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https://www.courtlistener.com/api/rest/v3/opinions/4142562/

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Honorable B. L. Atldaron, pa$o #8 Board of Dlroatorr, the (lorernl~bow. Wenoe it 10 ow opinion that the bond6 of Oulf lktu Sup9ly Dklet atay be sold either by a(lvertl8lngor ulthout aarutiring 14~: blda so long a8 the bo8t terma and beet priae therefor 18 obtdned. I FIRST ASSISTANT ATTORNEY GENERAL Olamnee t. Orour A88iiat8nt Qz;o-8

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4143432/

OFFICE OF THE AlTORNEY GENERAL OF M(A8 AU8TlN . .  . . . . . i  \ APPROVXDDEC 11, 1940 si

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126816/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1720 UNITED STATES ex rel. LYNN E. SZYMONIAK, Plaintiff − Appellant, and STATES OF CALIFORNIA, DELAWARE, FLORIDA, HAWAII, ILLINOIS, INDIANA, MASSACHUSETTS, MINNESOTA, MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NEW YORK, NORTH CAROLINA, OKLAHOMA, RHODE ISLAND, VIRGINIA, DISTRICT OF COLUMBIA, AND THE CITIES OF CHICAGO AND NEW YORK, ex rel. LYNN E. SZYMONIAK, Plaintiffs, v. AMERICAN HOME MORTGAGE SERVICING, INC; SAXON MORTGAGE SERVICES INC.; LENDER PROCESSING SERVICES INC; DOCX LLC; BANK OF NEW YORK MELLON CORPORATION; DEUTSCHE BANK NATIONAL TRUST COMPANY; DEUTSCHE BANK TRUST COMPANY AMERICAS; HSBC USA NATIONAL ASSOCIATION, Defendants – Appellees, and CITIMORTGAGE INC, f/k/a Citi Residential Lending Inc., f/k/a AMC Mortgage Services Inc.; WELLS FARGO HOME MORTGAGE, d/b/a America's Servicing Company; BANK OF AMERICA CORPORATION, as successor in interest to Lasalle Bank; CITIBANK NATIONAL ASSOCIATION.; JP MORGAN CHASE BANK NATIONAL ASSOCIATION; US BANK NATIONAL ASSOCIATION; WELLS FARGO BANK NATIONAL ASSOCIATION, Defendants, v. ROGERS TOWNSEND & THOMAS, PC, Party−in−Interest. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Senior District Judge. (0:10−cv−01465−JFA) Argued: December 9, 2016 Decided: February 16, 2017 Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Christopher P. Kenney, RICHARD A. HARPOOTLIAN, P.A., Columbia, South Carolina, for Appellant. Mary Gail Gearns, MORGAN, LEWIS & BOCKIUS LLP, New York, New York; Michael B. Kimberly, MAYER BROWN LLP, Washington, D.C.; Barbara Van Gelder, DICKSTEIN SHAPIRO LLP, Washington, D.C., for Appellees. ON BRIEF: Richard A. Harpootlian, RICHARD A. HARPOOTLIAN, P.A., Columbia, South Carolina, for Appellant. Christopher Jackson Allen, COZEN O’CONNOR, Washington, D.C., Fred O. Goldberg, BERGER SINGERMAN LLP, Miami, Florida, for Appellees Lender Processing Services, Inc. and DocX, LLC; Alice W. Parham Casey, WYCHE, P.A., Columbia, South Carolina, for Appellee Bank of New York Mellon Corporation; Michael S. Kraut, MORGAN, LEWIS & BOCKIUS LLP, New York, New York, for Appellees Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas; Gerard E. Wimberly, Jr., Gabriel Alan Crowson, New Orleans, Louisiana, Juston Michael O’Brien, MCGLINCHEY STAFFORD, PLLC, Baton Rouge, Louisiana, Melissa J. Copeland, SCHMIDT & COPELAND, LLC, Columbia, South Carolina, for Appellee American Home Mortgage Servicing, Inc.; B. Rush Smith III, Carmen Harper Thomas, NELSON MULLINS RILEY & SCARBOROUGH LLP, Columbia, South Carolina, Michael O. Ware, MAYER 2 BROWN LLP, New York, New York, for Appellee HSBC Bank, USA, National Association. Unpublished opinions are not binding precedent in this circuit. 3 PER CURIAM: Lynn Szymoniak appeals the district court’s dismissal of her qui tam action seeking to recover damages and penalties from banks, mortgage-backed securities trustees, and servicers under the False Claims Act, 31 U.S.C. § 3729 et seq. Because the district court correctly found that Szymoniak failed to allege any false claims submitted by the Defendants or facts sufficient to create a reasonable inference that false claims necessarily were submitted, we affirm. I. A. The False Claims Act (“FCA”) makes liable to the United States “any person who . . . knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to the government. 31 U.S.C. § 3729(a). Private persons may act as relators and bring a civil action for “a violation of section 3729 for the person and for the United States Government.” Id. § 3730(b). Because claims under the Act sound in fraud, plaintiffs must satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451, 455–56 (4th Cir. 2013). Rule 9(b) requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” 4 We have interpreted this rule, as applied to FCA claims, to require relators to allege that defendants either caused specific false claims to be submitted or committed actions that “necessarily . . . led to the submission of false claims.” Nathan, 707 F.3d at 457 (internal punctuation omitted). B. Lynn Szymoniak is a lawyer who, in 2008, defaulted on her payments on a mortgage loan for her home in Florida. While challenging the foreclosure of her home, Szymoniak claims that she discovered that several trustees and servicers of mortgage- backed-securities trusts—pooled mortgages which can be sold as investments—forged or lied about mortgage assignment documents and therefore lacked legal ownership over the mortgages they claimed to own. In June 2010, Szymoniak filed suit in the U.S. District Court for the District of South Carolina as a relator under the False Claims Act. The complaint was filed under seal to allow the United States sixty days to intervene. Over the course of three years, the United States requested and obtained eight deadline extensions. After the United States informed the court that it did not intend to intervene, Szymoniak’s complaint was unsealed. In her third amended complaint, filed February 3, 2014, Szymoniak named fifteen Defendants: American Home Mortgage Servicing, Inc.; Saxon Mortgage Services, Inc.; Lender Processing Services, Inc.; DocX, LLC; CitiMortgage, Inc.; Wells Fargo Home Mortgage doing business as America’s Servicing Company; Bank of America Corporation; The Bank of New York Mellon Corporation; CitiBank, N.A.; Deutsche Bank National Trust Company; Deutsche Bank Trust Company Americas; 5 HSBC USA, N.A.; J.P. Morgan Chase Bank, N.A.; U.S. Bank, N.A.; and Wells Fargo Bank, N.A. (collectively, “Defendants”). Szymoniak alleged that the Defendants defrauded the United States by: 1) charging the government, as an investor in mortgage-backed-securities trusts containing fraudulent assignments, for trustee and custodial services; 2) selling to the government securities in mortgage-backed-securities trusts whose values were impaired due to missing or forged assignments; 3) using false assignments to apply for payments from the Department of Housing and Urban Development under the Federal Housing Administration’s mortgage insurance program; and 4) charging the government for the filing of falsified documents when foreclosing on federally insured mortgages. Because Szymoniak based her complaint in part upon public disclosures and lacked independent knowledge of Defendants’ actions prior to March 23, 2010, the district court dismissed allegations related to false claims submitted before that date. Szymoniak later sought and received voluntary dismissal of her first and second claims against all Defendants. She also dismissed from the suit all but the following nine parties: American Home Mortgage Servicing, Inc.; Saxon Mortgage Services, Inc.; Lender Processing Services, Inc.; DocX, LLC; The Bank of New York Mellon Corporation; Deutsche Bank National Trust Company; Deutsche Bank Trust Company Americas; HSBC USA, N.A.; and U.S Bank, N.A. (collectively, “remaining Defendants”). The remaining Defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Citing Nathan, the district court considered 6 whether Szymoniak alleged the submission of specific false claims or facts creating a reasonable inference that false claims necessarily were submitted. Drawing all inferences in favor of Szymoniak, the district court found that, while her complaint “allege[d] an elaborate scheme,” it did “not provide facts to show that this scheme actually resulted in the submission of specific false claims,” and neither did the allegations create “a reasonable inference that false claims necessarily were submitted.” J.A. 710–11. The district court granted in full all remaining Defendants’ motions to dismiss except U.S. Bank’s motion, which was granted in part and denied in part because Szymoniak provided facts alleging that U.S. Bank charged the Department of Housing and Urban Development for the costs of filing fraudulent documents. After Szymoniak and U.S. Bank settled, the district court dismissed U.S. Bank as a party. Szymoniak appeals the district court’s dismissal of the other remaining Defendants. II. We review de novo the district court’s order of dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Nathan, 707 F.3d at 455 (citing Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999)). Szymoniak claims that the district court applied the wrong standard—that the court, rather than allowing her to allege a scheme necessarily resulting in the submission of false claims, misread Nathan to require her to identify individual false claims. The correct standard from Nathan, Szymoniak argues, requires relators to identify no more than the “who, what, where, when, and how of a fraud.” Appellant’s Br. at 26. 7 Szymoniak further contends that her allegation of an “elaborate scheme to create fraudulent foreclosure documents” meets this standard. Id. at 27–28 (internal quotation marks omitted). She also argues that, in the alternative, if Nathan did require the identification of specific false claims, “that decision should be reconsidered and overruled.” Id. at 34. III. Having thoroughly reviewed the record and considered the parties’ briefs and arguments, we conclude that it is Szymoniak, not the district court, who misreads Nathan. The district court’s thorough order properly applied Nathan’s rule requiring an FCA relator to identify specific false claims or allege a scheme that necessarily resulted in the submission of false claims. We decline Szymoniak’s invitation to revisit Nathan. World Fuel Servs. Trading v. Hebei Prince Shipping Co., 783 F.3d 507, 523–24 (4th Cir. 2015) (quoting Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n.2 (4th Cir. 2002)) (“[A] panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior panel of this court. Only the Supreme Court or this court sitting en banc can do that.”). Accordingly, we affirm on the reasoning of the district court. AFFIRMED 8

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126819/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1405 NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff/Counter Defendant – Appellee, v. B. DIANE TAMARIZ-WALLACE, Defendant/Counter Claimant – Appellant, and DIANE TAMARIZ & ASSOCIATES, P.A.; MORAN INSURANCE SERVICES, INC.; GEORGE T. MORAN, INC.; C. DAVID WALLACE, Defendants, and NATIONWIDE BANK; CORRIGAN INSURANCE, INC.; WILLIAM P. CORRIGAN, JR.; C.W. HAYES, III; CHARLENE E. HARDEE; SAMUEL BRADSHAW, IV; JOHN PAUL PURSSORD, Counter Defendants. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:09-cv-00667-JFM) Submitted: January 27, 2017 Decided: February 16, 2017 Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Matthew S. Grimsley, CARYN GROEDEL & ASSOCIATES CO., LPA, Cleveland, Ohio; John Singleton, SINGLETON LAW GROUP, PA, Lutherville, Maryland, for Appellant. Quintin F. Lindsmith, James P. Schuck, BRICKER & ECKLER, LLP, Columbus, Ohio; Patricia McHugh Lambert, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: B. Diane Tamariz-Wallace appeals from the district court’s order denying her motion to reopen the lawsuit between her and Nationwide Mutual Insurance Co., which was administratively closed after Tamariz-Wallace filed her petition for relief in bankruptcy. We have reviewed the parties’ briefs and the record on appeal and find no reversible error. Accordingly, we affirm the district court’s order. See Providence Hall Assoc. Ltd. P’ship v. Wells Fargo Bank, N.A., 816 F.3d 273 (4th Cir. 2016). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126844/

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 16 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOHN DEL GALLEGO, No. 15-15294 Plaintiff-Appellant, D.C. No. 3:13-cv-04518-VC v. MEMORANDUM* WELLS FARGO & COMPANY LONG TERM DISABILITY PLAN; METROPOLITAN LIFE INSURANCE COMPANY, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Vince G. Chhabria, District Judge, Presiding Submitted February 14, 2017** San Francisco, California Before: SILER,*** TASHIMA, and HURWITZ, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. In this ERISA action, John Del Gallego alleges that the Wells Fargo & Company Long Term Disability Plan (the “Plan”) and the Plan insurer, Metropolitan Life Insurance Company (“MetLife”), improperly offset Del Gallego’s permanent partial disability workers’ compensation (“PPD”) benefits against his Plan long-term disability benefits. The district court granted summary judgment to the Plan and MetLife. We affirm. 1. The Plan, which incorporates a group Certificate of Insurance issued by MetLife, provides that long-term disability benefits are “reduced by Other Income Benefits.” The Plan definition of “Other Income Benefits” includes “Workers’ Compensation or a Similar Law,” and states that “[p]eriodic benefits and substitutes and exchanges for periodic benefits will be counted.” 2. Courts interpret ERISA policy terms in the “ordinary and popular sense as would a person of average intelligence and experience.” Babikian v. Paul Revere Life Ins. Co., 63 F.3d 837, 840 (9th Cir. 1995) (quoting Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir. 1990)). The plain language of the Plan provides that a covered employee’s long-term disability benefits will be reduced by periodic workers’ compensation benefits received by the employee, and the district court therefore did not err in interpreting the Plan. 3. Del Gallego argues that “other income benefits” are only those paid to compensate for lost wages, and therefore include only temporary disability 2 payments. But, the case upon which Del Gallego relies, Russell v. Bankers Life Co., 120 Cal. Rptr. 627 (Ct. App. 1975), involved an insurance contract defining “income from other sources” as “any payment . . . under a Workmen’s Compensation Act . . . providing benefits for loss of time from employment.” Id. at 629-630, 633-34. Because the Plan does not limit “Other Income Benefits” to those providing benefits for loss of time from employment, Russell is inapposite. 4. Del Gallego argues that because the Plan requires proof of “the amount attributable to lost income” when an employee receives “Other Income Benefits in a lump sum instead of in monthly payments,” reductions must be limited to the portion of the lump sum payment attributable to lost income. But, the provision he cites only applies to lump sum payments, not to periodic benefits, and the Plan did not set off the lump sum workers’ compensation settlement that Del Gallego received against his Plan benefits. 5. Del Gallego also argues that the phrase “workers’ compensation” is ambiguous because a reasonable person would not anticipate that payments “intended to provide for the future of the injured worker” would be offset from disability insurance benefits. But, the language of the Plan unambiguously covers all workers’ compensation benefits. See Ott v. Workers’ Comp. Appeals Bd., 173 Cal. Rptr. 648, 650-51 (Ct. App. 1981) (finding no ambiguity when Plan stated “payments required by Workmen’s Compensation Laws” offset Plan benefits); see 3 also Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404, 411-12 (9th Cir. 1995) (rejecting application of reasonable expectations doctrine when insurance policy was “unambiguous and conspicuous”). 6. Del Gallego argues that, even if his weekly PPD benefits were for loss of future earning capacity, these payments are not “income.” This argument is at odds with precedent, see Jones & Laughlin Steel Corp v. Pfeifer, 462 U.S. 523, 533 (1983) (describing impaired earning capacity as “diminution in…stream of income”), and the Plan language, which defines workers’ compensation benefits as “Other Income.” 7. Del Gallego argues that the term “periodic benefits” is facially ambiguous. To the contrary, a “person of average intelligence and experience,” Babikian, 63 F.3d at 840 (quoting Evans, 916 F.2d at 1441), would understand “periodic benefits” to include benefits paid in weekly increments. See Periodic, MERRIAM- WEBSTER.COM (defining “periodic” as “occurring or recurring at regular intervals”). And, because the Plan has specific language separately exempting lump sum payments from the setoff, it is not possible to interpret “periodic payments” as including a lump sum payment. AFFIRMED. 4

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/7295068/

Petition for certification denied.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/4142588/

, .L .OFFICE OF~THE ATTORNEYGENERAL OF- AUSTIN 4-C.&URN -- .-. Honorah a. Ii.Wrl@i, Superixite~t, Pexlr Pehool for the ZJeaf Alwin, Te?.aai. mar m I,vright8 -: ote Item g44as wkfi'oool echool, with &t13, aad fbel for a. o5gfwed your quotation*em t&e Ben- it to be e orQ$na1 J%ill,and fY.nl¶ St is true, as you state, the appropr%rtbm own- tens, hmadiately folloriq$ the heading of items BaWr%est the PollorLnp;$~(M.z18mantho U%leeS OthWIda~ not&),* stem 24, the 01iea6 to rhicb you iaqtdrer~elrgreso- ly states, horemr, l~Ltm&psl, vocational aabeol, dth imwe, llonorab1e3. R. rrlght - pqe 3 water, lights, am% fuel for ia months ll500.00.'The clear Import of thir language 1s that the twelve months pertains not only to erl.ar7,but liketiee to house, rater, lights, an&fuel+ There is nothlng in the lan- guage from vhioh it could be,lnferred,rmoh lees m&xi, that there was to be any dietinctiondth respeot to the period fbr which the different sub-items should be paldorf'urirL&ed. In other,rord.s, this-ela nothing to indloate a legielrtireintentlen that the salaq sheuld be Pox-nine months, and the heuos, water, ligbte, a?&I fuel should be fUrnished the yrine$palfor twelve mon@m. Qur inter Mation crmtports with the leg&ala.- tire intention, a8 lL oated fn Item 33. That item $84 ~Blnolpalof aoaderdo sahool, lOamMU, d.th himme, water, IAgbt~, W heel for Jg wnths 1990.00~' !mls, it is e1ear4 noted that tne smly.,is for ten tenths, whereas, the other item am ?er twt$lve manam. Pwdtheee oon&lerations, It iollovs ymtF quew tlon should b@ aumworeilIn the alqatlre. 0 ivPR5VE5 OPINION COMMrrrcc SY&$

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142574/

Honorable Claude A, Williams Chairman and Executive Director Texas Unemployment Compensation Commission Brown Bldg. Austin, Texas Dear Sir: Opinion No. o-3781 Re: Application of Article 5221b, Section 17 (f) (4), V.A.C.S., to certain re- lated fact situations. Our answer to your questions, subsequently stated in this opinion, has been delayed by the appeals In the ap- pellate courts of this State on fact situations involving the above enumerated statute, You have asked that we assume in the fact situations inquired about that there were sufficient persons in emplog- ment in the required days and weeks to constitute coverage under the Unemployment;Compensation ACt provided Section 17 (f) (4) of the Unemployment Compensation Statute is applicable. We are also to assume that, unless specifically stated 20 the contrary, in each partnership all partners are active in the management and that no control or management of the partnership has been delegated to one of the partners. You have first inquired if Section 17 (f) (4) of Article 5221b, Vernon's Annotated Civil Statutes, renders each employing unit liable as an employer under the following facts: "A owns and operates and individual business. A with B operates a partnership. A's investment in the partnership amounts to 60% of the assets thereof, B's to 40$." The Texas Unemplo ent Compensation Act defines "employer" in Section 17 (f$ (4) as follows: "(4) Any employing unit which together with one or more other employing units, is owned or con- tro:Lled(by legally enforceable means or otherwise) Han, Claude A. Williams, page 2 O-3781 directly or indirectly by the same interest, or which owns or controls one or more other employing units (by legally enforceable means or otherwise), and which, if treated as a single unit with such other employing unit, would be an employer under paragraph (1) of this subsection;" We are requested to advise you whether under the fact situation stated above the individual business of A and the partnership business of A and B is owned or controlled (by legally enforceable means or otherwise) directly or in- directly by the same interest. In our opinion No, O-1724, issued January 4, 1940, we held that an individual owning six-sevenths of the assets of a partnership and active in the management of the part- nership and the same individual operating his own business owned and controlled both imploying units within the meaning of Section 17 (f) (4) of our Unemployment Act. This opinion WEiS released prior to the release of the opinion in the case of Texas Unemployment Commission vs. Bass, 151 S. W. (2d) 567. In our present situation, it is confessed that A owns and controls his individual business. With respect to the partnership business of A and B it is generally held that each partner, in the absence of an agreement to the contrary, has an equal right to control and manage the business. 49 COP. Jur., Set, 295" It is likewise true that it is generally held that partnerships are legally under the control of a majo,rit,y of tha partners. Texas Unemployment Compensation Commissi:onvs. Bass, 151 S. W0 (2d) 567. There is no majority of partners as between two members of a partnership; it, therefore, appears to us that the ownership and control of the partnership in this fact situation is in both A and B. It is true that A may dissolve the partnership by withdrawing from it and in that sense he controls the partnership, but B, the investor of 40% In the business, may likewise dis- solve the partnership business. In the case of Texas Unemployment Compensation Com- mission vs. Bass, supra, the cour,theld that the three com- mon partners in the three partnerships were not owned by the same interests because there was an additional partner in two of the ,threepartnerships. That decision indicates to us that the court does not believe that this statute means that it is s.lfficientif the same interests own a majority of the stock 0.rof the assets of a partnership. Therefore, we do not belleve that A, who has his individual business and who owns 60$ of the assets of the partnership, owns both of the employing units within the provision of the Act under con- Hon. Claude A. Williams, page 3 o-3781 struction. The power of each partner to trade and to incur liability on behalf of the partnership is unquestioned; aside from this power, A has no more authority In the part- nership business than does B. It is a business that may be controlled equally by either partner. Further, the court stated in the oplnion 1n the Bass case that the control intended by the statute is that control which is enforceable. As in the Bass case, the only control that i.senforceable is that which the partners have agreed to. In this instance, there is an equal power of control in A and B. We are of the opinion that Section 17 (f) (4) may not be applied to render liable for unemployment taxes the employing units owned by A and the partnership of A and B. The construction rsfthe statute given by the Supreme Court of Texas in the Bass case does not permit us to indulge in a broad interpretation of this provision of the statute. Your question No. 2 asked if there Is liability upon both employing units for unemployment taxes if, "A and B are equal partners in a grocery businessA A and B are lIkewise equal partners in a drug business. The statute specifies only ownership and control. There are two owners and partners, the same persons, In each of the t;wobusinesses under consideration. There are only the two owners in each busfness; therefore, we believe that the two businesses are owned and controlled by the same in- terest. The question has been raised as to the meaning of "interest,' whether it is to be construed as singular or plural. Our answer to that question is found in Article 10, paragraph 4 of Vernon's Annotated Civil Statutes, upon the Construction of Laws; it is: "The singular and plural numbers shall ea:h include the other, unless otherwise expressly provided. This forecloses any doubt that the use of the term "interest" may also include 'interests." The next question arising under this fact situation would arise by reason of the difference in the types Of busi- nesses operated, there being a drug business and a grocery business. . - - - Hon, Claude A. Williams, page 4 o-3781 One of the earliest decisions on this question was by the Supreme Court of North Carolina in the case of Unemployment Compensation Commission vs. City Ice & Coal Company, 3 S-E, (2d) 290, in which there were three cor- porations involved, two of them being in the ice and coal business and the third one in the dairy business, The court there held that the three businesses should be considered as one unit under a statute similar to Article 5221b, Sec- tion 17 (f)(4), Vernon's Annotated Civil Statutes. More recently, the Court of Civil Appeals at Beaumont;,Texas, affirmed the judgment of the trial court in the case of Washington Oil Corporation vs. The State of Texas, not yet reported, in a fact situation involving several corporations engaged in different types of the Oil business:. The Supreme Court refused writ of error in this case. The Mississippi Supreme Court in Avent et al vs. Mississi.ppiSupreme Court,,decided November 24th, not yet repor,ted,held that a drug store and a dairy were controlled by the same interest and applied a similar statute. The courts make no distinction in the application of this pro- vision of the statute because the types of businesses in- volved are different. In our opinion the facts related in your situation No. 2 are within the inclusion of Section 17 (f)(4) and the two partnerships may be treated as a single unit. Your third question recites that: "A, B and C are equal partners in a business. A, B and D are equal partners in an ano,therbusiness.' You have asked that we assume that control of each partnership is in all of ,thepartners and that there has been no delegation of control to any one of the partners. Under the holding of the Supreme Court in the Unemployment Compen- sation Commission vs. Bass, supra, the two partnerships are not owned by the same interests. Further, the fact situation present here and that in the Bass case are similar except that in the Bass case there were three partnerships. As said by Judge Critz in the Bass case: "As a general rule partnerships are legally under the control of the majority of the partners, but as be- tween themselves, the members of a partnership may vest the sole control in one of the partners to the exCbX3iOn of all others. Thompson v. Schmitt, 115 Tex, 53; 274 S. W, 554; Oil Lease & Royalty Syndicate vs. Beeler, 217 s, w. 1054," ._ . - Hon. Claude A. Williams, page 5 o-3781 There has been no delegation of partnership control, but on the contrary the facts are that A, B and C control partnership No. 1 and A, B and D control the other partnership. Applying the previously stated rule of law that ordinarily control of the partnership is in the majority of the partners, A and B are active and equally in control and compose the majority in the partnership No. 1 and they are siml.larlyactive and equal in the control and management of partnership No. 2. Therefore, we are of the opinion that the two partnershi s are controlled by the same interest and that Section 17 (ff (4), supra, is applicable to this fact situation rendering both units "employers" under the Act. Your fourth fact situation is: "H and W are husband and wife. g manages a business which is community property. W manages a business which is her separate property. The receipts of W's business go into a bank account maintained in the business name, separate and a- part from H's bank account, into which the receipts of the community business go. H does not in any manner interfere with or attempt to manage W's business, although he has made no gift of the profits of W's business to her as they accrue." H, the husband, manages the business which is the community property of H and W and under Article 4619, Vernon's Annotated Civil Statutes, the control of this communItg pro- perty is in the husband. We must now determine whether H owns or controls the business operated by W. You have recited that the receipts from W’s business go into a bank account maintained in the business name sepa- rate and apart from H's bank account. Article 4622, Vernon's Annotated Civil Statutes, provides that the funds on deposit in a bank whether in the name of the husband or wife shall be presumed to be the separate property of the party in whose name thieystand, regardless of who made the deposit. 23 Tax. JUr., Section 72, page 96, states that the enactment of this statute is not for the purpose of controlling the status Of the property, but is merely a rule of evidence designed primari~lyfor the protection of the bank in paying out such monies. The presumption that property is that of the spouse in whose name the deposit is carried may be rebutted. 'Tech- nically, a married woman may be a merchant or trader at will,,, so far iasthe immediate transaction of business is concerned. 23 Tex. Jur. p* 304. However, the profits of the business engaged in by W, in our opinion, are community profits and property. See Speer's Law of Marital Rights in Texas,"p. 367. Won. Claude A. Williams, page 6 Q-3781 Article 4714 of Vernon's Civil Statutes gives the wife the authority to control her separate property, and in this instance the business that she is operating. In gen- eral, profits, whether by way of interest, dividends or re- venues do not belong to the separate estate of the husband or wife. 23 Tex. JuP., Section 60, page 85= The earnings of the business operated by W being community property, it will be necessary for you to determine whether these profits go back into the business operated by W. If the profits go back into the business and are commingled, the separate estate loses its identity and assumes the character of com- munity property. W must be able to identify the separate estate in order to sustain a claim of the property being her separate estate. We do not have all of these facts, but if the profits, representing community funds, have gone back into the business, the business changes its character and be- comes community business, and under the statute is legally under the control of H, the husband, even though it is operated by the wife. The decisions of our a pellate courts reflect that the application of Section 17 (fP (4) depends upon the facts. If, in fact, the business is run solely and exclusively by W, without consultation or advice from H, there is no actual control of that business by H. There is, however, the legal conception that hus- band and wife are one person and the husband is in control of the community property. In our opinion, you will have to obtain all the a- vailable facts before determining if this is a situation covered by Section 17 (f) (4). You must bear in mind the requirement of actual control; if there are any facts re- flecting such control by H, we believe that the two units may be considered as one employing unit. If you should decide that H is controlling the bus- iness of W, we believe that you would also have the burden of proving the community profits were commingled with the separate estate. Han, Claude A, Williams, page 7 o-3781 Yours very truly ATTORNEY GENERAL OF TEXAS By s/Morris Hodges Morris Hodges Assistant MH:N:wc APPROVED FEB 27, 1942 s/Grover Sellers FIRST ASSISTANT ATTORNE'YGENERAL Approved Opinion Committee By s/BWJ3Chairman

