Justice Waldrop's Dissent in Jennings v. Bindseil

CONCURRING AND DISSENTING OPINION: Concurring and Dissenting Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)

Johnie Jennings v. Carolyn Bindseil, Dan Bindseil, Jannalyn Welch, Julian Welch, Allen Knodel, Betty Knodel, Dale A. Friesenhahn, Horacio Ayala, Richard Aramendia, Daryl Payne, Melinda Payne, Deanna S. Wilson, Rodney Wilson, D.M. Stuller, William Hall, et al.
Appeal from 207th District Court of Comal County

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

I agree with the majority that the summary judgment in favor of the Bindseil Landowners should be reversed. However, I do not agree that this case presents a material fact issue for determination by a trier of fact. Consequently, I respectfully disagree with the majority on the issue of remand, and I would render judgment in favor of Jennings as a matter of law.

As an initial matter, I question the majority's conclusion that the term "mobile home" is unambiguous yet we cannot know whether the Jennings structure is a mobile home until a fact-finder considers the issue. The problem with this position is illustrated by imagining two cases going to jury trial on the question of whether certain structures are mobile homes under the deed restriction at issue here. One jury considers this case and a second jury considers a later filed case of a person two lots down from Jennings attempting to erect an identical structure. One jury concludes that the structure is a "mobile home" and, therefore, the landowner is in violation of the deed restriction. The other jury sees the issue differently and concludes the structure is not a "mobile home," thus, finding the landowner in compliance with the restriction. (1) If such inconsistent results by jury determination on a case-by-case basis are allowable under the majority's view, the term "mobile home" in this context is subject to more than one reasonable interpretation and must, therefore, be ambiguous. (2) If such inconsistent results are not acceptable, then the question of whether a particular structure qualifies as a "mobile home" under the deed restriction at issue cannot turn on a jury determination on a case-by-case basis and must be a question of law. In short, the term "mobile home" cannot be both unambiguous and susceptible to complete reinterpretation on a case-by-case basis.

Although the term "mobile home" can hardly be said to be a term of precision, it is not ambiguous with respect to whether it applies to the structure at issue, and the determination of this question is a question of law. (3) I believe the key to the analysis in this case is whether the structure is designed to be a permanent residential structure erected and installed on a permanent foundation system. See Tex. Occ. Code Ann. § 1202.002(a) (West 2004). It is not disputed that the structure at issue in this case is to be a permanent residential structure erected and installed on a permanent foundation system. This undisputed, material fact is dispositive of whether the structure is a "mobile home" as a matter of law.

While there is little in the term "mobile home" that can be viewed as definitive, the word "mobile" is certainly present and has to mean something. At the very least, we can know that the restriction in this case only applies to homes that are, in fact, in some real sense mobile. It is undisputed here that the structure in question is only mobile in the sense that any structure that can conceivably be moved intact after it is erected is mobile. If this structure is "mobile," then virtually every pier-and-beam home ever built is "mobile," as well as many structures no reasonable person would ever describe as "mobile homes."

While the Jennings structure's aesthetic qualities as a "nice enough home for our street" might be in the eye of the beholder and subject to debate, what cannot be legitimately debated is whether the structure is actually mobile. It is designed to be a permanent home, permanently attached to real property as a fixture, and installed on a permanent foundation. Although technically moveable at some point in the future as many homes are, it is designed to be as much of a permanent home as any that are built. This is not true of manufactured homes (as defined in both federal and Texas law), trailer homes, homes with permanent chassis, or other living spaces that are specifically designed to be mobile. Thus, based on this uncontroverted, material fact the structure at issue here does not qualify as a mobile home.

Both the Bindseil Landowners and the majority place significance on the fact that the Jennings home was built in modular sections off-site, delivered to the site, and then assembled. I do not find the manner in which a structure that is designed to be a permanent fixture is delivered to its permanent site to be helpful to the analysis of whether it is a "mobile home." If Jennings had moved a classic Victorian home to his lot that had been built elsewhere and was large enough that it had to be moved in sections and reassembled, no one would be arguing that the house is a mobile home. Similarly, if a house that was built in exactly the same fashion as any typical on-site construction were built off-site, trucked to the site in moveable sections, and reassembled on a permanent foundation, no one would think of describing it as a "mobile home." The reason for this is that we do not focus on the place of construction or means of delivery to a site when determining whether a structure should be described as a mobile home. We focus on its mobility. This is further illustrated by imagining a person building a structure entirely on site that is identical in both design and quality to a modular home (i.e., it looks just like a modular home), and that is designed as a permanent residence attached to a permanent foundation. This structure would not be a mobile home because it is not mobile--not because it was built on-site. Thus, how a structure gets to a site cannot be a significant part of the analysis of whether that structure is a mobile home or not. More significant is whether the structure is designed to be mobile or permanent, and whether it is, in fact, a mobile structure.

This permanence vs. mobility feature is the primary difference between industrialized (or modular) housing and manufactured (or mobile) homes. It is also the underlying reason why manufactured/mobile homes are titled and taxed like cars and industrialized/modular housing is considered a fixture on real property and is financed, titled, and taxed as real property. (4) The permanence vs. mobility distinction is also a means of analyzing the few Texas cases decided in this area consistently with one another. Cases deciding that the structure is barred by a deed covenant restricting mobile homes have involved structures designed to be mobile, with permanent chassis, and fitting the definition of a manufactured home. See Wilmoth v. Wilcox, 734 S.W.2d 656 (Tex. 1987); Pebble Beach Prop. Owners' Ass'n v. Sherer, 2 S.W.3d 283 (Tex. App.--San Antonio 1999, pet. denied); Dempsey v. Apache Shores Prop. Owners Ass'n, 737 S.W.2d 589 (Tex. App.--Austin 1987, no writ). Cases deciding the structure does not violate such a deed restriction have involved structures that are consistent with industrialized housing/modular homes that are designed to be permanent. See Ussery Invs. v. Canon & Carpenter, Inc., 663 S.W.2d 591 (Tex. App.--Houston [1st Dist.] 1983, writ dism'd w.o.j.). The permanence vs. mobility feature was also relied on by the Tennessee Supreme Court in Williams v. Fox, 219 S.W.3d 319 (Tenn. 2007), in a case involving nearly identical facts to this case. In a well-reasoned opinion, the Tennessee Supreme Court concluded that the modular home at issue in that case did not violate a restrictive covenant barring "mobile homes" as a matter of law because it was not designed to be mobile, fit the statutory definition of industrialized/modular housing, and was designed to be affixed to a site permanently via a permanent foundation system.

I agree with the approach of the Tennessee Supreme Court in Fox. I am of the opinion that whatever else the term "mobile home" might mean it certainly requires that the structure be mobile in some fashion that is more than simply being moveable after construction. I would hold that industrialized/modular housing as defined in Texas Occupations Code section 1202.002(a) is not a "mobile home" as that term is used in the deed restriction at issue in this case as a matter of law. The structure in question complies with the definition of industrialized housing in the occupations code and is designed to be permanently affixed to the site in question by means of a permanent foundation system. It is a fixture and is titled, held, and taxed as real property.

The regulatory and statutory distinction between industrialized housing (not mobile) and modular homes (mobile) is sensible, and provides a method of distinguishing between structures that are permanent homes and those that are mobile homes. The Jennings structure (whatever its aesthetic qualities) meets the definition of industrialized housing, is a permanent structure, and therefore, is not a "mobile home" as a matter of law. Consequently, I concur in the judgment of the court reversing the grant of summary judgment in favor of the Bindseil Landowners, and I respectfully dissent in the judgment of the court remanding the case for trial. I would render judgment in favor of Appellant Jennings.
___________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Filed: February 22, 2008

1. Which jury decides which case is not relevant to the analysis.
2. Under the majority's view, each jury would decide what the term "mobile home" means anew, creating the distinct possibility of entirely inconsistent application of the deed restriction to the landowners bound by it.
3. This does not foreclose the possibility that the term "mobile home" could be ambiguous in some contexts, i.e. that it could be subject to more than one reasonable interpretation in a given application. However, I do not believe the term is ambiguous when applied on the facts presented in this case.
4. In Dempsey v. Apache Shores Property Owners Ass'n, 737 S.W.2d 589 (Tex. App.--Austin 1987, no writ), this Court (without any explanation or reasoning) described the differences between manufactured homes and industrialized housing as "technical and minor." This language is both unfortunate and erroneous. The two different types of structures have completely different and detailed statutory schemes that apply to them. One type is designed to be mobile while the other is not. They are owned and transferred differently and they are regulated differently. They are treated differently for zoning purposes. In fact, the differences are significant enough to warrant the structures being regulated differently as both federal and state law recognize.

Did Defendant properly invoke right to counsel? - One Justice dissents on court's disposition of Miranda issue

Justice Patterson dissents from Austin court's decision reversing trial court's ruling on motion to suppress.

