SAPCR: Grandparent appointed SMC (sole managing conservator)

Mother's appeal of order awarding custody of child to intervening paternal grandfather fails. Trial court did not err in refusing to strike petition in intervention.

Kenda Kushner v. Stan Kushner, No. (Tex.App.- Austin, Mar. 7, 2008) (Opinion by Justice Pemberton )(grandparent access statute, SAPCR, nonparents, intervention) (Before Justices Patterson, Puryear and Pemberton)
Kenda Kushner v. Stan Kushner--Appeal from 200th District Court of Travis County
Dispostion: Affirmed

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-FM-02-003670, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Kenda Kushner appeals the district court's judgment appointing her ex-husband's father, Stanley Kushner, as sole managing conservator of her and her ex-husband's son, M.J.K. In a single issue, Kenda (1) argues that the district court abused its discretion when it failed to strike Stanley's Petition in Intervention of Grandparent in Suit Affecting the Child-Parent Relationship because Stanley failed to allege sufficient facts to satisfy the requirements to intervene under section 102.004(b) of the Texas Family Code. See Tex. Fam. Code Ann. § 102.004(b) (West Supp. 2007).

We overrule Kenda's issue and affirm the judgment of the district court.

BACKGROUND

Kenda and Phillip Kushner divorced in July 2003. In the final decree of divorce, Kenda was appointed sole managing conservator and Phillip was appointed possessory conservator of the parties' minor child, M.J.K. Phillip filed a petition to modify the parent child relationship in December of 2005. On May 26, 2006, Phillip's father, Stanley Kushner, filed a petition in intervention requesting, among other things, that he be named a joint managing conservator of his grandson, that the child live with him at his residence in Overland Park, Kansas, and that Phillip and Kenda pay him child support. In his petition in intervention, Stanley alleged that "the continued appointment of the child's [m]other as a joint managing conservator would not be in the best interest of the child because the continued appointment of the [m]other would significantly impair the child's physical health or emotional development."

Kenda filed a motion to strike Stanley's petition in intervention on June 19, 2006, complaining that Stanley had not sought leave of the court, had filed his petition only three weeks prior to trial, and had not taken a position adversarial to his son, Phillip. The district court denied the motion to strike and a bench trial was held on July 10, 2006. On July 26, 2006, the district court signed a final order appointing Stanley as sole managing conservator and Phillip and Kenda as possessory conservators of M.J.K.

At Kenda's request, the district court entered findings of fact and conclusions of law. The court's fact findings included the following:

3. Alcoholism

[Kenda] is an alcoholic. [Kenda] is in denial of this fact. On April 1, 2005, [Kenda] overdosed on prescription drugs while intoxicated and while under the influence of marijuana. [Kenda] has stated to the Child Protective Services worker that such incident was an attempt on her part to commit suicide. On May 11, 2005, [Kenda] drove a vehicle with [M.J.K.] while she was intoxicated. On December 5, 2005 [Kenda] became unconscious through intoxication during a time when [M.J.K.] was in her care, and with no other caretakers present. [Kenda] has endangered [M.J.K.] on more than one occasion due to her being intoxicated.
[Stanley] does not abuse alcohol.

4. Use of Illegal Drugs

[Kenda] has used illegal drugs and allowed others to use illegal drugs in the presence of [M.J.K.].
[Stanley] does not use illegal drugs.

5. Relationship Concerns

Since the parties' divorce, [Kenda] has married and divorced a man named David Soliz. In April 2005 [Kenda] obtained a Protective Order against David Soliz that is currently in effect. In her application for such Protective Order, [Kenda] swore under oath that David Soliz was abusive towards her and her son [M.J.K.], the child that is the subject of this lawsuit. [Kenda] currently maintains an ongoing relationship with David Soliz. [Kenda's] relationship with David Soliz has been a violent relationship. David Soliz is a danger to [M.J.K.].
[Stanley] is married to Magdalena Kushner. They have a healthy marital relationship, and are both fully capable of caring for [M.J.K.]. It is in the best interest of [M.J.K.] that he live with [Stanley] and that [Stanley] be named as [M.J.K.]'s Sole Managing Conservator.

6. Child Protective Services

Since the date of the divorce, Child Protective Services has removed the child [M.J.K.] from the home of [Kenda]. Child Protective Services recommended at the time of trial of this cause that [M.J.K.] be taken from the custody of [Kenda] and that [Kenda] be denied access to [M.J.K.], except under supervision. CPS made this recommendation because [Kenda] had endangered [M.J.K.].
It is the recommendation of Child Protective Services that [M.J.K.] live with [Stanley] at his residence in Overland Park, Kansas.

7. Stability of Home Environment

[Kenda] has not maintained a stable home environment for [M.J.K.]. Since the date of divorce, [Kenda] has moved several times and has lived with several different men. [Kenda] has moved several times within the last 6 months.
[Stanley's home] is a safe and stable environment.

8. Financial Concerns

[Kenda] has not maintained steady employment since the divorce between the parties. [Kenda] has relied primarily on child support and the generosity of others for her financial support. Kenda has not been able to, with her own efforts to maintain stable employment, pay her rent, or pay the child support she has been ordered to pay for a child by [a] previous marriage.
[Stanley] is able to personally care for [M.J.K.'s] needs financially.

9. Respect for the Rule of Law

[Kenda] has lied under oath on more than one occasion, both by affidavit and by live testimony. [Kenda] has admitted to lying under oath in order to obtain the Protective Order against David Soliz mentioned above. That Protective Order ordered that David Soliz stay away from [Kenda] and [M.J.K.]. Kenda has violated this Protective Order on more than one occasion by her continued relationship with David Soliz. [Kenda] has violated this Protective Order by allowing David Soliz to be in the presence of [M.J.K.].

DISCUSSION

Kenda's sole argument on appeal is that the district court abused its discretion in failing to strike Stanley's petition in intervention because Stanley's petition did not allege sufficient facts to satisfy the requirements to intervene under section 102.004(b) of the Texas Family Code. The standard of review for determining whether the trial court improperly denied a motion to strike intervention is abuse of discretion. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990); In the Interest of N.L.G., 238 S.W.3d 828, 828 (Tex. App.--Fort Worth 2007, no pet.). To determine whether a trial court abused its discretion, we must decide whether it acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Section 102.004(b) of the family code provides that a:
court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.
Tex. Fam. Code Ann. § 102.004(b).

Kenda argues that Stanley's petition is insufficient because he does not allege that the appointment of Phillip as joint managing conservator or sole managing conservator would significantly impair M.J.K.'s physical health or emotional well being. We disagree. Section 102.004(b) of the family code does not require a grandparent to prove that the appointment of either parent as a sole managing conservator would significantly impair the child's physical health or emotional development; rather the statute merely requires satisfactory proof that "the appointment of a parent as sole managing conservator or both parents as joint managing conservators would significantly impair" M.J.K.'s physical health or emotional development. Here, Stanley alleged that "the continued appointment of the child's [m]other as a joint managing conservator would not be in the best interest of the child because the continued appointment of the [m]other would significantly impair the child's physical health or emotional development." (2) Accordingly, we conclude that the district court did not abuse its discretion in denying Kenda's motion to strike Stanley's petition in intervention.

CONCLUSION

We affirm the district court's judgment appointing Stanley Kushner as sole managing conservator, and Phillip and Kenda Kushner as possessory conservators, of the child M.J.K.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: March 7, 2008

1. To avoid confusion with the common surname, we will refer to the parties by their first names.
2. We note that Kenda does not challenge the district court's fact findings, which strongly support these allegations.