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126684/

Supreme Court of Florida ____________ No. SC16-381 ____________ GAINESVILLE WOMAN CARE, LLC, et al., Petitioners, vs. STATE OF FLORIDA, et al., Respondents. [February 16, 2017] PARIENTE, J. The issue in this case is whether the trial court properly applied strict scrutiny when reviewing the Mandatory Delay Law, which imposes an additional twenty-four hour waiting period on women seeking to terminate their pregnancies. See ch. 2015-118 § 1, Laws of Fla. (codified at § 390.0111(3), Fla. Stat. (2015)) (“Mandatory Delay Law”). The Mandatory Delay Law implicates the Florida Constitution’s express right of privacy. In Florida, any law that implicates the fundamental right of privacy, regardless of the activity, is subject to strict scrutiny and, therefore, presumptively unconstitutional. Accordingly, we hold that the trial court correctly applied strict scrutiny in reviewing the Mandatory Delay Law’s constitutionality. We conclude that the First District Court of Appeal misapplied and misconstrued our precedent by placing the initial evidentiary burden on Petitioners to prove a “significant restriction” on Florida’s constitutional right of privacy before subjecting the Mandatory Delay Law to strict scrutiny. State v. Gainesville Woman Care, LLC, 187 So. 3d 279, 282 (Fla. 1st DCA 2016).1 Put simply, there is no additional evidentiary burden on challengers to establish by sufficient, factually supported findings showing a law imposes a “significant restriction” on the right of privacy before a law that implicates the right of privacy is subjected to strict scrutiny. Florida’s constitutional right of privacy contained in article I, section 23, establishes the right of every person to “be let alone and free from governmental 1. We have jurisdiction based on the First District Court of Appeal’s misapplication of our precedent in North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003), and In re T.W., 551 So. 2d 1186 (Fla. 1989), regarding strict scrutiny review of statutes that infringe on the right of privacy. Art. V, § 3(b)(3), Fla. Const.; see also Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1254 (Fla. 2006) (identifying misapplication of precedent as one means of supplying conflict jurisdiction); Aguilera v. Inservices., Inc., 905 So. 2d 84, 86 (Fla. 2005) (same); Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002) (same); Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1272 (Fla. 2000) (same); State v. Stacey, 482 So. 2d 1350, 1350 (Fla. 1985) (same); Arab Termite & Pest Control of Fla., Inc. v. Jenkins, 409 So. 2d 1039, 1040 (Fla. 1982) (same). -2- intrusion into [one’s] private life.” Art. I, § 23, Fla. Const. Because the right of privacy is a fundamental right within Florida’s constitution, this Court consistently has required that any law intruding on this right is presumptively unconstitutional and must be justified by a “compelling state interest” which the law serves or protects through the “least restrictive means.” Winfield v. Div. of Pari-Mutuel Wagering, Dep’t of Bus. Regulation, 477 So. 2d 544, 547 (Fla. 1985); see also N. Fla. Women’s Health & Counseling Servs., Inc. v. Florida, 866 So. 2d 612, 632 (Fla. 2003); In re T.W., 551 So. 2d 1186, 1191-92 (Fla. 1989). Because the Mandatory Delay Law infringes on a woman’s right of privacy, the State bore the burden at the temporary injunction hearing to prove that the Mandatory Delay Law survives strict scrutiny. The State, however, presented no evidence of a compelling state interest, much less that the law served such an interest through the least restrictive means. In addition, the First District disregarded the fact that the challengers did present evidence, which the trial court properly relied on, that the Mandatory Delay Law would result in additional costs and additional trips to the physician and that any delay could affect the type of procedure being performed. Beyond placing an additional initial evidentiary burden on Petitioners, the First District also misinterpreted and misconstrued our precedent concerning the right of privacy by requiring, on remand, that the trial court consider a list of -3- speculative state interests, none of which this Court has ever recognized as compelling. Gainesville Woman Care, 187 So. 3d at 282. The trial court, on the other hand, correctly applied strict scrutiny in determining Petitioners’ likelihood of success on the merits because the law, both facially and based on evidence presented, clearly infringes on the constitutional right of privacy. Petitioners presented unrebutted evidence establishing that the Mandatory Delay Law impedes a woman’s ability to terminate her pregnancy for at least an additional twenty-four hours and requires the woman to make a second, medically unnecessary trip, which adds additional costs and delay. As Dr. Christine Curry stated in a verified affidavit, which the trial court considered: Such delays may push women past the gestational limit when medication abortion is available. This will force women for whom a medication abortion is clinically indicated to undergo a procedure that is less safe for them. It will also force a woman who prefers a medication abortion for psychological reasons to undergo a surgical abortion, which may harm her emotional and psychological state, and this pertains especially to victims of sexual trauma. In other cases, delays may push women past the gestational limit of the nearest abortion provider, forcing them to travel farther. This, in turn, is very likely to create further delay, increasing the risks of the procedure. Some may disagree and argue that the State should force women to endure an additional twenty-four hour waiting period after they have chosen to terminate their pregnancy, regardless of the fact that such a waiting period is not required of any other medical procedure including those gynecological procedures that are far more risky than termination of pregnancy. Whether it is a good idea to mandate -4- that women seeking to terminate their pregnancies wait a minimum of an additional twenty-four hours before allowing them to receive medical treatment is not the point. As Petitioners cogently explain, women may take as long as they need to make this deeply personal decision both before and after they receive the state-mandated information. But through the Mandatory Delay Law, the State impermissibly interferes with women’s fundamental right of privacy by mandating an additional twenty-four hour waiting period before a woman may exercise her decision after receiving all of the information the state deems necessary to make an educated and informed decision. We recognize that a woman’s right to choose remains a highly emotional issue that still divides our country many decades after the United States Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973). Indeed, a substantial minority in this country believe that women should have no right to choose to terminate a pregnancy at any time after conception.2 We emphasize that this case has nothing to do with when the State’s interest in restricting women’s right to choose to terminate a pregnancy based on the viability of the fetus becomes compelling. 2. See Abortion, Gallup, http://www.gallup.com/poll/1576/abortion.aspx (last visited Feb. 1, 2017) (finding that, as of May 2016, nineteen percent of the country believe that abortion should be illegal under all circumstances). -5- We agree with the trial court that, based on this Court’s precedent, Petitioners have established a substantial likelihood of success on the merits, one of the requirements of granting a temporary injunction, as well as all other grounds for the entry of a temporary injunction. For reasons more fully explained below, we quash the First District’s decision with instructions that the temporary injunction and accompanying stay of the Mandatory Delay Law remain in effect pending a hearing on Petitioners’ request for a permanent injunction. FLORIDA’S MANDATORY DELAY LAW Florida’s general informed consent law requires that, for a patient to give valid, informed consent to any medical treatment in Florida, the health care professional must conform to “an accepted standard of medical practice among members of the medical profession” and provide information conveying three things: (1) the nature of the procedure, (2) the medically acceptable alternatives to the procedure, and (3) the procedure’s substantial risks. § 766.103(3)(a)1.-2., Fla. Stat. (2016). In addition, in 1997, the Florida Legislature passed the “Woman’s Right to Know Act,” an informed consent statute specific to procedures involving the termination of pregnancies. Ch. 97-151, Laws of Fla. This Court upheld the Woman’s Right to Know Act in 2006, only after the State conceded to a limiting interpretation of the law and this Court interpreted the law to require physicians to discuss only medical risks of either terminating or continuing the pregnancy and -6- that the scope of the advice was patient-driven. See State v. Presidential Women’s Ctr., 937 So. 2d 114, 120 (Fla. 2006). The Woman’s Right to Know Act requires the physician to inform the patient of “[t]he nature and risks of undergoing or not undergoing” the termination of pregnancy procedure, “[t]he probable gestational age of the fetus,” and some other, additional information. See § 390.0111(3)(a), Fla. Stat. (2015). In 2015, the Florida Legislature amended the Woman’s Right to Know Act to require that a woman be given the statutorily required information at least twenty-four hours prior to the termination of pregnancy procedure. Ch. 2015-118 § 1, Laws of Fla. (codified at § 390.0111(3)). These amendments constitute the Mandatory Delay Law. 3 3. Florida Law currently only allows third-trimester abortions under the following two conditions: (a) Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition. (b) The physician certifies in writing that, in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures for termination of the pregnancy to save the pregnant woman’s life or avert a serious risk of imminent substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition, and another physician is not available for consultation. -7- The Mandatory Delay Law does not require a woman to receive any new information beyond what the Woman’s Right to Know Act requires. As amended, section 390.0111(3)(a) states: (3) CONSENTS REQUIRED.—A termination of pregnancy may not be performed or induced except with the voluntary and informed written consent of the pregnant woman or, in the case of a mental incompetent, the voluntary and informed written consent of her court-appointed guardian. (a) Except in the case of a medical emergency, consent to a termination of pregnancy is voluntary and informed only if: 1. The physician who is to perform the procedure, or the referring physician, has, at a minimum, orally, while physically present in the same room, and at least 24 hours before the procedure in person, informed the woman of: a. The nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy. b. The probable gestational age of the fetus, verified by an ultrasound, at the time the termination of pregnancy is to be performed. (I) The ultrasound must be performed by the physician who is to perform the abortion or by a person having documented evidence that he or she has completed a course in the operation of ultrasound equipment as prescribed by rule and who is working in conjunction with the physician. § 390.0111(1), Fla. Stat. (2016). However, the Mandatory Delay Law contains an exception that allows the physician to forego the twenty-four hour waiting period “[i]f a medical emergency exists and a physician cannot comply with the requirements for informed consent.” Id. § 390.0111(3)(b). This exception would certainly be satisfied in the context of post-viability abortions. Accordingly, the requirements of the Mandatory Delay Law, generally, will only apply to first- and second-trimester abortions. -8- (II) The person performing the ultrasound must offer the woman the opportunity to view the live ultrasound images and hear an explanation of them. . . . (III) The woman has a right to decline to view and hear the explanation of the live ultrasound images after she is informed of her right and offered an opportunity to view the images and hear the explanation. If the woman declines, the woman shall complete a form acknowledging that she was offered an opportunity to view and hear the explanation of the images but that she declined that opportunity. The form must also indicate that the woman’s decision was not based on any undue influence from any person to discourage her from viewing the images or hearing the explanation and that she declined of her own free will. (IV) [Exceptions to the ultrasound when the] woman is obtaining the abortion because the woman is a victim of rape, incest, domestic violence, or human trafficking or that the woman has been diagnosed as having a condition that, on the basis of a physician’s good faith clinical judgment, would create a serious risk of substantial and irreversible impairment of a major bodily function if the woman delayed terminating her pregnancy. c. The medical risks to the woman and fetus of carrying the pregnancy to term. The physician may provide the information required in this subparagraph within 24 hours before the procedure if requested by the woman at the time she schedules or arrives for her appointment to obtain an abortion and if she presents to the physician a copy of a restraining order, police report, medical record, or other court order or documentation evidencing that she is obtaining the abortion because she is a victim of rape, incest, domestic violence, or human trafficking. 2. Printed materials prepared and provided by the department have been provided to the pregnant woman, if she chooses to view these materials, including: a. A description of the fetus, including a description of the various stages of development. b. A list of entities that offer alternatives to terminating the pregnancy. c. Detailed information on the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care. -9- 3. The woman acknowledges in writing, before the termination of pregnancy, that the information required to be provided under this subsection has been provided. Nothing in this paragraph is intended to prohibit a physician from providing any additional information which the physician deems material to the woman’s informed decision to terminate her pregnancy. Ch. 2015-118, § 1, Laws of Fla. (deletions indicated by strike-through type and additions indicated by underline) (codified at § 390.0111(3)(a), Fla. Stat. (2015)). THE TEMPORARY INJUNCTION AND THE FIRST DISTRICT OPINION Shortly after the Mandatory Delay Law’s enactment, on June 11, 2015, Petitioners, Gainesville Woman Care, LLC, and Medical Students for Choice (collectively referred to as “GWC”), filed a complaint in the Second Judicial Circuit challenging the validity of the Mandatory Delay Law as a violation of the privacy rights of Florida women under article I, section 23, of the Florida Constitution, and as a violation of GWC’s and its patients’ rights of equal protection of the laws of the State of Florida under article I, section 2, of the Florida Constitution. The same day, GWC filed a Motion for an Emergency Temporary Injunction and/or Temporary Injunction grounded solely on the right of privacy challenge set forth in their complaint. The trial court held an evidentiary hearing relating to GWC’s request for a temporary injunction on June 25, 2015. The parties agreed that the trial court would consider the pleadings, together with the declarations filed with GWC’s motion and supplemental reply, and that the - 10 - parties would be authorized, but not required, to present any additional evidence at that time. At the evidentiary hearing, both parties presented legal arguments. Additionally, GWC submitted the verified affidavit of Dr. Christine L. Curry as supplemental evidence that the Mandatory Delay Law was unconstitutional. The State did not present any evidence to counter Dr. Curry’s assertions. In her affidavit, Dr. Curry stated that abortion is one of the safest medical procedures in the United States. Indeed, Dr. Curry asserted that a woman is approximately fourteen times more likely to die from childbirth than during an abortion. Dr. Curry also opined that, in her experience, “whatever a woman’s reasons for terminating a pregnancy, she makes the decision thoughtfully after much consideration and deliberation with those she includes in her process: her family, friends, and/or physician.” Finally, Dr. Curry stated: 14. The [Mandatory Delay Law] singles out abortion procedures from all other medical procedures to impose a twenty- four-hour delay and an additional-trip requirement, with no medical benefit to the patient. . . . It is my opinion that by forcing women seeking abortions—but not patients seeking any other medical procedure, including those riskier than abortion—to wait twenty-four hours and to make an additional visit to the medical provider before they can obtain the treatment, the [Mandatory Delay Law] will harm Florida women seeking abortion and undermine the physician-patient relationship. It will prevent physicians from administering the care they believe will protect their patients’ well-being. 15. By forcing women to delay the procedure at least twenty- four hours and to make arrange[sic] for an additional trip to a provider, the [Mandatory Delay Law] will cause women to delay their - 11 - abortion by at least one day, and in some cases, even longer. Such delays may push women past the gestational limit when medication abortion is available. This will force women for whom a medication abortion is clinically indicated to undergo a procedure that is less safe for them. It will also force a woman who prefers a medication abortion for psychological reasons to undergo a surgical abortion, which may harm her emotional and psychological state, and this pertains especially to victims of sexual trauma. In other cases, delays may push women past the gestational limit of the nearest abortion provider, forcing them to travel farther. This, in turn, is very likely to create further delay, increasing the risks of the procedure. On July 1, 2015, the trial court issued its order granting GWC’s request for a temporary injunction. In its order, the trial court explained: Defendants concede the unavailability of an adequate remedy at law if the law goes into effect and is found to be unconstitutional. This Court’s decision on whether Plaintiffs have carried their burden to show that they are likely to succeed on their position that the constitutional right to privacy is implicated by [the Mandatory Delay Law], and if so, whether the Defendants have sufficiently shown that [the Mandatory Delay Law] meets the “strict” scrutiny standards required will provide the answers to whether there is irreparable harm and determine the public interest issue. In simple terms, the question presented to this Court is whether Plaintiffs have sufficiently shown that the requirements of [the Mandatory Delay Law] impose a “significant burden,” as opposed to an insignificant burden, on a woman’s right to an abortion. Ultimately, the trial court concluded that “the Court has no evidence in front of it in which to make any factual determination that a 24-hour waiting period with the accompanying second trip necessitated by the same is not an additional burden on a woman’s right of privacy under the [sic] Florida’s Right of Privacy Clause,” and consequently found that the Mandatory Delay Law infringed Florida women’s - 12 - fundamental right of privacy. Accordingly, the trial court applied the strict scrutiny standard of review, shifting the burden to the State to prove that the law furthered a compelling state interest by the least restrictive means. To that end, the trial court concluded: Defendants are clearly basing their defense of the legislation to [sic] the ruling of the Florida Supreme Court in State v. Presidential Woman’s Center, 937 So. 2d 114 (Fla. 2006). Their logic is simplistic, but not necessarily incorrect. The legislature’s right to require informed consent has been upheld as being grounded in the common law. Id. at 118. The Defendants’ pleading clearly establishes that a number of states have a waiting period, although it is also clear that most, if not all, were established under the “undue burden” standard. See cases cited in Defendants’ Response in Opposition, pp 10-11. What the Defendants have failed in any way to provide this Court is any evidence that there is a compelling state interest to be protected in enhancing the informed consent already required of women and approved by the Supreme Court of Florida in Presidential Woman’s Center, supra. There are no findings of fact or statements of legislative intent set forth in [the Mandatory Delay Law]. After an evidentiary hearing, the Court has no evidence in front of it in which to make any factual determination that a 24-hour waiting period with the accompanying second trip necessitated by the same is not an additional burden on a woman’s right of privacy under the Florida’s Right of Privacy Clause. .... In this proceeding, the only evidence before the Court is that “Florida law does not require a twenty-four-hour waiting period for other gynecological procedures with comparable risk, or any other procedure I perform in my practice.” Declaration of Christine Curry, M.D., Ph.D., p 4. This is a major issue in the case that the Defendants fail to address. Defendants simply state that thirteen other states have a waiting period and the United States Supreme Court has ruled it is not unconstitutional under federal law. However, our Supreme Court has clearly stated that federal law has no bearing on Florida’s more extensive right of privacy. - 13 - The State appealed. See Gainesville Woman Care, 187 So. 3d at 281. Overturning the trial court’s order granting the temporary injunction, the First District concluded that the “trial court failed to set forth clear, definite, and unequivocally sufficient factual findings supporting the three disputed elements of an injunction.” Id. The First District also took issue with the trial court’s failure to consider the State’s arguments, stating: The trial court did not address the State’s arguments, such as whether, in passing the privacy amendment in 1980, voters intended to deprive Florida and its citizens of the benefits of advances in medical knowledge and evolutions in federal law recognizing increasingly compelling state interests arising from, among other factors, the potentiality of life uniquely represented by the human fetus. Likewise, the trial court did not address the evidence of intent reflected in the State’s many post-1980 laws and regulations specific to abortion; nor the evidence of voter intent reflected in the 2004 adoption of article X, section 22, of the Florida Constitution, which in effect overruled North Florida Women’s and authorized a requirement of parental notice of termination of a minor’s pregnancy. Id. at 282. The First District concluded that the trial court erred by failing to consider the compelling state interests advanced by the State, including: [P]roviding women a short time to reflect privately after receiving required relevant information, in maintaining the integrity of the medical profession by making that post-informed reflective time free from influence by a physician or clinic personnel, in protecting the unique potentiality of human life, in protecting the organic law of Florida from interpretations and impacts never contemplated or approved by Floridians or their elected representatives, and in protecting the viability of a duly-enacted state law. - 14 - Id. Finally, the First District held that the trial court’s order was also deficient for “failing to address the legal requirements for a facial constitutional challenge to a statute.” Id. GWC petitioned this Court for review based on the First District having misapplied our precedent concerning the right of privacy in article I, section 23, of the Florida Constitution and, in so doing, specifically construing that provision of the Florida Constitution. Because the First District lifted the stay of the Mandatory Delay Law that had been in effect since the law was enacted, GWC also filed a motion to stay, which this Court granted. ANALYSIS Fundamental Right of Privacy Article I, section 23, of the Florida Constitution, added by Florida voters in 1980, has remained unchanged since it was adopted. See art. I, § 23, Fla. Const. (1980). This Court has broadly interpreted that right, stating: The citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23, of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23, was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words “unreasonable” or “unwarranted” before the phrase “governmental intrusion” in order to make the privacy right as strong as possible. Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that - 15 - the right is much broader in scope than that of the Federal Constitution. Winfield, 477 So. 2d at 548. In Winfield, the Court applied a strict scrutiny test in reviewing an attempt by the Pari-Mutuel Wagering Department of the Florida Department of Business and Professional Regulation to subpoena individuals’ financial records because, the Court reasoned, subpoenaing the records intruded upon an individual’s legitimate expectation of privacy as a matter of law. Id. The Court explained: The right of privacy is a fundamental right which we believe demands the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy. The burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means. Id. at 547; see State v. J.P., 907 So. 2d 1101, 1009 (Fla. 2004) (“When a statute or ordinance operates to the disadvantage of a suspect class or impairs the exercise of a fundamental right, then the law must pass strict scrutiny.”). Thus, while the Federal Constitution, at the very least, requires the recognition and protection of an implicit right of privacy, Florida voters have clearly opted for a broader, explicit protection of their right of privacy. Indeed, Florida voters rejected a constitutional amendment in 2012 that would have interpreted Florida’s explicit constitutional - 16 - right of privacy as being no broader than the implicit federal constitutional right of privacy.4 This Court applies strict scrutiny to any law that implicates the fundamental right of privacy. State v. J.P., 907 So. 2d at 1109. For instance, in J.P., reviewing the constitutionality of juvenile curfew ordinances, this Court stated: “When a statute or ordinance operates to the disadvantage of a suspect class or impairs the exercise of a fundamental right, then the law must pass strict scrutiny.” Id. This Court has also applied strict scrutiny in the context of reviewing grandparent visitation laws. See Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998) (“When analyzing a statute that infringes on the fundamental right of privacy, the applicable standard of review requires that the statute survive the highest level of scrutiny.”); Beagle v. Beagle, 678 So. 2d 1271, 1275-77 (Fla. 1996) (finding that the imposition of grandparent visitation laws by the State clearly implicated the right of privacy and applying strict scrutiny to conclude that the law was facially unconstitutional). Florida courts first addressed Florida’s constitutional right of privacy in the termination of pregnancy context in In re T.W., 551 So. 2d 1186 (Fla. 1989). In 4. See Initiative Information: Prohibition on Public Funding of Abortions; Construction of Abortion Rights, Fla. Dep’t of State, Division of Elections, http://dos.elections.myflorida.com/initiatives/initdetail.asp?account=10&seqnum= 82 (last visited Feb. 1, 2017). - 17 - T.W., the Court reviewed the constitutionality of the Parental Consent Act, which required a minor to either obtain parental consent before terminating her pregnancy or prove to the courts that she was sufficiently mature to make the decision herself, or if immature, that terminating her pregnancy was in her best interest. Id. at 1188- 89. This Court applied strict scrutiny and ultimately declared the law unconstitutional, stating: Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment. Id. at 1192. Following T.W., this Court reviewed the constitutionality of a similar statute in North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003). In that case, the Court reviewed the constitutionality of the Parental Notice of Abortion Act, which required a minor to notify a parent of her decision to terminate her pregnancy, or alternatively convince a court that she was sufficiently mature to make the decision herself, prior to terminating her pregnancy. Id. at 615. Explaining our holding in T.W., this Court stated in North Florida Women’s: The Court ultimately held [in T.W.] that (a) if a legislative act imposes a significant restriction on a woman’s (or minor’s) right to seek an abortion, the act must further a compelling State interest - 18 - through the least intrusive means; (b) the Parental Consent Act imposed a significant restriction on a minor’s right to seek an abortion; and (c) in light of the Legislature’s less restrictive treatment of minors in other comparable procedures and practices, the Act failed to “further” a compelling State interest. Id. at 621. The Court ultimately determined that the act was unconstitutional and in so doing, reaffirmed the strict scrutiny standard applied in T.W. N. Fla. Women’s, 866 So. 2d at 622, 639. Importantly, also in North Florida Women’s, this Court rejected the use of the federal “undue burden” standard announced by the United States Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 874 (1992), in light of Florida’s more encompassing, explicit constitutional right of privacy. This Court unequivocally explained that the “undue burden” standard from Casey was “inherently ambiguous” and had no basis in Florida’s constitutional right of privacy: First, any comparison between the federal and Florida rights of privacy is inapposite in light of the fact that there is no express federal right of privacy clause. . . . And second, it is settled in Florida that each of the personal liberties enumerated in the Declaration of Rights is a fundamental right. Legislation intruding on a fundamental right is presumptively invalid and, where the right of privacy is concerned, must meet the “strict” scrutiny standard. Florida courts have consistently applied the “strict” scrutiny standard whenever the Right of Privacy Clause was implicated, regardless of the nature of the activity. The “undue burden” standard, on the other hand, is an inherently ambiguous standard and has no basis in Florida’s Right of Privacy Clause. - 19 - N. Fla. Women’s, 866 So. 2d at 634-35 (second emphasis added) (footnotes omitted). The above cases make clear that any law that implicates Florida’s right of privacy will be subject to strict scrutiny review. Florida’s constitutional right of privacy encompasses a woman’s right to choose to end her pregnancy. This right would have little substance if it did not also include the woman’s right to effectuate her decision to end her pregnancy. As this Court demonstrated in T.W. and North Florida Women’s, laws that place the State between a woman, or minor, and her choice to end her pregnancy clearly implicate the right of privacy. For instance, the law at issue in T.W. prevented a minor from terminating her pregnancy without either parental consent or satisfying a judicial bypass procedure. 