DISSENTING OPINION: Dissenting Opinion by Justice Patterson (Before Chief Justice Law, Justices Patterson and Puryear)

The State of Texas v. Milton Dwayne Gobert (Tex.App.- Austin (Feb. 1, 2008)
Appeal from 331st District Court of Travis County

DISSENTING OPINION BY JUSTICE PATTERSON
Also See ---> Majority Opinion

Because Gobert's statement that "I don't want to give up any right, though, if I don't got no lawyer" is sufficiently and clearly an invocation of his right to consult with counsel, I would conclude that this Court's original opinion and judgment affirming the trial court's suppression order was correct. The State now urges on rehearing that Gobert's statement is a "conditional request" for counsel and therefore not a sufficient invocation. (1) The experienced trial judge--with the benefit of the actual videotaped interview not in the record on appeal (2)--found otherwise. So should we. Accordingly, I respectfully dissent to the substituted opinion and judgment reversing the trial court's order.

The majority opinion agrees with the State that Gobert's statement to the interrogating officer was not a clear assertion of the right to counsel. The State asserts that Gobert "never expressly asked for a lawyer" and "never expressly stated he wanted an attorney there." Therefore, the State argues, the statement was not a "clear, unequivocal, unambiguous" invocation of his right to counsel but was "conditional" and therefore no assertion:

[Gobert] may have meant he did not want to waive his right to silence since there was no lawyer there. That is not a request for an attorney. Or [Gobert] may have meant he wanted to talk to a lawyer before he decided whether or not he would waive his right to remain silent. What exactly he meant is just not clear. His statement being subject to more than one interpretation, the State submits it did not constitute an unambiguous, unequivocal request for counsel, nor did it constitute an unambiguous, unequivocal assertion of his right to remain silent. When the detectives immediately asked [Gobert] for clarification, [Gobert] promptly and definitely
indicated his willingness to talk to them.

This argument confuses the right to counsel with the right to remain silent. It may have been unclear, as the State argues, whether Gobert "did not want to waive his right to silence since there was no lawyer there" or whether Gobert "wanted to talk to a lawyer before he decided whether or not he would waive his right to remain silent." But no reasonable police officer in the circumstances could construe Gobert's statement to mean that he was waiving a right to counsel. That Gobert thereafter evinced a willingness to talk to officers must be viewed in context.

The Controversy

As the facts have evolved and now seem to be disputed, it is instructive to recite the passage of the interview at issue. It occurs at the very inception of the interview as Detectives Burgh and Scanlon enter the interview room. As the State acknowledges in its brief on appeal, "It was during the first few moments of the videotaped interview that the transaction at issue took place." The transcribed videotape (3) shows the following questioning by Detective Burgh:

Q. Hey? Hey, Milton. I'm Detective Burgh. This is Detective Scanlon.
A. Okay.
Q. Do you know a girl named Christine?
A. Yeah.
Q. You do?
A. My ex-girlfriend. My ex-fiancee.
Q. Okay. Before we get started, I--I mean, its--we have to read you your rights because you're under arrest right now. Okay? It's something we have to do.
A. What's the charge?
Q. Well, you're--they picked you up on a parole violation. You're in custody.
Detective Scanlon then stated, "And the assault involving Christine." Detective Burgh continued, "So that's what we need to talk about. I want to read you this thing, okay? It's just--we got to do it. All right? Okay. Milton, you have the right to remain silent . . . ."
Immediately after Detective Burgh advised appellant of his rights, the following exchange occurred:
Q. Do you understand those rights I just read to you?
A. Yes, sir.
Q Q. Okay. Can you--do you have a problem reading?
A. No.
Q. Can you read that out loud to me, the top line there?
A. I have received and understand (inaudible) statement.
Q. They're the one I just read to you.
A. I don't want to give up any right, though, if I don't got no lawyer.
Detective Scanlon: You don't want to talk?
Detective Burgh: You don't want to talk to us?
A. I mean, I'll talk to y'all. I mean, I know, you know, what she had said about it, you know. I'll speak with y'all, but (inaudible), man. I mean, I'll speak with y'all, you know.
Detective Scanlon: Okay, signing this--signing this is not giving up your right. Signing this is acknowledging that this was read to you.
Detective Burgh: Yeah.
Detective Scanlon: Okay? Your choice to talk to us is different. This--all this is, is acknowledging you were warned.

After asking whether he should read "it" again, Burgh began questioning Gobert. Minutes later, as appellant discusses "Christine," Scanlon returns to the subject of the lawyer and the verbatim transcript reflects the following exchange between Scanlon and Gobert:

Q. I want to clear something up, though, because earlier you said you don't want to give up your right to a lawyer. I want you--I want you--I want to clear up the fact that you want to talk to us about this. Okay? You understand what I'm saying?
A. Yeah.
Q. I want to clear it up. I mean, that's--that's what you want to do, right?
A. Yeah.
Q. Okay. Where is Christina now?
At issue is Gobert's statement, "I don't want to give up any right, though, if I don't got no lawyer." Following a hearing, the trial court concluded that this was an unequivocal invocation of the right to counsel during custodial interrogation.

The Hearing

The motion to suppress sought the exclusion of the statement under Article 38.22 of the code of criminal procedure based on the denial of due process, the denial of the defendant's state and federal constitutional rights, and Jackson v. Denno, 378 U.S. 368, 380 (1964). At the initial hearing on the motion to suppress, the defense argued that Gobert's statement was a clear invocation of the right to counsel and that he had been deceived about why he was at the police station and what the detectives wanted to talk about. (4) After several pretrial hearings addressing the motion to suppress, the trial court granted Gobert's motion on the ground that Gobert's invocation of his right to counsel was unequivocal. Relying on Edwards v. Arizona, 451 U.S. 477 (1981), the trial judge found that Gobert invoked his right to a lawyer: "I don't know what he can say to them that invokes his right to a lawyer any more than this."

The trial court dictated its findings and conclusions into the record, satisfying the requirements of Article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005). The findings and conclusions were transcribed and were made a part of the appellate record. See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). The court announced its findings and conclusions as follows:

I just don't find anything that is unequivocal [sic] about the statement 'I'm not going to waive any rights if I don't got no lawyer.' I mean, I think that that's as unequivocal as I can imagine a statement being.

I mean, if I were a defense lawyer and I was advising my client what to say, I can't imagine what advice I'd give him to say anything better than that. I mean, he's saying that he's not going to waive any rights until he has a lawyer. Under Edwards, once he makes that statement, he's got a right to a lawyer before anything else happens, you know.

I just--you know, and he was not provided a lawyer. They just--as soon as he says that, instead of saying, okay, you want a lawyer, we will get you a lawyer, or instead of--instead of asking him about the lawyer question, they just go totally around that and they start saying, well you don't want to talk to us, which is not really what he had asked.

The right that he asked to invoke was his right to a lawyer, and he says at the same time he doesn't want to waive any rights until he's got one. I think the fact that they totally ignored what he said and kept on talking to him about does he want to make a statement, I think that that implies . . . they really don't believe in the warnings they have given him . . . .
* * *
And that's what he's saying, is he doesn't want to give up any right. He doesn't want to give up his right to remain silent; he doesn't want to give up his right to have a lawyer appointed for him; he doesn't want to give up his right to terminate the interview. You know, that what he says. I assume that that's what he means.
Now, the thing is, at that time what he says, 'if I don't got no lawyer,' maybe they might have some question at that point about whether he wanted a lawyer from that. I don't know how they could have that question.

But if they were going to ask any question, at that point, it seems to me, it was incumbent upon them to ask, okay, so you're saying you want a lawyer right now? Is that what you're saying? They want him to repeat his assertion that he wanted a lawyer, and then they could proceed along that line. But they don't ask that. They totally blow by the question of the lawyer deal.
* * *
Well, either Edwards means what it says or it doesn't. Either you can invoke your right to a lawyer or you can't. I don't know what he can say to them that invokes his right to a lawyer any more than this. . . . Under Edwards, it seems to me that once he says, I want a lawyer, that's it. I mean, that's the end of the ball game.

The Appeal

The procedural posture of this case has become relevant to this appeal. On appeal from the trial court's ruling suppressing the statement, the State addressed two issues raised at the pretrial hearings: whether Gobert's statements were made in violation of his right to counsel and whether the police deceived Gobert, rendering his statement involuntary by their manner of questioning. By a majority, this Court affirmed the trial court's ruling that the statements were obtained in violation of Gobert's right to counsel. Pursuant to Rule 50 of the Texas Rules of Appellate Procedure, and without requesting a response from Gobert's counsel, (5) a new majority substituted an opinion reversing the trial court's ruling. See Tex. R. App. P. 50 (allowing a majority of the justices who participated in a decision to summarily reconsider and correct or modify the court's opinion or judgment within 30 days after a petition for discretionary review is filed). The new majority opinion addressed the trial court's determination that the officers conducting the interrogation failed to honor Gobert's invocation of the right to counsel. The majority concluded then and now again in a revised opinion that Gobert's statement that "I don't want to give up any right, though, if I don't got no lawyer" was not an invocation of his right to an attorney.

