosecution was sent to plaintiff was not proof "apparent on the face of the record" that plaintiff, in fact, did not receive such notice); Alexander, 134 S.W.3d at 849-50 (same). If, based on the summary-judgment record, the district court erred in granting summary judgment, such error would be "apparent on the face of the record." In other words, appellate courts apply the same standards when reviewing traditional summary judgments in both ordinary appeals and restricted appeals. See Lester v. Capital Indus., Inc., 153 S.W.3d 93, 95 (Tex. App.--San Antonio 2004, no pet.); see also Mora v. Southwestern Bell Media, Inc., 763 S.W.2d 527, 528 (Tex. App.--El Paso 1988, no writ) (applying same standard of review to reverse summary judgment in appeal by writ of error as in ordinary appeal); Ridgeline, Inc. v. Crow-Gottesman-Shafer No. 1, 734 S.W.2d 114, 116-17 (Tex. App.--Austin 1987, no writ) (same); Davis v. Hughes Drilling Co., 667 S.W.2d 183, 184 (Tex. App.--Texarkana 1983, no writ) (same); Tex. R. App. P. 30 (statutes pertaining to former writ of error appeals to the courts of appeals apply to restricted appeals).
4. See Tex. R. Civ. P. 198.3; Wheeler v. Green, 157 S.W.3d 439, 442-44 (Tex. 2005) (per curiam).
Juvenile law | In the Matter of RAN (Tex.App.- Austin, July 3, 2008)(drugs)
R.A.N., a juvenile, was adjudicated delinquent for the offense of possession of marihuana and was placed on probation in his home for twelve months. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007). Three months later, the trial court signed an order modifying R.A.N.’s probation, finding that he had violated the terms of his probation, and ordering him placed at the Travis County Leadership Academy for eighteen months. See id. § 54.05 (West Supp. 2007).
In the Matter of R. A. N. (Tex.App.- Austin July 3, 2008)
AFFIRMED: Opinion by Justice Puryear [ PDF ] (Before Chief Justice Law, Justices Puryear and Henson)
03-06-00462-CV
Appeal from 98th District Court of Travis County
R.A.N. appeals, complaining that the trial court should have committed him to a residential drug treatment center instead of the Leadership Academy. We affirm the trial court’s modification order.
When R.A.N. was adjudicated delinquent for the subject offense, he had already been placed on probation four times for possession of marihuana in a drug-free zone, violation of court orders, assault, and theft. Although R.A.N. was eligible for commitment to the Texas Youth Commission, the probation department recommended that he be placed on probation and required to participate in outpatient drug treatment. The trial court agreed, and R.A.N. was placed on probation at home. About three months later, the State filed its motion to modify R.A.N.’s disposition, alleging that he had skipped and gotten suspended from school, tested positive for THC, failed to report to his probation officer, and missed several drug treatment appointments. The department recommended that R.A.N. be committed to TYC custody because he needed “a secure structured environment” to help him develop “behavior modification skills.”
At the hearing on the State’s motion, the State dropped its allegations related to skipping school, positive drug tests, and missing drug treatment, and R.A.N. pled true to the remaining allegations. R.A.N.’s probation officer testified that when R.A.N. was adjudicated delinquent three months earlier, he had been accepted by and the department recommended that he be assigned to the Leadership Academy. Instead of sending him to the Leadership Academy, however, the trial court on its “own motion” placed him on probation. The officer testified that R.A.N. and his family had not cooperated with his counselors or the department and that his mother had said “she does not feel that they need counseling.” The officer was asked why R.A.N. was not staffed for “more restrictive drug treatment,” and she replied, “He was staffed for Leadership, whatever level to upgrade the level of substance abuse, Leadership.” The officer said that R.A.N.’s family wanted him to get residential drug treatment, but that they were “open to” both drug treatment and “Leadership if it turns out that his problem is more of a behavioral issue.” Although the department recommended TYC commitment, the Leadership Academy had agreed to reconsider R.A.N. R.A.N.’s father testified and said that he wanted R.A.N. to receive drug treatment and that he “[w]ould . . . like to see [R.A.N.] staffed for inpatient drug treatment or Leadership, something along that line.” He testified, “We don’t have behavioral problems with [R.A.N.] . . . The main problem is . . . the drugs.” He denied that he and his family were uncooperative.