551 So. 2d at 1189. However, the law did not completely forbid minors from terminating their pregnancies; it merely placed an additional obstacle in a minor’s way, causing the minor additional hardship and delay in effectuating her decision. Similarly, the law at issue in North Florida Women’s required a minor to notify her parents prior to terminating her pregnancy, or convince a court that she need not do so. 866 So. 2d at 615. Again, this law only imposed additional requirements before a minor could terminate her pregnancy, but did not prevent the minor from undergoing the actual procedure for any period of time. - 20 - Moreover, a petitioner need not present additional evidence that the law intrudes on her right of privacy if it is evident on the face of the law that it implicates this right. Indeed, this Court has repeatedly applied strict scrutiny to laws that intrude upon an individual’s fundamental right of privacy without first requiring in-depth factual findings about the extent of the burden imposed by the law. See, e.g., T.M. v. State, 784 So. 2d 442, 443-44 (Fla. 2001) (agreeing that strict scrutiny applies to juvenile curfew ordinances without any discussion of the percentage of juveniles who would be exempt from the curfew or whether those juveniles who were subject to the curfew would in fact be harmed by six- or seven- hour restrictions on travel); Beagle, 678 So. 2d at 1275 (“Certainly the imposition, by the State, of grandparental visitation rights implicates the privacy rights of the Florida Constitution.”); Winfield, 477 So. 2d at 548 (applying strict scrutiny to administrative subpoena of financial records without any discussion of the potential burden posed by their release because subpoenaing the records intruded upon an individual’s legitimate expectation of privacy as a matter of law). Whether Strict Scrutiny Review Requires that the Challenger Establish a Significant Restriction Although this Court has made clear that those who challenge laws implicating the fundamental right of privacy are not first required to establish an undue burden or significant restriction, the parties dispute whether there is a threshold requirement applicable only to challenges to laws involving the decision - 21 - to terminate a pregnancy that the law operate as a “significant restriction” on that right before strict scrutiny applies. The First District held and the State maintains that the trial court must “make sufficient factually-supported findings about the existence of a significant restriction on a woman’s right to seek an abortion.” Gainesville Woman Care, 187 So. 3d at 282 (emphasis added). To support its argument, the First District and the State primarily rely on language from a discussion in T.W. regarding when the State’s interest in maternal health becomes compelling. In that discussion, this Court stated: We nevertheless adopt the end of the first trimester as the time at which the state’s interest in maternal health becomes compelling under Florida law because it is clear that prior to this point no interest in maternal health could be served by significantly restricting the manner in which abortions are performed by qualified doctors, whereas after this point the matter becomes a genuine concern. Under Florida law, prior to the end of the first trimester, the abortion decision must be left to the woman and may not be significantly restricted by the state. Following this point, the state may impose significant restrictions only in the least intrusive manner designed to safeguard the health of the mother. Insignificant burdens during either period must substantially further important state interests. T.W., 551 So. 2d at 1193 (footnote omitted) (citations omitted). To the extent the Court used the term “significant restriction,” it was borrowing from the United States Supreme Court opinion in City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), which provided that medical record-keeping and neutral informed consent laws would have “no significant impact” on a woman’s right to choose. Id. at 430-31. This Court was merely clarifying that prior to the - 22 - end of the first trimester, the State was not permitted to restrict a woman’s right to choose to terminate her pregnancy. Put into the appropriate context, it is clear that T.W. in no way created a threshold requirement that a challenger must prove through sufficient, factually supported findings that a law imposes a significant restriction on a woman’s right of privacy before the law is reviewed under strict scrutiny. Likewise, the Court has not required an additional evidentiary prerequisite before strict scrutiny applies in other cases implicating the right of privacy, or any other context where strict scrutiny is appropriate. To single out the instance in which a woman chooses to end her pregnancy to apply this additional evidentiary burden would contradict our precedent emphasizing the importance of Florida’s fundamental right of privacy. Finally, the significant restriction requirement that the State maintains is appropriate would equate the Florida constitutional inquiry in the termination of pregnancy context to the federal “undue burden” test. See Casey, 505 U.S. at 877. This cannot be. As explained above, this Court explicitly rejected the federal standard in North Florida Women’s, which requires that a petitioner prove that a regulation has the purpose of placing a substantial obstacle in the path of a woman seeking to terminate her pregnancy. Casey, 505 U.S. at 877; 866 So. 2d at 634-35. Clearly we did not endorse substantially the same standard, disguised as a - 23 - threshold requirement, in the same case where we specifically rejected the federal “undue burden” standard. To the extent there is any doubt or confusion regarding our precedent, we clarify that there is no threshold requirement that a petitioner must show by “sufficient factual findings” that a law imposes a significant restriction on a woman’s right of privacy before strict scrutiny applies to laws that implicate the right of privacy. Any law that implicates the right of privacy is presumptively unconstitutional, and the burden falls on the State to prove both the existence of a compelling state interest and that the law serves that compelling state interest through the least restrictive means. Winfield, 477 So. 2d at 547. The Effect of Presidential Women’s Center on Florida’s Constitutional Right of Privacy The State, before the trial court, the First District, and this Court has argued that because this Court did not discuss the right of privacy or strict scrutiny when upholding the Woman’s Right to Know Act in 2006, we implicitly determined that the right of privacy was not implicated by the Woman’s Right to Know Act. However, that contention ignores that the Court upheld the Woman’s Right to Know Act only after the State made clear that the law required the physician to discuss only medical risks of either terminating or continuing the pregnancy and that the scope of the advice was patient-driven: - 24 - As this litigation developed, and during oral argument, the State has agreed and conceded that this subsection applies solely and exclusively to information with regard to medical risks—not information with regard to social, economic, or any other risks. The doctrine of medical informed consent is rooted in the concepts of bodily autonomy and integrity, see Chambers[v. Nottebaum], 96 So. 2d [716,][]719 [(Fla. 3d DCA 1957)], and it is logical that physicians be required to inform the patient only and exclusively of the medical risks of terminating or not terminating a pregnancy. Physicians are not sociologists, economists, theologians, or philosophers, and it is implausible to conclude that the Legislature intended that physicians be required to venture far beyond their professional specialty and expertise to advise patients of nonmedical matters merely because the word “medical” is not specifically utilized in subsection (3)(a)(1)(a). Presidential Women’s Center, 937 So. 2d at 119-20. As Justice Lewis, writing for the majority of the Court, explained in Presidential Women’s Center, “[u]nder the doctrine of informed consent, a physician has an obligation to advise his or her patient of the material risks of undergoing a medical procedure.” 937 So. 2d at 116. The doctrine of informed consent is a patient-driven doctrine and finds its roots in the concepts of bodily integrity and patient autonomy: Under a free government, at least, the free citizen’s first and greatest right, which underlies all others—the right to the inviolability of his person; in other words, the right to himself—is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, the bodily integrity of his patient by a major or capital operation, placing him under an anesthetic for that purpose, and operating upon him without his consent or knowledge. 1 Kinkead on Torts, § 375, states that general rule on this subject as follows: The patient must be the - 25 - final arbiter as to whether he will take his chances with the operation, or take his chances of living without it. Id. at 116-17 (quoting Chambers, 96 So. 2d at 719). As Justice Pariente’s concurrence, which was joined by Justice Quince and Justice Anstead, made clear, it was because of this Court’s interpretation of the law as a neutral informed consent law, which the State conceded was appropriate, that the law avoided any constitutional infirmity: The majority has construed section 390.0111(3)(a)(1), Florida Statutes (2005), to be a neutral informed consent statute that is comparable to other informed consent statutes and the common law from which they are derived. With the statute so limited, I concur in upholding its constitutionality. I write to emphasize that it is only because of two significant limitations placed on this provision by the majority that the Act is not facially unconstitutional, and that it was the State at oral argument that made these two substantial concessions limiting the interpretation of this statute. The first is that the “reasonable patient” is not a hypothetical patient but rather is the patient presenting herself for the procedure. The second is that subsection (3)(a)(1)(a) requires physicians to inform patients of only medical risks and not other types of risks such as social or economic risks. If the State had advanced these substantial limiting constructions from the outset, this case could have been resolved expeditiously either before the trial court or the Fourth District Court of Appeal. Without the benefit of these clear concessions from the State, I cannot fault the Fourth District for concluding that the plain language of the statute is unconstitutionally vague. Id. at 121 (Pariente, J., concurring) (emphasis added). The Woman’s Right to Know Act does not prevent a woman from effectuating her decision to end her pregnancy, but, instead, merely requires that a - 26 - physician provide her with all of the information the physician and patient, together, deem necessary to help that specific patient make an informed decision. The important distinction here is that informed consent provisions are patient- driven and require a physician to provide the patient with the information the patient deems necessary to help facilitate informed decision-making. Indeed, in Presidential Women’s Center, this Court limited the Women’s Right to Know Act to “require a physician to consider only and exclusively the individual circumstances of each patient presenting herself for treatment in determining what information is material to that patient’s decision.” Id. at 119 (emphasis added). Put simply, the woman or minor remains in control of her decision and the law places no additional burden on that woman or minor effectuating her decision. Therefore, we reject as unfounded any interpretation of Presidential Women’s Center to stand for a broader proposition that the State may impose additional burdens over the existing medically centered, patient-specific, informed consent law before allowing a patient to undergo a procedure to terminate her pregnancy. The Mandatory Delay Law, as opposed to the Woman’s Right to Know Act, turns informed consent on its head, placing the State squarely between a woman who has already made her decision to terminate her pregnancy and her doctor who has decided that the procedure is appropriate for his or her patient. - 27 - This Case Having clarified that any law implicating the right of privacy is subject to strict scrutiny review, we now turn to whether the trial court properly applied our precedent in granting a temporary injunction in this case. To obtain a temporary injunction, the petitioner must satisfy a “four-part test under Florida law: a substantial likelihood of success on the merits; lack of an adequate remedy at law; irreparable harm absent the entry of an injunction; and that injunctive relief will serve the public interest.” Reform Party of Fla. v. Black, 885 So. 2d 303, 305 (Fla. 2004). “The standard of review of trial court orders on requests for temporary injunctions is a hybrid. To the extent the trial court’s order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.” Fla. High Sch. Athletic Ass’n v. Rosenberg, 117 So. 3d 825, 826 (Fla. 4th DCA 2013) (quoting Foreclosure FreeSearch, Inc. v. Sullivan, 12 So. 3d 771, 774 (Fla. 4th DCA 2009)). Additionally, Florida Rule of Civil Procedure 1.610(c) states: “Every injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and shall be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation - 28 - with them who receive actual notice of the injunction.” We discuss each of the prongs of the test in turn below. Substantial Likelihood of Success on the Merits In light of the discussion above, we conclude that the First District erred in several respects. First, the First District erred in admonishing the trial court for its failure to “make sufficient factually-supported findings about the existence of a significant restriction on a woman’s right to seek an abortion.” Gainesville Woman Care, 187 So. 3d at 282. Placing this initial burden on petitioners would undermine longstanding precedent on fundamental rights and strict scrutiny review. In fact, the Mandatory Delay Law, by its plain terms, requires that a woman be informed “at least 24 hours before the procedure” of certain information, thus prohibiting a woman from effectuating her decision to terminate her pregnancy until at least twenty-four hours after she is provided the information required by law, clearly impeding the exercise of her constitutional rights. Further, notwithstanding the First District’s assertions that the trial court made no findings with respect to the Mandatory Delay Law’s effect on a woman’s right of privacy, the trial court order states: Plaintiffs allege in the motion for temporary injunctive relief that: Absent injunctive relief from this Court, a sweeping restriction on Florida women’s ability to access abortion services, unprecedented in this state, will take effect on - 29 - July 1, 2015. Section one of Florida House Bill 633, signed by Governor Scott last night (June 10, 2015) would require a woman seeking an abortion to make an additional, unnecessary trip to her health care provider at least twenty-four hours before obtaining an abortion, in order to receive the same information she may currently receive on the day of the procedure. (citation omitted) The Act’s unnecessary and burdensome requirements are imposed regardless of the distance the woman must travel to reach her provider, her own medical needs, her judgment, her doctor’s judgment, or her individual life circumstances. By subjecting no other medical procedure in Florida, much less a medical procedure protected by the state Constitution as a fundamental right—the Act can only serve to deter women from seeking abortions, and to punish and discriminate against . . . those who do. Based upon the above information alleged by GWC and one additional affidavit submitted from Dr. Christine L. Curry, detailing the harm that the Mandatory Delay Law will cause to her patients, and in light of the absence of evidence presented to the contrary by the State, the trial court concluded: “The Court has no evidence in front of it in which to make any factual determination that a 24-hour waiting period with the accompanying second trip necessitated by the same is not an additional burden on a woman’s right of privacy under the Florida’s Right of Privacy Clause,” and thus impedes all Florida women from exercising their fundamental right of privacy. (Emphasis added.) Having concluded that the trial court was correct that the law implicated the right of privacy, we turn to review whether the trial court erred in finding that the - 30 - Mandatory Delay Law would be unlikely to survive strict scrutiny review. The First District faulted the trial court, stating: The trial court did not address the State’s arguments, such as whether, in passing the privacy amendment in 1980, voters intended to deprive Florida and its citizens of the benefits of advances in medical knowledge and evolutions in federal law recognizing increasingly compelling state interests arising from, among other factors, the potentiality of life uniquely represented by the human fetus. Likewise, the trial court did not address the evidence of intent reflected in the State’s many post-1980 laws and regulations specific to abortion; nor the evidence of voter intent reflected in the 2004 adoption of article X, section 22, of the Florida Constitution, which in effect overruled North Florida Women’s and authorized a requirement of parental notice of termination of a minor’s pregnancy. Gainesville Woman Care, 187 So. 3d at 282. GWC argues that this statement by the First District was in error for two reasons: (1) the trial court did, in fact, make findings regarding the State’s lack of evidence presented regarding any compelling state interest; and (2) this lengthy statement by the First District defies this Court’s precedent on what constitutes a compelling state interest. The State, of course, contends that the First District’s opinion is correct. Because the Mandatory Delay Law, which impedes Florida women’s exercise of their fundamental rights, implicates the right of privacy, the trial court was correct to conclude that strict scrutiny applies to this challenge. The case law is clear: “A legislative act impinging on [the right of privacy] is presumptively unconstitutional unless proved valid by the State.” N. Fla. Women’s, 866 So. 2d at 626. Thus, after the trial court made the threshold inquiry that the Mandatory - 31 - Delay Law implicated a woman’s fundamental right of privacy, the burden in this case shifted to the State to prove that the law furthered a compelling state interest in the least restrictive way. Contrary to the claims of the First District, the trial court made two findings critical to the strict scrutiny analysis in this case: (1) the State failed to provide any evidence that there is a compelling state interest to be protected by enhancing the informed consent provision; and (2) Florida law does not require a parallel restriction on medical procedures of comparable risk. In its order, the trial court found, based upon the verified declaration of Dr. Christine Curry, that Florida law does not require enhanced informed consent for any other gynecological procedure. Specifically, the trial court found that the State failed to provide any compelling reason to enhance the informed consent provision or how the current informed consent provision was failing in some way. These findings make it clear that the trial court concluded the selective approach employed by the Legislature was evidence of the State’s limited interest in this matter. Similarly, in T.W., this Court reasoned that the State’s selective approach in only requiring parental consent for termination of pregnancy procedures was evidence that the State lacked any compelling interest in enacting the law. 551 So. 2d at 1195. “Although the state does have an interest in protecting minors, ‘the - 32 - selective approach employed by the legislature evidences the limited nature of the . . . interest being furthered by these provisions.’ ” Id. (quoting Ivey v. Bacardi Imports Co., 541 So. 2d 1129, 1139 (Fla. 1989)). Moreover, this Court in North Florida Women’s stated: “The fact that the Legislature has not chosen to require parental notification relating to other pregnancy-related conditions that are more dangerous than abortion” indicates that the purpose of the parental notification law is not to further a compelling interest in protecting minors’ health but is “instead, . . . to infringe on the minor’s right to choose an abortion.” 866 So. 2d at 650-51. As stated above, the trial court properly placed the burden on the State in this case to prove that the Mandatory Delay Law furthered a compelling state interest through the least restrictive means. The trial court stated numerous times that the State failed to provide any evidence of a compelling state interest that would be furthered by enhancing the informed consent statute. The First District’s statement that the trial court failed “to make any findings regarding the State’s compelling interests in support of this statute” is clearly in error. Gainesville Woman Care, 187 So. 3d at 282. The trial court found that the State failed to offer evidence of a compelling state interest in treating a woman who has chosen to terminate her pregnancy, unlike any other patient, as unable to determine for herself when she is ready to make an informed decision about her medical care; and this differential treatment undermines any purported state interest in ensuring - 33 - that women are adequately informed. It would make no sense to require a trial court to make factual findings regarding a state’s compelling interest, as the First District would require, when the State presented no evidence from which a trial court could make such findings. The Mandatory Delay Law impacts only those women who have already made the choice to end their pregnancies. Indeed, under Florida’s pre-existing informed consent law, a woman can already take all of the time she needs to decide whether to terminate her pregnancy, both before she arrives at the clinic and after she receives the required counseling information. The State presented no evidence to indicate that the prior, neutral informed consent statute that this Court approved in Presidential Women’s Center is inadequate and requires the revisions enacted by the Legislature. Nor are there any legislative findings explaining the compelling state interests at stake or indicating why the Legislature was compelled to amend the statute in order to support those interests. Moreover, despite the State’s contention that women will not be required to make two trips to the clinic by the new law because they can receive the information from their referring physician, the law, in fact, requires women to make a second trip to their health care provider at least twenty-four hours after their first visit. See § 390.0111, Fla. Stat. Even if the woman receives the required information from her referring doctor, as the State contends, she must still make - 34 - two trips: one to the referring physician and one to the abortion clinic at least twenty-four hours later. The challengers presented evidence that requiring a woman to make a second trip increases the likelihood that her choice to terminate her pregnancy will not remain confidential, which is particularly important, as amici assert, in the domestic violence and human trafficking context. Further, the delay is, at a minimum, twenty-four hours, but it may be considerably more if the doctor is not available or the date falls on a weekend. No other medical procedure, even those with greater health consequences, requires a twenty-four hour waiting period in the informed consent process. Next, we also conclude that the First District erred when it admonished the trial court for failing to make findings regarding the State’s compelling interests. The First District stated: The court failed to make any findings regarding the State’s compelling interests in support of this statute, which the State has argued include compelling interests in providing women a short time to reflect privately after receiving required relevant information, in maintaining the integrity of the medical profession by making that post-informed reflective time free from influence by a physician or clinic personnel, in protecting the unique potentiality of human life, in protecting the organic law of Florida from interpretations and impacts never contemplated or approved by Floridians or their elected representatives, and in protecting the viability of a duly-enacted state law. Gainesville Woman Care, 187 So. 3d at 282. This Court has never recognized that the State might have a compelling interest in “protecting the organic law of Florida - 35 - from interpretations and impacts never contemplated or approved by Floridians or their elected representatives” and in “protecting the viability of a duly-enacted state law.” Id. Accordingly, the First District’s holding that the trial court erred in failing to issue findings on such an interest would render the highest level of judicial review toothless in almost all cases because the State could be deemed to have a compelling interest in upholding any law, no matter how patently unconstitutional it may be. The First District compounded this error by requiring that the trial court first consider what it referred to as the State’s compelling interests in “providing women a short time to reflect privately after receiving required relevant information, in maintaining the integrity of the medical profession by making that post-informed reflective time free from influence by a physician or clinic personnel” and in “protecting the viability of a duly-enacted state law.” The Mandatory Delay Law does not differentiate between stages of pregnancy in its application. Instead, it broadly operates any time that a woman is intending to terminate a pregnancy after conception. As to the “unique potentiality of human life,” and the concern regarding the integrity of the medical profession, this law is part of the medical informed consent law that this Court has already held was a statute designed to inform the patient of only the medical risks of continuing or not continuing the pregnancy. This Court made clear in Presidential Women’s Center - 36 - that “[t]he doctrine of medical informed consent is rooted in the concepts of bodily autonomy and integrity . . . and it is logical that physicians be required to inform the patient only and exclusively of the medical risks of terminating or not terminating a pregnancy.” 937 So. 2d at 119 (emphasis added). Such social and moral concerns have no place in the concept of informed consent. Finally, in light of the discussion above, it was also error for the First District to insinuate that the voters in any way overruled our decision in North Florida Women’s when they added article X, section 22, to the Florida Constitution in 2004. Gainesville Woman Care, 187 So. 3d at 282 (faulting trial court for not addressing “the evidence of voter intent reflected in the 2004 adoption of article X, section 22, of the Florida Constitution, which in effect overruled North Florida Women’s and authorized a requirement of parental notice of termination of a minor’s pregnancy”). Article X, section 22, of the Florida Constitution is an extremely limited provision of the constitution, which deals solely with the issue of parental notification in the context of a minor choosing to terminate her pregnancy. It was not added to the Declaration of Rights, nor did it amend the right of privacy in article I, section 23, of the Florida Constitution. See art. X, § 22, Fla. Const. In article X, section 22, the voters in no way altered this Court’s core holding in North Florida Women’s—laws that implicate the right of - 37 - privacy are subject to strict scrutiny—and it was error for the First District to improperly insinuate such a notion. We conclude that the trial court’s order correctly found, based on the evidence presented at the temporary injunction hearing, that there is a substantial likelihood that the Mandatory Delay Law is unconstitutional as a violation of Florida’s fundamental right of privacy and consequently that Petitioners established a substantial likelihood of success on the merits in this case. Because the State conceded the lack of an adequate remedy at law,5 we now turn to the last two prongs of the test for injunctive relief. Irreparable Harm Absent the Entry of an Injunction and That Injunctive Relief Will Serve the Public Interest The First District noted in its decision that the trial court’s injunction was in error because: The trial court failed to set forth clear, definite, and unequivocally sufficient factual findings supporting the three disputed elements of an injunction (after the State essentially conceded inadequacy of any legal remedy). Indeed, the trial court here could not set forth the requisite evidence-supported factual findings because it had no legally sufficient evidentiary basis to do so. Without such clear and sufficient factual findings, supported by record evidence, the order is defective and meaningful review is not possible. 