Bexar Metro Water Dist. v. City of San Antonio (Tex.App.- Austin, Jun. 29, 2007)

Bexar Metropolitan Water Dist. v. City of San Antonio (Tex.App.- Austin, June 29, 2007)(Henson)(UDJA, jurisdiction, authority)

AFFIRMED: Opinion by Justice Henson
Before Chief Justice Law, Justices Puryear and Henson)

Bexar Metropolitan Water District, Juan and Luann Rivara, and Joseph and Dawn Fiorino v. City of San Antonio, acting by and through the San Antonio Water System
Appeal from 200th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GV-06-000053, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

OPINION BY JUSTICE HENSON

Appellants Bexar Metropolitan Water District (BexarMet), Juan and Luann Rivara, and Joseph and Dawn Fiorino appeal a summary judgment in favor of the San Antonio Water System (SAWS). SAWS initially filed suit seeking a declaration that BexarMet is prohibited from expanding its political boundaries and service area past certain geographical limits described in BexarMet's enabling statute, as amended by Senate Bill 1494. (1) The Rivaras and the Fiorinos, individuals living outside BexarMet's original political boundaries but within BexarMet's service area, intervened in the lawsuit. BexarMet and the intervenors argued that the district court did not have jurisdiction over SAWS's claim. BexarMet and the intervenors also argued that even if the trial court did have jurisdiction, SB 1494 is unconstitutional under the conservation amendment to the Texas Constitution, found in article XVI, § 59. This provision requires the legislature to provide advance notice of any bill that will expand the boundaries of a water district or alter the district's taxing authority. Alternatively, BexarMet argued that if SB 1494 is constitutional, it does not limit BexarMet's authority to expand its service area or political boundaries.

The trial court granted summary judgment in favor of SAWS, rendering judgment that SB 1494 did not violate article XVI, § 59 of the Texas Constitution. Further, the trial court found that SB 1494 limits BexarMet's service territory and political boundaries to certain areas. BexarMet and the intervenors appeal that judgment.

Because we conclude (1) that SAWS has standing to bring this suit, (2) that the enactment of SB 1494 did not violate the Texas Constitution, and (3) that SB 1494 limits BexarMet's service territory and political boundaries, we affirm the district court's judgment.

BACKGROUND

The present suit represents yet another installment in a seemingly endless litigation battle between BexarMet and other water districts in the surrounding area regarding the scope of BexarMet's service area. BexarMet is a political subdivision created by special act (the BexarMet Act) (2) in 1945 under article XVI, § 59 of the Texas Constitution. The BexarMet Act, as it was written in 1945, included a metes and bounds description of the political boundaries of the district. BexarMet Act, § 5, 1945 Tex. Gen. Laws at 494. Sections 6 and 6a authorized two annexation procedures by which BexarMet could expand its political boundaries, although BexarMet never took advantage of either of these procedures. Id. §§ 6, 6a, 1945 Tex. Gen. Laws at 496-97. BexarMet's political boundaries were commonly understood to coincide with the area within the 1945 city limits of San Antonio.

Texas water districts, including BexarMet, have the authority to exercise any powers within "the terms of the statutes which authorized their creation, and they can exercise no authority that has not been clearly granted by the legislature." Tri-City Fresh Water Supply Dist. No. 2 of Harris County v. Mann, 142 S.W.2d 945, 948 (Tex. 1940). The statutes creating Texas water districts "envision an orderly development of the State's natural resources . . . through the formation of definite districts with geographical boundaries where waters of the State will be conserved through primary utilization within the district." Harris County Water Control & Improvement Dist. No. 58 v. City of Houston, 357 S.W.2d 789, 796 (Tex. Civ. App.--Houston 1962, writ ref'd n.r.e.). When BexarMet was created in 1945, it was given the authority of a "governmental agency, a body politic and corporate, and a municipal corporation." BexarMet Act, § 2, 1945 Tex. Gen. Laws at 492.

BexarMet provided water service strictly to southern Bexar County until the 1990s, when it began expanding its service territory to include portions of Atascosa, Comal, and Medina counties, as well as additional portions of Bexar County. BexarMet accomplished this expansion by acquiring certificates of convenience and necessity (CCNs) from the Texas Commission on Environmental Quality (TCEQ) (3) authorizing the provision of retail water utility services. While BexarMet expanded its service area through CCNs, its political boundaries did not change. The Texas Water Code allows the service area of a water district to expand beyond its political boundaries. See Tex. Water Code Ann. § 49.215(d) (West 2000) ("A district shall not be required to hold a certificate of convenience and necessity as a precondition for providing retail water or sewer service to any customer or service area, notwithstanding the fact that such customer or service area may be located either within or outside the boundaries of the district . . . .").

In 1996, BexarMet's provision of water service to customers outside its political boundaries became the subject of a federal voting-rights lawsuit. See Rios v. Bexar Metro. Water Dist., No. SA-96-CA-335 (W.D. Tex. Apr. 22, 1996). Rolando Rios challenged BexarMet's method of electing at-large board members, claiming that the method diluted minority voting rights because residents of BexarMet's political territory who were not BexarMet customers were able to vote in the elections, while BexarMet customers living outside BexarMet's political territory were not. The parties settled and submitted a proposed consent decree. The court adopted the consent decree and ordered that BexarMet's political boundaries must coincide with its retail water utility service areas as determined by the CCNs.

In 2003, the Texas legislature, with BexarMet's support, (4) amended the BexarMet Act by passing SB 1494. One of the changes made by SB 1494 was the addition of § 5A, which states:

(a) The District's boundaries for purposes of the exercise of its powers and duties is [sic] defined in Section 5 of this Act.

(b) In conformity with the court's judgment dated April 22, 1996, in Cause No. SA 96CA0335, Rios v. Bexar Metropolitan Water District et al., in the United States District Court, Western District of Texas, and for the purpose of the exercise of its current retail water utility services, the District's boundaries shall include the territory defined in all or applicable portions of census tracts or property situated within any area certificated by the Texas Commission on Environmental Quality to the District on the date of passage of the Act adding this section pursuant to Certificates of Convenience and Necessity Nos. 10675, 12759, and 12760.
SB 1494, § 3, sec. 5A, 2003 Tex. Gen. Laws at 1596.

As noted above, § 5 of the BexarMet Act contains a metes and bounds description of BexarMet's political boundaries, commonly understood to coincide with the 1945 city limits of San Antonio. See BexarMet Act, § 5, 1945 Tex. Gen. Laws at 494.

SB 1494 also repealed §§ 6 and 6a of the BexarMet Act, the two unused provisions that allowed BexarMet to expand its territory through annexation. SB 1494, § 4, 2003 Tex. Gen. Laws at 1596. While SB 1494 included two grandfathering provisions that would allow any annexation procedures that were underway by a certain date to continue, no proceedings were underway by the relevant date to trigger the grandfathering provisions. See id. § 5, 2003 Tex. Gen. Laws at 1596.

Since SB 1494 was enacted, BexarMet and SAWS have sought to obtain CCNs for some of the same areas, which are located outside the boundaries in SB 1494. SAWS filed this suit challenging BexarMet's authority to apply for additional CCNs and TCEQ's authority to process the applications. BexarMet challenged the district court's jurisdiction on several grounds. The district court denied the plea to the jurisdiction and ruled on the merits of SAWS's claim, declaring that (1) SB 1494 does not violate the Texas Constitution; (2) BexarMet cannot provide services outside its statutory boundaries; (3) BexarMet's statutory boundaries are limited to the 1945 city limits of San Antonio plus the geographic area covered by CCN numbers 10675, 12759, and 12760, as they existed on June 18, 2003; and (4) TCEQ has no authority to grant new or amended CCNs to BexarMet for territory beyond the statutory boundaries. BexarMet and the intervenors appeal this judgment. (5)

DISCUSSION

BexarMet raises three issues on appeal, asserting (1) that the district court lacked jurisdiction over SAWS's claim, (2) that SB 1494 is void as unconstitutional, and (3) that even if SB 1494 is constitutional, it does not limit the authority of BexarMet to expand its current service area. Two of these issues have largely been resolved by prior decisions of this Court in similar litigation over BexarMet's service areas. The jurisdictional issue was addressed in Bexar Metropolitan Water District v. City of Bulverde, 156 S.W.3d 79, 86-89 (Tex. App.--Austin 2004, pet. denied) (referred to herein as Bulverde I). Whether SB 1494 limits BexarMet's ability to expand was recently examined by this Court in Bexar Metropolitan Water District v. City of Bulverde, No. 03-06-00447-CV (Tex. App.--Austin June 27, 2007, no pet. h.) (referred to herein as Bulverde II).