At the conclusion of the hearing, the trial court said,
We have two programs that are appropriate for [R.A.N.] One is the Leadership program and one is the CHOICES program. . . . So I don’t really want to put [R.A.N.] in the Texas Youth Commission since he just barely turned 15. I cannot in good conscious [sic] return him home because he’s been unsuccessful at home. He will not follow the Court’s rules, parent’s rules, he won’t stay drug free permanently, all that sort of stuff. So I’m going to have our residential program interview him and his folks and decide which one is more appropriate, make a recommendation whether it should be the CHOICES program or whether it should be a behavioral program rather than a drug treatment program, figure out which one seems to be more appropriate.
The residential services representative told the court that he had already interviewed R.A.N. and that his department believed “that regular Leadership is more appropriate for [R.A.N.]” In closing statements, R.A.N.’s attorney said that his family believed drug treatment was more appropriate but that they were “willing to cooperate with Leadership if it turns out that that is more appropriate,” and asked the court to “make sure that Leadership is a more appropriate program for him.” The State asked the court to send R.A.N. to the Leadership Academy. The court noted that it was “hard to figure out quite honestly whether his is a drug problem or . . . a behavior problem and just one of his misbehaviors happens to be that every now and then he will use drugs.” The court acknowledged that the residential services department believed the Leadership Academy was “the best fit” and would deal “with his issues better than the other programs.” The court then held that it was going to follow the residential services department’s recommendation and placed R.A.N. on probation in the Leadership Academy for eighteen months.
R.A.N. asserts that the evidence showed that he “[c]learly needed drug treatment and thus commitment to the Leadership Academy . . . was not in his best interest.” He argues that the trial court’s decision “in not giving appellant the drug treatment which he needed goes against” the juvenile justice system’s goal of rehabilitation and was an abuse of discretion. We disagree.
A trial court has broad discretion to decide the suitable modification of disposition for a juvenile who has been adjudicated delinquent. In re E.D., 127 S.W.3d 860, 862-63 (Tex. App.—Austin 2004, no pet.). We will not disturb the court’s determinations in a modification proceeding unless the record reflects a clear abuse of discretion, which occurs if the court acts arbitrarily, unreasonably, or without reference to guiding rules and principles. Id. at 863.
When R.A.N. was adjudicated for the subject offense, the probation department recommended that he be placed at the Leadership Academy. The residential services department interviewed him and recommended the Leadership Academy instead of drug treatment. The trial court noted its concerns about whether R.A.N.’s problems were behavioral, with drug abuse being one of his misbehaviors of choice, or related to drug addiction and then opted to follow the experts’ recommendation that he be sent to the Leadership Academy. Based on the record before us, we cannot hold that this decision was an abuse of the trial court’s broad discretion in deciding when and how to modify a juvenile’s disposition. See id. We affirm the trial court’s modification order.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: July 3, 2008
In the Matter of R. A. N. (Tex.App.- Austin July 3, 2008)
AFFIRMED: Opinion by Justice Puryear [ PDF ] (Before Chief Justice Law, Justices Puryear and Henson)
03-06-00462-CV
Appeal from 98th District Court of Travis County
R.A.N. appeals, complaining that the trial court should have committed him to a residential drug treatment center instead of the Leadership Academy. We affirm the trial court’s modification order.
When R.A.N. was adjudicated delinquent for the subject offense, he had already been placed on probation four times for possession of marihuana in a drug-free zone, violation of court orders, assault, and theft. Although R.A.N. was eligible for commitment to the Texas Youth Commission, the probation department recommended that he be placed on probation and required to participate in outpatient drug treatment. The trial court agreed, and R.A.N. was placed on probation at home. About three months later, the State filed its motion to modify R.A.N.’s disposition, alleging that he had skipped and gotten suspended from school, tested positive for THC, failed to report to his probation officer, and missed several drug treatment appointments. The department recommended that R.A.N. be committed to TYC custody because he needed “a secure structured environment” to help him develop “behavior modification skills.”