Standard of Review

The majority considers this issue under a de novo standard. Because the application of the standard of review is relevant, I set it forth. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In reviewing the trial court's decision, we do not engage in our own factual review. Rather, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost complete deference to the trial court's ruling on (i) questions involving historical facts, and (ii) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Carmouche, 10 S.W.3d at 327. We may review de novo mixed questions of law and fact that do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53; Ross, 32 S.W.3d at 856. We must affirm the trial court's ruling if it is supported by the record and correct under some theory of law applicable to the case. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

In this case, a videotape of the interview was provided to the trial court, and the record makes clear that the trial judge reviewed and considered its content to determine contested issues. See Carmouche, 10 S.W.3d at 332 (determining that the videotape contradicted officer's testimony in hearing on motion to suppress). The videotape, however, was not included in the record on appeal. Instead, the State included a verbatim transcription of the videotape. Whether a defendant has unambiguously invoked his right to counsel may involve--as here--a factual as well as a legal determination. See, e.g., Ross, 32 S.W.3d at 857 (case falls within "almost total deference" standard of review because trial court's factual findings were dispositive).
Here, whether we defer to the factual findings of the trial court or review the issue de novo, I would reach the same conclusion. But any deference to the findings of the trial court compels the conclusion it then reached.

Invocation of Right to Counsel

Over twenty-five years after the landmark Edwards case and forty years after Miranda, certain bright lines have emerged. See Edwards v. Arizona, 451 U.S. 477, 485 (1981); Miranda v. Arizona, 384 U.S. 436, 479 (1966). Prior to custodial interrogation, a suspect must be advised that he has a right to consult with an attorney. Miranda, 384 U.S. at 467-68. Interrogation must cease immediately if the suspect states that he wants an attorney. Id.; see also Edwards, 451 U.S. at 485; McCarthy v. State, 65 S.W.3d 47, 51 (Tex. Crim. App. 2001); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). If the suspect indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the questioning must cease. Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Cross v. State, 144 S.W.3d 521, 526 (Tex. Crim. App. 2004). A suspect's invocation of his right to counsel must be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 103 (1975). An invocation of counsel must not be ambiguous, meaning the suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459 (1994).

In Miranda, the Supreme Court held that once an individual in custody invokes his right to counsel, interrogation "must cease until an attorney is present." 384 U.S. at 474. At that point, "the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning." Id. Edwards then made clear that the admonitions of Miranda did not require any invocation to be in the syntax and grammar demanded of an interrogatory. Rather, in Edwards the Court found it "inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." Id. at 485. The Court held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Id. at 484.

By its assertion on appeal that Gobert "never expressly asked for a lawyer," "never expressly stated he wanted an attorney there," and that his statement was not a "clear, unequivocal, unambiguous invocation of the right to counsel," the State applies an erroneous standard for determining waiver when the accused has specifically invoked his right to counsel. The facts in Edwards are similar to those here. In the aspects in which the cases differ, the facts are more compelling here.

In Edwards, the defendant said: "I want an attorney before making a deal." Id. at 479. Similarly, Gobert announced: "I don't want to give up any right, though, if I don't got no lawyer." In Edwards, two detectives who were colleagues of the officer who had interrogated Edwards the previous night, came to the jail the next morning, stated they wanted to talk to Edwards, and readvised him of his Miranda rights. Id. Linking the assertion of right to counsel to an accused's response to his advice of rights, the Court in Edwards reasoned: "Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, 'the interrogation must cease until an attorney is present.'" Id. at 485 (quoting Miranda, 384 U.S. at 474).

Here, the same detectives advised Gobert that by signing the form he was not giving up any rights. They then plainly ignored his desire not to relinquish his rights in the absence of counsel. Immediately after Gobert refused to give up "any" rights "if I don't got no lawyer," both detectives said, "You don't want to talk?" and "You don't want to talk to us?" Then Scanlon assured Gobert that "signing [the Miranda warnings] is not giving up your right," and "Signing this is acknowledging that this was read to you," which was followed by "Your choice to talk to us is different." What could it mean to an accused to then be told that "all this is, is acknowledging that you were warned?"

In Edwards, the defendant agreed to make a statement as long as it was not tape-recorded: "I'll tell you anything you want to know, but I don't want it on tape." Id. at 479. Likewise, Gobert agreed that he wanted to "clear it up," but apparently believed that, having invoked his right to an attorney, nothing he thereafter said to the officers could be used against him until counsel had been provided. After Gobert had given a confession and the interrogation was winding down, Detective Burgh asked if Gobert would be willing to sign a written statement. Gobert became agitated and said, "I'm telling you that I done it, man. Why you have to type up a statement and all of that?" He added, "Oh, man, I mean why we have to go back through all this, you know, this is just like what to present to the judge or something, to the D.A., make your job easier or something?" Gobert's attempts to terminate the interview were similarly ignored. In response to Gobert's plea to "just take me to a lock-up, man," the officers continued their questioning. At the conclusion of the interview, as he repeatedly asks the detectives why they are reducing his statement to writing, Gobert realized he has given up every right he had.

Edwards could not be more clear. To impose an "additional safeguard," the Edwards Court held that a valid waiver of a defendant's right to counsel cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. Id. at 484. But the Court further held that an accused, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85. Likewise, the Texas Court of Criminal Appeals has recognized that "the Edwards rule acts as a 'clear and unequivocal' guideline to law enforcement precisely because it is 'relatively rigid.'" McCarthy, 65 S.W.3d at 51 (quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988)). The court of criminal appeals held:

[T]he Edwards rule does not take into account the good intentions of the individual police officer, the lack of official coercion or badgering in the particular case, or the actual voluntariness of a person's custodial statement. Edwards represents a bright and firm constitutional rule that applies to all suspects and all law enforcement officers. Id.

The right to consult with counsel before and during any custodial interrogation is independent of the right to remain silent. Although Gobert did not expressly request a lawyer to be present, he unambiguously, if ungrammatically, told the officers that he did not want to give up "any" right "if I don't got no lawyer." This was a clear statement that Gobert was unwilling to waive any of his rights under Miranda and article 38.22 without first consulting counsel. At least one of the officers, Scanlon, showed he understood this when he said, "I want to clear something up, though, because earlier you said you don't want to give up your right to a lawyer." Gobert's willingness to speak to the officers did not serve to waive his right to counsel. (6)
The opinions cited by the majority are distinguishable on their facts. In Davis v. United States, the Supreme Court held that a suspect's statement, "Maybe I should talk to a lawyer," uttered over an hour and a half into a custodial interrogation and after the suspect had previously waived his Miranda rights was an ambiguous assertion of the right to counsel. 512 U.S. at 458-59. Likewise, the Texas Court of Criminal Appeals held that the suspect's question in Robinson v. State, "Do I need to talk to a lawyer before I sign?" was plainly ambiguous; it was neither an assertion of the right to counsel nor a request for counsel. 851 S.W.2d 216, 223-24 (Tex. Crim. App. 1991). In the unpublished case of Harper v. State, a case cited by the majority, after the suspect confessed to the armed robbery in which a murder occurred, he said "I don't even want to talk unless I have me a lawyer and go through this shit. I don't have to go through this shit, right?" No. 03-00-00677-CR, 2001 Tex. App. LEXIS 7497, at *4-6 (Tex. App.--Austin Nov. 8, 2001, no pet.). No further interrogation took place until after one of the officers asked a question not posed to Gobert, "Are you telling us you want to terminate this interview and speak to an attorney or do you want us to continue to discuss this matter?" Id. The suspect expressed his desire to continue without counsel. Id.; cf. Jones v. State, 742 S.W.2d 398, 405 (Tex. Crim. App. 1987) (defendant's statement "I think I want a lawyer" was a clear and unequivocal assertion of right to counsel.)

Of course, waiver is possible when a request for counsel is equivocal and an interrogation need not cease following an ambiguous or equivocal reference to an attorney. See Edwards, 451 U.S. at 484; Nash v. Estelle, 597 F.2d 513, 517 (5th Cir. 1979). To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. Davis, 512 U.S. at 458-59. Invocation of the Miranda right to counsel "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." McNeil v. Wisconsin, 501 U.S. 171, 178 (1991). The Supreme Court in Miranda held that if a defendant indicates "in any manner" that he wishes an attorney before speaking or that he does not wish to be interrogated further, questioning must cease. 384 U.S. at 444-45. Although a suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney," Davis, 512 U.S. at 459, he need not speak with the level of clarity or "discrimination of an Oxford don." Id. at 476 (Souter, J., concurring). Whether viewed as an invocation of his right to remain silent or to invoke his right to counsel, I agree with the trial court that Gobert adequately communicated his desire to speak to an attorney before giving a statement that could be used against him. That the officers recognized this is clear from their retort "You don't want to talk to us?" and their return, after questioning, to clarify Gobert's intent.

When reviewing alleged invocations of the right to counsel, we look at the totality of circumstances surrounding the interrogation, as well as the alleged invocation, to determine whether a suspect's statement can be construed as an actual invocation of right to counsel. Dinkins, 894 S.W.2d at 351; Lucas v. State, 791 S.W.2d 35, 45-46 (Tex. Crim. App. 1989). Because the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony, I would hold that the trial court's findings and conclusions are supported by the record. Ross, 32 S.W.3d at 855. That the trial court performed its function in evaluating credibility and demeanor is clear. The trial court observed:

The problem, as far as I'm concerned, is this: You-all say that he has not stated specifically that he wants to invoke his right to remain silent or to invoke his right to cut off the interview. But the words that he uses--and, actually, if you watch the tape, his voice gets noticeably louder. Because, you know, there [are] a lot of things that he says on the tape that I couldn't understand and that he talks so low and mumbles and that sort of thing.