Jurisdiction

BexarMet argues that the trial court lacked jurisdiction over this case on three separate grounds. First, BexarMet contends that SAWS, as a mere competitor of BexarMet, lacked standing to pursue this action. Second, BexarMet argues that § 49.066 of the Texas Water Code bars SAWS's claims. Third, BexarMet claims that SAWS failed to establish standing under the federal voting-rights act to bring this action.

Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo. Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). We consider only the pleadings and evidence relevant to the question of jurisdiction and do not look to the merits of the case. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). The plaintiff has the burden of alleging facts that affirmatively demonstrate that the trial court has jurisdiction to hear the case. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

BexarMet argues that SAWS lacks standing to bring this suit, based on the proposition that a competitor does not have standing to challenge a competing corporation's actions. See, e.g., English v. Landa Motor Lines, 166 S.W.2d 721, 723 (Tex. Civ. App.--Austin 1942, writ ref'd w.o.m.). However, this Court has already resolved this issue in Bulverde I. See 156 S.W.3d at 88. In Bulverde I, this Court held that an "affected person" has standing to bring suit challenging a governmental authority's actions if the entity's "actions are void, as opposed to voidable." Id. (citing City of Irving v. Callaway, 363 S.W.2d 832, 834 (Tex. Civ. App.--Dallas 1962, writ ref'd n.r.e.)). SAWS sought a declaration that BexarMet is acting beyond its statutory powers as set forth in SB 1494. "If a water district acts beyond its statutory powers, its actions are void." Id. Therefore, SAWS has standing to bring this suit if it is an "affected person." This Court held in Bulverde I that an entity is considered an affected person if it is "seeking to provide water-utility services in the same area" as the governmental entity whose actions are being challenged. Id. Because SAWS alleged that BexarMet's actions are void and because SAWS, in seeking to provide water-utility services in the same area as BexarMet, is an affected person, SAWS has standing to bring this suit for declaratory judgment.

Bulverde I also informs us in considering and rejecting BexarMet's claim that § 49.066(d) of the Texas Water Code prevents SAWS from bringing this suit. Subsection 49.066(d) states that "no suit may be instituted in any court of this state contesting . . . the validity of the creation and boundaries of a district created under this code." Tex. Water Code Ann. § 49.066(d) (West 2000). The exception to this rule is that such a suit may be "brought by the State of Texas through the attorney general." Id. § 49.066(e). In Bulverde I, this Court held that "[r]equesting a declaration regarding the location of a district's boundaries and the district's authority to provide service and expand its boundaries is not the same as challenging the validity of those boundaries. Such determinations are not prohibited by section 49.066." 156 S.W.3d at 88. Because SAWS's suit challenging BexarMet's authority to expand its boundaries falls within this category of determinations that are not prohibited by § 49.066 of the water code, we conclude that the trial court was not barred by the water code from reviewing SAWS's claim.

BexarMet's argument that SAWS does not have standing under the federal voting-rights act is also without merit. SAWS has not asserted a claim under the voting-rights act in this litigation. While the Rios litigation was based on the voting-rights act, SAWS's claim in this case centers around the statutory construction of the BexarMet Act, which was amended as a result of Rios. SAWS is not required to establish standing under the voting-rights act because it has not presented a claim under that statute.

Because we conclude that the trial court had jurisdiction over SAWS's claim, we overrule BexarMet's first issue.

Constitutionality

BexarMet argues that SB 1494 is unconstitutional under article XVI, § 59 of the Texas Constitution. (6)

We review the trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both parties file motions for summary judgment, we determine all presented questions and render judgment. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005). In order to prevail, a summary-judgment movant must prove that there is no genuine issue of material fact. Id.

In a constitutional challenge, "the courts should uphold a statute as valid unless it is clearly unconstitutional." Koy v. Schneider, 221 S.W. 880, 888 (Tex. 1920). Furthermore, "we must, if possible, construe statutes to avoid constitutional infirmities." Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996).

The Texas Constitution contains specific notice requirements for the "introduction of any bill amending a law creating or governing a particular conservation and reclamation district if such bill (1) adds additional land to the district [or] (2) alters the taxing authority of the district." Tex. Const. art. XVI, § 59(d). Notice of the introduction of such a bill must be published in a newspaper of general circulation, and a copy of both the notice and bill must be delivered to the governor, among other requirements. Id. (7) All parties agree that these requirements were not met with respect to SB 1494.

BexarMet, now that SB 1494 has proven to be unfavorable to its interests, challenges the bill on constitutional grounds--despite having been an active proponent of SB 1494 during the legislative process. BexarMet argues that SB 1494 is void because it was enacted in violation of article XVI, § 59. SAWS contends that SB 1494 is not subject to the constitutional notice provisions because the bill did not "add additional land to the district" or "alter the taxing authority of the district."

Did SB 1494 Add Additional Land to the District?

The language of both the Rios judgment and SB 1494 suggests that SB 1494 was merely designed to reconcile the language of the BexarMet Act with the political boundaries set as a result of the Rios litigation. The Rios consent decree explicitly states that "the District's CCN areas served are hereby being made the Political Boundaries of the District." Section 5A of the BexarMet Act, as amended by § 3 of SB 1494, describes BexarMet's political boundaries, noting that this boundary description is "[i]n conformity with the court's judgment dated April 22, 1996, in Cause No. SA96CA0335, Rios v. Bexar Metropolitan Water District et al., in the United States District Court, Western District of Texas." SB 1494, § 3, sec. 5A, 2003 Tex. Gen. Laws at 1596.

Between the issuance of the Rios judgment and the enactment of SB 1494, BexarMet added additional land to its service area through the use of CCNs. The geographical area included in these CCNs became part of BexarMet's political boundaries pursuant to the Rios consent decree. (8) Because the Rios decree effectively expanded BexarMet's political territory prior to the passage of SB 1494, the bill could not have been the vehicle by which land was added to BexarMet's political territory. There was no land included in BexarMet's political boundaries after the passage of SB 1494 that was not within such boundaries immediately prior to the passage of SB 1494. As a result, SB 1494 was not subject to the notice requirements in article XVI, § 59 of the Texas Constitution for bills that "add additional land to the district."

The legislative history surrounding the passage of SB 1494 supports the view that BexarMet's political boundaries were redrawn when the Rios judgment was issued, rather than when SB 1494 was passed. Chuck Bailey, a legislative witness for BexarMet, testified before the Senate Natural Resources Committee on April 29, 2003, that SB 1494 was "basically a cleanup bill." Hearings on Tex. S.B. 1494 Before the Senate Comm. on Natural Res., 78th Leg., R.S. 2 (April 29, 2003) (statement of Chuck Bailey). Bailey also testified before the House Natural Resources Committee that SB 1494 brought BexarMet's boundaries "up to what they really are right now." Hearings on Tex. S.B. 1494 Before the House Comm. on Natural Res., 78th Leg., R.S. 1 (May 21, 2003) (statement of Chuck Bailey).