At the hearing on the State’s motion, the State dropped its allegations related to skipping school, positive drug tests, and missing drug treatment, and R.A.N. pled true to the remaining allegations. R.A.N.’s probation officer testified that when R.A.N. was adjudicated delinquent three months earlier, he had been accepted by and the department recommended that he be assigned to the Leadership Academy. Instead of sending him to the Leadership Academy, however, the trial court on its “own motion” placed him on probation. The officer testified that R.A.N. and his family had not cooperated with his counselors or the department and that his mother had said “she does not feel that they need counseling.” The officer was asked why R.A.N. was not staffed for “more restrictive drug treatment,” and she replied, “He was staffed for Leadership, whatever level to upgrade the level of substance abuse, Leadership.” The officer said that R.A.N.’s family wanted him to get residential drug treatment, but that they were “open to” both drug treatment and “Leadership if it turns out that his problem is more of a behavioral issue.” Although the department recommended TYC commitment, the Leadership Academy had agreed to reconsider R.A.N. R.A.N.’s father testified and said that he wanted R.A.N. to receive drug treatment and that he “[w]ould . . . like to see [R.A.N.] staffed for inpatient drug treatment or Leadership, something along that line.” He testified, “We don’t have behavioral problems with [R.A.N.] . . . The main problem is . . . the drugs.” He denied that he and his family were uncooperative.
At the conclusion of the hearing, the trial court said,
We have two programs that are appropriate for [R.A.N.] One is the Leadership program and one is the CHOICES program. . . . So I don’t really want to put [R.A.N.] in the Texas Youth Commission since he just barely turned 15. I cannot in good conscious [sic] return him home because he’s been unsuccessful at home. He will not follow the Court’s rules, parent’s rules, he won’t stay drug free permanently, all that sort of stuff. So I’m going to have our residential program interview him and his folks and decide which one is more appropriate, make a recommendation whether it should be the CHOICES program or whether it should be a behavioral program rather than a drug treatment program, figure out which one seems to be more appropriate.
The residential services representative told the court that he had already interviewed R.A.N. and that his department believed “that regular Leadership is more appropriate for [R.A.N.]” In closing statements, R.A.N.’s attorney said that his family believed drug treatment was more appropriate but that they were “willing to cooperate with Leadership if it turns out that that is more appropriate,” and asked the court to “make sure that Leadership is a more appropriate program for him.” The State asked the court to send R.A.N. to the Leadership Academy. The court noted that it was “hard to figure out quite honestly whether his is a drug problem or . . . a behavior problem and just one of his misbehaviors happens to be that every now and then he will use drugs.” The court acknowledged that the residential services department believed the Leadership Academy was “the best fit” and would deal “with his issues better than the other programs.” The court then held that it was going to follow the residential services department’s recommendation and placed R.A.N. on probation in the Leadership Academy for eighteen months.
R.A.N. asserts that the evidence showed that he “[c]learly needed drug treatment and thus commitment to the Leadership Academy . . . was not in his best interest.” He argues that the trial court’s decision “in not giving appellant the drug treatment which he needed goes against” the juvenile justice system’s goal of rehabilitation and was an abuse of discretion. We disagree.
A trial court has broad discretion to decide the suitable modification of disposition for a juvenile who has been adjudicated delinquent. In re E.D., 127 S.W.3d 860, 862-63 (Tex. App.—Austin 2004, no pet.). We will not disturb the court’s determinations in a modification proceeding unless the record reflects a clear abuse of discretion, which occurs if the court acts arbitrarily, unreasonably, or without reference to guiding rules and principles. Id. at 863.
When R.A.N. was adjudicated for the subject offense, the probation department recommended that he be placed at the Leadership Academy. The residential services department interviewed him and recommended the Leadership Academy instead of drug treatment. The trial court noted its concerns about whether R.A.N.’s problems were behavioral, with drug abuse being one of his misbehaviors of choice, or related to drug addiction and then opted to follow the experts’ recommendation that he be sent to the Leadership Academy. Based on the record before us, we cannot hold that this decision was an abuse of the trial court’s broad discretion in deciding when and how to modify a juvenile’s disposition. See id. We affirm the trial court’s modification order.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: July 3, 2008
Juvenile Cases | In the Matter of S.C. (Tex.App.- Austin, July 3, 2008) (capital murder)
In March 2002, the trial court found that S.C., who was sixteen at the time, had committed the offense of capital murder when he shot and killed Jesse Rangel, Jr., during an aggravated robbery, adjudicated him delinquent, and committed him to the custody of the Texas Youth Commission for a determinate forty-year sentence.