5. See Gainesville Woman Care, LLC v. State, No. 15-CA-1323, at 3 (Fla. 2d Cir. Ct. July 1, 2015) (Corrected Order Granting Plaintiff’s Motion for Temporary Injunction) (“Defendants concede the unavailability of an adequate remedy at law if the law goes into effect and is [subsequently] found to be unconstitutional.”); see also Gainesville Woman Care, 187 So. 3d at 281. - 38 - Gainesville Woman Care, 187 So. 3d at 281. GWC argues that the trial court correctly found that the elements of irreparable harm and public interest were established, after the State conceded the lack of an adequate remedy, because the trial court’s determination that the law is likely unconstitutional provides the necessary support for the other prongs. In its order, the trial court stated: Defendants concede the unavailability of an adequate remedy at law if the law goes into effect and is found to be unconstitutional. This Court’s decision on whether Plaintiffs have carried their burden to show that they are likely to succeed on their position that the constitutional right of privacy is implicated by [the Mandatory Delay Law], and if so, whether the Defendants have sufficiently shown that [the Mandatory Delay Law] meets the “strict” scrutiny standards required will provide the answers to whether there is irreparable harm and determine the public interest issue. In simple terms, the question presented to this Court is whether Plaintiffs have sufficiently shown that the requirements of [the Mandatory Delay Law] impose a “significant burden,” as opposed to insignificant burden, on a woman’s right to an abortion. Thus, the trial court determined that a decision that the Mandatory Delay Law is unconstitutional would presume that there would be irreparable harm absent the entry of an injunction and that the public interest would be served by enjoining enforcement of the Mandatory Delay Law. This Court has not previously addressed this question. However, the United States Supreme Court has stated that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” - 39 - Elrod v. Burns, 427 U.S. 347, 373 (1976). Additionally, both the federal courts and Florida district courts of appeal have presumed irreparable harm when certain fundamental rights are violated. See, e.g., Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (irreparable harm presumed in Title VII cases); Cunningham v. Adams, 808 F.2d 815, 822 (11th Cir. 1987) (stating that the injury suffered by the plaintiff is irreparable only if cannot be undone through monetary remedies); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983) (irreparable injury presumed from violation of First Amendment rights “for even minimal periods of time”); see also Tucker v. Resha, 634 So. 2d 756, 759 (Fla. 1st DCA 1994) (finding no legislative waiver of sovereign immunity as to the privacy provision of the Florida Constitution and therefore concluding that money damages are not available for violations of that right); Thompson v. Planning Comm’n of Jacksonville, 464 So. 2d 1231, 1237 (Fla. 1st DCA 1985) (where calculation of damages is speculative, legal remedy is inadequate). In light of finding that the Mandatory Delay Law is likely unconstitutional, there is no adequate legal remedy at law for the improper enforcement of the Mandatory Delay Law. Thus, the Mandatory Delay Law’s enactment would lead to irreparable harm, and it would be specious to require, as the First District suggests, that the trial court make additional factual findings that enjoining the law would also be in the public interest. Notwithstanding, the trial court found that - 40 - women seeking to terminate their pregnancies in Florida would be harmed by the enforcement of the Mandatory Delay Law, noting that GWC’s pleadings and the declaration presented make clear that the law would require women seeking to terminate their pregnancies to make an additional, unnecessary trip to their health care provider and could impose additional harms by requiring a woman to delay the procedure or force her past the time limit for the procedure of her choice. The State presented no evidence in rebuttal. Clearly, enjoining the Mandatory Delay Law and thus preventing women from enduring the additional and unnecessary burdens it would impose upon them in violation of the Florida Constitution, would serve the public interest. Injunctive Relief Based on Facial Constitutional Challenge Finally, we turn to the issue of whether the trial court was correct to provide injunctive relief based on the likelihood that the Mandatory Delay Law is facially unconstitutional. The First District held: The order is also deficient in failing to address the legal requirements for a facial constitutional challenge to a statute, an issue the parties disputed below. The State advocated a “no-set-of- circumstances” test. Appellees argued that the “no circumstances” test does not apply in Florida abortion cases. Neither the record nor the order reflects whether the trial court applied the appropriate facial challenge analysis, and this omission thwarts meaningful appellate review of the injunction order. - 41 - Gainesville Woman Care, 187 So. 3d at 282. GWC asserts that the trial court’s remedy of enjoining the Mandatory Delay Law as applied to all women was appropriate. The State contends that the First District was correct because GWC bases its allegations of harm on assumptions about unidentified women in hypothetical scenarios; but, in a facial challenge, this Court considers only the text of the statute, not its specific application to a particular set of circumstances. Gonzales v. Carhart, 550 U.S. 124, 167-68 (2007). The State concedes that the United States Supreme Court has yet to rule on whether the “no-set-of-circumstances” test applies to facial challenges to restrictions on a woman’s right to choose to terminate her pregnancy. However, the State notes that the United States Supreme Court has stated that, at the least, a facial challenge fails when plaintiffs “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.” Id. Moreover, this Court has never applied the “no-set-of-circumstances” test to a facial constitutional challenge in the termination of pregnancy context. The trial court’s finding that the Mandatory Delay Law imposes a significant restriction on all women’s fundamental right of privacy, by its plain terms, is sufficient to support an injunction barring the application of the law in its entirety. The trial court did not talk in terms of hypotheticals, nor did it look to the effect of the law on just some women. Rather, the trial court found that the law imposed - 42 - unconstitutional and unnecessary burdens on the fundamental right of privacy of all Florida women. Accordingly, the trial court did not err in not explicitly deciding the disputed issue of what standard is appropriate. Further, in examining previous restrictions on a woman’s right to choose to terminate her pregnancy in T.W., North Florida Women’s, and Presidential Women’s Center, this Court both upheld and invalidated laws without any mention of a “no-set-of-circumstances” test. See Presidential Women’s Ctr., 937 So. 2d at 115; N. Fla. Women’s, 866 So. 2d at 626; T.W., 551 So. 2d at 1192-93. CONCLUSION The trial court’s findings with respect to all four of the prongs of the temporary injunction test were supported by competent, substantial evidence. Consequently, the trial court had the proper evidentiary basis to issue a temporary injunction in this case. Today we make clear, in Florida, any law that implicates the fundamental right of privacy, regardless of the activity, is subject to strict scrutiny and is presumptively unconstitutional. In this case, the State failed to present any evidence that the Mandatory Delay Law serves any compelling state interest, much less through the least restrictive means, and, therefore, the trial court correctly concluded that there is a substantial likelihood that the Mandatory Delay Law is unconstitutional. Accordingly, we quash the decision of the First District - 43 - below and remand this case back to the First District for instructions not inconsistent with this opinion. It is so ordered. LABARGA, C.J., and LEWIS, and QUINCE, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON, J., concurs. LAWSON, J., did not participate. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. CANADY, J., dissenting. Because I conclude that there is no basis for this Court to exercise jurisdiction, I would discharge this case. Contrary to the view adopted by the majority, the decision of the First District in State v. Gainesville Woman Care, LLC, 187 So. 3d 279 (Fla. 1st DCA 2016), does not expressly and directly conflict with North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003), or In re T.W., 551 So. 2d 1186 (Fla. 1989). In view of the majority’s decision on jurisdiction, I write to explain why the First District’s decision should be affirmed on procedural grounds. I also write to explain why the majority’s resolution of the substantive constitutional issue misapprehends our precedent. I. Nothing in North Florida Women’s or T.W. supports the majority’s jurisdictional claim. The majority asserts that the First District misapplied North - 44 - Florida Women’s and T.W. “regarding strict scrutiny review of statutes that infringe on the right of privacy.” Majority op. at 2 n.1. But the First District did not make any conclusions regarding the standard of judicial review applicable to statutes that infringe on the right of privacy. Instead, the First District addressed the conditions that must be met by a party seeking preliminary injunctive relief as well as the requirements applicable to orders granting such relief and ruled that the trial court’s injunction order was both factually and legally deficient. The First District did so without determining the standard of judicial review or reaching the merits on the underlying constitutional challenge. Ignoring what the First District’s opinion actually says, the majority claims that the First District “misapplied and misconstrued our precedent by placing the initial evidentiary burden on Petitioners to prove a ‘significant restriction’ on Florida’s constitutional right of privacy before subjecting the Mandatory Delay Law to strict scrutiny.” Majority op. at 2. The majority thus moves seamlessly from a misconstruction of the First District’s opinion to a misconstruction of our precedents. This Court only applies strict scrutiny review to a statute regulating the right to abortion if the statute imposes a “significant restriction” on the right to abortion. In T.W. we “held that (a) if a legislative act imposes a significant restriction on a woman’s (or minor’s) right to seek an abortion, the act must further a compelling - 45 - State interest through the least intrusive means.” North Florida Women’s, 866 So. 2d at 621 (emphasis added). Subsequently, in North Florida Women’s we “focus[ed] on two key questions addressed by the [trial] court. (1) Does the Parental Notice Act impose a significant restriction on a minor’s right of privacy? And if so, (2) does the Act further a compelling State interest through the least intrusive means?” Id. at 631 (emphasis added). Indeed, even the majority appears to acknowledge that the Court in T.W. required that there be a significant restriction imposed on the right to abortion before applying strict scrutiny. See Majority op. at 18-19. In contrast, if the statute imposes an “insignificant burden” on the right to abortion, this Court applies—at most—intermediate scrutiny. See T.W., 551 So. 2d at 1193 (explaining that “[i]nsignificant burdens” on the right to abortion “must substantially further important state interests”). Therefore, the First District’s statement that “[t]he trial court’s failure to make sufficient factually- supported findings about whether the law imposes a significant restriction . . . renders the trial court’s sparse legal analysis and conclusions unsupportable and the injunction deficient, and hampers meaningful appellate review,” Gainesville Woman Care, 187 So. 3d at 282, is not inconsistent with and does not misapply North Florida Women’s or T.W. The majority claims that the First District “misinterpreted and misconstrued our precedent concerning the right of privacy by requiring, on remand, that the trial - 46 - court consider a list of speculative state interests, none of which this Court has ever recognized as compelling.” Majority op. at 3-4. But the First District simply stated that “[t]he trial court’s failure to make sufficient factually-supported findings . . . about the State’s [asserted] compelling interests[] renders the trial court’s sparse legal analysis and conclusions unsupportable and the injunction deficient, and hampers meaningful appellate review.” Gainesville Woman Care, 187 So. 3d at 282. The majority fails to explain how the First District “misinterpreted and misconstrued our precedent,” majority op. at 3, by requiring the trial court to address on remand the interests alleged by the State. The majority also fails to cite any precedent establishing that these interests are purely “speculative” and can never be “compelling.” Majority op. at 4. II. The First District correctly decided this case on procedural grounds because the trial court’s temporary injunction order is factually deficient. The majority acknowledges that “competent, substantial evidence” must support each of the four conclusions necessary to justify entry of a temporary injunction. Majority op. at 43; see North Florida Women’s, 866 So. 2d at 615 (“Because the trial court properly applied the controlling law as set forth in T.W. and because its findings are supported by competent substantial evidence, we sustain its ruling.”). According to the majority, “the challengers did present evidence . . . that the - 47 - Mandatory Delay Law would [impede a woman’s ability to terminate her pregnancy for at least an additional twenty-four hours,] result in additional costs and additional trips to the physician[,] and that any delay could affect the type of procedure being performed.” Majority op. at 3. But the trial court’s temporary injunction order is not supported by any evidence, much less competent and substantial evidence. As the trial court explained in its order: “No witnesses were presented at the scheduled [evidentiary] hearing, and no affidavits or verified statements or declarations were offered into evidence. There was no legislative history or other evidence presented to this [c]ourt.” Gainesville Woman Care, LLC v. State, No. 15-CA-1323, at 11 (Fla. 2d Cir. Ct. July 1, 2015) (Corrected Order Granting Plaintiffs’ Motion for Temporary Injunction).6 Notably, Dr. Curry’s declaration—the “only evidence” before the trial court—was never offered into evidence. Id. at 10. The majority thus errs in concluding that the trial court’s order correctly found, based on the evidence presented at the temporary injunction hearing, that there is a substantial likelihood that the Mandatory Delay Law is unconstitutional as a 6. The trial court’s order states that “[t]he parties agreed that the [c]ourt was to consider the pleadings, together with the declarations filed with Plaintiffs’ motion and supplemental reply, and that the parties were authorized but not required to present any witnesses or other evidence at [the evidentiary hearing].” Gainesville Woman Care, LLC v. State, No. 15-CA-1323, at 1 (Fla. 2d Cir. Ct. July 1, 2015) (Corrected Order Granting Plaintiffs’ Motion for Temporary Injunction). Nonetheless, it is not clear from the record on appeal that the State agreed that the trial court was to consider Plaintiffs’ pleadings and declarations as evidence, or that such documents meet the evidentiary requirements of Florida law. - 48 - violation of Florida’s fundamental right of privacy and consequently that Petitioners established a substantial likelihood of success on the merits in this case. Majority op. at 38 (emphasis added). The majority further errs in concluding that “[t]he trial court’s findings with respect to all four of the prongs of the temporary injunction test were supported by competent, substantial evidence” and “the trial court had the proper evidentiary basis to issue a temporary injunction in this case.” Majority op. at 43. The First District also correctly decided this case on procedural grounds because the trial court’s temporary injunction order is legally deficient. In order to obtain a temporary injunction, the party seeking the injunction “must satisfy a four- part test under Florida law: ‘a substantial likelihood of success on the merits; lack of an adequate remedy at law; irreparable harm absent the entry of an injunction; and that injunctive relief will serve the public interest.’ ” Liberty Counsel v. Florida Bar Bd. of Governors, 12 So. 3d 183, 186 n.7 (Fla. 2009) (quoting Reform Party of Fla. v. Black, 885 So. 2d 303, 305 (Fla. 2004)). “Clear, definite, and unequivocally sufficient factual findings must support each of the four conclusions necessary to justify entry of a preliminary injunction.” City of Jacksonville v. Naegele Outdoor Advert. Co., 634 So. 2d 750, 754 (Fla. 1st DCA 1994) (Naegele I), approved, 659 So. 2d 1046 (Fla. 1995) (Naegele II). If a temporary injunction is “to be subject to meaningful review, an order granting a temporary injunction - 49 - must contain more than conclusory legal aphorisms” and “do more than parrot each tine of the four-prong test.” Naegele II, 659 So. 2d at 1048 (quoting Naegele I, 634 So. 2d at 753-54); see Fla. R. Civ. P. 1.610(c) (“Every injunction shall specify the reasons for entry . . . .”). The trial court’s order is legally deficient because it does not contain any factual findings—much less sufficient factual findings—regarding the irreparable harm or public interest prongs of the preliminary injunction test.7 The order merely contains the following conclusory statement: “Plaintiffs have shown . . . that irreparable harm will result if the [Mandatory Delay Law] is not enjoined . . . and that the relief requested will serve the public interest.” Gainesville Woman Care, LLC v. State, No. 15-CA-1323, at 11 (Fla. 2d Cir. Ct. July 1, 2015) (Corrected Order Granting Plaintiffs’ Motion for Temporary Injunction). With respect to the substantial likelihood of success on the merits prong, the order is legally deficient because it fails to make sufficient factually supported findings about whether the Mandatory Delay Law imposes a significant restriction on the right to abortion, and about the State’s asserted compelling interests. The order is also legally deficient because it improperly conflates three of the four prongs of the preliminary injunction test and, in doing so, renders meaningless the irreparable 7. The State conceded the lack of an adequate remedy prong below. - 50 - harm and public interest prongs. See id. at 3-4 (concluding that a finding of a substantial likelihood of success on the merits provides the necessary support for the irreparable harm and public interest prongs). Further, the order is legally deficient because it fails to address the legal requirements for a facial constitutional challenge to a statute. The majority concedes that the trial court’s order does not contain any factual findings regarding the public interest prong. See majority op. at 40. Nevertheless, the majority concludes that “[i]n light of finding that the Mandatory Delay Law is likely unconstitutional . . . it would be specious to require, as the First District suggests, that the trial court make additional factual findings that enjoining the law would also be in the public interest.” Id. The majority’s reasoning fundamentally misapprehends the four-prong test for a preliminary injunction. Factual findings must support each of the four conclusions necessary to justify entry of a preliminary injunction. Naegele I, 634 So. 2d at 754; see Naegele II, 659 So. 2d at 1048. The majority thus renders meaningless the public interest prong by turning the four-prong test for a preliminary injunction into a three-prong test. III. I disagree with the majority’s resolution of the substantive constitutional issue. The majority claims that “there is no threshold requirement that a petitioner - 51 - must show by ‘sufficient factual findings’ that a law imposes a significant restriction on a woman’s right” to abortion before strict scrutiny applies because statutes regulating the right to abortion implicate the right of privacy. Majority op. at 24. But the majority’s claim cannot be reconciled with this Court’s precedent imposing such a threshold requirement. In North Florida Women’s and T.W., this Court only applied strict scrutiny to statutes regulating the right to abortion after determining that each statute imposed a “significant restriction” on the right to abortion. See North Florida Women’s, 866 So. 2d at 631-32; T.W., 551 So. 2d at 1194-95. The majority simply cannot explain why this Court found it necessary to conclude—before applying strict scrutiny review—that the statutes at issue in both of those cases imposed a “significant restriction” on the right to abortion if the only relevant inquiry is whether a statute regulating the right to abortion furthers a compelling state interest through the least restrictive means. This Court has no evidence before it that a twenty-four hour waiting period is a significant restriction on the right to abortion. All we have are the pleadings—which do not constitute evidence—and Dr. Curry’s speculations that a duly-enacted law additionally burdens the right to abortion. The majority’s unjustifiable departure from North Florida Women’s and T.W. does not satisfy any level of scrutiny. The majority claims that “[p]ut into the appropriate context, it is clear that T.W. in no way created a threshold requirement that a challenger must prove - 52 - through sufficient, factually supported findings that a law imposes a significant restriction on a woman’s right of privacy before the law is reviewed under strict scrutiny.” Majority op. at 23. The majority’s claim cannot be reconciled with T.W., which explicitly distinguishes between statutes that impose “significant restrictions” on the right to abortion and statutes that impose “insignificant burdens” on the right to abortion: Under Florida law, prior to the end of the first trimester, the abortion decision must be left to the woman and may not be significantly restricted by the state. Following [the first trimester], the state may impose significant restrictions only in the least intrusive manner designed to safeguard the health of the mother. Insignificant burdens during [the first or second trimester] must substantially further important state interests. T.W., 551 So. 2d at 1193 (emphasis added) (footnote omitted). T.W. thus makes clear beyond any doubt that statutes imposing “significant restrictions” on the right to abortion are subject to strict scrutiny while statutes imposing “insignificant burdens” on the right to abortion are not. The majority claims that “the significant restriction requirement that the State maintains is appropriate would equate the Florida constitutional inquiry in the termination of pregnancy context to the federal ‘undue burden’ test.” Majority op. at 23. But this assertion flies in the face of what the Court said in T.W. before the federal undue burden test existed. In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), “a plurality of the Court abandoned - 53 - the ‘strict’ scrutiny standard in favor of the less stringent ‘undue burden’ standard.” North Florida Women’s, 866 So. 2d at 634. “Under the ‘undue burden’ standard, a government regulation cannot have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. at 634 n.46. In North Florida Women’s we rejected the undue burden standard and maintained strict scrutiny review when reviewing statutes regulating the right to abortion. But we also maintained T.W.’s rule that strict scrutiny review of statutes regulating the right to abortion applies only if the statutes impose a “significant restriction” on the right to abortion. The majority claims that “[a]ny law that implicates the right of privacy is presumptively unconstitutional, and the burden falls on the State to prove both the existence of a compelling state interest and that the law serves that compelling state interest through the least restrictive means.” Majority op. at 24. But the majority fails to acknowledge that the extent of the right of privacy “must be considered in the context in which it is asserted and may not be considered wholly independent of those circumstances.” Florida Bd. of Bar Examiners re Applicant, 443 So. 2d 71, 74 (Fla. 1983). As this Court has explained: Practically any law interferes in some manner with someone’s right of privacy. The difficulty lies in deciding the proper balance between this right and the legitimate interest of the state. As the representative of the people, the legislature is charged with the responsibility of deciding where to draw the line. Only when that decision clearly transgresses private rights should the courts interfere. - 54 - Stall v. State, 570 So. 2d 257, 261 (Fla. 1990) (quoting T.W., 551 So. 2d at 1204 (Grimes, J., concurring in part, dissenting in part)). This Court’s prior application of a threshold significant restriction requirement to challenges to statutes regulating the right to abortion simply recognizes that the right of privacy is not boundless. The majority claims that “[t]he Mandatory Delay Law, as opposed to the Woman’s Right to Know Act, turns informed consent on its head, placing the State squarely between a woman who has already made her decision to terminate her pregnancy and her doctor who has decided that the procedure is appropriate for his or her patient.” Majority op. at 27. But the majority takes an unreasonably narrow view of the purpose of informed consent. This Court has acknowledged that the State has a compelling interest in safeguarding an individual’s “bodily integrity and patient autonomy” by “prohibit[ing] termination of pregnancy procedures from being performed or induced unless either the referring physician or the physician performing the procedure first obtains informed and voluntary written consent from the patient.” State v. Presidential Women’s Ctr., 937 So. 2d 114, 115-16 (Fla. 2006). The Mandatory Delay Law enhances informed consent by affording a woman sufficient time to privately consider required relevant information concerning “the medical risks of terminating or not terminating a pregnancy.” Id. at 119. The Mandatory Delay Law also enhances voluntary consent—and thereby - 55 - maintains the integrity of the medical profession—by making a woman’s post- informed reflective time free from undue influence by a physician or clinic personnel. The analysis employed by the majority gives no consideration to the full context of the decision to obtain an abortion. The plurality opinion in Casey describes this context: Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Casey, 505 U.S. at 852. The majority ignores the reality that adequate reflection regarding such a uniquely consequential choice necessarily furthers the purpose of informed consent. “The idea that important decisions will be more informed and deliberate if they follow some period of reflection,” id. at 885, is entirely reasonable. [I]n providing time for reflection and reconsideration, the waiting period helps ensure that a woman’s decision to abort is a well- considered one . . . . It “is surely a small cost to impose to ensure that the woman’s decision is well considered in light of its certain and irreparable consequences on fetal life, and the possible effects on her own.” Id. at 969-70 (quoting City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 474 (1983) (O’Connor, J., dissenting)). Although we have rejected - 56 - Casey’s undue burden standard, the reasoning of Casey regarding the purpose of informed consent in the abortion context is independent of that standard. And that reasoning simply recognizes the obvious. The majority claims that “the trial court did not err in not explicitly deciding the disputed issue of what standard is appropriate,” majority op. at 43, for a facial constitutional challenge to a statute regulating the right to abortion because “[t]he trial court’s finding that the Mandatory Delay Law imposes a significant restriction on all women’s fundamental right of privacy, by its plain terms, is sufficient to support an injunction barring the application of the law in its entirety.” Majority op. at 42. But the trial court’s temporary injunction order will be searched in vain for any finding that the Mandatory Delay law imposes a “significant restriction” on the right to abortion. Regardless, the majority fails to acknowledge that—as a matter of Florida law—the no-set-of-circumstances test standard applies to Petitioners’ facial constitutional challenge. See, e.g., Abdool v. Bondi, 141 So. 3d 529, 538 (Fla. 2014) (“For a statute to be held facially unconstitutional, the challenger must demonstrate that no set of circumstances exists in which the statute can be constitutionally applied.”); Florida Dept. of Revenue v. City of Gainesville, 918 So. 2d 250, 256 (Fla. 2005) (“[A] determination that a statute is facially unconstitutional means that no set of circumstances exists under which the statute would be valid.”); see also Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st - 57 - DCA 2004) (“A facial challenge to a statute is more difficult than an ‘as applied’ challenge, because the challenger must establish that no set of circumstances exists under which the statute would be valid.”). Based on the record here, there is no basis for concluding that Petitioners have established a likelihood that they will prevail in meeting their heavy burden to maintain a successful facial challenge in this case. POLSTON, J., concurs. Application for Review of the Decision of the District Court of Appeal – Constitutional Construction First District - Case No. 1D15-3048 (Leon County) Julia Kaye and Susan Talcott Camp of American Civil Liberties Union Foundation, New York, New York; Benjamin James Stevenson of American Civil Liberties Union Foundation of Florida, Pensacola, Florida; Nancy Abudu of American Civil Liberties Union Foundation of Florida, Miami, Florida, for Petitioner Gainesville Woman Care, LLC Autumn Katz of Center for Reproductive Rights, New York, New York, for Petitioner Medical Students for Choice Richard Errol Johnson of the Law Office of Richard E. Johnson, Tallahassee, Florida, for Petitioners Pamela Jo Bondi, Attorney General, and Denise Mayo Harle, Deputy Solicitor General, Tallahassee, Florida, - 58 - for Respondents Catherine Millas Kaiman, Coral Gables, Florida, for Amici Curiae Experts and Organizations Supporting Survivors of Intimate Partner Violence, Sexual Assault, and Trafficking Elliot H. Scherker, Julissa Rodriguez, Stephanie Lauren Varela, and Katherine Marie Clemente of Greenberg Traurig, P.A., Miami, Florida, for Amicus Curiae National Abortion Federation Angela Coin Vigil of Baker & McKenzie LLP, Miami, Florida; Jaclyn Pampel of Baker & McKenzie LLP, Palo Alto, California; and Catherine Y. Stillman of Baker & McKenzie LLP, New York, New York, for Amicus Curiae Bioethicists of Florida Matthew John Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, Florida, for Amicus Curiae Florida Right to Life, Inc. Stephen Craig Emmanuel of Ausley McMullen, Tallahassee, Florida, for Amici Curiae Pellegrino Center for Clinical Bioethics, National Catholic Bioethics Center, Catholic Medical Association, and Florida Conference of Catholic Bishops David Charles Gibbs, III of National Center for Life and Liberty, Largo, Florida, for Amici Curiae Concerned Women for America and The National Legal Foundation Mathew Duane Staver, Anita Leigh Staver, Horatio Gabriel Mihet, and Roger K. Gannam of Liberty Counsel, Orlando, Florida, for Amici Curiae American College of Pediatricians and American Association of Pro-life Obstetricians and Gynecologists - 59 -