BexarMet argues that the Rios court could not have added territory to BexarMet's political boundaries because a federal court has no power under the voting-rights act to force a district to increase its boundaries. See Burton v. City of Belle Glade, 966 F. Supp. 1178, 1185-86 (S.D. Fla. 1997). However, the Rios judgment did not serve as the type of forced annexation discussed in Burton. (9) The Rios judgment, to which BexarMet consented, merely required BexarMet's political boundaries to match its service area. BexarMet was free to limit its service area to its political boundaries at the time, the area coinciding with the 1945 city limits of San Antonio. However, because BexarMet chose to continue providing service to areas outside those limits, the Rios court required BexarMet's political boundaries to be expanded to include such areas.

Furthermore, BexarMet may not use the state courts for a collateral attack on the Rios judgment. The full faith and credit clause of the United States Constitution (10) requires that federal court orders be enforced by Texas courts. Keene Corp. v. Caldwell, 840 S.W.2d 715, 720 (Tex. App.--Houston [14th Dist.] 1992, no pet). The Supreme Court has explained that "where the judgment or decree of the Federal court determines a right under a Federal statute, that decision is 'final until reversed in an appellate court, or modified or set aside in the court of its rendition.'" Stoll v. Gottlieb, 305 U.S. 165, 170 (1938) (quoting Deposit Bank v. Frankfort, 191 U.S. 499, 520 (1903)). This principle also extends to federal consent decrees. See National R.R. Passenger Corp. v. Pennsylvania Pub. Util. Comm'n, 342 F.3d 242, 259 (3d Cir. 2003) (holding that a federal consent decree is a final federal-court judgment that may not be collaterally attacked by a state court). To the extent that BexarMet argues that the Rios order, to which it consented, could not lawfully cause BexarMet's political boundaries to expand, it makes an impermissible collateral attack on a federal judgment in state court.

The doctrine of quasi-estoppel further prevents BexarMet from arguing that the Rios order did not serve to add additional land to BexarMet's political territory. Not only did BexarMet consent to the decree, but it also reaped the benefits of the Rios order by extending its political boundaries along with its service area in the years between the Rios order and SB 1494. Quasi-estoppel precludes a party from asserting a position in litigation, to another's disadvantage, that is inconsistent with a position from which that party previously benefitted. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). A party that benefits from a position that it has taken in a consent decree is similarly estopped from later asserting an inconsistent position. See New Hampshire v. Maine, 532 U.S. 742, 755 (2001). BexarMet, after consenting to the Rios judgment and enlarging its political boundaries as a result, may not now assert that the Rios judgment had no effect on BexarMet's political boundaries.

Did SB 1494 Alter the Taxing Authority of the District?

Like the addition of land to BexarMet's political territory, the expansion of BexarMet's taxing authority was a natural consequence of the Rios litigation. Had BexarMet chosen, post-Rios, to forego the provision of water services to the areas covered by the CCNs, its taxing authority would not have changed. However, because BexarMet continued providing water service to the areas covered by the CCNs and because the Rios consent decree required that such areas be included in BexarMet's political territory, BexarMet's taxing authority automatically extended to those areas.

Section 11 of the BexarMet Act authorizes BexarMet to levy, assess, and collect taxes "upon a favorable majority vote of the qualified property taxpaying electors voting at an election held for the purpose." BexarMet Act, § 11, 1945 Tex. Gen. Laws at 499. While the Rios judgment, as noted in a 2006 clarifying order, "did not alter, amend or in any manner extend the taxing authority of BexarMet" because "[o]nly the Texas Legislature has the authority" to do so, the Rios judgment did require that residents of BexarMet's service areas be afforded equal voting rights with those living inside BexarMet's pre-Rios political boundaries, pursuant to § 2 of the federal voting-rights act. The Texas Legislature, through § 11 of the BexarMet Act, gave BexarMet taxing authority over voters in the district, a group that necessarily included all residents of BexarMet's service territory after Rios. The effect of § 11 is that BexarMet's taxing authority is tied to the ability to vote. The Rios judgment may not have specifically altered BexarMet's taxing authority, but it created a situation in which taxing authority was automatically extended pursuant to § 11 of the BexarMet Act. BexarMet itself concedes that residents of its political territory are necessarily subject to taxing authority, stating in its motion for partial summary judgment, "The political boundaries of a district are those areas . . . where the residents can vote in district elections [and] are subject to the district's taxing authority . . . ." When BexarMet's political boundaries were expanded as a result of Rios, the expansion of its taxing authority followed. Because BexarMet's taxing authority was altered prior to the enactment of SB 1494 and there was no further change in BexarMet's taxing authority as a result of SB 1494, the constitutional notice requirements for bills that "alter the taxing authority of the district" were not triggered.

We conclude that SB 1494 did not add additional land to BexarMet's political territory or alter its taxing authority. As a result, SB 1494 was not subject to the notice provisions of article XVI, § 59 of the Texas Constitution. We overrule BexarMet's second issue.

BexarMet's Authority to Expand

BexarMet argues that if SB 1494 is constitutional, it does not limit BexarMet's authority to expand its service area or political boundaries. The trial court granted summary judgment in favor of SAWS, declaring that § 3 of SB 1494, in adding § 5A to the BexarMet Act, limited BexarMet's service territory and political boundaries to the 1945 city limits of San Antonio plus the geographic areas covered by CCN numbers 10675, 12759, and 12760 as of the enactment of SB 1494. Consistent with the holding of Bulverde II, we conclude that BexarMet's service territory and political boundaries are limited by SB 1494.

The declarations requested by the parties in this case rest on a matter of statutory construction. We review matters of statutory construction de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). In construing a statute, our objective is to determine and give effect to the legislature's intent. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). "If a statute's meaning is unambiguous, we generally interpret the statute according to its plain meaning." Id. In determining legislative intent, we look at the entire act as a whole, rather than isolated portions. Id.

Prior to SB 1494, the BexarMet Act stated that BexarMet had the power, "[t]hrough every practical and legal means to control and regulate and to coordinate the control and regulation of the waters of the watershed of the San Antonio River and tributaries in the District and the storm and flood and underground waters of the District." BexarMet Act, § 3(a), 1945 Tex. Gen. Laws at 492. SB 1494 amended this language to give BexarMet the power, "[t]hrough every practical and legal means to develop, transport, deliver, distribute, store and treat water for use within the District, including the storm and flood waters within the District." SB 1494, § 2, sec. 3(a), 2003 Tex. Gen. Laws at 1594 (emphases added). As we noted in Bulverde I, "Some water-district enabling acts provide that water districts may sell or distribute water only within their boundaries. Other enabling acts allow a water district to distribute or sell water within or without the district's boundaries." 156 S.W.3d at 83 (citations omitted).

In a 1947 opinion, the Texas Attorney General concluded that a water district was not authorized to sell water outside its boundaries if its enabling statute used language limiting the scope of its authority to areas within the district. Op. Tex. Att'y Gen. No. V-319 (1947). In other words, "the statutes do not authorize [a] District to roam at large throughout the State and distribute water wherever it wishes without regard to limitations placed on it by statute." Harris County Water Control & Improvement Dist. No. 58, 357 S.W.2d at 795. Furthermore, we must presume that the legislature would not perform a meaningless or useless act, which means that the inclusion of the word "within" in BexarMet's enabling statute must be viewed as significant. See Webb County Appraisal Dist. v. New Laredo Hotel, Inc., 792 S.W.2d 952, 954 (Tex. 1990); see also Tex. Gov't Code Ann. § 311.021 (West 2005). In light of the legislature's use of the phrase "within the District," rather than "within or without the District," a phrase that the legislature has seen fit to include in the enabling statutes of other water districts, we conclude that SB 1494 was intended to limit BexarMet's political boundaries and service area to the geographical area described in § 5A of the BexarMet Act, as amended by SB 1494.