AFFIRMED: Opinion by Justice Puryear [ PDF ] (Before Justices Patterson, Puryear and Pemberton)
03-06-00397-CV
In the Matter of S. C.--Appeal from 98th District Court of Travis County
In February 2006, TYC asked to have S.C. transferred from TYC custody to the Texas Department of Criminal Justice to serve the remainder of his sentence. On April 6, 2006, the trial court held a hearing on TYC’s transfer request (the “transfer/release hearing”), see Tex. Fam. Code Ann. § 54.11 (West Supp. 2007) (on receipt of TYC request for transfer to TDCJ, court must hold hearing and decide whether to transfer juvenile or release juvenile under supervision), and ordered S.C. transferred to TDCJ custody for the completion of his sentence. S.C. appeals, arguing that the trial court erred in admitting into evidence a recent psychological evaluation of S.C. on which TYC relied in part for its transfer request. We affirm the trial court’s transfer order.
At the transfer/release hearing, Leonard Cucolo, court liaison for TYC, provided copies of TYC’s business records related to S.C. When TYC sought to admit the records, S.C. objected that the records included pre-sentence reports from the Austin Police Department. The trial court stated that it was admitting the exhibits but would not consider the police reports. S.C. then immediately objected “with regard to the psychological evaluation” performed in October 2005 by associate psychologist Jackie Daiss, complaining that S.C. was not formally warned of his Miranda
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rights. The court noted that S.C. had already been sentenced and then overruled S.C.’s objection when his attorney could produce no case law to support his objection. On appeal, S.C. complains that the trial court erred in admitting Daiss’s report because the lack of Miranda warnings violated his constitutional rights against self-incrimination.
TYC initially contends that S.C. waived any objection to Daiss’s report because his objection was untimely, made immediately after the trial court admitted the records with the caveat that it would not consider the pre-sentencing police reports, and not sufficiently specific because S.C. did not specify exactly where in the exhibits the objectionable report was located.
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We disagree and hold that S.C., by raising his objection immediately after his objection to the police reports and by specifying that it was Daiss’s report to which he objected, sufficiently preserved his complaints related to his Fifth Amendment rights under the federal constitution.
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After objecting to the admission of Daiss’s report, S.C. called her as a witness. Daiss essentially testified to the same information that was included in her report. She said that S.C. had made good progress until he was transferred to a different unit, that he claimed he shot the victim in self-defense, and that he showed a lack of empathy and remorse for the offense. She believed S.C. was dishonest in taking a psychological test and recommended that he be transferred to TDCJ. Daiss’s report recites the same opinions and states that the evaluation was requested to aid TYC in “determining whether [S.C.] should be returned to court for a possible waiver of his minimum period of confinement or be transferred to” TDCJ. At the beginning of the assessment, S.C. “was informed that the results of psychological testing and clinical interview would not be confidential and would be used to assist” TYC in making a recommendation in S.C.’s case. Daiss explained to S.C. “that the evaluation would become part of his permanent record available to all decision-making authorities,” and S.C. said he understood the purpose of the assessment and agreed to participate.
S.C. also called as witnesses his TYC caseworker, who testified that he had not made sufficient progress with his treatment and seemed to have developed a self-defeating attitude; and five juvenile corrections officers who supervised him and testified that he had been cooperative, polite, and respectful and was not disruptive. At the conclusion of the hearing, the trial court said it was taking as true S.C.’s claim of self-defense and stated, [W]hether you feel like you had some justification for this murder or not, there has to be an emotional reaction to what you saw and experienced and what happened. And I don’t see any. I haven’t seen any today. I don’t see any in the records. I don’t see any ability to have any feeling for human life. That makes you, sir, a dangerous person. . . . But I don’t care how you play it out, whether you killed this man in cold blood, or want to believe, and it’s true in your heart, that it was self-defense, you better find some ability to connect with your conscience. You better find some reason to change.
We review a trial court’s order transferring a juvenile to TDCJ custody for an abuse of discretion. In re F.D., 245 S.W.3d 110, 113 (Tex. App.—Dallas 2008, no pet.); In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet. denied); In re C.L., Jr., 874 S.W.2d 880, 886 (Tex. App.—Austin 1994, no writ).