But one is very clear. When he gets particular to this point, he says out loud and pretty loudly, he says, 'I don't want to give up any right though, if I don't got no lawyer.' He tells--that is the loudest thing he says throughout that interview.
* * *
And that's what he's saying, is he doesn't want to give up any right. He doesn't want to give up his right to remain silent; he doesn't want to give up his right to have a lawyer appointed for him; he doesn't want to give up his right to terminate the interview. You know, that's what he says. I assume that that's what he means.

Now, the thing is, at that time what he says, 'if I don't got no lawyer,' maybe they might have some question at that point about whether he wanted a lawyer from that. I don't know how they could have that question.

But if they were going to ask any questions, at that point, it seems to me, it was incumbent upon them to ask, okay, so you're saying you want a lawyer right now? Is that what you're saying? They want him to repeat his assertion that he wanted a lawyer, and then they could proceed along that line. But they don't ask that. They totally blow by the question of the lawyer deal.
And as far as I'm concerned, after Edwards--it does seem to me that one of the paramount rights that's established in Miranda after Edwards is the right to a lawyer. I mean, I think that that's kind of a high trump card in Miranda litigation after Edwards, is you say you want a lawyer, that's the end of the ball game.
(Emphasis added.) The trial court then concluded:

[E]ither Edwards means what it says or it doesn't. Either you can invoke your right to a lawyer or you can't. I don't know what he can say to them that invokes his right to a lawyer any more than this. He says he doesn't want to waive any rights unless he's got a lawyer, and at that time, it seems to me, under Edwards, they have got to respect that right and they have got to say--maybe they can say to him--and I am not even sure they can do this under Edwards, but maybe they can say to him, okay, you're saying to us you want a lawyer, so you understand under the law we can't talk to you now until you get a lawyer or until you come back to talk to us individually or something like that. Maybe they can say that to him. I don't see how they can say anything else to him, though.

Not surprisingly, the trial court found that a statement that "I don't want to give up any right" necessarily means that one is giving up no rights.

These are explicit findings of historical fact made by the trial court; they must be given "almost complete" deference. See Carmouche, 10 S.W.3d at 327; see also St. George, 237 S.W.3d at 725. We review the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. See Armendariz, 123 S.W.3d at 404. Here, the trial court made explicit findings of fact. Moreover, the trial court was favored with the presentation of a videotape of the interview, which was not included in the record on appeal. See Carmouche, 10 S.W.3d at 332 (regarding importance of videotape). Applying a bifurcated standard of review, we afford "almost total deference" to the trial court's findings of historical fact. See Guzman, 955 S.W.2d at 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. In other words, we review de novo the trial court's application of law to the facts as found by the trial court. Id. Because the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony, I would hold that the trial court's findings and conclusions are supported by the record.

Viewing the totality of the circumstances, see Dinkins, 894 S.W.2d at 351; Lucas, 791 S.W.3d at 45-46, I would hold that Gobert's statement, made immediately after he was advised of his rights under Miranda and article 38.22, that "I don't want to give up any right, though, if I don't got no lawyer" was a clear invocation of the right to counsel. The majority concludes that Gobert "told the police three times that he was willing to talk to the police, indicating that he was willing to proceed without having the assistance of counsel." This is precisely the type of police conduct Edwards forbids. See 451 U.S. at 484-85. Under Edwards, all interrogation should have ceased until counsel was provided. Id. Because the interrogation continued in violation of Edwards, I would hold that Gobert's statements to the police are inadmissible against him on the trial of any criminal case. See Tex. Code Crim. Proc. Ann. art. 38.22.

Miranda and Edwards together etch a bright line here. It is disturbing at best that in 2008 we are still debating whether a defendant is entitled to an attorney once he indicates a clear intent to invoke that constitutional right, and the State insists on parsing the grammar and syntax of double negatives to deprive an accused of his right to consult with an attorney, arguing that the statement was "conditional" and just not clear to "a reasonable police officer." That it was sufficiently clear to the police officer is apparent from the officer's statement that "earlier you said you don't want to give up your right to a lawyer." The officer determined that he ought to at least clarify Gobert's statement but, instead of clarifying Gobert's declaration, he "clear[ed] up the fact that you want to talk to us about this. Okay? You understand what I'm saying?" Attempting to make a record to continue the interview and not to clarify Gobert's wishes regarding an attorney, the officers, as the trial court found, bypassed any opportunity to clarify the issue of counsel.

The indispensable right to counsel during custodial interrogation cannot function effectively as Miranda requires if the police are free to ignore an accused's invocation of his right to counsel. Indeed, the Supreme Court has made it clear beyond peradventure that this right is indispensable as well to the protection of an accused's Fifth Amendment privilege. See Fare v. Michael C., 442 U.S. 707, 719-20 (1979); see also Miranda, 384 U.S. at 469. We should not be quibbling over an accused's clear intent to invoke the most basic of rights.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Filed: February 1, 2008
Publish

1. The State also now claims on rehearing that, contrary to its original brief on appeal, "parts of this comment are close to being inaudible" and the tape "might also support his comment as being 'I don't want to give up these rights, though, before I got no lawyer.'" The State then argues: "Regardless of the precise words used, the conditional 'tenor and sense' of this early interchange, including its cryptic nature and possible use of a double negative, vividly depict the reasonableness of the detectives' responses, and illustrate the limitations of drawing conclusions from the cold written record, as have the courts and parties so far."
2. Although the videotape was attached to the State's petition for discretionary review, it was not in the record before us on appeal.
3. The interview was videotaped. The videotape was presented to the judge at the suppression hearing. The record reflects that the trial court reviewed the actual videotape. A verbatim transcript of the videotape was included in the record on appeal; the videotape itself was not included in the record on appeal. The State attached a copy of the transcript to its brief on appeal.
4. Gobert urged two issues at the hearings on his motion to suppress. In addition to the ground on which the trial court ruled and suppressed the evidence, he also urged that the statements were involuntary based on the deception of the police officers. The trial court did not rule on the second ground.
5. Gobert's counsel complains that the opinion was substituted and the result changed without permitting a response.
6. Although the defendant carries the burden of unequivocally asserting his right to counsel, see Davis v. United States, 512 U.S. 452, 461-62 (1994), the State has the burden of establishing by a preponderance of the evidence that the defendant subsequently voluntarily waived his right to counsel. Moran v. Burbine, 475 U.S. 412, 421 (1986) (holding State is required to establish alleged waiver "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it"). The State challenges only the trial court's finding that Gobert unequivocally invoked his right to counsel; it does not claim that, after invoking the right to counsel, Gobert subsequently waived that right.

Justice Jan Patterson Dissents in SAPCR case

Concurring and Dissenting Opinion by Justice Patterson (Before Justices Patterson, Puryear and Henson)

Angela M. Blackwell v. Mark M. Humble
Appeal from 20th District Court of Milam County

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

Because I would affirm the judgment in all respects, I concur in the majority's opinion with regard to the first four issues and dissent from the remaining portions that reverse and remand this long-suffering appeal to the trial court.

We are to review a trial court's decision on custody, control, possession, and visitation matters
for abuse of discretion, and reverse the trial court's order only if we determine, from reviewing the record as a whole, that the trial court abused its discretion. See In re Jane Doe 2, 19 S.W.3d 278, 281-82 (Tex. 2000); Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.--Houston [1st Dist.] 2001, no pet.). Generally, orders arising from modification suits will not be disturbed unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Such an abuse of discretion occurs when a trial court acts arbitrarily, unreasonably, or without regard to guiding rules or principles. Id. That a trial court may decide a matter within its discretionary authority in a manner different from an appellate court in a similar circumstances does not demonstrate an abuse of discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

In our review of a modification order under an abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in deciding whether the trial court abused its discretion. See Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.--Austin 2006, pet. denied); In re D.S., 76 S.W.3d 512, 516 (Tex. App.--Houston [14th Dist.] 2002, no pet.); Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App.--El Paso 2001, no pet.). Because we apply an abuse of discretion standard, the traditional sufficiency standards of review overlap, and appellate courts apply a hybrid analysis. Echols v. Olivarez, 85 S.W.3d 475, 476-77 (Tex. App.--Austin 2002, no pet.). Under this hybrid analysis, we engage in a two-pronged inquiry: (1) did the trial court have sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion? Id. at 477-78; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.--El Paso 1998, no pet.). The traditional sufficiency review comes into play with regard to the first question; we then proceed to determine whether, based on the evidence, the trial court made a reasonable decision, that is, whether the court's decision was arbitrary or unreasonable. Lindsey, 965 S.W.2d at 592.

As Blackwell argues in her fifth issue regarding access and possession, the trial court's temporary order has been in effect since April 2, 2003, "being modified by the Judgement being appealed herein, dated January 25, 2005, only by changing the name of the person to supervise the visits to a deputy sheriff." With regard to her access to and possession of the children, Blackwell contends that the trial judge "abused his discretion in ordering the restricted possession in the first place and by continuing it in the permanent Judgment" and "by not setting out a program for phasing Appellant back into standard visitation."