As this Court noted in Bulverde II, the legislative history of SB 1494 supports this conclusion. The introduced version of SB 1494 authorized BexarMet "to develop, transport, deliver, distribute, store and treat water including the storm and flood waters within or without the District . . . ." Tex. S.B. 1494, 78th Leg., R.S. (2003) (introduced version) (emphasis added). This language was amended, however, to "for use within the District," rather than "within or without the District."

BexarMet argues that the Texas Water Code authorizes BexarMet to expand its service area, even after the enactment of SB 1494. Section 49.211 of the water code authorizes a water district to "purchase, construct, acquire, own, operate . . . or extend inside and outside its boundaries any and all land, works, improvements, facilities, plants, equipment, and appliances necessary to accomplish the purposes of its creation or the purposes authorized by this code or any other law." Tex. Water Code Ann. § 49.211(b) (West Supp. 2006) (emphasis added). Similarly, § 49.215 of the water code authorizes a district to "purchase, construct, acquire, own, operate, repair, improve, or extend all works, improvements, facilities, plants, equipment, and appliances necessary to provide any services or facilities authorized to be provided by the district to areas contiguous to or in the vicinity of the district." Id. § 49.215(a) (West 2000) (emphasis added). BexarMet's position is that these statutes authorize BexarMet to continue serving areas outside of its boundaries, despite the language of SB 1494. In keeping with our decision in Bulverde II, we disagree.

Section 49.002 of the water code states that the provisions of chapter 49, including the provisions on which BexarMet relies, apply only "to the extent that the provisions of this chapter do not directly conflict with a provision in any other chapter of this code or any Act creating or affecting a special law district." Id. § 49.002(a) (West 2000). As amended by SB 1494, the BexarMet Act, which qualifies as an act creating a special law district, directly conflicts with §§ 49.215 and 49.211 of the water code. BexarMet argues that these provisions do not conflict, claiming that SB 1494 merely defines BexarMet's political boundaries and adds territory that was not included in the original statute. This argument ignores the language added to the BexarMet Act by SB 1494 that restricts BexarMet to delivering and distributing water "within" the district, as discussed above. This restriction creates a direct conflict between the BexarMet Act and §§ 49.215 and 49.211 of the water code, which authorize the provision of water services outside a district's political boundaries. As a result, BexarMet may not take advantage of these provisions in order to provide water service outside of its political boundaries.

As we stated in Bulverde II, further evidence that SB 1494 was intended to restrict BexarMet's political boundaries and service area can be found in the fact that SB 1494 eliminated §§ 6 and 6a of the BexarMet Act, which provided procedures for BexarMet to acquire additional territory through annexation. SB 1494, § 4, 2003 Tex. Gen. Laws at 1596. BexarMet argues that these provisions were deleted merely because they were redundant and unnecessary. However, SB 1494 included grandfathering provisions to allow any annexation procedures that were underway under § 6 or 6a by June 18, 2003 to continue. (11) Id. § 5, 2003 Tex. Gen. Laws at 1596. Had §§ 6 and 6a truly been redundant and unnecessary, there would be no need to include these grandfathering provisions. As noted above, we must presume that the legislature would not perform a meaningless or useless act. See Webb County Appraisal Dist., 792 S.W.2d at 954; see also Tex. Gov't Code Ann. § 311.021. The repeal of BexarMet's annexation procedures and the inclusion of grandfathering provisions point to the conclusion that BexarMet's political boundaries and service area are meant to be restricted by SB 1494.

In light of the legislature's restriction of BexarMet's water service to areas "within the District," the legislative history indicating that the phrase "within and without" was considered and subsequently abandoned, and the repeal of the only procedures for expansion available under the BexarMet Act, we conclude, as we did in Bulverde II, that BexarMet's political boundaries and service area are restricted to the geographic area described in § 5A of the BexarMet Act, as amended by § 3 of SB 1494. If BexarMet wishes to expand its boundaries in the future, it will have to address such matters with the legislature. The statute as it stands does not allow for expansion. We overrule BexarMet's third issue.

CONCLUSION

Because we conclude that the trial court had jurisdiction over SAWS's claim, that SB 1494 is not void as unconstitutional, and that BexarMet is limited to the service territory and political boundaries described in § 5A of its enabling statute, we affirm the trial court's judgment.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: June 29, 2007

1. Act of June 18, 2003, 78th Leg., R.S., ch. 375, 2003 Tex. Gen. Laws 1593 (SB 1494).
2. Act of May 1, 1945, 49th Leg., R.S., ch. 306, 1945 Tex. Gen. Laws 491.
3. For convenience, references to actions taken by TCEQ will also encompass actions taken by its predecessor, the Texas Natural Resource Conservation Commission.
4. Chuck Bailey, an attorney representing BexarMet, testified before the House Natural Resources Committee regarding SB 1494, stating, "I have worked with the San Antonio Water System and the San Antonio River Authority, and with the GBRA, and I think we are all in agreement on this." Hearings on Tex. S.B. 1494 Before the House Comm. On Natural Res., 78th Leg., R.S. 1 (May 21, 2003) (statement of Chuck Bailey). The committee chairman also noted for the record that "Nancy Milleda wants to be shown 'for' the bill. She's also with Bexar Metropolitan Water District." Id. at 2 (statement of Chairman Puente).
5. TCEQ did not file an appeal.
6. As a threshold matter, SAWS argues that BexarMet does not have standing to challenge the constitutionality of SB 1494 because BexarMet was an active proponent of the legislation. SAWS points to Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 628 (Tex. 1996), in which the court stated that "active involvement in the legislative process evidences the sufficiency of the notice." Barshop does not support this argument. The court in Barshop held that a party's involvement in the legislative process was evidence that published notice was sufficiently informative; it did not address whether a proponent of legislation is later precluded from bringing a constitutional challenge due to lack of notice. But regardless of whether BexarMet's legislative activities qualify as constructive notice of SB 1494, there is no evidence that the intervenors actively participated in the legislative process. As a result, the intervenors have standing, and we will address the claims presented.
7. The full text of article XVI, § 59(d) states:
No law creating a conservation and reclamation district shall be passed unless notice of the intention to introduce such a bill setting forth the general substance of the contemplated law shall have been published at least thirty (30) days and not more than ninety (90) days prior to the introduction thereof in a newspaper or newspapers having general circulation in the county or counties in which said district or any part thereof is or will be located and by delivering a copy of such notice and such bill to the Governor who shall submit such notice and bill to the Texas Water Commission, or its successor, which shall file its recommendation as to such bill with the Governor, Lieutenant Governor and Speaker of the House of Representatives within thirty (30) days from date notice was received by the Texas Water Commission. Such notice and copy of bill shall also be given of the introduction of any bill amending a law creating or governing a particular conservation and reclamation district if such bill (1) adds additional land to the district, (2) alters the taxing authority of the district, (3) alters the authority of the district with respect to the issuance of bonds, or (4) alters the qualifications or terms of office of the members of the governing body of the district.
Tex. Const. art. XVI, § 59(d).
8. BexarMet argues that there is no evidence that its political territory expanded along with its service area when CCNs were granted or amended post-Rios but prior to the enactment of SB 1494. However, BexarMet would have had to wholly disregard the Rios judgment in order for its political territory not to expand along with its service area during this time period. We presume that BexarMet does not intend to make an argument that requires it to have disregarded a federal-court order.
9. On appeal, the trial court's judgment in Burton was reversed in part and affirmed in part, and the court noted that while forced annexation was an inappropriate remedy based on the facts of the case, it was not suggesting that "a federal court would never have the power to order annexation." Burton v. City of Bell Glade, 178 F.3d 1175, 1200 (11th Cir. 1999).
10. U.S. Const. art. IV, § 1.
11. BexarMet did not trigger either of these grandfathering provisions.