S.C. complains that the admission of Daiss’s report during the transfer/release hearing violated his Fifth Amendment privilege against self-incrimination. Assuming that S.C. did not waive any error by calling Daiss to testify about the conclusions she reached and included in her report, see Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998) (“overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling”), a transfer/release hearing is not a trial—a juvenile’s guilt or innocence has already been determined and a sentence imposed. In re M.M., No. 03-06-00396-CV, 2008 Tex. App. LEXIS 981, at *9-10 (Tex. App.—Austin Feb. 6, 2008, pet. denied) (mem. op.); In re D.L., 198 S.W.3d at 230; In re C.L., Jr., 874 S.W.2d at 884-85. The conduct for which S.C. is being punished was already considered by the trial court, and S.C. was sentenced to a term of forty years. In this transfer/release hearing, the trial court was simply considering whether to continue S.C.’s confinement or allow his supervised release. Thus, in this “second chance hearing,” “due process requirements are not as stringent as those in an actual trial.” In re J.M.O., 980 S.W.2d 811, 813 (Tex. App.—San Antonio 1998, pet. denied); see In re D.L., 198 S.W.3d at 230; In re D.S., 921 S.W.2d 383, 387 (Tex. App.—Corpus Christi 1996, writ dism’d w.o.j.).
Section 54.11, which governs transfer/release hearings, provides that a trial court considering whether to release a juvenile under supervision or transfer him to TDCJ custody may consider “written reports from probation officers, professional court employees, professional consultants or employees of” TYC, provided that the juvenile is allowed “access to all written matter to be considered by the court” and “previous examination of all reports on and evaluations and examinations of or relating to him that may be used in the hearing.” Tex. Fam. Code Ann. § 54.11(d), (e).
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As we recently said in In re M.M.:
Thus, because a transfer hearing is not a stage of a criminal prosecution, the hearing does not require the same stringent requirements as a trial in which a person’s guilt is determined, and the statute expressly provides for the consideration of the [psychological evaluation conducted for the purposes of the transfer hearing], we hold that the trial court did not err in admitting the evaluation.
2008 Tex. App. LEXIS 981, at *11. S.C. has presented us with no argument or authority explaining why we should not follow our earlier decision. Further, in In re F.D., our sister court held that the trial court’s consideration of a psychological exam conducted for a transfer/release hearing when the psychologist did not appear for the hearing did not violate the juvenile’s Sixth Amendment rights, noting that the transfer hearing “is dispositional rather than adjudicative in nature.” 245 S.W.3d at 113-14.
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We hold that the trial court did not abuse its discretion in admitting Daiss’s report into evidence during S.C.’s transfer/release hearing. We overrule S.C.’s sole issue on appeal and affirm the trial court’s transfer order.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Pemberton
Affirmed
Filed: July 3, 2008
AFFIRMED: Opinion by Justice Puryear [ PDF ] (Before Justices Patterson, Puryear and Pemberton)
03-06-00397-CV
In the Matter of S. C.--Appeal from 98th District Court of Travis County
In February 2006, TYC asked to have S.C. transferred from TYC custody to the Texas Department of Criminal Justice to serve the remainder of his sentence. On April 6, 2006, the trial court held a hearing on TYC’s transfer request (the “transfer/release hearing”), see Tex. Fam. Code Ann. § 54.11 (West Supp. 2007) (on receipt of TYC request for transfer to TDCJ, court must hold hearing and decide whether to transfer juvenile or release juvenile under supervision), and ordered S.C. transferred to TDCJ custody for the completion of his sentence. S.C. appeals, arguing that the trial court erred in admitting into evidence a recent psychological evaluation of S.C. on which TYC relied in part for its transfer request. We affirm the trial court’s transfer order.
At the transfer/release hearing, Leonard Cucolo, court liaison for TYC, provided copies of TYC’s business records related to S.C. When TYC sought to admit the records, S.C. objected that the records included pre-sentence reports from the Austin Police Department. The trial court stated that it was admitting the exhibits but would not consider the police reports. S.C. then immediately objected “with regard to the psychological evaluation” performed in October 2005 by associate psychologist Jackie Daiss, complaining that S.C. was not formally warned of his Miranda
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rights. The court noted that S.C. had already been sentenced and then overruled S.C.’s objection when his attorney could produce no case law to support his objection. On appeal, S.C. complains that the trial court erred in admitting Daiss’s report because the lack of Miranda warnings violated his constitutional rights against self-incrimination.