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4289324/

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JAYCOBBY R. DUKES, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D16-3990 [June 28, 2018] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Laura S. Johnson, Judge; L.T. Case No. 50-2014-CF- 006113-AXXX-MB. Antony P. Ryan, Regional Counsel, West Palm Beach, and Dan Hallenberg, Special Assistant Regional Counsel, Fort Lauderdale, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Affirmed. DAMOORGIAN, LEVINE and KUNTZ, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.

01-03-2023

06-28-2018

https://www.courtlistener.com/api/rest/v3/opinions/4126924/

Digitally signed by Reporter of Decisions Illinois Official Reports Reason: I attest to the accuracy and integrity of this document Appellate Court Date: 2017.01.27 08:15:08 -06'00' MHR Estate Plan, LLC v. K&G Partnership, 2016 IL App (3d) 150744 Appellate Court MHR ESTATE PLAN, LLC, a Delaware Limited Liability Company, Caption Petitioner-Appellee, v. K&G PARTNERSHIP, an Illinois General Partnership; R.J.K. 1993 TRUST u/t/a Dated September 1, 1994; J.A.K. 1993 TRUST u/t/a Dated March 19, 1994; RUTH KUMICICH, as Trustee of the R.J.K. 1993 Trust and the J.A.K. Trust; EDWARD A. GLAVIN TRUST u/t/a Dated June 26, 2003; and ARLENE GLAVIN as Successor Trustee of the Edward A. Glavin Trust, Respondents-Appellants (Edward Glavin, as Trustee of the Edward A. Glavin Trust Dated June 26, 2003; and Ruth Kumicich, as Trustee of the R.J.K. 1993 Trust and as Trustee of the J.A.K. 1993 Trust, Counter-Petitioners and Third-Party Plaintiffs; MHR Estate Plan, LLC, Counter-Respondent; and Michael H. Rose, Third-Party Defendant). District & No. Third District Docket No. 3-15-0744 Filed July 26, 2016 Rehearing denied August 31, 2016 Decision Under Appeal from the Circuit Court of Will County, No. 11-CH-3196; the Review Hon. Roger Rickmon, Judge, presiding. Judgment Reversed and remanded. Counsel on D. Cass Wennlund, of Wennlund & Associates, of Mokena, and Appeal Michael R. Collins (argued) and John P. Collins, both of Collins & Collins, of Chicago, for appellants. Joseph R. Marconi (argued), David M. Macksey, and Brian C. Langs, all of Johnson & Bell, Ltd., of Chicago, for appellee. Panel PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices Schmidt and Wright concurred in the judgment and opinion. OPINION ¶1 In an action regarding a partnership dissolution and liquidation, respondent partners appealed the circuit court’s order authorizing a liquidator to sell the partnership assets. ¶2 FACTS ¶3 The respondent, K&G Partnership, an Illinois general partnership, entered into a restated partnership agreement on January 1, 1993, for the purpose of the continued development of a mobile home park, called Gateway. The partnership continued a prior partnership between John Kumicich, Edward Glavin, and Donald Kreger and added third-party defendant Michael Rose as a partner. After the partnership was formed, Kumicich transferred his 50% interest in K&G Partnership to two trusts, the R.J.K. 1993 Trust and the J.A.K. 1993 Trust. Glavin transferred his 18.75% interest in K&G Partnership to the Edward A. Glavin Trust. The three trusts and their trustees were named as respondents in this action to dissolve K&G Partnership and appoint a receiver, filed by the petitioner, MHR Estate Plan (hereinafter MHR), the assignee of Rose’s 31.25% interest in K&G Partnership. MHR’s complaint alleged breaches of the partnership agreement and alleged that the partnership agreement explicitly provided that the partnership would expire on December 31, 2010, unless terminated earlier. MHR sought a judicial dissolution and the appointment of a receiver to oversee the dissolution. ¶4 The respondents filed a motion to dismiss, arguing that the arbitration clause in the partnership agreement controlled. The circuit court denied that motion, by order dated September 22, 2011, concluding that there was no factual dispute subject to arbitration but only a winding up by virtue of the termination of the partnership on December 31, 2010. Thereafter, the respondents filed an answer to the petition asserting the affirmative defense that the arbitration clause controlled, a counterclaim seeking to disassociate MHR as a partner, and a third-party complaint against Rose for inducement of breach of fiduciary duty. ¶5 MHR’s motion to strike the counterclaim was denied, and a motion by the respondents to sell K&G Partnership’s assets was also denied. The circuit court determined that a receiver should be appointed and directed the parties to discuss a prospective receiver and report back to the court. By order dated September 26, 2012, the circuit court appointed CR Realty -2- Advisors, LLC, to act as the receiver/liquidator of the assets of K&G Partnership. CR Realty Advisors filed its first report, advising that it believed that an orderly sale was more appropriate than a liquidation or auction. The respondents objected to the report, contending that the receiver failed to value K&G Partnership’s assets and argued for a public judicial sale. The respondents then filed a motion to remove CR Realty Advisors as the receiver, arguing that Grant Manny, the receiver for CR Realty Advisors, was a personal friend of Rose’s son. By order dated May 2, 2013, the circuit court denied the respondent’s motion to remove CR Realty Advisors. ¶6 By order dated June 24, 2013, the circuit court found that counts II and III of the respondents’ third-party complaint against MHR and Rose was subject to the arbitration clause in the partnership agreement and stayed the case pending that arbitration. On May 8, 2014, the arbitrator entered its ruling, and MHR filed a motion to set a hearing date to determine the method of sale of K&G Partnership’s assets. However, the case was again stayed on July 31, 2014, due to Rose’s bankruptcy filing. ¶7 On October 16, 2014, after Rose’s bankruptcy was dismissed, MHR again filed a motion to set a date for the sale of K&G Partnership’s assets. On December 3, 2014, the circuit court entered an order directing CR Realty Advisors to proceed with the planning of a private sale of K&G Partnership’s assets. The court ordered MHR and the respondents to submit their proposed terms of the private sale. Both parties suggested terms, and the circuit court entered an order setting the terms of sale on March 27, 2015. The order provided that CR Realty Advisors would enter into an exclusive right to sell K&G Partnership’s assets, referred to as Gateway I, with Sunstone Manufactured Housing Consultants (Sunstone), a national broker, to the buyer making the highest purchase offer. The parties to the lawsuit could submit a bid but would have no advantage over a third-party bidder. ¶8 Thereafter, on July 16, 2015, CR Realty Advisors filed its liquidator/receiver’s sales and marketing report, disclosing the proposals that it had received. According to the report, a number of bids were received, including one from the respondents. CR Realty Advisors directed Sunstone to invite those with the five highest offers to make their best and final offer by June 5, 2015. CR Realty Advisors also directed Sunstone to invite the respondents to make a final offer, even though their bid was not in the top five. After reviewing the offers, CR Realty Advisors determined that the offer of $12,600,000 from Olympia Acquisitions, LLC was the best offer. As CR Realty Advisors acknowledged, Olympia Acquisitions’ members were current partners of K&G Partnership. The offer matrix indicated that Olympia Acquisitions’ offer was the highest, at $12.6 million. The attached bid from Olympia Acquisitions indicated that the purchase price was $12.6 million, but the terms only called for a payment of $8,662,500, for the 68.5% of K&G Partnership that was not already owned by Rose. The circuit court ordered the acceptance of Olympia Acquisitions’ contract and authorized CR Realty Advisors to execute the contract. ¶9 The respondents objected, arguing that Olympia Acquisitions’ offer was to purchase K&G Partnership’s partnership interests rather than an offer to purchase K&G Partnership’s assets, it was not the best and highest bid, and their own offer was the only real offer. At a hearing on the objection, Dave Mitidiero testified that he acted as the court-appointed liquidator for CR Realty Advisors. Mitidiero testified that he understood that the main asset of K&G Partnership was Gateway mobile home park and that his job was to get the best price for that asset. He did not appreciate the difference between Olympia Acquisitions’ bid for the partnership interests -3- and the respondents’ offer to purchase the beneficial interest in the land trust. He was comparing dollar amounts and felt that Olympia Acquisitions offered the highest price for K&G Partnership’s asset. The circuit court denied the motion to approve the contract to Olympia Acquisitions because the sale order said a sale of assets and Olympia Acquisitions’ proposal contained a quantitative difference. However, the court then ruled that Olympia Acquisitions was the high bidder and could restructure its offer into a proposal to purchase K&G Partnership’s assets for the same contract price of $12,600,000. The respondents’ request to also restructure their bid was denied because the bidding process was over and they would be changing their bid price. The court ordered the liquidator to negotiate a contract with Olympia Acquisitions and bring it to court for approval. ¶ 10 The respondents objected to the order allowing Olympia Acquisitions to restructure its bid to comply with the court order and asked the court to recognize its new bid of $13,000,000 as the best, highest bid. In an order dated August 11, 2015, the circuit court overruled the objection. On the record, the circuit court ruled that the respondents’ bid for $13 million was not a valid bid because the bidding process was closed. Thereafter, CR Realty Advisors presented Olympia Acquisitions’ restructured agreement to buy and sell assets for approval by the court. The respondents objected, essentially raising the same arguments that the circuit court had already rejected. By order dated October 21, 2015, the circuit court approved CR Realty Advisors’ request to approve the contract with Olympia Acquisitions. ¶ 11 The respondents filed a notice of appeal on October 28, 2015, an interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a) (eff. Feb. 26, 2010). However, the respondents also sought to appeal orders entered on September 22, 2011, and August 6, 2015, denying arbitration; the order entered on August 11, 2015, denying the respondents’ bid to purchase the partnership assets and denying their objections to Olympia’s bid; and an order of September 23, 2015, quashing subpoenas for additional discovery. The petitioner, MRH, filed a motion to dismiss as untimely the interlocutory appeal of the orders entered on September 22, 2011, August 6, 2015, August 11, 2015, and September 23, 2015, because they were not filed within 30 days of entry as required by Rule 307(a). MRH also challenged the right to appeal the October 21, 2015, order but on the basis that it was not immediately appealable under Rule 307(a). ¶ 12 ANALYSIS ¶ 13 The respondents argue that the circuit court erred in failing to send MHR’s petition to binding arbitration. The respondents contend that the partnership agreement was straightforward and required the dispute to be sent to arbitration. ¶ 14 First, we must address the appealability of the orders denying arbitration. The circuit court entered two orders, one on September 22, 2011, and one on August 6, 2015, regarding arbitration. The respondents cite Illinois Supreme Court Rule 304(b)(2) (eff. Feb. 26, 2010) as authority for the appeal because they did not file an interlocutory appeal within 30 days of either order. ¶ 15 An order granting or denying a motion to compel or stay arbitration is an interlocutory order appealable under Rule 307(a)(1). Craine v. Bill Kay’s Downers Grove Nissan, 354 Ill. App. 3d 1023, 1025 (2005). The respondents, though, did not appeal the denial of their motion to dismiss within the 30 days required by Rule 307(a). However, Rule 307 does not require that a party file an interlocutory appeal; the party has the option of waiting until after final -4- judgment has been entered. Salsitz v. Kreiss, 198 Ill. 2d 1, 11 (2001). The respondents argue that their appeal of the arbitration decisions was brought under Rule 304(b). Some final judgments that do not dispose of an entire proceeding are appealable without a special finding. Ill. S. Ct. R. 304(b) (eff. Feb. 26, 2010). Relevant to this appeal, this includes “[a] judgment or order entered in the administration of a receivership, rehabilitation, liquidation, or other similar proceeding which finally determines a right or status of a party and which is not appealable under Rule 307(a).” Ill. S. Ct. R. 304(b)(2) (eff. Feb. 26, 2010). We agree with respondents that the order of October 21, 2015, which granted the liquidator/receiver’s motion to approve the contract for the sale of the partnership, was a final judgment in a liquidation proceeding that determined the rights of the parties, conferring jurisdiction on this court to review not only the October 21 order but also the arbitration decisions that were not the subject of an interlocutory appeal. See In re Liquidation of Medcare HMO, Inc., 294 Ill. App. 3d 42, 47 (1997) (dismissal of one theory of recovery was not appealable until entry of judgment or order that finally determined right or status). ¶ 16 The respondents argue that the issues raised in MHR’s petition were subject to the arbitration clause. MHR argues that there was no arbitrable dispute because the partnership had terminated pursuant to the Uniform Partnership Act and the terms of the partnership agreement prior to the petition being filed and all that remained was the winding up of the partnership pursuant to section 801 of the Uniform Partnership Act (1997) (805 ILCS 206/801 (West 2010)). The respondents argue on appeal that there was a dispute as to whether the partnership actually dissolved on the termination date, but MHR contends that this argument was waived because it was not raised in the circuit court. ¶ 17 An appeal from the denial of a motion to compel arbitration, without an evidentiary hearing, is reviewed de novo. Hollingshead v. A.G. Edwards & Sons, Inc., 396 Ill. App. 3d 1095, 1099 (2009). ¶ 18 Section 2.4 of the K&G Partnership agreement provided that the partnership “shall continue until December 31, 2010, unless sooner terminated as provided in Article IX of this Agreement.” Article IX contained the termination of partnership provisions. ¶ 19 The arbitration clause in section 12.1 of the K&G Partnership agreement provided: “The Partners agree to submit all disputes arising under this Agreement to binding arbitration. If a dispute arises, the Partners shall agree upon a place at which the arbitration will be conducted. The arbitration proceedings will be conducted in accordance with the rules of the American Arbitration Association.” ¶ 20 Under the Uniform Arbitration Act (710 ILCS 5/1 et seq. (West 2010)), the parties are bound to arbitrate those issues that they have agreed to arbitrate. Smola v. Greenleaf Orthopedic Associates, S.C., 2012 IL App (2d) 111277, ¶ 16. If a dispute is clearly within the arbitration clause, the court should order arbitration. However, if the dispute is clearly not within the clause, then there is no agreement to arbitrate, and the court should deny arbitration. If the scope of the agreement is reasonably in doubt, then the meaning of the arbitration clause should be determined by the arbitrators. State Farm Mutual Automobile Insurance Co. v. Hanover Development Corp., 73 Ill. App. 3d 326, 328-29 (1979) (citing School District No. 46 v. Del Bianco, 68 Ill. App. 2d 145, 154-55 (1966)). In Ozdeger v. Altay, 66 Ill. App. 3d 629, 631 (1978), the First District held that a written contract arbitration clause covering all disputes “arising out of, or relating to” the written contract required arbitration of the related oral contract. On the other hand, in United Cable Television Corp. v. Northwest Illinois Cable -5- Corp., 128 Ill. 2d 301, 305 (1989), the supreme court found that a dispute between limited and general partners was not a dispute subject to the limited arbitration clause that only applied when the “general partners fail to agree on a matter *** affecting the general policy of the Company *** that would, in the judgment of either general partner, materially or adversely affect the business or prospects of the Company.” (Internal quotation marks omitted.) In reaching that conclusion, the United Cable court emphasized the limited nature of the arbitration clause, in contrast to the broad “any claim relating to or arising out of” or “any controversy which arises out of” type. (Internal quotation marks omitted.) United Cable Television Corp., 128 Ill. 2d at 308. ¶ 21 The arbitration clause in this case was broad, providing that all disputes arising under the agreement were subject to arbitration. The complaint in this case alleged various breaches of the partnership agreement, with respect to the termination and liquidation of the partnership, including allegations that the respondents refused to take action to terminate the partnership and liquidate the assets and refused to allow Rose to act as managing partner after the death of Kumicich. Because the dissolution and liquidation provisions were in dispute, under the broad arbitration clause, those issues were subject to arbitration, or at least reasonably in doubt, so that the meaning of the arbitration clause should have been determined by the arbitrators. Thus, we reverse the order of September 22, 2011, denying respondents’ motion to dismiss based upon the arbitration clause and remand to the circuit court for proceedings consistent with this order. As such, we decline to address the remaining substantive issues relative to the disposition of K&G Partnership’s assets as those issues are subject to arbitration. MHR’s motion to dismiss the appeal is denied. ¶ 22 CONCLUSION ¶ 23 The judgment of the circuit court of Will County is reversed and remanded. ¶ 24 Reversed and remanded. -6-