In the modification orders dated March 7, 2003, and April 2, 2003, the trial court expressly found and stated in its written orders that the requested modifications were in the best interest of the children. In the 2004 proceedings that resulted in the judgment dated January 25, 2005, the court found that it had continuing, exclusive jurisdiction in the case, found Betty French and Monty Humble to have standing and appointed them co-possessory conservators, and changed the name of the person to supervise Blackwell's visits to a deputy sheriff. Based on Blackwell's "global" attack on the modification order as the majority describes it, the majority finds that (i) Blackwell objected on the ground that the trial court failed to include its iteration of "best interest" in its final judgment; and (ii) she preserved this ground. Blackwell neither objected on this ground, nor is it preserved.

Finding sufficient evidence to support the trial court's decision that "some limitations on Blackwell's possession and access would be in the children's best interests," the majority nevertheless disagrees with their "severity" and "the difficulty Blackwell will face in seeking future modifications that might allow her more contact with her children." Notwithstanding Blackwell's failure to request findings of fact, the majority finds these restrictions seemingly inconsistent with the trial court's decision to maintain Blackwell as a managing conservator and concludes that "we are left to speculate" about what the trial court "believed" the evidence to be. These judgments go to the heart of a trial court's discretion, and we may not substitute our judgments for that of the trial court.

Likewise, I would conclude the trial court did not abuse its discretion in appointing Monty Humble as a possessory conservator. The majority does not find that the trial court erred in granting Monty Humble standing, only that there were "meager facts." Because his testimony showed that he had seen the children regularly during their lives and was uncontroverted, the trial court did not abuse its discretion in allowing his intervention and appointing him a co-possessory conservator. Some evidence of a substantive and probative character exists to support the trial court's decision. In the absence of a statutory mandate, there is no abuse of discretion.

I would conclude that the extensive--albeit stale--record establishes that the trial court had sufficient evidence to support its modification order and that the trial court did not abuse its discretion. Given the standard of review, the trial court's decision was not unreasonable or arbitrary.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Filed: December 14, 2007

Justice Patterson dissents on jurisdiction issue

Texas Department of Insurance v. Reconveyance Services, Inc., No. (Tex.App.- Austin, Aug. 31, 2007)(Dissenting Opinion by Justice Patterson)(UDJA, agency authority)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 250th District Court of Travis County
Also see --> Majority Opinion in Texas Dep't of Ins. v. Reconveyance Services Inc.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-06-000034, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

DISSENTING OPINION BY JUSTICE PATTERSON

This is a straightforward administrative law case in which the legislature has chosen to "completely regulate the business of title insurance" and to delegate the implementation and enforcement of this regulatory scheme to the Department, giving broad authority to the Department and providing limited judicial review to the courts. See Tex. Ins. Code Ann. §§ 31.002, .021, 2501.002 (West Supp. 2006).

This Court has previously considered and squarely rejected the propriety of judicial review under the Uniform Declaratory Judgments Act (UDJA) (1) of an informal advisory opinion given by an employee of an administrative agency. Texas Comm'n Licensing & Regulation v. Model Search Amer., Inc., 953 S.W.2d 289, 291-93 (Tex. App.--Austin 1997, no writ). Because the district court was without jurisdiction in this case and because the majority allows the manufacture of a justiciable controversy where none exists, I respectfully dissent.

Reconveyance is an out-of-state corporation that seeks to offer a service it calls "post-closing mortgage release services" for a fee to Texas consumers. According to Reconveyance, it may offer these services directly to Texas consumers without running afoul of Texas law. But Reconveyance's preferred business plan was to offer these services to consumers through Texas title companies and title agents. As Reconveyance stated to the trial court below, this would be the most "logical" way to offer these services. Reconveyance claims that its services will "help [ ] residential property buyers protect the marketability of their title from unreleased prior mortgages." (2) Under Reconveyance's preferred business plan, Texas title companies and title agents would simply pass the fee for Reconveyance's services along to Texas consumers. (3)
In order to put its preferred business plan into action, Reconveyance sought input from the Department on whether Texas title companies and title agents would be permitted to pass the fee for Reconveyance's services along to Texas consumers. In response to Reconveyance's inquiry, which does not appear in the record, a Department employee, Robert York, Director, Title Examinations, sent an e-mail advising Reconveyance that the insurance code prohibited the fee proposed by Reconveyance because the definition of "closing the transaction" encompasses the services Reconveyance sought to offer and the cost for such services was already included within the title insurance premium rate promulgated by the commissioner. Therefore, in York's view, title insurance companies and title agents would not be able to charge Texas consumers an additional pass-through fee for Reconveyance's services. York further advised Reconveyance of "a pending disciplinary action (with fines recommended) against an agent for charging a fee for release tracking services" and stated, "I believe you misunderstood my point of view regarding these types of services." York cautioned Reconveyance: "I don't mind answering your questions about the Texas rules and regulations related to the services you are trying to market, but I cannot endorse or appear to endorse any product or service being marketed to title agents. Therefore, I obviously cannot sign anything that implies such an endorsement." He concluded: "I sincerely hope that you are not trying to market your product as something that has been endorsed by the Department or by the State or by any State employee. If a title agent asks me about a service such as the one you are providing, I will advise them of the points I mentioned above."

Although not in the record properly before us on appeal, Reconveyance wrote a subsequent letter to Robert Carter, Deputy Commissioner, Title Insurance Division, "trying to resolve this issue." In its petition, Reconveyance alleged that the letter advised Carter that "[the Department] had informed the title industry that title companies could not charge a separate fee for the post-closing mortgage release services offered by companies by Plaintiff [sic]," and asked him to agree that assessment of the fee "is both permissible and appropriate."

Reconveyance did not receive a response to its letter.

Disagreeing with the only advice it received from the Department--namely, the e-mail response from York--Reconveyance filed suit in district court under the UDJA seeking a declaration that its proposed services are not within the insurance code's definition of "closing the transaction." Although Reconveyance characterizes its request for declaratory judgment as a statutory construction issue "based solely on a matter of law," it is nothing more than a request for judicial review of the advice Reconveyance received in an e-mail from a single agency employee. On these facts, I would conclude that the district court lacked subject matter jurisdiction and Reconveyance fails to present a justiciable controversy; therefore, the district court should have granted the Department's plea to the jurisdiction.

Separation of powers deprives the district court of jurisdiction.

The question posed by this appeal, then, is whether the separation of powers mandated by article II, section 1, of the Texas constitution deprives the district court of jurisdiction. The majority, however, drifts off into territory not contemplated by the parties, addressing issues neither raised nor briefed by the parties on appeal.

1. This Court's decision in Model Search should control the outcome here.

It is well settled Texas law that the doctrine of separation of powers precludes a court from reviewing the actions of an administrative agency unless the legislature has provided a cause of action for that purpose in a proper statute or the plaintiff complains that the agency action is ultra vires or unconstitutional in its effect on the plaintiff or its property. Model Search, 953 S.W.2d at 291 (citing Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978); Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427, 432 (Tex. 1963)); see also Texas State Bd. of Exam'rs in Optometry v. Carp, 343 S.W.2d 242, 246 (Tex. 1961) (holding that courts are without authority to interfere with an agency's "lawful exercise of duties and functions committed to [it] by law"). Like the plaintiff in Model Search, Reconveyance argues that the UDJA provides statutory authority for the court to review an informal advisory opinion given by an agency employee. See Model Search, 953 S.W.2d at 291. But this Court squarely rejected that argument concluding that "[w]hile the [UDJA] authorizes a district court to award a remedy not otherwise available at common law, the statute does not itself create jurisdiction in the district court to review an agency action not otherwise reviewable." Id.

The question presented in Model Search is no different than the question presented by Reconveyance here. Like Reconveyance, Model Search was an out-of-state corporation that sought declaratory relief in the trial court because it disagreed with the agency's interpretation of statutory provisions the agency was charged by the legislature to enforce. Id. at 290, 291. Model Search met with the Commission's general counsel and director of enforcement to express its view that the corporation's business activities did not fall within the statutory provisions enforced by the Commission. When the Commission's general counsel and director expressed the contrary view that Model Search's activities fell squarely within the statutory provisions at issue, Model Search sued the Commission and sought a declaratory judgment that the statutory provisions at issue were inapplicable to Model Search. Id. at 291. Because it disagreed with the opinion expressed by York, Reconveyance has sued the Department and seeks a similar declaratory judgment here.

Although in Model Search the trial court asserted jurisdiction and ultimately granted declaratory relief, this Court reversed on appeal and dismissed the cause for want of jurisdiction. Id. As this Court recognized in Model Search, the UDJA does not create jurisdiction in the trial court to review an agency action not otherwise reviewable. Id. at 291-92 (citing North Alamo Water Supply Corp. v. Texas Dep't of Health, 839 S.W.2d 455, 458 (Tex. App.--Austin 1992, writ denied); Southwestern Bell Tel. Co. v. Public Util. Comm'n, 735 S.W.2d 663, 667-68 (Tex. App.--Austin 1987, no writ)); see also Public Util. Comm'n v. J.M. Huber Corp., 650 S.W.2d 951, 954 (Tex. App.--Austin 1983, writ ref'd n.r.e.). The result should be no different here.