TYC initially contends that S.C. waived any objection to Daiss’s report because his objection was untimely, made immediately after the trial court admitted the records with the caveat that it would not consider the pre-sentencing police reports, and not sufficiently specific because S.C. did not specify exactly where in the exhibits the objectionable report was located.
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We disagree and hold that S.C., by raising his objection immediately after his objection to the police reports and by specifying that it was Daiss’s report to which he objected, sufficiently preserved his complaints related to his Fifth Amendment rights under the federal constitution.
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After objecting to the admission of Daiss’s report, S.C. called her as a witness. Daiss essentially testified to the same information that was included in her report. She said that S.C. had made good progress until he was transferred to a different unit, that he claimed he shot the victim in self-defense, and that he showed a lack of empathy and remorse for the offense. She believed S.C. was dishonest in taking a psychological test and recommended that he be transferred to TDCJ. Daiss’s report recites the same opinions and states that the evaluation was requested to aid TYC in “determining whether [S.C.] should be returned to court for a possible waiver of his minimum period of confinement or be transferred to” TDCJ. At the beginning of the assessment, S.C. “was informed that the results of psychological testing and clinical interview would not be confidential and would be used to assist” TYC in making a recommendation in S.C.’s case. Daiss explained to S.C. “that the evaluation would become part of his permanent record available to all decision-making authorities,” and S.C. said he understood the purpose of the assessment and agreed to participate.
S.C. also called as witnesses his TYC caseworker, who testified that he had not made sufficient progress with his treatment and seemed to have developed a self-defeating attitude; and five juvenile corrections officers who supervised him and testified that he had been cooperative, polite, and respectful and was not disruptive. At the conclusion of the hearing, the trial court said it was taking as true S.C.’s claim of self-defense and stated, [W]hether you feel like you had some justification for this murder or not, there has to be an emotional reaction to what you saw and experienced and what happened. And I don’t see any. I haven’t seen any today. I don’t see any in the records. I don’t see any ability to have any feeling for human life. That makes you, sir, a dangerous person. . . . But I don’t care how you play it out, whether you killed this man in cold blood, or want to believe, and it’s true in your heart, that it was self-defense, you better find some ability to connect with your conscience. You better find some reason to change.
We review a trial court’s order transferring a juvenile to TDCJ custody for an abuse of discretion. In re F.D., 245 S.W.3d 110, 113 (Tex. App.—Dallas 2008, no pet.); In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet. denied); In re C.L., Jr., 874 S.W.2d 880, 886 (Tex. App.—Austin 1994, no writ).
S.C. complains that the admission of Daiss’s report during the transfer/release hearing violated his Fifth Amendment privilege against self-incrimination. Assuming that S.C. did not waive any error by calling Daiss to testify about the conclusions she reached and included in her report, see Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998) (“overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling”), a transfer/release hearing is not a trial—a juvenile’s guilt or innocence has already been determined and a sentence imposed. In re M.M., No. 03-06-00396-CV, 2008 Tex. App. LEXIS 981, at *9-10 (Tex. App.—Austin Feb. 6, 2008, pet. denied) (mem. op.); In re D.L., 198 S.W.3d at 230; In re C.L., Jr., 874 S.W.2d at 884-85. The conduct for which S.C. is being punished was already considered by the trial court, and S.C. was sentenced to a term of forty years. In this transfer/release hearing, the trial court was simply considering whether to continue S.C.’s confinement or allow his supervised release. Thus, in this “second chance hearing,” “due process requirements are not as stringent as those in an actual trial.” In re J.M.O., 980 S.W.2d 811, 813 (Tex. App.—San Antonio 1998, pet. denied); see In re D.L., 198 S.W.3d at 230; In re D.S., 921 S.W.2d 383, 387 (Tex. App.—Corpus Christi 1996, writ dism’d w.o.j.).