Zeifman v. Michels and Austin ISD (Tex.App.- Austin, Jun. 20, 2007)

Clifford Zeifman v. Michels and Austin Indep. Sch. Dist. (Tex.App.- Austin, Jun. 20, 2007)(Pemberton)(ISD law, parental rights, SACPR)

REVERSED AND REMANDED ON MOTION FOR REHEARING:

Opinion by Justice Bob Pemberton

Before Justices Patterson, Pemberton and Waldrop

Clifford Zeifman v. Sheryl Diane Michels and Austin Independent School District

Appeal from 353rd District Court of Travis County


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-06-002930, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING


OPINION BY JUSTICE PEMBERTON


We withdraw our opinion issued May 11, 2007, and substitute the following in its place. The Court has overruled Michels's motion for rehearing.

This appeal arises within a statutory scheme intended to ensure the best interests of children following their parents' divorce. It also implicates the principles underlying our adversarial system, which we trust to ensure justice and truth under our law through the refining of issues achieved when parties and their able advocates receive their "day in court" under fair procedures.


Ex-spouses Sheryl Michels and Clifford Zeifman, aided by their respective legal teams, are embroiled in a controversy concerning the best interests of their two children, A.A. and G.L. The background of this controversy is detailed in our opinions in prior proceedings that have arisen from it in recent months. (1) To summarize, Michels and Zeifman "have pursued extensive and acrimonious litigation over which [elementary] school A.A. should attend," (2) a conflict that evidently has spread to other issues involving both A.A. and a second child, G.L. (3) Informed by the harsh tenor of the litigation and legal expenses that, the record of these proceedings reveal, are spiraling into the hundreds of thousands of dollars, we have previously suggested that "the adversarial processes of our court system," at least when utilized in this manner, "may not be the best means" of either deciding which school A.A. should attend or of ensuring this young child's best interests. (4)

This latest appeal involves a contention by Zeifman that Michels and her lawyers sought to advance their interests by unethically circumventing the procedural protections that our adversarial justice system provides him. The conduct he alleges is indeed disturbing. In our August 4, 2006 opinion in Cause No. 03-05-00533-CV, we held that, on the record before us, the district court had abused its discretion in modifying the comprehensive terms of the parties' original agreed divorce decree to give Michels sole power to make educational decisions on behalf of A.A. See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.--Austin 2006, pet. denied); id. at 596 (Pemberton, J., concurring). During the period in which the district court's order was in effect, Michels had exercised her authority to withdraw A.A. from the Austin Independent School District's (AISD) Bryker Woods Elementary, the school in which the original agreed divorce decree had required the child to be enrolled, and enrolled her in St. Andrews. Zeifman, 212 S.W.3d at 586. After we had released our opinion but before mandate issued, Michels sued AISD seeking injunctive relief to prevent the district from permitting Zeifman to enroll A.A. at Bryker Woods or any other AISD school as the 2006 school year began. Michels alleged that permitting such enrollment would (1) violate Michels's exclusive parental rights (at least until the mandate in No. 05-533-CV issued) to make educational decisions on behalf of A.A. and (2) "actively assist[] . . . and aid[] and abet[] Clifford Zeifman in the violation of a valid court order," a December 17, 2004, standing order governing Travis County family law cases. (5)


While Michels's new lawsuit was directed at controlling Zeifman's actions--and despite the fact that he was A.A.'s father, joint-managing conservator, and her opposing party in ongoing litigation concerning A.A.'s education--Michels did not name Zeifman as a party. Zeifman represents that, even worse, Michels sought to avoid his notice or detection by deliberately filing her lawsuit on a day--Monday, August 14--on which "Sheryl and her attorneys were aware" from a vacation letter and prior correspondence "that Clifford's attorney was out of town attending the Advanced Family Law Course in San Antonio." (6)


At 2:48 p.m. on August 14, Michels obtained an ex parte temporary restraining order against AISD. On the following Friday, August 18, (7) Zeifman filed a petition in intervention, motion to dismiss, and motion for sanctions. Zeifman pleaded that he had a justiciable interest in Michels's new lawsuit as A.A.'s father and co-managing conservator, and as respondent and counter-petitioner in the ongoing litigation. Zeifman moved to dismiss Michels's suit as an improper attempt to circumvent the district court's jurisdiction over the divorce decree and this Court's jurisdiction over "the issue of [A.A.'s] education." Zeifman also urged that Michels's attempt to invoke the district court's jurisdiction was inconsistent with the position she had taken only a few months earlier in a second modification proceeding she had initiated under the divorce decree in 2005. Specifically, in response to a counter-petition from Zeifman to modify the educational-choice portions of the decree, Michels had filed a plea to the jurisdiction asserting that the district court lacked subject matter jurisdiction over the counter-petition while the appeal of the decree modifications in No. 05-533 was pending. The district court then "agree[d] that it has no jurisdiction to modify the order addressing the education of [A.A.] because of the current appeal of that matter" but overruled Michels's plea because it "retains jurisdiction with respect to all other aspects of the parent-child relationship as to both children under Chapters 155 and 156 of the Texas Family Code." (8)


Zeifman sought sanctions under rule 13 of the Texas Rules of Civil Procedure, chapters 9 and 10 of the civil practice and remedies code, and the district court's inherent power. He complained chiefly that Michels had filed a "frivolous and groundless" separate suit against AISD, rather than seeking relief in the divorce and custody case, to circumvent the jurisdiction of the district court and this Court, and in a manner deliberately calculated to avoid his knowledge or participation for a short, but critical, period of time. Zeifman argues that these tactics, coupled with subsequent events, reveal Michels's sole design to have been delay. He represents that he had been scheduled to have custody of A.A. during the week of August 14, that classes at Bryker Woods were to begin on August 15, and that custody was scheduled to return to Michels the following week. Thus, Zeifman maintains, Michels filed what proved to be a "one-week lawsuit" solely to prevent him from enrolling A.A. during his custody week and to "buy time" until custody returned to Michels the following week and she could enroll A.A. in St. Andrews.

A hearing on Zeifman's intervention, motion to dismiss, and motion for sanctions was set on the third business day thereafter, Wednesday, August 23. On Monday, August 21, Michels filed a rule 11 agreement with AISD, dated August 18, whereby the district agreed not to permit A.A. to be enrolled at or attend Bryker Woods "until such time as [AISD] is presented with a final, non-appealable order expressly authorizing such enrollment and attendance," in return for Michels's agreement to dismiss her pending suit. Michels filed a notice of non-suit on August 22 and, on the day of the hearing, filed a motion to strike Zeifman's intervention. After a hearing in which only argument was presented, the district court signed an "Order Confirming Nonsuit" and, by separate order, granted Michels's motion to strike intervention, dismissed as moot

Zeifman's motion to dismiss, and denied Zeifman's motion for sanctions.


Zeifman brings two issues, contending that the district court abused its discretion in striking his intervention and in denying his sanctions motion. We agree that the district court abused its discretion in striking Zeifman's intervention. Furthermore, because this ruling was undisputedly a predicate for the district court's ruling on Zeifman's sanctions motion, we remand Zeifman's sanctions motion for further proceedings.


As this Court has previously observed, the right of intervention is ultimately rooted in equity. Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.) ("The right of intervention is an equitable right. It does not depend upon a rule or statute for its existence."). This right is recognized in rule 60 of the Texas Rules of Civil Procedure, which provides that "[a]ny party may intervene by filing a pleading, subject to being stricken by the court for sufficient cause on the motion of any party." Tex. R. Civ. P. 60; see Highlands Ins. Co., 794 S.W.2d at 601-02.