2. Reconveyance fails to establish a valid ultra vires claim.

Construing Reconveyance's pleadings "liberally," the majority claims Reconveyance "has pled this type of claim: it alleges that [the Department] has no statutory authority to regulate or prohibit title agents and insurers from charging a separate fee to provide Reconveyance's services [and] asserts that the agency is acting beyond its statutory authority in purporting to do so." Even a liberal construction cannot achieve the majority's desired reading. Reconveyance seeks "a declaration that the post-closing services of releasing a prior existing mortgage are not among the duties of a title agent that comprise 'closing the transaction' and therefore are not included in the basic premium rate." It asks the Department "to agree that assessment of a separate fee for the delivery of post-closing mortgage conveyance services is both permissible and appropriate," and complains that the Department's "current position prohibits Plaintiff from having Plaintiff's beneficial services provided by title companies." But nowhere in its pleadings before the trial court does Reconveyance assert that the Department has exceeded its statutory authority or that its action was otherwise ultra vires. Although Reconveyance concedes the Department is authorized to regulate the business of insurance in Texas, it urges for the first time on appeal that the Department's interpretation of "closing the transaction" is ultra vires. (4)

Relying on this Court's opinion in Bexar Metropolitan Water District v. City of Bulverde, 156 S.W.3d 79, 90 (Tex. App.--Austin 2004, pet. denied), Reconveyance contends that it need not allege ultra vires action or unconstitutional effect to preserve a court's jurisdiction "to perform the judicial function of statutory interpretation" unless a statute gives an administrative agency exclusive jurisdiction to do so. Reconveyance's reliance on Bulverde is misplaced.

Unlike the circumstances addressed in Bulverde, the legislature has delegated authority to the Department "to completely regulate the business of title insurance." Tex. Ins. Code Ann. § 2501.002 (emphasis added). The legislature could hardly have spoken more clearly in its grant of power. It is axiomatic that this delegation of authority necessarily includes the power to render advisory opinions interpreting those statutes the Department is charged with enforcing. (5) See 2 Ronald L. Beal, Texas Administrative Practice & Procedure § 12.2, at 12-49 (2006). Moreover, the Texas Supreme Court and this Court have held that the legislature's use of similar statutory language creates a "pervasive regulatory scheme" granting exclusive jurisdiction to the administrative agency charged with enforcing that scheme. See In re Entergy Corp., 142 S.W.3d 316, 323 (Tex. 2004) (concluding administrative agency had exclusive jurisdiction where the legislature established a "comprehensive and adequate regulatory system" for electric utilities); Texas Court Reporters Certification Bd. v. Esquire Deposition Servs., L.L.C., ____ S.W.3d ___, 2007 Tex. App. LEXIS 5701, at *21 (Tex. App.--Austin July 20, 2007, no pet. h.) (concluding administrative agency had exclusive jurisdiction even though legislature did not use the term "exclusive" to describe the board's jurisdiction). In Bulverde, however, there was no statute that created a "pervasive regulatory scheme" or explicitly delegated exclusive jurisdiction to the agency. Thus, Bulverde does not excuse Reconveyance's failure to allege an ultra vires claim in the trial court below.

Given Reconveyance's failure to assert this claim in the trial court below, its ultra vires claim has not been properly preserved and, therefore, has been waived. Tex. R. App. P. 33.1; see also Texas Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 880 & n.41 (Tex. 1999); Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 871 (Tex. App.--Dallas 2005, no pet.).
Even assuming there has been no waiver, Reconveyance has not established a valid ultra vires claim. The crux of Reconveyance's complaint is not that the Department has exceeded its statutory authority but that the Department has erroneously interpreted the statute at issue. Reconveyance's attempt on appeal to recast its disagreement with the Department's statutory interpretation into a valid ultra vires claim is simply designed to create jurisdiction where there is none. Cf. Thomas v. Long, 207 S.W.3d 334, 342 (Tex. 2006) (holding the fact suit is brought as a declaratory judgment action does not alter the court's jurisdictional analysis). By its conclusion that Reconveyance asserts a valid ultra vires claim, the majority makes much of an inchoate--and hypothetical--argument.

This Court rejected a similar argument in Beacon National Insurance Company v. Montemayor, 86 S.W.2d 260 (Tex. App.--Austin 2002, no pet.). In that case, the Department issued a series of letters addressing Beacon's handling of roofing claims and interpreting various provisions of Form B--a homeowners' insurance policy form promulgated by the Department. Beacon sought a declaratory judgment based on its complaint that the Department erred in its construction of the provisions contained within Form B. Id. at 266. Beacon argued that the Department exceeded its statutory authority because its construction was wrong. Id. This Court rejected that argument, finding the basis for Beacon's complaint that the Department exceeded its statutory authority was insufficient to confer jurisdiction. Id. at 267. Just like Beacon, Reconveyance seeks declaratory judgment because it disagrees with the Department's interpretation. As this Court explained in Beacon, "[w]hether [the Department]'s interpretation is correct or incorrect cannot be the factor that confers jurisdiction." Id.

Moreover, we have before us at most an informal advisory opinion given in an e-mail by an agency employee--in this case, the Department's director of title examinations, Robert York. (6) We do not have a final agency order, nor do we even have an order rendered by the Department's chief executive and administrative officer--i.e., the Commissioner of Insurance. See Tex. Ins. Code Ann. § 31.021(a). This is not a case in which the Department is acting wholly outside its jurisdiction or in a rogue manner, but rather a case in which Reconveyance "sounded out" an agency employee and now attempts to bootstrap his informal advice into an actionable cause. Were we to hold that every informal interpretation of a statute given by employees of an administrative agency constituted an ultra vires act sufficient to confer jurisdiction, the ultra vires exception to the doctrine of exhaustion of administrative remedies would swallow the rule. See Beal, supra, § 12.2, at 12-49; see also Gonzalez v. Texas Educ. Agency, 882 S.W.2d 526, 528 (Tex. App.--Austin 1994, no writ) (per curiam).

To the extent the majority champions judicial review under the UDJA of an informal opinion given by an employee of an administrative agency, the majority transfers the power to render advisory opinions from the executive branch to the judicial branch in violation of the constitution. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). The doctrine of separation of powers prohibits courts from issuing advisory opinions because this is a function of the executive, not judiciary, branch. Tex. Const. art. II, § 1; South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007); Texas Ass'n of Bus., 852 S.W.2d at 444; see also California Prods., Inc. v. Puretex Lemon Juice, Inc., 334 S.W.2d 780, 781-83 (Tex. 1960) (in granting courts jurisdiction to adjudicate controversies under the UDJA, the legislature did not intend to authorize the giving of advisory opinions).

3. Reconveyance does not allege an unconstitutional effect.

Nowhere in its pleadings does Reconveyance allege that the Department's opinion creates an unconstitutional effect on Reconveyance or its property. (7) The majority discusses at length the pleadings and jurisdictional evidence submitted by Reconveyance. But issues of pleadings and jurisdictional evidence are irrelevant in this context because, as the majority acknowledges, the Department does not challenge the jurisdictional facts alleged by Reconveyance. In the absence of such a challenge, we take the pleadings as true and need not consider evidence submitted by the parties. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

Based on this Court's prior opinions in Model Search and Beacon, separation of powers deprives the district court of jurisdiction to consider Reconveyance's claim.

No justiciable controversy exists between Reconveyance and the Department.

In order to maintain a cause of action under the UDJA, Reconveyance must present a justiciable controversy as to the rights and status of the parties, and the controversy must be resolved by the declaration sought. See Texas Ass'n of Bus., 852 S.W.2d at 446. To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). Subsumed within the threshold question of whether

Reconveyance presents a justiciable controversy are issues of standing and ripeness. Texas Ass'n of Bus., 852 S.W.2d at 443-46; Texas Dep't of Banking v. Mount Olivet Cemetery Ass'n, 27 S.W.3d 276, 281-82 (Tex. App.--Austin 2000, pet. denied). Where the district court lacks jurisdiction in any of these respects, its decision would constitute an advisory opinion prohibited under article II, section 1 of the Texas Constitution. Texas Ass'n of Bus., 852 S.W.2d at 444; Texas Dep't of Banking, 27 S.W.3d at 282. Although the majority correctly recognizes that a cause of action is appropriate under the UDJA only if (1) a justiciable controversy exists as to the rights and status of the parties; and (2) the controversy will be resolved by the declaration sought, the majority errs in its conclusion that Reconveyance has pleaded a proper UDJA claim.

1. Reconveyance lacks standing because it has suffered no concrete injury.

The UDJA allows a person "whose rights, status, or other legal relations are affected by a statute" to obtain a declaration of its rights, status, or other legal relations thereunder, see Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 1997), but Reconveyance is not an "affected" person within the meaning of the UDJA. As a foreign corporation, Reconveyance has no legal right, constitutional or otherwise, to conduct business in Texas without complying with all statutory conditions. See Model Search, 953 S.W.2d at 291. Moreover, Reconveyance has not suffered a concrete injury as a result of the statute or the Department's interpretation thereof.
Reconveyance does not currently offer its "post-closing mortgage services" through Texas title insurance companies or agents. Accordingly, the Department's opinion does not affect Reconveyance's current business operations, and Reconveyance has suffered no injury as a result of the Department's advisory opinion. See Brinkley v. Texas Lottery Comm'n, 986 S.W.2d 764, 768 (Tex. App.--Austin 1999, no pet.) (holding plaintiff's speculation that favorable declaratory judgment would induce business owners to utilize plaintiff's services does not entitle plaintiff to declaratory judgment).