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126830/

IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-IA-01260-SCT JOHN K. HAMILTON v. KIDRON S. WISE YOUNG DATE OF JUDGMENT: 08/19/2015 TRIAL JUDGE: HON. TALMADGE D. LITTLEJOHN COURT FROM WHICH APPEALED: LEE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: WILLIAM WAYNE SMITH ATTORNEYS FOR APPELLEE: ROY O. PARKER, JR. T. K. MOFFETT NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: REVERSED AND RENDERED - 02/16/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. BEAM, JUSTICE, FOR THE COURT: ¶1. This interlocutory appeal arises from the registration of an Ohio-issued divorce decree in the Lee County Chancery Court and a subsequent petition for modification by the obligee, a Mississippi resident. Asserting the continuing and exclusive jurisdiction of the Ohio court in matters involving the modification and alteration of the decree, the obligor-father appeals the chancery court’s denial of his motion to dismiss the obligee-mother’s complaint for modification of the decree. Reviewing the procedural history and the facts of the case, we find that (1) neither the Ohio court nor the parties consented in writing to the transfer of jurisdiction, and (2) because evidence indicates that the Ohio court never relinquished jurisdiction, that court is the proper forum for proceedings on modification. Thus, this Court reverses the chancery court’s ruling and enters judgment in favor of the father, dismissing the mother’s complaint for lack of jurisdiction. FACTS AND PROCEDURAL HISTORY ¶2. On July 10, 2010, the Court of Common Pleas in Muskingum County, Ohio, entered a judgment granting the divorce of Appellant John Hamilton and Appellee Kidron Wise Young. The judgment entry and divorce decree dissolved the parties’ marriage and provided for the care, custody, control, and support of their minor child, Adelie Wise-Hamilton. Through the decree, Young received residential parent and legal custodian status with regard to Adelie. The decree made Hamilton the nonresidential parent with requirements to abide by a parenting schedule as outlined by the parties’ separation agreement. ¶3. Some time after the divorce became final, Young and Adelie moved to Mississippi. Once settled, Young registered the 2010 divorce decree with the Lee County Chancery Court, in accordance with Mississippi Code Sections 93-25-81 and 93-25-83. By registering the decree with a Mississippi court, the order became enforceable in the same manner and subject to the same procedures as an order issued by a court in this state. Miss. Code Ann. § 93-25-85 (Rev. 2013). However, while the Lee County court gained the ability to enforce the decree, the registration did not authorize it to modify or amend the order as long as the Ohio court–the issuing tribunal–maintained jurisdiction. Id. Eight months later, but prior to an entry of 2 registration by the court, Young amended her complaint to include a request that the court assume jurisdiction of the case pursuant to Mississippi Code Section 93-25-101.1 ¶4. In an order dated July 30, 2013, nunc pro tunc July 15, 2013, the Lee County Chancery Court registered the Ohio decree, granting full faith and credit to the judgment. Additionally, without elaboration, the court assumed jurisdiction “of all matters relating to the minor child including, but not limited to: custody, visitation, and support, pursuant to Section 93-25-101.” The order was certified and shared to be “spread upon the minutes” of the Ohio court. ¶5. Less than one month later, on August 21, 2013, the Ohio court held a hearing on Hamilton’s motion to modify parental rights and responsibilities. Without reference to the Lee County court’s July 30th order, the Ohio court ruled that, because Hamilton still resides in Muskingum County, it maintains jurisdiction over all matters relating to Adelie. Finding that the parties had reached an agreement as to all issues presented, the court modified the original divorce decree to represent that the parties reside in separate states and entered an order reflecting the arrangement outlined in the judge’s settlement memorandum. Signed by both parties and their attorneys, this memorandum modified the original parenting arrangement and its visitation schedule. Although not dated when signed, the order on this hearing was entered by the clerk of Ohio court on September 6, 2013. ¶6. In November 2014, the Ohio court again amended the 2010 decree. Upon the recommendation of the Muskingum County Department of Job and Family Services, Child 1 The relevant portion of Mississippi Code Section 93-25-101 describes the residency requirements for this state to modify a child support order issued in another state, after having been registered here. Miss. Code Ann. § 93-25-101 (Rev. 2013). Those requirements are detailed in Issue I, as applicable. 3 Support Division, the court decreased the amount of monthly support Hamilton was required to provide for Adelie’s care and maintenance. These changes in support were to be effective retroactively, beginning on November 1, 2014. ¶7. Aggrieved, in May 2015, Young filed in Lee County Chancery Court a complaint for modification of the September 2013 and November 2014 Ohio orders. Hamilton then timely responded with a motion to dismiss the action based on the Ohio court’s continuing, exclusive jurisdiction over the matter. Citing the Muskingum County court’s September 2013 order, Hamilton asserted that because he continues to reside where the cause of action originated, the Ohio court maintains jurisdiction over matters involving Adelie. The Lee County Chancery Court held a hearing on the matter on August 12, 2015, and ultimately denied Hamilton’s motion. Referencing a conversation held between the Lee County chancellor and the Ohio court prior to the July 2013 order, the court ruled that the Ohio judge had relinquished jurisdiction, upon which the Lee County Chancery Court assumed jurisdiction and granted full faith and credit to the Ohio divorce decree. The court also held that, although Hamilton referenced the September 2013 order as an indication of Ohio’s continuing jurisdiction, that order was not dated and therefore not proper. ¶8. On appeal, Hamilton presents one issue and asks this Court: I. Whether the Lee County Chancery Court erred when it denied the Motion to Dismiss for Lack of Jurisdiction under the Uniform Child Custody, Jurisdiction, and Enforcement Act. In her response, Young presents two additional issues for review: 4 II. Whether Hamilton is estopped from challenging an order of the Chancery Court two years after its entry, by filing a Motion to Dismiss for lack of jurisdiction. III. Whether Mississippi’s jurisdiction in this matter can be challenged by a court in Ohio without finding that Ohio is the more convenient forum. Because these issues contain mixed requirements for review, the standard of review for each issue is addressed, independently, prior to its analysis. LAW AND ANALYSIS I. Whether the Chancellor erred in denying the Motion to Dismiss for Lack of Jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. ¶9. Jurisdictional questions involving divorce decrees, child-support agreements, and custodial arrangements are issues familiar to this Court, and several cases before today have asked similar questions. See Edwards v. Zyla, 2016 WL 6822419 (Miss. 2016)(Motion for rehearing denied 2/2/17; mandate issued 2/9/2017); Grumme v. Grumme, 871 So. 2d 1288 (Miss. 2004); Dep’t of Human Servs. v. Shelnut, 772 So. 2d. 1041 (Miss. 2000); Bradshaw v. Bradshaw, 418 So. 2d 64 (Miss. 1982). What sets this action apart from those previously decided is the question of fact surrounding the apparent waiver of jurisdiction by the Ohio court, and whether that apparent waiver effectively granted the Lee County Chancery Court authority over all issues related to the minor child. We hold that it does not. ¶10. While Hamilton asks the Court to review the jurisdictional issue under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) at the time of filing, the matter sub judice remained governed by both the UCCJEA and the Uniform Interstate Family 5 Support Act (UIFSA). Because Young’s complaint involves a modification of both the visitation arrangement and child-support payments, the questions pertaining to custody are reviewed under the requirements of the UCCJEA, and those relating to child support are analyzed under the UIFSA. A. Standard of Review ¶11. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” R.K. v. J.K., 946 So. 2d 764, 772 (2007) (citations omitted). While the issue of “whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo[, . . . ] the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial-evidence and abuse-of-discretion standards.” Clifton v. Shannon, 93 So. 3d 70, 72 (Miss. Ct. App. 2012). Therefore, we review the issue of whether the chancellor properly assumed jurisdiction of this case under the UCCJEA and UIFSA using the de novo standard, while the facts of this matter are reviewed using substantial evidence and abuse of discretion standard. B. Child Support Modification under UIFSA ¶12. In his July 2013 order, the Lee County chancellor made a factual determination which ultimately vested jurisdiction of this matter in his court. After conferring with the Ohio court, the chancellor concluded that Ohio had relinquished jurisdiction, making the Lee County Chancery Court the appropriate forum for all matters related to the minor child. Thereafter, the chancellor assumed jurisdiction for future proceedings and issued an order to that effect, 6 without any discussion or written record of the meeting between the two courts. In light of the information in the record and the subsequent Ohio orders in September 2013 and November 2014, we find that the chancellor’s uncorroborated assumption of jurisdiction in July 2013 is not enough to transfer the authority to modify an existing child support agreement from Muskingum County, Ohio, to Lee County, Mississippi.2 Under Section 93-25-17(3) of UIFSA, Mississippi courts shall recognize the continuing, exclusive jurisdiction of the tribunal of another state which has issued a child support order pursuant to the act or a substantially similar law. Miss. Code Ann. § 93-25-17(3) (Rev. 2013). Having fully adopted UIFSA, the applicable Ohio statute is identical to Mississippi’s law on modifying support orders of another state.3 The laws provide, in pertinent part: (A) A tribunal of this state that has issued a child-support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child-support order if the order is the controlling order and either of the following applies: (1) At the time of the filing of a request for modification, this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued. 2 Moreover, both parties assented to the Ohio court’s continuing and exclusive jurisdiction though its September 2013 order. While neither Young nor her attorney signed the order before it was entered, Young and her attorney signed the attached Settlement Memorandum, from which the judge crafted the order. Aside from the court’s confirmation of jurisdiction on the matter, all material language included in the order is conveyed in that memo. By signing the memo and agreeing to the amendments, Young confirmed that the Ohio court maintained control over the matter and any changes to the divorce decree. Further, because Young failed to object to the order after it was entered, the ruling controls and the court’s reiteration of jurisdiction is proper. 3 See Miss. Code Ann. § 93-25-205 (Rev. 2013). 7 (2) Even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order. (B) A tribunal or support enforcement agency of this state that has issued a child-support order consistent with the law of this state may not exercise continuing, exclusive jurisdiction to modify the order if either of the following applies: (1) All of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction. (2) Its order is not the controlling order. Ohio Rev. Code Ann. § 3115.205 (emphasis added). Because “the purpose of UIFSA is to create certainty as to a single state that can modify the child support order,” determination of continuing, exclusive jurisdiction and the authority to modify such judgments in Mississippi is analyzed under a multi prong statute. Grumme, 871 So. 2d at 1290. The statute–Mississippi Code Section 93-25-1014–allows “[t]he issuing state [to retain] continuing, 4 [U]pon petition, a tribunal of this state may modify a child support order issued in another state which is registered in this state, if, after notice and hearing, it finds that: (a) The following requirements are met: (i) Neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state; (ii) A petitioner who is a nonresident of this state seeks modification; and (iii) The respondent is subject to the personal jurisdiction of the tribunal of this state; or (b) This state is the state of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and 8 exclusive jurisdiction until another state (registering state) acquires jurisdiction. The continuing, exclusive jurisdiction of the issuing state remains in effect as long as one of the parents or the child still resides in the issuing state, unless the parties agree to the contrary.” Grumme, 871 So. 2d at 1290. Therefore, for a Mississippi court to assume jurisdiction of another state’s support judgment under UIFSA, no parties may remain in the state which issued the judgment; or, if a party remains in the issuing state, then both parties may agree–on the record–to the transfer of jurisdiction. ¶13. As noted above, Hamilton has maintained continued residence in Muskingum County, Ohio, since the 2010 divorce decree was entered. Although Young and Adelie relocated to Mississippi, Hamilton’s continued residence in Ohio fulfills the requirement for that state to maintain jurisdiction under UIFSA and Ohio Code Section 3115.205(A)(1). While the Lee County chancellor’s July 2013 order asserts that his conversation with the Ohio judge vested in his court jurisdiction over all matters relating to the minor child, under UIFSA, this conversation was not enough. Both Hamilton and Young must have filed consent in a record with the Ohio court, stating that the Lee County Chancery Court has jurisdiction over either one of the parties or the minor child, and that it may modify the order and assume continuing, exclusive jurisdiction over the matter. Because neither the trial record nor the parties provide any evidence indicating such a submission was made to either the Muskingum County or the all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction. Miss. Code Ann. § 93-25-101(Rev. 2013). 9 Lee County courts, it follows that the Lee County court never acquired jurisdiction over this case. Therefore, the chancellor’s assertion of jurisdiction over child-support agreements fails under UIFSA, and any orders issued which indicate the contrary are reversed. C. Custody Modification under the UCCJEA ¶14. Under the UCCJEA, the process for a state to relinquish its jurisdiction on child- custody matters also is detailed through identical statutes in the Ohio and Mississippi codes. Mississippi Code Section 93-27-203 provides that “a Mississippi court ‘may not modify a child custody determination made by a court of another state unless’ a Mississippi court ‘has jurisdiction to make an initial determination [of custody] under [Mississippi Code] Section 93–27–201(a) or (b)[.]’ Thus, the first step in any analysis regarding a Mississippi court’s right to modify another state’s existing custody determination begins with determining whether a Mississippi court satisfies either Section 93-27-201(1)(a) or Section 93-27- 201(1)(b).” Edwards, 2016 WL 6822419, at *3. ¶15. Here, the Lee County Chancery Court meets the initial requirement under Section 93- 27-201(a). That section mandates that Mississippi be “the home state of the child on the date of the commencement of the proceeding.” Miss. Code Ann. § 93–27–201(1)(a) (Rev. 2013). For Mississippi to be considered the home state of the child, Adelie must have “lived with a parent for at least six consecutive months immediately before the commencement of the custody proceeding.” Edwards, 2016 WL 6822419 at *3, (citing Miss. Code Ann. § 93-27- 102(g)). Because Young and Adelie moved to Mississippi soon after the 2010 divorce decree was entered and remained within the state consecutively for more than six months prior to the 10 decree’s registration in Mississippi, the Lee County court was correct in determining that Mississippi is Adelie’s home state. ¶16. Having satisfied subpart (a) of Section 93-27-201, the analysis to determine whether Lee County had jurisdiction to modify the custody arrangement continues to Section 93-27- 203. Part (a) of the statute provides that the chancellor could modify the custody determination if “the court of the other state determines it no longer has exclusive, continuing jurisdiction under [UCCJEA] Section 93-27-202, or that a court of this state would be a more convenient forum under [UCCJEA] Section 93-27-207.” Miss. Code Ann. § 93-27-203(a) (Rev. 2013). Part (b) provides that if “a court of this state or a court of the other state determines that neither the child, the child’s parents, nor any person acting as a parent presently does not reside in the other state,” then a court of this state may assume jurisdiction to modify a child custody determination made by the court of the other state. Id. 93-27- 203(b). As discussed below, Hamilton’s continuing residence in Muskingum County causes the analysis to fail under both (a) and (b). ¶17. For part (a), the Act defines exclusive, continuing jurisdiction in Section 93-27-202, providing that a court which has made a child custody determination consistent with the UCCJEA will have jurisdiction over the determination until a court of that state determines that neither the child nor her parents have a significant connection with the state, or a court of that state or of another state determines that the child, the child’s parents, and any person acting as a parent currently do not reside in that state. Miss. Code. Ann. § 93-27-202 (Rev. 11 2013). In short, if the parents or the child neither reside in nor maintain a significant connection with the issuing state, then its jurisdiction can be terminated. ¶18. In applying this rule to Section 93-27-203(a) and (b), the chancellor’s assumption of jurisdiction was in error. Because Hamilton has not moved from Muskingum County since the divorce decree was entered, the Ohio court maintained continuing and exclusive jurisdiction over the case. Additionally, in looking to the second half of part (a), for Mississippi to be considered a more convenient forum, the Ohio court must at the very least have determined that the Lee County court was the proper forum based on the factors outlined in Ohio Code Section 3127.21.5 The record submitted to this Court contains no information indicating the Ohio court’s consideration under the statute, nor do the parties assert that a motion was made to determine whether the Ohio court was a convenient forum. Accordingly, under the statute, the chancellor erred in assuming jurisdiction over any custody matters. ¶19. Finding that the chancellor erred under the applicable statutes, we also find that he erred under relevant Mississippi caselaw. As explained above, the evidence in the record does not support the view that either the Ohio court or the parties agreed to relinquish jurisdiction to the Lee County court. The record includes no information regarding the conversation between the chancellor and the Ohio court, and there is no information indicating that the parties assented to the change. Without more, Mississippi caselaw fails to support the chancellor’s actions. 5 This is Ohio’s statute which reads identically to Mississippi Code Section 93-25-207. Both statutes allow for the parties to submit information to the court regarding forum convenience. The court considers this information, along with the statute’s listed factors, in determining whether the current forum is appropriate. 12 ¶20. While the issue before us is new to this Court, the Mississippi Court of Appeals, in Nelson v. Halley, 827 So. 2d 42 (Miss. Ct. App. 2002), explained that consent to modify an order from another court which has exclusive jurisdiction is to be effected through a filed writing: [A state may modify a support order, if it finds that the] child or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order. Halley, 827 So. 2d at 49-50 (quoting Miss. Code Ann. § 93-25-101(1)(b) (Supp. 2001)).6 The chancellor in today’s case neither required consent from the parties nor submitted minutes of his conference with the Ohio court to the record. Further, the Ohio hearing–which took place just one month after the judgment was registered in Mississippi–reasserted jurisdiction in Muskingum County, amending the decree and adjusting the parties’ visitation arrangement. The November order–issued one year later by the Ohio court–modified Hamilton’s child- support obligations, again indicating that the Ohio court had not waived its jurisdiction. These subsequent orders and the lack of recorded consent between the courts and the parties indicate that the chancellor’s assumption of jurisdiction goes “clearly against logic and effect 6 The revised version of this statute (applicable to this case) is substantially similar: (b) [A state may modify a support order, if it finds that this] state is the state of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction. Miss. Code Ann. § 93-25-101(1)(b) (Rev. 2013). 13 of such facts as are presented,” suggesting the chancellor committed an abuse of discretion. Douglas v. Burley, 134 So. 3d 692, 697 (Miss. 2012).7 ¶21. Therefore, because Hamilton resides in the state with continuing and exclusive jurisdiction over this matter, and neither the parties nor the Ohio court consented–on the record–to transferring jurisdiction to the Lee County Chancery Court, the Ohio court neither waived nor relinquished its control over matters pertaining to the parties’ divorce decree or the care of the minor child. For these reasons, we hold that the chancellor erred in denying Hamilton’s motion to dismiss. II. Whether the Appellant is estopped from challenging an order of the Chancery Court two years after its entry, by filing a Motion to Dismiss for lack of jurisdiction. ¶22. This Court employs a de novo standard of review when considering the appeal of a motion to dismiss. Johnson v. Thomas ex rel. Polatsidis, 982 So. 2d 405, 409 (Miss. 2008). Likewise, it uses the same standard when determining questions of law including limitations issues, timeliness, and standing. Mitchell v. Progressive Ins. Co., 965 So. 2d 679, 682 (Miss. 2007). ¶23. Following Young’s registration of the decree and support order, Hamilton submitted to the personal jurisdiction of the court for purposes of enforcement of the decree and nothing more. Under UIFSA, “[t]he proper procedure to be followed by a foreign jurisdiction seeking 7 Mississippi Court of Appeals cases Nelson v. Halley, 827 So. 2d 42 (Miss. Ct. App. 2002) and Gowdey v. Gowdey, 825 So. 2d 67 (Miss. Ct. of App. 2002) present similar scenarios regarding UIFSA and UCCJEA governed issues in which the court determined that Mississippi courts could not assume jurisdiction over child-support and custody arrangements when the court of another state maintained exclusive and continuing jurisdiction. Directly applicable to the case at hand, these decisions confirm the chancellor’s error if the Court decides that he independently transferred jurisdiction to Lee County. 14 enforcement of a child support order is to send a request for registration with the order to the appropriate tribunal in Mississippi. Miss. Code Ann. § 93-25-83 (Supp.1999). A registered order ‘is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.’ ” Shelnut, 772 So. 2d at 1044-45 (citing Miss. Code Ann. § 93-25-85(2) (Supp.1999)).8 “As long as the issuing state retains its continuing, exclusive jurisdiction over its child support order, a registering sister state is precluded from modifying that order.” Halley, 827 So. 2d at 47 (citing 9 ULA Uniform Interstate Family Support Act § 611 cmts. (1999)). ¶24. Further, a complaint for registration of a foreign child support judgment in Mississippi does not require a responsive pleading. Under Sections 93-25-81 and 93-25-83 of the Mississippi Code, registration of the order does not require that litigation be commenced. However, when combined with the request to modify a support order or visitation arrangement, the pleading must be answered or defenses are otherwise waived. See Miss. Code Ann. § 93-25-97. Here, Young’s First Amended Complaint for Registration of Foreign Judgment and for Other Relief requested the chancery court to register the Ohio judgment, give that judgment full faith and credit, and assume jurisdiction over the matter. As detailed above, Ohio maintained “a sufficient interest in the modification of its order,” preventing Mississippi from assuming jurisdiction spontaneously. Halley, 827 So. 2d at 47. 8 Although citing to the statute updated in 1999, the version applicable to the case today has the same effect as the language in Shelnut. Mississippi Code Section 93-25-85(2) states that “[a] registered order issued in another state is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” Miss. Code Ann. § 93-25-85(2) (Rev. 2013). 15 Accordingly, Hamilton had no reason to challenge the registration of the decree; and therefore, he had no need to object to the amended complaint. ¶25. Alternatively, Young argues that the Lee County court properly assumed jurisdiction, and the chancellor’s determination that Mississippi is a more convenient forum under Mississippi Code Section 93-27-202 and 93-27-203 was appropriate. However, as previously discussed, the chancellor’s failure to request consent of the parties or to document his finding on jurisdiction in the record preserved Ohio’s control over this matter. See Halley, 827 So. 2d at 52 (Court of Appeals found that the chancellor’s custody modification under the UCCJEA was appropriate because it was recorded and signed by both parties and their counsel). Moreover, because the Lee County court did not properly assume jurisdiction over the matter, Hamilton cannot have waived his ability to challenge it. Therefore, finding that Young’s request for registration did not require a response, and the chancellor’s assumption of jurisdiction was improper, we hold that Hamilton’s motion to dismiss was timely filed. III. Whether Mississippi’s jurisdiction in this matter can be challenged by a court in Ohio without finding that Ohio is the more convenient forum. ¶26. Whether the chancery court has jurisdiction to hear a particular matter is a question of law which this Court reviews de novo. Miss. Dep’t of Human Servs. v. Watts, 116 So. 3d 1056, 1058 (Miss. 2012). However, “the findings made by a chancery court sitting as a finder of fact are reviewed under the substantial evidence/manifest error standard. Shearer v. Shearer, 540 So. 2d 9, 11 (Miss. 1989). This standard provides that the findings of the chancellor will not be reversed if supported by substantial evidence; or that the finding will 16 be upheld unless manifestly in error.” Stowers v. Humphrey, 576 So. 2d 138, 140 (Miss. 1991). Because the chancellor independently made a factual, off-the-record, determination that Lee County was the more convenient forum ,the substantial-evidence standard applies to this issue. ¶27. As clearly outlined through the language of Mississippi Code Section 93-27-203 and the analysis provided under Issue I above, the chancellor’s assumption of jurisdiction over this matter was not supported by the evidence and was manifestly in error. As the record fails to show that the Ohio court relinquished jurisdiction, or that the parties and the courts determined Mississippi was a more convenient forum, Young’s argument fails under both the UCCJEA and UIFSA. Because the issues of jurisdiction and forum conveniens have been addressed thoroughly and serve as dispositive answers to the questions presented under this issue, we will not address the additional procedural arguments outlined by Young. CONCLUSION ¶28. The principle of comity suggests that “courts of one state or jurisdiction will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and mutual respect.” Comity, Black's Law Dictionary 267 (6th ed. 1990). This is the basic principle defining the constitutional requirement that state courts grant full faith and credit for the child-support and custody judgments of sister states. Laskosky v. Laskosky, 504 So. 2d 726, 729 (Miss. 1987); see also U.S. Const. Art. IV § 1; 28 U.S.C.A. §§ 1738A, 1738B. Without evidence of the Ohio court’s waiver of jurisdiction and the parties’ consent to transfer jurisdiction to the Lee County court, the chancellor’s assumption of 17 jurisdiction and apparent disregard for the longstanding principle of comity cannot be affirmed. Therefore, because this Court finds that the chancellor erred in denying Hamilton’s motion to dismiss, we reverse the judgment of the Lee County Chancery Court and render judgment in favor of Hamilton, dismissing Young’s complaint for lack of jurisdiction. ¶29. REVERSED AND RENDERED. WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN, MAXWELL AND CHAMBERLIN, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING. 18

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4176247/

Citation Nr: 1714070 Decision Date: 04/28/17 Archive Date: 05/05/17 DOCKET NO. 10-29 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for periodontal disease for compensation purposes. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter was previously before the Board, and, in March 2015, the Board remanded this matter for further development. Unfortunately, further development in substantial compliance with the Board's remand instructions has not been completed. The Board notes that an August 2016 supplemental statement of the case (SSOC) indicates that the issue of entitlement to service connection for a disability manifested as muscle spasms and numbness (claimed as residuals of electric shock) is before the Board. That issue was previously before the Board and remanded for further development in March 2015. Subsequently, the AOJ provided the Veteran with a VA examination in compliance with the Board's remand instructions. The VA examiner opined that the Veteran did not have a muscle injury, and that his claimed symptoms were due to a cervical spine injury; and the AOJ subsequently granted the Veteran service connection for a cervical spine injury. Therefore, the Board finds that Veteran has already been granted his full prayer of relief, and the issue is no longer properly before the Board. The issue of entitlement to service connection for periodontal disease for treatment purposes has been raised by the record by virtue of the Veteran's claim for service connection for periodontal disease for compensation purposes, but service connection for treatment purposes has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to service connection for periodontal disease. In March 2015, the Board remanded the issue in order to provide the Veteran with a VA dental examination and, thereafter, to readjudicate the claims and provide a SSOC before returning the matter to the Board. The AOJ did provide the Veteran with a VA dental examination, but the AOJ did not provide the Veteran with a SSOC. Therefore, this matter must be remanded in order to ensure compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).