Sufficient cause exists for striking an intervention when a would-be intervenor faced with a motion to strike cannot demonstrate a justiciable interest in the lawsuit. Mendez v. Brewer, 626 S.W.2d 498, 499-500 (Tex. 1982); see Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.--Fort Worth 2003, no pet.); McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no writ). This justiciable interest may be either legal or equitable in nature but must be present and not merely remote or contingent. Mendez, 626 S.W.2d at 499; McCord, 777 S.W.2d at 811-12 ("An intervenor must show some present legal or equitable interest in the subject matter which makes it proper for him to participate in the proceedings."). This interest is "analogous to that essential for a party to maintain or defend an action." McCord, 777 S.W.2d at 811-12 (citing 1 McDonald, Texas Civil Practice § 3.47 (1981 ed.)); see also Law Offices of Windle Turley, 109 S.W.3d at 70 ("A party has a justiciable interest in a lawsuit, and thus a right to intervene, when his interests will be affected by the litigation."). Whether an intervenor possesses a present justiciable interest is determined, in the first instance, by the facts alleged in the petition in intervention, which "also should be construed along with the allegations of fact set forth in the pleadings of the other parties." McCord, 777 S.W.2d at 812.


While the determination of whether a justiciable interest exists based on the pleadings would appear to present a pure question of law, cf. Texas Parks & Wildlife Dept. v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004), the ultimate determination of whether an intervention should be struck, even if a justiciable interest is shown, has long been held to be vested in the sound discretion of the trial court. Mendez, 626 S.W.2d at 499 ("It is settled law that a motion to strike an intervention is addressed to the sound discretion of the trial court."); Law Offices of Windle Turley, 109 S.W.3d at 70; McCord, 777 S.W.2d at 812. We accordingly review a trial court's decision on a motion to strike an intervention for abuse of discretion. See In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006) (citing Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990)). An abuse of discretion denotes "act[ing] without reference to guiding rules or principles; in other words . . . the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).


During oral argument, Michels conceded that Zeifman had shown a justiciable interest in her suit against AISD, at least at its inception. Zeifman's justiciable interest is obvious from the face of his petition, if not from Michels's own petition. Michels's suit sought to prevent Zeifman from enrolling A.A. in Bryker Woods or other AISD schools. Both Zeifman and Michels pleaded that Zeifman is A.A.'s father. Zeifman pleaded that he was joint managing conservator; Michels requested the district court to take judicial notice of the file in their divorce case, which demonstrated Zeifman's joint managing conservatorship. Both Zeifman and Michels recounted the history of their litigation concerning where A.A. should attend elementary school, including the opinion of this court reversing the district court's order granting Michels sole control over A.A.'s educational decisions. Michels further alleged that she and Zeifman had each filed additional motions to modify the divorce decree and were currently litigating these issues.
Even if Zeifman demonstrated a justiciable interest in her suit, Michels contends, he has not demonstrated that the district court abused its discretion in striking his intervention. She relies on the proposition that "[i]t is only an abuse of the trial court's discretion to strike a petition in intervention if the intervenor: (1) could have brought the same action, or any part of it, in its own name; (2) the intervention would not complicate the case by excessively multiplying the issues; and (3) the intervention is almost essential to effectively protect the intervenor's interest." Michels derives these principles from the Texas Supreme Court's decision in Guaranty Federal. See 793 S.W.2d at 657; see also Intermarque Auto Prod., Inc. v. Feldman, 21 S.W.3d 544, 549 (Tex. App.--Texarkana 2000, no pet.). Applying her characterization of the Guaranty Federal holding, Michels contends that "Zeifman could not have brought the same action against the Austin Independent School District that [she] filed," which she depicts as seeking to protect her personal rights as a parent to solely control A.A.'s educational decisions (which she could continue to enforce, in her view, until this Court's mandate issued in the previously pending litigation) and rights unique to her under the Travis County standing order. Michels adds that Zeifman's suit would have "complicated" her case by interjecting issues--specifically, a motion to dismiss and a motion for sanctions--that were not raised by the original parties. She further emphasizes that Zeifman did not make a record of the district court's proceedings, nor request findings of fact and conclusions of law, requiring us to assume that the district court found all factual issues in support of any legal ground that could have supported its order. See Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996); Land v. AT & S Transp., Inc., 947 S.W.2d 665, 668 (Tex. App.--Austin 1997, writ denied).


Michels misconstrues the Guaranty Federal holding in several ways. In that case, the Texas Supreme Court first held that a trial court abused its discretion in striking an intervention sua sponte, as rule 60 presumptively permitted an intervention unless a motion to strike was filed. 793 S.W.2d at 657 (citing Tex. R. Civ. P. 60). The supreme court went on to observe:


Furthermore, under Rule 60, a person or entity has the right to intervene if the intervenor could have brought the same action, or any part thereof, in his own name, or, if the action had been brought against him, he would be able to defeat recovery, or some part thereof. The interest asserted by the intervenor may be legal or equitable. Although the trial court has broad discretion in determining whether an intervention should be stricken, it is an abuse of discretion to strike a plea in intervention if (1) the intervenor meets the above test, (2) the intervention will not complicate the case by an excessive multiplication of the issues, and (3) the intervention is almost essential to effectively protect the intervenor's interest.
Id. (internal citations omitted). The supreme court held that these conditions were met in that case and that, accordingly, the district court had abused its discretion in striking the intervention. Id. at 757-58.


While Guaranty Federal does identify a set of equitable conditions under which the striking of an intervention would be an abuse of discretion, it does not, contrary to Michels's assertion, establish the "only" or exclusive circumstances in which that would be so. See In re Lumbermens Mutual, 184 S.W.3d at 722-29 (based on balancing of different equitable considerations, concluding that court of appeals had abused its discretion in barring intervention on appeal) (9); see also In re Estate of York, 951 S.W.2d 122, 126 (Tex. App.--Corpus Christi 1997, no pet.) ("[W]e question whether the general rule of Guaranty Federal, which allows some discretion to strike the intervention, even applies to a probate proceeding in which interested parties attempt to assert claims which will otherwise be adjudicated against them in their absence.").


Furthermore, Michels both misstates the first element of the Guaranty Federal framework and misapplies it. This element is not limited to whether the would-be intervenor "could have brought the same action, or any part of it, in its own name," as Michels states, but also is satisfied "if the action had been brought against him, he would be able to defeat recovery, or some part thereof." (10) Moreover, the first element of the Guaranty Federal framework is not as restrictive as Michels suggests:


The requirement [for intervention] has been stated, not exhaustively, to demand that "the intervenor's interest . . . be such, that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or if the action had first been brought against him, he would have been able to defeat a recovery, in part at least." The statement, a useful guide, does not reach all situations. It does not cover, for example, the case in which the intervenor-defendant could not have been sued directly, yet a judgment for plaintiff may lead to an action over against the intervenor or otherwise seriously prejudice the intervenor, and the intervenor's intervention is necessary to assure proper defense of the claim. Nor does it meet the situation in which the intervenor asserts a claim adverse to both parties, though in special circumstances such an intervention may be proper . . . .
1 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 5.80, at 967-68 (2d ed. 2004) (citations omitted) (emphasis added). Citing this commentary with approval, we held in McCord that while a child's grandparents in that case could not have initiated an original suit affecting the parent-child relationship, they did possess a justiciable interest in their grandchild's best interests that could support intervention in the divorce and custody suit initiated by the child's parents. McCord, 777 S.W.2d at 811-13; see also Jenkins v. Entergy Corp., 187 S.W.3d 785, 797 (Tex. App.--Corpus Christi 2006, pet. denied) ("Even where an intervenor has not or could not have been sued directly, if a judgment for the plaintiff may lead to an action against the intervenor or otherwise seriously prejudice the intervenor, the intervention is necessary to assure a proper defense against the claim.").