In Brinkley, the Texas Lottery Commission sent letters to its bingo parlor licensees advising bingo parlor owners that use of "eight-liner" machines may be illegal. Id. at 767. Brinkley owned several eight-liner machines and leased space in various bingo parlors to operate the machines. Upon receipt of the Commission's letter, one of the bingo parlor owners from whom Brinkley leased space refused to allow Brinkley to continue operating the eight-liner machines in his bingo parlor. Id. Thereafter, Brinkley filed suit against the Commission seeking declaratory relief under the UDJA. Id. The trial court dismissed Brinkley's cause of action, and this Court affirmed, holding that Brinkley's cause of action required an advisory opinion. Id. at 766. We explained that Brinkley's claim necessarily speculates that a favorable declaratory judgment might induce bingo parlor owners to allow him to operate his eight-liners in their bingo parlors; however, we held that this was a contingency upon which we may not decide Brinkley's claims. Id. at 768.

The majority attempts to distinguish Brinkley on the ground that unlike Brinkley, who merely speculated that bingo parlor owners would be induced by a favorable declaration to allow Brinkley to operate his eight-liners in their bingo parlors, Reconveyance alleges that title insurance companies and agents in Texas would be interested in using Reconveyance's services "if not for the position taken by [the Department]." But Reconveyance is in no better position than Brinkley. Indeed, Reconveyance is one step removed from Brinkley's position because Brinkley already had an established arrangement to lease space and operate his eight-liner machines in at least one bingo parlor, which ended as a result of the Commission's letter, see id. at 767, whereas Reconveyance does not currently transact any business in Texas, nor does Reconveyance allege that any Texas title company or agent previously used its services and stopped doing so as a result of the Department's e-mail. Accepting Reconveyance's allegations as true, as we must, see Miranda, 133 S.W.3d at 226-27, Reconveyance's claim remains speculative and hypothetical.

Although it is unnecessary to examine the jurisdictional evidence submitted by Reconveyance in the absence of the Department's challenge to the jurisdictional facts alleged by Reconveyance, see id., I simply note the evidence cited by the majority only confirms the speculative nature of Reconveyance's claims. In support of its claims, Reconveyance submitted the affidavit of Jan Hollenbeck. Hollenbeck avers that "several title companies, however, have indicated they would offer RSI's services if [the Department] did not prohibit" the charge. Attached to Hollenbeck's affidavit are two communications dated after the original petition for declaratory judgment was filed. This evidence consists of an e-mail from a representative of Southern Title Insurance Corp. stating that "I . . . would certainly recommend [your services] to all of our agents in Texas and other states" and a letter from the vice president of Fidelity National Title Insurance Company and its subsidiary member Alamo Title Insurance stating that the services offered by Reconveyance "would be supported and entertained by our companies if the charge for such services was a pass through charge with acknowledgment as such by the Texas Department of Insurance." (Emphases added.)

This evidence confirms that Reconveyance's position is more theoretical than Brinkley's because Brinkley already had an established arrangement to operate his eight-liners that ended as a result of the Commission's letters to bingo parlor owners, and there is no such relationship between Reconveyance and any Texas title insurance company or agent here. Moreover, neither of the statements presented by Reconveyance demonstrates that a title insurance company or title agent will actually offer Reconveyance's services to consumers in Texas. Rather, the statements merely provide that these title insurance companies "would recommend" or "would support and entertain" Reconveyance's services. These statements are no different than the allegations in Brinkley that bingo parlors might be induced to allow Brinkley to operate eight-liners in their bingo parlors. (8) Brinkley, 986 S.W.2d at 768. Like Brinkley, Reconveyance has suffered no concrete injury, and its request for declaratory relief is based on mere speculation that calls for an advisory opinion; therefore, I would conclude that this Court's prior opinion in Brinkley forecloses relief in this case. See id.

2. Reconveyance cannot acquire standing based upon an alleged injury to a third party.

The majority suggests that Reconveyance may satisfy the requirements of standing and justiciability based on the effects or presumed injury allegedly suffered by third party title insurance companies or title agents, who are not even part of this lawsuit. To support this assertion, the majority relies on this Court's opinion in City of Waco v. Texas Natural Resources Conservation Commission, 83 S.W.3d 169 (Tex. App.--Austin 2002, pet. denied), a case not urged by Reconveyance. In City of Waco, the TNRCC issued an order regulating future permits for confined animal feeding operation (CAFO) permits. Id. at 172. When the City and the Texas Association of Dairymen challenged the order by suing for declaratory relief, the TNRCC withdrew the order and argued that any lawsuit challenging the order was moot. The City amended its petition to argue that TNRCC's policy of continuing to issue CAFO permits violated state regulations. Id. Thus, the City raised an ultra vires challenge to the TNRCC's authority to issue CAFO permits.

The majority asserts that Reconveyance is in the same position as the City of Waco because Reconveyance, while not directly subject to the statutes the agency administered, was adversely affected by the Department's "refusal--based on its interpretation of the insurance code--to allow title companies to use Reconveyance's fee-based mortgage release services in Texas." The majority is wrong for two reasons. First, the Department has not refused to allow Texas title companies or agents to use Reconveyance's services. An employee has simply expressed the viewpoint that, if Texas title companies or agents use Reconveyance's services, they cannot charge consumers a pass-through fee for those services. Second, Reconveyance is not in the same position as the City because, unlike Reconveyance, the City possessed and asserted a first-hand interest directly affected by the actions of the TNRCC--namely the City's right on behalf of its citizens to water in Lake Waco that met state and federal water quality standards. (9) Reconveyance has asserted no such right or interest.

While Texas law recognizes third party standing in some circumstances--e.g., associational standing or a third party contract beneficiary--this is not one of those circumstances. Reconveyance is neither an association nor a third party contract beneficiary, nor does Reconveyance satisfy any other recognized basis for third party standing. The majority cannot create standing for Reconveyance by bootstrapping an injury allegedly suffered by third parties who are not even part of this suit. Under these circumstances, I would conclude that Reconveyance lacks standing in this matter.

3. Reconveyance's claim is neither ripe, nor fit for judicial review.

I agree with the general propositions that a business subject to state regulation may challenge that regulation before it is enforced against it, see Atmos Energy v. Abbott, 127 S.W.3d 852, 856 (Tex. App.--Austin 2004), and that a business need not show that an agency has enforced a regulation against it but only that enforcement action is "imminent or sufficiently likely." Id. But
Reconveyance has not met this requirement.

Reconveyance does not challenge a regulation but, instead, challenges an administrative agency's employee's informal advisory opinion interpreting that regulation. Because Reconveyance is not a title insurance company or a title agent, Reconveyance is not subject to the Department's enforcement of the regulation at issue. Ripeness is concerned in part with the institutional relationship between courts and agencies, and the competence of the courts to resolve disputes without further administrative refinement of the issues. The majority errs in its reliance on Reconveyance's allegation that the Department "has threatened disciplinary proceedings." The error is not cured by characterizing these allegations as "undisputed jurisdictional evidence."

In support of its allegation that the Department is likely to initiate enforcement proceedings, Reconveyance points to the following statement in the e-mail from York:
[W]hen [the Department] see[s] an agent charge the fee directly to the consumer we cite the agent for a rule violation and tell them the fee is unauthorized. We currently have a pending disciplinary action (with fines recommended) against an agent for charging a fee for release tracking services.

But this statement fails to show that the Department stands ready to initiate enforcement proceedings against Reconveyance, and there is nothing in the record to show the facts, circumstances, or status of the other proceeding.

Because Reconveyance is not a party to the proceeding pending before the Department, Reconveyance cannot satisfy the ripeness requirement based on that proceeding unless it can demonstrate that the Department has imminent plans to enforce the regulation against Reconveyance. This it cannot do. The record fails to show that Reconveyance is subject to the regulation at issue. The pleadings, which we construe liberally, do not demonstrate that Reconveyance is currently offering its services in Texas, and Reconveyance concedes that it is not licensed by the Department. Thus, the Department has no basis for taking enforcement action against Reconveyance. Even assuming that Reconveyance was permitted to offer its services to Texas consumers for a fee through title insurance companies or title agents, it would be the title insurance companies and title agents, not Reconveyance, who are subject to regulation and enforcement by the Department. See Tex. Ins. Code Ann. §§ 2551.351-.354, 2552.301-.302 (West Supp. 2006) (addressing Department's enforcement authority against title insurance companies and title agents). Accordingly, Reconveyance's claims are not ripe because there has been no showing that enforcement by the Department against Reconveyance is either imminent or sufficiently likely. See Atmos Energy, 127 S.W.3d at 856.