01-03-2023

06-09-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142572/

OFFICE OF THE ATTORNEY GENERAL OF TEXA5 ‘AUSTIN ._ Bonorable George H. 3heppord Comptroller of Publlo Aacouuts Austin, Texas. Dear Sir: its aoknowledge recc .-. two letters addreeeed to you Judg3 of iC3nt County, rslatin Oote Ad valorenl And 22 In Blook Hudsp,eth County, and receiving bids Or prb- ty depository of the fuads Coimlesionsra’ Court of that clnwmy Fern, 1931, soloct as First IZatioml Bank of Sa-&on, Theae bondn T. E. Xurdoch and several .other individuals vero sureties on both of. these bonds, each furnishLag n financial statement At the ‘. tine of the preaontatlon of the b6ndc. 0ti’I.l~. MLIP- ‘doch’o fi.ncx&~l statment there was lletsd, onon& other p;lopsl%p, 3200 acres of grcis8 land in IkIdsi>eth County, valued on the ototosaat at $24,000.00, aSninet ,vhich $hsro vae’listad 01i iadebtpclmos to. the State mud Of $48~~.00. . , ‘ .t . . .’ -. Konorablc GeorEe II. Sheppard, page 2 “The Fir.st National Be& or Jayton, Tems, fail-. :ed on or about the 8th day of June, 1932, defaulting on the above wentioned bonds. Suit was filed by Kent :’ County on the bonds end depository contract, which, ‘. upon trial in the Federal District Court for the ‘. ‘.. -. Northern District of Texae, at Lubbock, resulted in. i:. ;‘. .‘; a’judgmnt in favor of ~KentCounty .against all of the ., ‘.i..defendant, bondmen, including T. E. Murdoch, for a. : .. ...’: :. total ~Drinoipsl amount of .$100,417.20. This judg- _, ., ‘. :,ment also foreclosed a dead of trust lion 02 the a- bove desoribod land Given by Kr. Murdoch as an iq- I:‘‘.. ’ demity security in oomection vith .thg.borrds. ::.’~. . .,. .” : : :. . :.i ~. ‘The ju@nont just -ti%ntion& was rendered on -‘I. . ‘Sul$ 18, 1934. Tboreafter, AM on’th% 25t.h day of. ‘.: ;,.:..:~““:._. May, 1935, T. E. Murdoch coweyed the land to,Kent. I.:: ~’.* Oounty, Texas.: ‘a polltiaal oubdlvlsion of the State;‘:.. .. of T&m’, r8citti a oonsideration of Ten Dollarn. :, Murdoch vas insolvent and by reason ‘of this judg- ,. . mnt KentCounty held far raore than.fifty per cent 0: OS the claims against him, At the ttie this deed .. was sxecuted the CozmissiomraI. Court satisfied .J . it-. ~’ self, that this vas the only .propertg ovnod by Isir, ‘ . Ronorable Gooree H. 8heppard! pai8 3 .. *At the time of the failure of the depository 1 bank there vas on d%posit th%r8in the following a- mounts to the &edit of each reepectlve fund: , ... .. aComvio~School District State & county :i ~ $1,387.2X :.. it .: tenanco :. CommmdSchool District Schoolhouse ... CommonSchool District Rural &I CommonSchool District Building : :. County AvaIlable School County Permanent School County Administration Court &US8 Bond Sail Bond .’ Road and Bridge Dond .‘.: ?SwialRoad District No, 1 Bond Special Road Distrtct 110. 2 Dond Special Road District ho. 7 Bond Gonaral Bund;Herrant Sinking County PUghwayWarrant Sinking ‘. Road & Bridge Warrant Sinking : General Fund .’ Jury Fund’ Rood & &,&Q8 Fr;nd . Permanent Improvement Fund Oounty Righway Fund ._ “There has been reimbursed to’ each of the ‘above ; ‘~ funds; from eOll8CtiOnS made from the receiver of the defunct bank and from the bondsmen, thirty-four per _. ceirt of the above amounts, not counting . . the land abOQ%described. ‘At the.time of the failure of the depository’ ‘bank Rent County was not operating on a cash basi.3, eome of the funds above appearing a3 tourrent fundst being several years behind, There vas outstanding script, issued by the county clerk, again3t each of the laot five named funds vhlch had been r%Slatorcd by the treaouror, but on whhichthere had been no checks issued, for the reason that ecriy provlou3ly rcgietered by the treasurer va3 outstandinS in eufficlent amounts to take up the mon%y then on deposit with the deposi- tory 3.3 .%houn above. ” .-* . Honprable George H. Sheppard, page 4 . ‘Kent Countjr ovns Se&ions Nosi 21) and 25 in : * Blook 74 and Section 5 in Blook 75, Public School . ‘.. ,’ Lands In Hudspeth County ln addltlon to the Irinds . ’ ’ desorlbed ln my letter to you of thls date and here-~ ‘1. ’ .’ .. vith attached. The county acquired title to theao . . 1: three sections in a manner different from that by :.;:‘. .‘. .~.Ivhlch they ecqulred, title to the land described in ..:~ _;:. . ~~~.Y” the’ attached letter, In addition to the Information ‘_ “.’ .,; given in the other letter, you are advised In eon- :.’ : ..::i’-.‘~ sgeotlon with these three se&ions as follove: ,: :;I:::, .A. . ~).. %hen the First National ‘&k of Jayton, Tex&l. ~~~~~,,’ .“’ .‘ ic::i.N :._ failed the Comptroller of Currency appointed a re- ..:.; .:.: ‘: : ; celver therefor, After a portion of the assets of ,.: .;-. ‘,- the defunct bank had been liquidated, the Coniptrollel* :~” of Currency and a court of competent juris’dlctlton au- .. ,:.... .; :. tho&ieed and ordered the sale ,oS the rem- as- _jl;.” j:;; .: sets to Kent County, it having been the highest .,_. ,..._...;I:_.. -‘.:l :{ bidder, for eaid assets and ovnlng practically all’ : ,.‘_:_.! :::.’ of the claims agalnst the defunct bank4 A deed to : “‘!,; .;. .‘.,l.‘z:;theeo three seot+o!@ of land was executed by the re-. .’._,!::. : .: .? oelver and accepted by qhe oounty in whloh the con- : .‘. i ‘.:““: sideration bias reolted (Is $10 +d, other good and ~~:~.: ’ .% valuable oonslderat ion gald; .e .:.. i :: .. ,j ,.....’ : ;‘h.‘- aHi& & exceptiofi & the fep,ta as hepeh si.iii”’ :, :‘i ’ : ;i.:,+‘ed,. the situation as to this land Is the same aa’aet ~ -‘:‘:..k *...y-_:’ out In the attached ,lettel?in : : :~..‘;:.::.,;-;. _:. i _. .:.., : : ‘~~~~~r.i.~.:~‘ :.y. -. %&tiave been further advised that texes levied a&l asaegsod-‘aialnst thle land for State, county, and sohool purposes are delinquent for ohe ‘.or more years prior to the time Kent County acquired title thereto. Also that taxes are delinquent for eoveral yeazw since the land vss acquired by sald county+ owe are not advised vhether ’ Kent ,~County has a since It acquired title to the land, legally and annually rendered the came for taxation; This fact may or may not become Important In detorminlng the questions to be hereinafter considered; Those questions may be stated as follovsr ..~ . (1) Vae the ,land, after It vai acquired 6y kont County, subject to taxation-by either the State of .Texas, JWdspeth County or the school district? : (2) le Kent County, In order to protect Its Fn- terest In the land, required to pay tho Stato’of Texas, . : .’ , .: : .: Bonor?ble Georg6 Ii. Sheppard,, page 5 Hudspeth County, or the school district the dolin- went taxes vhich aoorued against the land before ” - it, acqulrad same? .:. .- The lquage used by Judge Funderburk concerning the question of the exsmptlon from taxatloL of the propert Involved in the case of City of.Abilene v. Stete, 113 8. Ii. (26 T 631 (Ap- pllcation diamlseod), is applloable to the factual aituatlon with vbioh ve are hore concerned. He said: ‘The qiestion of the“ exemption of said &ope$- :” .’’ty’ from taxation involves the iroper interpretu.tion .~ of’ constitutional and statutory provieioaa, the ?’ ;j..‘I . inaterlal portions of vhlch, are aa followsr .,~.. ‘;: ., %onst. a&t. 8, H-ir CM1 property in thfa .' :..';..-::.: .’ ‘, @ate, vhether o*vnedby natural persons or oorpor- :‘.:I:.:::..:,? ..atlons, other than mo-ricl~al., shall be ta&ed ln proportion to its value. * * + Provided, that tvo ‘.: ... hundred and fifty dollars-vorth of household and ” Wtohen furnitwe.’ bolonr,in.p to each famllv In this ..: State shall be eiempt 6om-taxation, I ‘%onst; i&t. 11, 0 9: ‘The grooerty of ooun- tiee, olties tid tows, omcd aad heid 2 for .’ public p:wpos6s, * ii * and all other property de-. voted exclusively to the use ad benefit of th?i- publia shaa be exempt from * Q * taxamon. ( “conat. art. 8,’ B 2: -&hi &islnture nay, ‘.. funds of such l.nstitutio&‘of loaning and lands) and institutions of purely public chori.yy; acd ell laws exeqAlng progcrty fkwz taxation other tha?l the pro crty above mentionad shall b5 null and void. ’ ,..,$ Italics ours) ~?Rc&eod Statutes 1925, art. 7150: , 'IThe followirq property shall be,exempt from tax%tlon, to-l&t; 4 * * . . Ronorable George H. Sheppard, page 6 "'All property, vbothcr real or personal, be- longS.ng exoluslvely to this State, or any p oUtScal eubdivlsion thereof.1 (Underscoring oure} Artlole VIII, Section 2, of the Constitution, authorizes the Ieglalature to pass general lave exempting from taxation &- 110 property used for $ubllc purposes. Article 7150, Revised Statutes, declares that ‘All pro- perty, whether real or personal belonging exclusively to this State or az7 political subdivision thereof shall be exempt from ta2Lstlon.l’ The pertinent parts of Article 7150, vhgn read Fn oonnec- tion wlih the linitatlon on the authority of the Le&slature to exe-t from taxation ‘publlo property used for public purposes” by Article 8, Section 2, supra, was held valid in the case of City of Abllene v. State, aupra. The effect of said opinion is the same as if eaid pertinent parts read: All property, whether real or personal belong- %ng exclualvoly to this St&e, or any political eub- &ivleion thareof, used for public purposes, shall be exeztrpt ,frcap taxatlOn. There &8 oertaln oonstitutional and statutory exceptidlls to the above statute, as so cozzM,ruod, among others are Sections 6a and 16a, Jxtiole 7 and Section’ la, Article 8, of t&e Cmatltutlon and Sections 17, 18, Artiplo.7350, Revised Statutes, v$th alch. ve are nbt hsre gonoernod. We have found no de&s103 of the oourts of this State based upon a like stat6 of facts. In the case of Statb v.‘ City of Rouston; 140 k. U. (2d) 277, (nit of error refused), it teas held that property purchased vlth c=Iler from a special fund by a city, in excess of portion rc- quired for a boulevard, for purpose of obtslnlng a--better bargain, but. held kq oity for aals at a fair price, vas held for a “public PWOPE, ” ti sense that It was bought and v&s belq held to peeervo. the special fund, and hence vas not subject to taxation by the State of Texas and Harris County.The court found that the city purchased “,he entire tract, inoluding the part used for a boulevard 6s veil as the excess not so used, to preserve th-eclel fund from wZ& the purchase prlco was paid. Vi%i?%?crcnco toFbis -iIn -1 honorable George H. Sheppard, pa&e 7 ‘Xl’ the property vas bought and Is being held - to preserve such fund, hov can it be said that it uas not bou&t, and ie now being held for a publio pwpoee. * * * When the’ city dooa sell such pro-. perty, it-must necesearily apply the proceeds to Qoadvays to Turning Basis Funds and Bands. *” The Court, titer quotSnS at great length from the case of the City of Sheman v. WillLams, 84 Tex. 421, 19 9. W. 606, concludes its opinion by saying: ‘The.trlaL court’s ju&ment is clearly right r: if.the property constitutes a’part of the special fund; and It seems clear to us that such property is so; if any case, the stipulated facts support a Msd%ng by the trial court to that effect, aud we vi11 asswm the court eo found. Thls be%ng ao, it 3.a neither taxable nor capable of being sold for taxes, and thus diverted. Of course, if taxes could be levied on it, it could be seized and sold for taxes . ” An examination of the 1st of funds held on deposit to the cred.Lt of Kent County by the depository bsnk at the tim it falled,ancl vent into Involuntary liquidation, disclosoe that of the total of more than $100,000 to the credit of said county only $239.27 vas orodited to the county’s General Fund, the balance vas to the creilit of nuueroua special funds, nono of vhich could be diverted to any other fund or puvpose, but nust be used excluslve- l$ for the purpose fur vhich they vere oath created, vhethsp de- rived fvozn taxation, the sale of bonds, or donatlom by the Stete of Texas, We can see-no distinction Ln principles between this case and that of the City of Shornan v. Williams, supra, and St.ate v. City of Houston, eusra. In the Sheman case, the real pr*operty involved was taken by the city in ssttlenent made with a dcfault- ins tax col.Jector who ha4 collected taxes levied to pay the in- terest and create a aink~n~ fund on a certain bonded obligation of the city, but did not account to the city for sane? The court held, a8 it did in the Ecustoll case, that the property when sold ehould be credited to the special fund. That part of the opinion of the court, sir consider pertinent here, reads es follows: ‘The texes collected could not have bcon nppro- priatod to satisfaction of appelloo’s claim had they, Honorable George H. Shoppard, page 8 . been paid over by the oolleotor; and for the proteo- tion of the taxpayers as ~011 as creditors, it seems' to us that the property In oontroversy should ba deemed a part of the fund, the mlsapplioation of vtich made it necessary for the oity to acquire . title to it.. 'If 8 taxpayer had failed to pay the tax on . account of vhloh the money vas coU.ected, thon on enle of his property, if no bid vaa made, It would have been etruolc off to the city and a deed made to Ita under which the city would have had the power to oonvey the property to a purchaser from it. Rev. ~stst., Art. 449. The money received on such a sale .vo~ld go to the fund on account of vhIch the tax VQP:Retied, and we see no reason vhy the proceeds of the sale of the property ia controversy should not belong to the fund on account of vhLch the taxes never paid over by the collector vere col- _leoted.” . : The facte.be?ore us disclose that when the depository bar& failed, it vaa not only Insolvent, but that the sureties on Its bond &ivon to the oounty to aeoure the county~s~funda and it8 available and permanent school funds vere ale0 Insolvent, -so that .from the li- qtidation of the bank's asaots and its bondsmen only 3’1s dividend vas paid to the county vhlch sum vaa credited pro rato t.0 each of the aclcounts stand.I~ on the books of the depository to the credit of+tho county and Sts school Suede. The county foreclosed its deed of trust lien on part of the land here involved and at its sale by the trustee purchased the sama. The other-lands involved vere acquired by purchase from the depository b&c's receiver for a nouinal *onei.derat5.on. The lands have at all times since the%r purcham belo.xed to Ksnt CouUy, nubjeot to the indebtedness due 'the State as original purchase money: The aountg has never been able to find a purchaser for same a! afalr an& rcaeonablo nrlce. These lands were aoquired by Kent County oololy for the pro%ection of the several funds above named; QrQ olearly a.part of each of said Sundaj and, as harstofore et&cd, whatever amount is received from ths eale of ths lande by ths county will be credited proport- ionately to each of said funds. Ilhile only g particular spooial fund was involved in the Sherman case ard the lfoueton casa, YO have hero esveral special funds, e~rnebelonyiq to the county, others to school and road distr9cts, aleo a very lnslg~ific2~t ~UIQ beloqgng to the county's &cnaral fund, all of vhich are cer- tainly pUblFc funds. With ll0 COUrt decision directly iii PObt t0 .~, : a Honorable Oeorge B. Sheppard, page 9 &tide UB, ve have reached the conolualo~ that the lands are pub- .llo lands of Kent County and as such arc being held only for pub- 110 purposes, therefore am exenpt frm all taxstlou for the years eubsequent to the year in vhlch the county ecqulred title thereto. The Murdoch land was acquired by the county in Nag, 1935, thcre- fore it was not subject to taxatLon for the year 1936 or upon any subsequent yoar while it IA 80 held and owned. Ilo are not advised ..a8 to the date the title to the other lands here involved passed to the oouuty . , The above stated conclus,lone constitute o&v amvep to questldn Ho, 1. liowevor, the quest102 of tQxos vhlch were delinquent at the tSm3 of and prior to the acquisition of the land present a rath?r difficult ~rogofiWlon. This 1s 80 became, eo far ce lis have boen able to ascertain, that preclso questioia, as here pre- eentod, has roper baen bsfore .~ o-q courts. In the i&e bh 'khlldreas coutlty V, State, 92 S.N. (2d) 1015, the Supreme Court in answering certified questione, epeak- ing through Justice sharp, Raid:. '2he county ia merely an am of the State. It ie a political subdivision theroof. In view of the relation of a county to the State, the Stat3 my use, and frequexitly does ~3, a county as its agent %n the dlecharga of the State'a fmotione and dut- * 13s." The co& further eald: %hlle thlfi proolee queotlon, PO far ti8 ve knov, has never been determined by "tie court, we think the great weight of autborlty sustains the rulo that when the title to this Laad rovcrted to ChLldrese County, the tagi liea fo? Stat3 pUl?p0038 becnne cmyed with the ovnerehip of land by the county. Thio property, dedicated to a county exClus$vdly for a public pur- pose, aud having been sold by the county to lndlvi- duals, who failed to cozq~ly wlth the contract of e.ale, whereupon tho titlo to the land reverted to the county, cannot bo burdened with taxes due the Stat3 duriq tho title it vae privately omed." Eonorable George H. Sheppard, pe43 lo ft 18 true that In the above ~caze the court was oonslder- ing oountg echo01 land, vhich under Article 7, Section 6a of 0~ Constitution, 1s taxable except fo? ~Stato purpoees, But ln that caee the land had becme private property and liable for State tax- It then roverted back to the county with tnxos for State pLLP- z%ea belug delinquent. In BO far an euch delinquent taxes are for stato purposes, vo believe that the decision le applicable. You are, therefore, advised that the tax lien foi=.State taxes became merged vlth the title of Kant County and that neithsr the ooutg nor the land can be held for euch taxes. The quo&ion of dolinque~t4axos other than those for State pu~posos present a at111 more ool;lplexN problem. IIowever, at the outset, ve want to etate that the dell- elan of the Supreme Court In the cm3 .or Childroes County v. state, eupra, does not apBly to this case insofar as taxee Sor purposes other than State are comorned. .Artio&e 11;93CtlO~ 9 Of ,thO CqSEtitUtiOU Of TOX&Qj pro- oldaa in part ea follovs ; %? ‘. “The property of oountlea.* ‘* Q owned and held only for public pUPpOsos * * + ahall be 3X3@ from force~eale~**.” . -: ‘. It lo th&efoi?o, agp&e& that the laid cannot be sold for taxes beoauso we have heretofore held that the l@d is public proparty held fdr publio purposee. Our holding 1s euetalned by the ease of State V. Stovall, 76 S. H. (2d) 206, (writ refused) vherein tho Court enjoined the eale of land under a tax jud&ment ln favor of husk Iodop3Mei-A School District., where the land had been acqulr- ed by the State for n pub110 purpoeo bsfore the tax judgment of the echo01 diatrlct became final. : _. ‘~. However, in tho co83 of ‘Ciiy’if Dallas v. State 28 S.11. (26) 937; the court hold that the city nuet pay the taxes’due the State, county, road dletrlot and echo01 dltrtMct, vhlch were de- Unquent befur tho purchase by the oltg. In that CZMO the court &id not discusa the merits of its holding ~ncl in ~10~ of the fact that ~3 are bouud by that docielon, we rhall not epoculate on the court’s maeone. .~ I, ’ : ‘_ . ‘. . i Xonorable OOOl?&8 H. Sheppard, p8g3 u. . We, therefore, hold that Kent County la liable for taxee due before tho 8CqQbltlOa by tho county, OxOOpt taxee state purpoeoP. . 4