We conclude that even if Zeifman could not assert precisely the same claims or defenses as Michels and AISD, he possessed a justiciable interest in the suit, and was potentially prejudiced by it, in a manner that satisfies the equitable considerations underlying the first element of the Guaranty Federal analysis. We likewise reject Michels's contentions that Zeifman's intervention to protect his interests and join issue with Michels would "complicate" the litigation or "excessively multiply" the issues relative to the benefits his participation would yield. McCord, 777 S.W.2d at 812 (trial court had discretion to determine that grandparents' intervention "may enhance [its] ability to adjudicate what is in the best interest of the child."). (11) The district court would have abused its discretion in striking his intervention on these grounds.
Michels ultimately relies on the fact that she subsequently non-suited her claims against AISD, suggesting that this tactic extinguished any justiciable interest Zeifman might have possessed in the action at its inception, see Potash Corp. of Saskatchewan, Inc. v. Mancias, 942 S.W.2d 61, 63-65 (Tex. App.--Corpus Christi 1997, no writ), or otherwise divested him of his right to intervene. Michels overlooks the fact that Zeifman filed his intervention on August 18, while she did not file her non-suit until the following week. As of the time of Michels's non-suit, Zeifman, as we have determined, was a proper party. Michels's non-suit thus could not defeat or render moot his claims for sanctions and for attorney's fees under rule of civil procedure 13, and sections 9 and 10 of the civil practice and remedies code. Allstate Ins. Co. v. Hellman, 159 S.W.3d 640, 642-43 (Tex. 2005) (where merits of UDJA claim were rendered moot, claim for attorney's fees "'breathes life' into this appeal and prevents it from being moot.") (quoting Camerena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988)); Tri-M Erectors, Inc. v. Clearwater Constructors, Inc., 788 S.W.2d 906, 907-08 (Tex. App.--Austin 1990, writ denied); see Tex. R. Civ. P. 162 ("Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs pending at the time of dismissal . . . .").


For these reasons, we hold that the district court abused its discretion in striking Zeifman's intervention, accordingly sustain Zeifman's first issue, and reverse the district court's striking of the intervention. During oral argument, Michels conceded that the district court's order denying sanctions was necessarily predicated upon its order striking Zeifman's intervention. Thus, we also reverse the district court's order denying sanctions and remand for further proceedings.
Regarding sanctions, rule 13 of the Texas Rules of Civil Procedure allows a trial court to impose sanctions against an attorney, a represented party, or both, who file groundless pleadings brought in bad faith or brought for the purpose of harassment. Tex. R. Civ. P. 13.


Additionally, chapter 10 of the Civil Practices and Remedies Code allows a trial court to impose sanctions against a person, party, or both for advancing frivolous pleadings or motions. Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001(1), .004(a) (West 2002). In light of our observation that Michels's conduct as alleged by Zeifman "is indeed disturbing," the district court on remand should carefully consider the facts known by Michels at the time she filed suit against AISD when determining whether sanctions are appropriate. See Law Offices of Windle Turley, P.C. v. French, 164 S.W.3d 487, 490-94 (Tex. App.--Dallas 2005, no pet.) (upholding sanctions order where law firm filed suit against former clients for improper purpose); Martin v. Zieba, No. 03-03-00584-CV, 2004 Tex. App. LEXIS 3742, at *9-*13 (Tex. App.--Austin 2004, no pet.) (mem. op.) (upholding sanctions order where husband filed pleadings in child custody case for improper purpose); see also Low v. Henry, 50 Tex. Sup. J. 606, 2007 Tex. LEXIS 320, *6-*17 (Tex. Apr. 20, 2007). (12)
__________________________________________

Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Reversed and Remanded on Motion for Rehearing
Filed: June 20, 2007

1. See Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.--Austin 2006, pet. denied); see also In re Zeifman, No. 03-06-00601-CV, slip op. at 1-2 (Tex. App.--Austin Nov. 22, 2006) (orig. proceeding) (mem. op.); In re Zeifman, No. 03-07-00075-CV, slip op. at 1 (Tex. App.--Austin Mar. 16, 2007, orig. proceeding) (mem. op.). We have taken judicial notice of our files from these prior related proceedings.
2. In re Zeifman, No. 03-06-00601-CV, slip op. at 2.
3. In re Zeifman, No. 03-07-00075-CV, slip op. at 1.
4. In re Zeifman, No. 03-06-601-CV, slip op. at 2. We also observed that "A.A.'s parents--not the courts or other third parties--are in the best position, perhaps with the assistance of a competent mediator, to make that determination in A.A.'s best interests, thereby avoiding extensive and acrimonious litigation that could adversely impact A.A., their other child, each other, and possibly others."
5. This standing order, applicable to "every divorce suit and every suit affecting the parent-child relationship filed in Travis County" after January 1, 2005, prohibits parties, "while the lawsuit is pending before the court," from actions including "[d]isrupting or withdrawing the children from the school or day-care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court." See Travis Co. Standing Order Regarding Children, Property and Conduct of the Parties (Travis Co. Dist. Clerk's File No. 121,012 (Local Rules and Orders)) (effective Jan. 1, 2005). Although the parties' 1997 divorce decree predated the standing order, Michels alleged that Zeifman had made himself subject to the order by filing a cross-petition in a second modification proceeding she had initiated in 2005 concerning G.L.
6. The publicly available State Bar of Texas publications from this course state that it was held between August 14-17, 2006.
7. This date corresponds to the day after the 2006 State Bar Advanced Family Law Course was scheduled to end.
8. Order on Plea to the Jurisdiction of Sheryl Diane Michels, May 24, 2006. On appeal, Zeifman points out that Michels subsequently made similar arguments in the district court, after she filed a petition for review of this Court's judgment in the supreme court, in resisting his efforts to enforce his rights under the original divorce decree.
9. Lumbermens Mutual involved the appellate intervention of an insurer after its insured, for whom it had paid the appeal bond, abandoned potentially dispositive issues impacting claims within the scope of coverage. See In re Lumbermens Mutual,184 S.W.3d 718, 720-21 (Tex. 2006). The supreme court determined that the insurer had invoked "the equitable doctrine" of virtual representation, and then considered "other factors [that] may weigh against allowing intervention after final judgment has been rendered, including the length of time the insurer had known of its interest in the case before attempting to intervene, the extent of prejudice the existing parties may suffer from the would-be intervenor's delay, the extent of prejudice to the would-be intervenor if intervention is denied, and the existence of unusual circumstances militating for or against a determination that the application is timely." Id. at 726. The supreme court held that the court of appeals abused its discretion in refusing to allow the intervention. Id. at 729.
10. We thus reject Michels's contention that "[a] proper intervention requires that the intervenor be seeking some sort of affirmative relief from the court."
11. We find it interesting that Michels would decry Zeifman's intervention as "complicating" their litigation by "multiplication" of issues where she has done precisely that by foregoing the parties' ongoing proceedings under the divorce decree and filing a related but separate lawsuit (leading to a separate appeal), ensnaring a third party in her domestic dispute, yet oddly not naming Zeifman as a party in that separate proceeding--who, she acknowledged at oral argument, clearly had a justiciable interest. If intervention is ultimately an equitable concept, Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.), Michels arguably would be estopped from arguing that Zeifman's intervention would have complicated or excessively multiplied the issues in litigation.
12. We note that Zeifman did not obtain a reporter's record below, nor requests findings of fact and conclusions of law. As Michels observes, such devices enable an appellate court to review a trial court's rulings to award (or not award) sanctions.