Section 54.11, which governs transfer/release hearings, provides that a trial court considering whether to release a juvenile under supervision or transfer him to TDCJ custody may consider “written reports from probation officers, professional court employees, professional consultants or employees of” TYC, provided that the juvenile is allowed “access to all written matter to be considered by the court” and “previous examination of all reports on and evaluations and examinations of or relating to him that may be used in the hearing.” Tex. Fam. Code Ann. § 54.11(d), (e).
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As we recently said in In re M.M.:
Thus, because a transfer hearing is not a stage of a criminal prosecution, the hearing does not require the same stringent requirements as a trial in which a person’s guilt is determined, and the statute expressly provides for the consideration of the [psychological evaluation conducted for the purposes of the transfer hearing], we hold that the trial court did not err in admitting the evaluation.
2008 Tex. App. LEXIS 981, at *11. S.C. has presented us with no argument or authority explaining why we should not follow our earlier decision. Further, in In re F.D., our sister court held that the trial court’s consideration of a psychological exam conducted for a transfer/release hearing when the psychologist did not appear for the hearing did not violate the juvenile’s Sixth Amendment rights, noting that the transfer hearing “is dispositional rather than adjudicative in nature.” 245 S.W.3d at 113-14.
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We hold that the trial court did not abuse its discretion in admitting Daiss’s report into evidence during S.C.’s transfer/release hearing. We overrule S.C.’s sole issue on appeal and affirm the trial court’s transfer order.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Pemberton
Affirmed
Filed: July 3, 2008
WBA | Reininger v. Texas Building and Procurement Comm'n (Tex.App. Austin 2008)
Carolyn Reininger v. Texas Building and Procurement Commission--Appeal from 261st District Court of Travis County, No. 03-06-00363-CV (Tex.App.- Austin, July 3, 2008)(Opinion by Justice Pemberton [ PDF ]) (Texas Whistleblower Act WBA)(Before Justices Patterson, Pemberton and Waldrop)
Carolyn Reininger v. Texas Building and Procurement Commission--Appeal from 261st District Court of Travis County Affirmed
O P I N I O N
Carolyn Reininger sued her former employer, the Texas Building and Procurement Commission ("TBPC"), under the Texas Whistleblower Act, see Tex. Gov't Code Ann. §§ 554.001-.010 (West 2004 & Supp. 2007), alleging that she was wrongfully terminated for making a good-faith report of a violation of law. See id. § 554.002(a) (West 2004). Specifically, Reininger alleged that TBPC terminated her in retaliation for her making a good-faith report to the comptroller's office that TBPC was violating the law by allowing private vendors to deposit state funds in the vendor's bank accounts. In fact, the private vendors had provided the State with a bank letter of guarantee, and the procedure had been pre-approved by the state auditor's office.
TBPC sought summary judgment on traditional and no-evidence grounds challenging various elements of Reininger's claim. Among other grounds, TBPC asserted that the comptroller's office was not "an appropriate law enforcement authority" for purposes of Reininger's whistleblower claim and that there was no evidence that Reininger could have believed in good faith that it was. The district court granted summary judgment in favor of TBPC without specifying the grounds on which it relied. Reininger appeals. We will affirm the district court's judgment.
Carolyn Reininger v. Texas Building and Procurement Commission--Appeal from 261st District Court of Travis County Affirmed
O P I N I O N
Carolyn Reininger sued her former employer, the Texas Building and Procurement Commission ("TBPC"), under the Texas Whistleblower Act, see Tex. Gov't Code Ann. §§ 554.001-.010 (West 2004 & Supp. 2007), alleging that she was wrongfully terminated for making a good-faith report of a violation of law. See id. § 554.002(a) (West 2004). Specifically, Reininger alleged that TBPC terminated her in retaliation for her making a good-faith report to the comptroller's office that TBPC was violating the law by allowing private vendors to deposit state funds in the vendor's bank accounts. In fact, the private vendors had provided the State with a bank letter of guarantee, and the procedure had been pre-approved by the state auditor's office.
TBPC sought summary judgment on traditional and no-evidence grounds challenging various elements of Reininger's claim. Among other grounds, TBPC asserted that the comptroller's office was not "an appropriate law enforcement authority" for purposes of Reininger's whistleblower claim and that there was no evidence that Reininger could have believed in good faith that it was. The district court granted summary judgment in favor of TBPC without specifying the grounds on which it relied. Reininger appeals. We will affirm the district court's judgment.
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