I am not persuaded by the majority's conclusion that Reconveyance claims are sufficiently ripe because Reconveyance has no other forum in which to seek redress. Not every word or deed of an administrative agency is subject to judicial review. Firemen's & Policemen's Civil Serv. Comm'n of Fort Worth v. Kennedy, 514 S.W.2d 237, 239 (Tex. 1974). Moreover, section 2703.203 of the insurance code provides a potential forum in which Reconveyance may seek a remedy. See Tex. Ins. Code Ann. § 2703.203 (West Supp. 2006). Under this provision, the legislature has directed the commissioner of insurance to hold a biennial hearing "to consider adoption of premium rates and other matters relating to regulating the business of title insurance that an association, title insurance company, title insurance agent, or member of the public requests to be considered or that the commissioner determines necessary to consider." Id. Even assuming, as the majority does here, that this statutory hearing is inadequate, Reconveyance has not shown that its claims will not be raised and addressed in the enforcement proceeding now pending before the Department--the same proceeding in which the Department has recommended fines against a title agent for charging a separate fee for release tracking services and the same proceeding on which Reconveyance bases its allegations of imminent enforcement by the Department. Reconveyance's claims are not sufficiently ripe nor fit for judicial review.

CONCLUSION

Although Reconveyance's arguments have some force, they are insufficient under the facts of this case to warrant a departure from prior precedent. The majority's opinion undoes settled expectations in administrative law by permitting suit on the basis of an informal, advisory opinion given in an e-mail by a single agency employee. As this Court recognized in Brinkley, "The legislature intends that administrative agencies exercise effectively the powers delegated to them." 986 S.W.2d at 769. To permit suits for declaratory judgment under the circumstances presented here will only encourage litigation, nullify an agency's ability to render assistance or give advice to the public, and allow premature judicial involvement. See Helco Prods. Co. v. McNutt, 137 F.2d 681, 684 (D.C. Cir. 1943); see also Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) (recognizing that businesses seek to clarify the meaning of a regulation by inquiring of an administrative agency, or by resort to an administrative process). Because the legislature has not provided for judicial review of an informal advisory opinion given by an employee of an administrative agency under the circumstances of this case and this Court is without jurisdiction, I respectfully dissent.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Filed: August 31, 2007

1. Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 1997 & Supp. 2006).
2. In reality, services such as those offered by Reconveyance are wholly unnecessary in Texas because, as the representative from Southern Title Insurance Corp. states, "[T]he underwriters in Texas now have mutual indemnity treaties which frequently take care of the immediate problem of an unreleased deed of trust." In any event, Reconveyance's assertion that it is providing a service not currently offered by title companies or title agents goes to the merits of its proposal.
3. Although Reconveyance maintains that a pass-through fee is permitted under insurance code section 550.001(a)(6), the Department responds that section 550.001 is not applicable to title insurance because it neither mentions the business of title insurance or title insurance companies nor is section 550.001 specifically enumerated in section 2551.001 as applying to title insurance companies. See Tex. Ins. Code Ann. §§ 550.001(a)(6), 2551.001 (West Supp. 2006). But, even if we assume section 550.001 applied in this case, it would still prohibit title insurance companies or agents from collecting the fee sought by Reconveyance because section 550.001 authorizes such fees only if they are solicited or collected "in connection with an application for insurance or the issuance of a policy." Reconveyance, however, asserts that its fee is for an additional service not offered in connection with an application for insurance or issuance of a policy.
4. In its brief to this Court, Reconveyance urges, "In the alternative, to the extent this Court concludes the trial court can only provide statutory construction of Section 2501.006 in light of an allegation of ultra vires action, [Reconveyance] does allege that [the Department] has exceeded its statutory authority."
5. It is precisely for this reason that courts will traditionally defer to an agency's reasonable construction of the statute the agency is charged with enforcing. E.g., State v. Public Util. Comm'n, 883 S.W.2d 190, 196 (Tex. 1994); Quorum Sales, Inc. v. Sharp, 910 S.W.2d 59, 64 (Tex. App.--Austin 1995, writ denied).
6. Although one commentator has called for clearer judicial recognition and review of "informal" agency opinions--or what he terms "interpretive rules"--see Ron Beal, A Miry Bog Part II: UDJA and APA Declaratory Judgment Actions and Agency Statements Made Outside a Contested Case Hearing Regarding the Meaning of the Law, 59 Baylor L. Rev. 267, 284-85 (2007) ("A Miry Bog Part II") (urging that informal agency interpretations, or interpretive rules, which have significant impact on regulated entities, should be subject to judicial scrutiny and review under section 2001.038 of the Administrative Procedure Act), the opinion given by York in this case does not even rise to the level of an interpretive rule. An interpretative rule does not include every statement made by an agency or its employees. Indeed, the same commentator has recognized that his analysis of interpretive rules does not apply and a declaratory judgment would be unavailable for the overwhelming bulk of advisory interpretations that are issued by agency employees in the form of advisory letters, oral advice, or legal briefs, regardless of whether such interpretations are issued to agency employees, the public at large, or a specific regulated party. See Ron Beal, Administrative Law 2004 Update and Analysis, 57 Baylor L. Rev. 359, 399 (2005). According to this commentator's analysis, a declaratory judgment would be available only for those statements "deliberately issued by agencies with intent to inform the regulated public and the public at-large of its interpretation of existing law and how it intends to apply that interpretation consistently in all future agency actions." See A Miry Bog Part II, supra, 59 Baylor L. Rev. at 271.
7. To the extent Reconveyance argues that it is an "affected person" within the meaning of the UDJA and, therefore, has standing to sue, that issue is addressed below. See discussion infra (regarding whether Reconveyance has established a justiciable controversy).
8. Although it acknowledges that such statements "are not necessarily conclusive proof that the insurers would do business with Reconveyance," the majority concludes that this type of actual or threatened business injury from the effects of agency action gives rise to a justiciable interest that can support Reconveyance's UDJA claim. In support of this conclusion, the majority cites Wal-mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 721-27 (Tex. 2001), and what the majority describes as "Texas's longstanding recognition of [the] common-law tort for tortious interference with prospective business relations." Surely, the majority is not suggesting that the Department or its employees would be liable to Reconveyance, or any other party, under this common-law tort theory.
9. Lake Waco was the sole source of drinking water for approximately 150,000 people in and around Waco and was also used extensively for recreational activities. City of Waco v. Texas Natural Res. Conservation Comm'n, 83 S.W.2d 169, 172 (Tex. App.--Austin 2002, pet. denied).

Justice Puryear does not think whistleblower plaintiff made good-faith report of a violation of law

Texas Department of Criminal Justice v. Edward McElyea, No. , (Tex.App.- Austin, July 26, 2007)(Dissenting Opinion by Justice Puryear)(Before Chief Justice Law, Justices Puryear and Henson)
Also see ---> Majority Opinion in TDCJ v. McElyea by Justice _________

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-01-003776, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

DISSENTING OPINION BY JUSTICE PURYEAR

Because I disagree that McElyea made a good-faith report of a violation of law, I must respectfully dissent.

Although we are cautioned to be liberal in construing the Whistleblower Act, see Hill v. Burnet County Sheriff's Dep't, 96 S.W.3d 436, 440 (Tex. App.--Austin 2002, pet. denied), the supreme court has in fact been rather strict and literal in its application and interpretation of the Act, especially when peace officers are seeking protection by the Act. See Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002) (interpreting provision of Act requiring that report be made to "appropriate law enforcement authority"). The Act provides protection only to someone who "in good faith reports a violation of law." Tex. Gov't Code Ann. § 554.002 (West 2004). I do not believe that McElyea's report can be considered a good-faith report of a violation of law because he lacked sufficient knowledge and evidence upon which to base an allegation that a violation of the law had occurred.

McElyea testified that he brought up the issue because he "knew that both Fred Rhea and Terry Cobbs had a take-home State vehicle and that they drove it a lot." That is the sum total of McElyea's knowledge about the officers' use of state vehicles. Both men were narcotics officers who drove considerable distances for official business, and McElyea did not testify that he noticed any anomalies in their mileage reports. Driving a vehicle "a lot" is not the same as driving it "everywhere." "[T]he reasonableness of a peace officer's belief that a law has been violated will be examined more closely than will the belief of one in another, non-law enforcement profession," Harris County Precinct Four Constable Dep't v. Grabowski, 922 S.W.2d 954, 956 (Tex. 1996), and McElyea as a police officer should have been aware of the gaps in what he knew and the significance of those gaps.

I do not believe that there is a significant difference between these facts and those set out in Texas Department of Criminal Justice v. Terrell, in which our sister court held that the employee, a prison warden with bachelor's degree in law enforcement, based his report "solely on rumor and innuendo" and that a fact-finder could not have concluded that "a reasonable employee with the same level of training and experience would have made such a report." 18 S.W.3d 272, 276 (Tex. App.--Tyler 2000, pet. denied).

Guessing that there might have been a violation does not amount to good-faith belief that there was a violation. A person seeking whistleblower protection must show he "believed he was reporting an actual violation of law," and we evaluate the report to determine whether a "reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law." Needham, 82 S.W.3d at 320 (emphasis added); see also Wichita County v. Hart, 917 S.W.2d 779, 784-85 (Tex. 1996) ("'Good faith' means that (1) the employee believed that the conduct reported was a violation of law and (2) the employee's belief was reasonable in light of the employee's training and experience.").

Because McElyea knew that he lacked necessary information to know whether there actually had been a violation of law, I would hold that his report, as a matter of law, did not amount to a good-faith report of a violation of the law. Therefore, I respectfully dissent.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Filed: July 26, 2007