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4124995/

KEN PAXTON ATTORNEY GENERAL OF TEXAS March 14, 2016 The Honorable Joseph C. Pickett Opinion No. KP-0069 Chair, House Committee on Transportation Texas House of Representatives Re: Whether a school district board of Post Office Box 2910 trustees may post on the district website the Austin, Texas 78768 personal financial statements of board members submitted pursuant to section 11.0641 of the Education Code (RQ-0053-KP) Dear Representative Pickett: You ask whether a school district board of trustees may post on the district website the personal financial statements of board members submitted pursuant to section 11.0641 of the Education Code. 1 Section 11.0641 "applies only to the board of trustees of an independent school district that is located in a county that is located on the international border and in which a municipality with a population of 600,000 or more is located," i.e., El Paso County. TEX. EDUC. CODE§ 11.0641(a); see Fiscal Note, Tex. H.B. 343, 83d Leg., R.S. (2013) at 1 (stating that "[t]he bill is bracketed to apply to nine independent school districts (ISDs) within El Paso County"). Subsection (b) of the statute requires "[ e]ach member of the board of trustees of an independent school district [to] file a financial statement with: (1) the board of trustees; and (2) the commissioners court of the county in which the school district's central administrative office is located." TEX. EDUC. CODE § l 1.064l(b). Under the statute, the commissioners court is to determine "whether a statement required to be filed under this section is late," in which case "the individual responsible for filing the statement is liable to the county for a civil penalty of $500" and, in aggravated circumstances, may. be the basis of a civil penalty of up to $10,000. Id. § 11.0641(e). Moreover, a trustee who fails to file the required statement commits a Class B misdemeanor offense. Id. § 11.0641 (d). Section l l.064l(c) provides:· The provisions of Subchapter B, Chapter 572, Government Code, governing the contents, timeliness of filing, and public inspection of a statement apply to a statement filed under this section as if the 1 See generally Letter and Brief from Honorable Joseph C. Pickett, Chair, House Transp. Comm., to Honorable Ken Paxton, Tex. Att'y Gen. (Sept. 14, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for- opinion-rqs ("Request Letter" and "Brief," respectively). The Honorable Joseph C. Pickett - Page 2 (KP-0069) trustee were a state officer and the comm1ss10ners court of the county were the Texas Ethics Commission. Id. § 11.064l(c) (emphasis added). 2 Accordingly, 11.0641(c) gives the commissioners court the powers and responsibilities of the Texas Ethics commission with respect to the contents, timeliness, and public inspection of a financial statement required by the section. In subchapter B, chapter 572, the provision concerning "Public Access to Statements" is section 572.032, which provides: (a) Financial statements filed under this subchapter are public records. The commission shall maintain the statements in separate alphabetical files and in a manner that is accessible to the public during regular office hours. (a-1) The commission shall remove the home address of a judge or justice from a financial statement filed under this subchapter before: (1) permitting a member of the public to view the statement; or (2) providing a copy of the statement to a member of the public. (b) During the one-year period following the filing of a financial statement, each time a person requests to see the financial statement, excluding the commission or a commission employee acting on official business, the commission shall place in the file a statement of the person's name and address, whom the person represents, and the date of the request. The commission shall retain that statement in the file for one year after the date the requested financial statement is filed. (c) After the second anniversary of the date the individual ceases to be a state officer, the commission may and on notification from the former state officer shall destroy each financial statement filed by the state officer. TEX. Gov'T CODE § 572.032. Thus, these access provisions apply only to the Texas Ethics Commission and, by virtue of section l 1.0641(c), the commissioners court. 2Under a different section of the Education Code, a board of trustees, or in certain instances the commissioner of education, may require a board's members to file a financial statement with their board and the Texas Ethics Commission, not with a county commissioners court. TEX. EDUC. CODE § l 1.064(a}-(a-4). The Honorable Joseph C. Pickett - Page 3 (KP-0069) While section 11. 0641 of the Education Code requires a copy of the financial statement to be filed with the board of trustees, it does not address the responsibilities of the board that receives the required statement. See TEX. EDUC. CODE·§ 11.0641(a). Thus, we must consider other law governing access to public records held by governmental bodies. We are not aware of any statute, judicial opinion, or other law that generally prohibits a governmental body from posting a personal financial statement on its website. But personal financial statements that are required to be filed under chapter 572, subchapter Bare public records. TEX. Gov'T CODE§ 572.032(a). Under the Public Information Act ("PIA"), a governmental body has a duty to promptly produce public information. Id. § 552.221. The authority to provide access to personal financial statements by posting them on the district website may be implied as incident to the board of trustees' duties and authority under the PIA. See Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ. App.-Amarillo 1964, writ ref d n.r.e.) (determining that a board of trustees possesses powers expressly conferred on it by law or necessarily implied from its express powers); Tex. Att'y Gen. Op. No. ORD-682 (2005) at 7 (noting that, while making information available on a website does not satisfy section 552.221 of the PIA, "a requestor may agree to accept information on a governmental body's website in fulfillment of the request" for information under the PIA). Accordingly, a court would likely conclude that it is within the board of trustees' discretion to post on the district website the personal financial statements of board members submitted pursuant to section 11.0641 of the Education Code. Members of the Legislature may have intended for the board to require the same procedures as the commissioners court, but the language of the statute does not do so. To conclude that the procedures in subsection 11.0641 (c) apply to the board of trustees requires reading language into the statute, which courts generally do not do. MCI Sales & Serv. v. Hinton, 329 S.W.3d 475, 502 (Tex. 2010) (observing that "courts should not by judicial fiat insert non-existent language into statutes"). If the Legislature intended for the board to follow those procedures, it should amend the statute accordingly. The personal financial statements required by section 11.0641 may contain information made confidential or otherwise protected under other law. See, e.g., TEX. Bus. & COM. CODE § 521.051 ("Unauthorized use or Possession of Personal Identifying Information"); TEX. Gov'T CODE § 552.117 ("Exception: Confidentiality of Certain Addresses, Telephone Numbers, Social Security Numbers, and Personal Family Information"); Tex. Dep 't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 119 (Tex. 2011) (noting that information protected under the common-law privacy doctrine is exempt from disclosure under the PIA). Thus, while a board has discretion to post financial statements required by section 11.0641 on its website, it is cautioned that it should withhold information made confidential or otherwise protected by other law. See TEX. Gov'T CODE § 552.352(a) ("A person commits an offense if the person distributes information considered confidential under the terms of [the PIA]."). Members of the public who desire to do so may seek an inspection of the complete financial statements in full from the The Honorable Joseph C. Pickett - Page 4 (KP-0069) comrmss10ners court under section 11.0641 of the Education Code and chapter 572 of the Government Code. 3 Your second question is whether "the board of trustees by a majority vote [may] require the posting of the personal financial statement of a trustee who objects." Request Letter at 2. A board of trustees "may act only by majority vote of the members present at a meeting:" TEX. EDUC. CODE § 11.051 (a-1 ). Section 11.0641 of the Education Code does not create a right in an individual trustee to limit disclosure of the copy of the public document filed with the board of trustees. Thus, under section 11.0641, a majority of the board of trustees may require the posting of the personal financial statement of an individual trustee over the trustee's objections. 4 3 See York v. Tex. Guaranteed Student loan Corp., 408 S.W.3d 677, 685 (Tex. App.-Austin 2013, no pet.) (holding that exceptions from general rule ofrequired disclosure under section 552.021 of the Public Information Act "do not ... purport to operate more generally against public-access or disclosure requirements created or imposed by other law"). 4 Because the answer to your first question is in the affirmative, we do not addres1> your third question. The Honorable Joseph C. Pickett - Page 5 (KP-0069) SUMMARY A court would likely conclude that it is within the discretion of a school board of trustees subject to section 11.0641 of the Education Code to post on the district's website the personal financial statements of member trustees required by that section. Under section 11.0641, a majority of the board of trustees may require the posting of the personal financial statement of an individual trustee over the trustee's objections. Very truly yours, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. HILL Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142614/

Honorable George H. Sheppard "48kaptroller of Public Accounts Austin, Texas Dear Sir: Opiniin No. O-37 2 Re: uFomobile ales Tax levied byArticle VI of House Bill No. 8, Forty-seventh Legis- lature. In your letter of June 23, 1941, you request our opinion in response to the follcwing three questions: "Should the one per cent tax bo'paid on a new motor vehicle registered by the dealer in the company's name, such as Johnson Motor Com- pany where said motor vehicle is to be used for demonstration purposes? "Would the tax be payable on a second hand motorvehicle registered in the dealer's name fcr demonstration purposes where said motor ve- hicle had been purchased by the dealerin a trade; that is, where he traded another motor vehicle to John Doe for the total consideration of $1,000,$500 of the amount being in cash and the. eachsnge of John Doe's motor vehicle having a value of $500. John Doe's traded-in car be- in,g the one registered by the dealer for demon- stration purposes." i In connectionwith your first two questions it is noted that you do not give us any information concerning what consideration, if any, passes in connection with the transactions inquired about. The tax levied by Article VI of House Bill No. 8, Forty-seventh Legislature, is a tax equal to one per cent of the tctal consideraticn paid or to be paiN to the seller by the buyer. In Section 3(b) it is provided that "the term retail sale or retail sales as herein used shall include all sales of motor vehicles except those whereby the purchaser acquires a motor vehicle for the ex- clusive purpose of resale and not for use.e We answer your  Honorable George H. Sheppard, page 2 O-3742 :.-@!&stquestion by saying that if Johnson Motor Company pur- chases the automobile in question the tax will have to be paid. The vehicle has not been acquired for the exclusive purpose of resale but is to be used for a time for demon- stration purposes, that is in the business of the Johnson Motor Company, before it is sold by the latter. However, if the company which the Johnson Motor Company represents furnishes this demonstration car without requiring the latter to pay for the same there will be no tax due. Your second question is answered in the same way. Clearly the vehicle is not acquired for the exclusive purpose of resale and the tax will be due if a consideration passes in connection with the transfer. In connection with your third question rye direct attenticn to Section 1 (b) providing that "in all cases of retail sales involving the exchange of motor vehicles the party transferring the title to the motor vehicle having the greater value shall be considered the seller and nc tax is imposed upon the transfer of a motor vehicle traded-in upon the purchase price of some other motor vehicle." The traded- in vehicle mentioned in your third questicn is thus expressly taken out of the operation of the taxing statute. The use to which it may be ,put is immaterial. That question is answer- ed in the negative. Yours very truly ATTORNEY GENERAL OF TEXAS BY Glenn R. Lewis Assistant GRL:LM/-pam APPROVED JIJL 11, 1941 GROVER SELLERS FIRST ASSISTANT ATTORNEM GENERAL APPROVED OPINION COMMITTEE BY BWB, CHAIRMAN

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142670/

Hono,rable John R. Shook Opinion No. O-3688 Criminal District Attorney Courthouse Re: Legality of ordering and holding S,an Antonio, Texas a bond election in a common school district pursuant to pro- Attention: Mr. Jay Sam Levey visions of Articles 2784 to 2787, of the Revised Civil Statutes, Dear Sir: where a similar bond issue has been defeated within less than a year of the proposed new bond election. We have your letter of June 14. 1941, requesting our opinion on the following question: “Is it legal to order and hold a bond election in a common school district pursuant to the provisions of Articles 2784 through 2787 of the Revised Civil Statutes of Texas, where a similar bond issue has been defeated within less than a year of the proposed new bond election?” Article 2784 of Vernon’s Annotated Civil Statutes authorized the levy of a special tax for maintenance purposes within common and independent school districts and provides that not exceeding Fifty Cents (5OC) on the one hundred dollars of taxable valuation within any such district shall ever be levied for bond purposes. It also fixes a limit of One Dollar upon the one hundred dollar valuation of taxable property for both purposes, that is main- tenance and bond. Article 2785 prescribes the manner of holding elections to authorize the levy of a maintenance tax. Article 2786 provides the method for voting bonds in common and independent school districts. Said article reads as follows: “Whenever the proposition to issue bonds is to be voted on in any common or independent school district hereunder, the petition, election order and notice of election must distinctly specify the amount of the bonds, the rate of interest, their maturi- ty dates, and the purpose for which the bonds are to be used. The ballots for such election shall~ have written or printed thereon the words ‘For the issuance of bonds and the levying of the tax in pay- ment thereof,’ and ‘Against the issuance of bonds and the levying of the tax in payment thereof.’ Such bonds shall bear not more than -. -. Honorable John R. Shook, page 2 five per cent interest per annum and shall mature in serial annual installments over a period of not exceeding forty years from their date; provided, that when the houses are to be built of wood, said bonds shall mature in not more than twenty years from their date. Such bonds shall be examined by the Attorney General and if approved registered by the Comptroller. All bonds shall be sold to the highest bid&r for not less than their par value and accrued interest, and the proceeds of such sale shall be deposited in the county depository for the com- mon school districts, and in the district depository for the in- dependent school districts,‘to the credit of such districts, and shall be disbursed only for the purpose for which the said bonds were issued, on warrants issued by the district trustees and approved by the county superintendent for common school dis- tricts, and by the president of the board of trustees and counter- signed by the secretary of the said board for independent dis- tricts. (Id.; as amended Acts 1929, 41st Leg., 1st C.S., p. 97, ch. 43. § 1.)” We do not find in said article any restriction or limitation as to the time when bond elections may be held. It is true that in Article 2785 this sentence appears ‘If said maintenance tax proposition is defeated at an election held for such purpose, no other election shall be held therein within one year from the date of said election.” It will be noted that this restricti,on is imposed upon the holding of maintenance tax elections. The same restriction does not appear in the statute authorizing the holding of elections for the purpose of voting bonds. Therefore you are advised that in our opinion a bond election may be called and held at any time irrespective of the success or failure of an election previously held, whether within a year or more than a year from the date of the proposed new bond election, Trusting that this satisfactorily answers your inquiry, we are Yours very truly APPROVED JUL 18, 1941 ATTORNEYGENERALOF TEXAS /s/ Grover Sellers FIRST A,SSISTANT ATTORNEY G,ENERAL BY /s/ Clarence E. Crowe Assistant CEC:ej:da APPROVED OPINION COMMITTEE BY BWB CHAIRMAN

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126847/

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 16 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CHRIS LANGER, No. 15-56608 Plaintiff-Appellant, D.C. No. 2:14-cv-08842-RGK-JPR v. JOYCE H. MCKELVY; CAROL L. MEMORANDUM* MCKELVY; HA JA KIM, Defendants-Appellees. Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Submitted February 6, 2017** Pasadena, California Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges. Chris Langer appeals the district court’s dismissal, on a motion brought under Federal Rule of Civil Procedure 12(c), of his claims under the Americans with Disabilities Act (ADA) and various state laws. We review the district court’s * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). decision de novo, see Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1053 (9th Cir. 2011), and now affirm. 1. Langer contends that it was improper for the district court to dismiss his ADA claim as moot based on evidence establishing that the defendants had made all necessary changes to the Cherry Donuts parking lot. We disagree. The district court properly considered such evidence to determine whether it had subject-matter jurisdiction over Langer’s federal claim. See, e.g., Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir. 2014); Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139–41 (9th Cir. 2003). There was no reason to wait until summary judgment to dispose of a moot claim when all evidence showed that “the allegedly wrongful behavior could not reasonably be expected to recur.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982) (internal quotation marks omitted) (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203–04 (1968)). 2. Langer also asserts that the district court’s ruling deprived him of his “right” to determine whether some other portions of defendants’ facility—those he had not yet inspected—violated the ADA. We remain unpersuaded. Within a few days of being served with the Complaint, the defendants hired a Certified Access Specialist to inspect the property’s parking area for ADA compliance. The 2 defendants implemented all of the Specialist’s recommendations, including resurfacing the parking lot, repainting the van-accessible parking space (twice), and installing new van-accessible signs. Thereafter, the Specialist reinspected the parking area and produced a report certifying that “[e]ach element of the parking space, including the width and length of the space, slope of the ground surface, markings, and parking signage were in compliance with the applicable ADA standards.” Cherry Donuts does not have an indoor restaurant space that could contain additional ADA violations because customers “order and pay through a small window” and all “seating is outside.” Langer has not alleged any facts to contradict the Specialist’s report or suggest that there are lingering violations at the property. Our decision in Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008), does not stand for the proposition that Langer is entitled to discovery on the facts of this case. 3. Finally, we disagree with Langer that the district court dismissed his state-law claims “with prejudice.” In fact, the district court did just the opposite, stating unequivocally that “[Langer] may prosecute his state law claims in state court.” No tribunal could interpret the district court’s order as precluding a subsequent state-court action on the same state-law claims. AFFIRMED. 3

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126853/

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-770V Filed: September 13, 2016 UNPUBLISHED **************************** D.R., * * Petitioner, * Ruling on Entitlement; Concession; v. * Influenza; * Shoulder Injury; SIRVA; SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, * * Respondent. * * **************************** Amber Diane Wilson, Maglio Christopher and Toale, PA, Washington, DC, for petitioner. Chrstine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT 1 Dorsey, Chief Special Master: On June 29, 2016, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury caused-in-fact by her August 23, 2015 influenza vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On September 9, 2016, respondent filed her Rule 4(c) report in which she concedes that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, respondent “has concluded that a preponderance of evidence establishes that the injury to petitioner’s left shoulder was caused-in-fact by the administration of her August 23, 2015, flu vaccine, and that petitioner’s injury is not due to factors unrelated to the administration of the flu vaccine.” Id. at 3. Respondent 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). further agrees that the six months sequela requirement has been satisfied and that petitioner’s injury is compensable under the Vaccine Act. Id. In view of respondent’s concession and the evidence before me, the undersigned finds that petitioner is entitled to compensation. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 2

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4394704/

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: In the Interest of E. O., a Child Appellate case number: 01-19-00207-CV Trial court case number: 93697-F Trial court: 300th District Court of Brazoria County Appellant has filed an accelerated appeal from an alleged order signed by the associate judge on March 21, 2019. The clerk’s record was filed on April 1, 2019 and contained no final judgment. On April 4, 2019, appellant filed a motion to abate the appeal to allow the trial court to sign a final judgment. When an appellant files a premature notice of appeal, the Court may “allow an appealed order to be modified so as to be made final.” TEX. R. APP. P. 27.2. If the trial court signs a final judgment, the prematurely-filed notice of appeal will be deemed filed on the day of, but after the signing of the final judgment. See TEX. R. APP. P. 27/1(a). Accordingly, we grant appellant’s motion and order the appeal abated for 30 days to allow the trial court to sign a final judgment. Once a final judgment is signed, appellant shall ensure that a supplemental clerk’s record containing the final judgment is filed with this Court immediately. If no final judgment is signed within 30 days, the Court may dismiss the appeal for lack of jurisdiction. It is so ORDERED. Judge’s signature: ___/s/ Justice Richard Hightower____  Acting individually  Acting for the Court Date: __May 7, 2019____

01-03-2023

05-08-2019

https://www.courtlistener.com/api/rest/v3/opinions/4289318/

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT MIGUEL HERNANDEZ, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D18-0843 [June 28, 2018] Appeal of order denying rule 3.800 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case Nos. 2014CF01061AXXX-MB and 2014CF010002AXXX- MB. Miguel Hernandez, Okeechobee, pro se. No appearance required for appellee. PER CURIAM. Affirmed. GERBER, C.J., DAMOORGIAN and CONNER, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.

01-03-2023

06-28-2018

https://www.courtlistener.com/api/rest/v3/opinions/4142598/

- , OFFICE OF THE AWORNM GENERAL OF TEXAS AUSTIN ,ionor:bleBascom Giles Comnissioner, General Land Ofi'ice Austifi,Texas Dear Sir: Opinion iU0. O-3758 ,ie: ilightof lessee under "delinquish- ment Act" lease t r lease for- executed a This will ackn July 11, 1941, wherein y cartmeritupon the ouesti +ote iron your 1 a feme sole, leaze coverin? said lifford Ashton. "On Karch 25, 1938, Clifford Ashton paid into tllisoffice 3165.00 as bonus on said lease 23272. Honorable Bascom Giles, Page 2 "On April 6, 1938, this lease was endorsed as forfeited by Bert V. Bollin-.er,then Acting Commissioner, on the ground of non-payment of rentals. You will notice that tnis lease was not effective until June 2, 1937. Avparently tilefirst rental date would be June 2, 1+38. "After the forfeiture, Glenn 0. Asiltonand Krs. Dora Roberts, both feme soles, acting in- dividually and as agents for the State of Texas, executed a private oil and gas lease on this land to Clifford Ashton for a primary term of 10 years. This lease was filed in the Land Office April 15, 1938, and a bonus of $054.00 was paid thereon. %r. Clifford Ashton has requested of tilis office a refund of eitner the $100.00 bonus paid under leese 23272?_wnich was forfeited on April 6, 1938, or tne $0>4.00 bonus paid under tne lease executed April 6, 1938, on the grounds that he is being forced to pay two bonus payments on what amounts to the same lesse, and that tne forfeiture of tileori@al lease was errone,ousfor tiierzsso.1 that rentals w5re zot yet due t:iereonat trie ti;ile of forfeiture. "1 wouid appreciate the benefit of your opinion upon the following question: "IS Clifford Asnton entitled to a refund of eitner of the above mentioned sums according to the facts set out herein?" You enclosed a photostatic copy of Lease No. 23272, wilich we have examined in connection with your request. We acknowledge receipt also of your certificate stating tne facts outlined in your letter. YOU do not so state, but it is apparent from the facts contained in your letter that the tract of land involved is public free school land sold by the State to Glenn 0. Ashton, or her DredeCeSSOr in title, under a mineral classi- fication. The minerals in and under school land, which was rionorableBascom Ciles, Pa,ge3 duly classified as mineral land by tne Commissioner orior to sale, are reserved to the school fund of the State. See Article 5310 Rawle C. S., 1925. We shall hereai'terrefer to the 1 ase filed in the Land Office on Karcl;25, 1?38, as the first lease and to the lease filed tnere on April 15, 1938, as tne second lease. Without going into the validity or propriety of tne Commissioner's action in forfeiting tne first lease, we are of tne opinion that he may not return any of the funds paid into tilescnool fund under eitner of tne two ieases in question. * The Commissioner qf tne General Land Office has only sucn powers as are conferred upon nim by the Gsnstitu- tion and Statutes. See Article 5251 and 5307 (ii.C. S. 1925); 34 Tex. Jur. 31; and cases cited. "No authority can be exercised by the iommissioner of tne Cen,srs~l Land Cffice except such 3~sis c:nfer:ed 7n I;I;!; bT,l : rJ.1.;. 11 Sc,-tEy. .Qbi.;;,>:l, 117 ':2x.3!32, ji; J. .;. (2ri) 232, 297. iVeheve diligently examined tne Constitution and Statutes of tilisState and nave found no provision which autnorizes the Commissioner to return the money in question. Article 5411 provides for the return by the comp- troller of money wnich "has been in good faith paid into the State Treasury upon lands for taxes, lease and purchase money, for wnich, on account of conflicts, erroneous surveys, or iliegal sales, patents cannot legally issue" or upon wnich patents are legally cancelled. The article cle.?rlyapplies only to situations wnere the State could not or did not vest leTa title in the purchaser of land and is so limited in its scope. It neitrier covers tne situation you outline expressly nor does it im- pliedly extend to it. Although, we consider what we have stated a suffi- Honorable Bascom Giles, Page 4 cient bar to a return by tne Commissioner of either sum to the lessee, we wish to mention anotner factor in the partic- ular transactions you have outlined, which would prevent a recovery by the lessee. When the forfeiture of the first lease occurred, the lessee had the right to compel the commissioner, if that official had acted erroneously, to re-instate the lease. 34 Tex. Jur. 31. Instead of pursuing the remedy provided by mandamus, the lessee under the facts you have submitted proceeded to secure the second lease and to file same with the Land Office. This second lease could have had no vestige of validity so long as the first lease was valid and outstanding. The lessee must, therefore, be held to have acquiesced in the forfeiture by the Commissioner. See 'Wattsv. Cotton, 26 Civ. App. 73, 62 S.W. 931. In the case cited above, there was involved an app- lication for a grazing lease on certain school land under the provision of Sayles'_Ann. Civ. St., Art. 4218r and 4218s, now Article 5336, 3. C. a., 192j. Tnis application was erroneous- ly rejected by the Commissioner and the Court of Civil Appeals disposed of the question in the following language: ". . . For correction of tnis error he (the applicant) doubtless had a remedy by mandamus against the commissioner of the general land office; but, so far from pursuing that remedy, he must be held, under the facts of this case, to have acquiesced in the erroneous ruling of the commissioner, however, much he may have dissented from it, . . ." Watts v. Cotton, supra. In Borchers v. Mead (Civ. App. 1897) 43 S.W. 300, error denied, the court had before it the status of a grazing lease wnich had been erroneously cancelled by the Land Commis- sioner. The validity of a~award of school land hinged upon the effect of the cancellation of the prior lease, -- if the cancellation was invalid, the award was void. honorable Bascom Ciles, Page 5 tioldingthat the award was valid and binding, the court of Civil Appeals declared that even though it be granted that the lease, under the facts, should not nave been cancelled, "It is yet clear that it was in fact canceiled." Tne lease, having been eliminated by the cancellation, it was held to constitute no bar to the validity of tne award. Under the same reasoning, tne first lease to kr. Asnton having been forfeited, the second lease must be held valid under tne facts you have submitted. Tileendorsement of forfeiture placed upon.the first lease by the Commissioner and the acquiescence in that action by the parties to the lease as shown by Weir imediately entering into a new lease and by tleir not exercising tneir remedy of mandamus, effectively terminated the first lease, so far as the lessee was concerned. There can, therefore, be no question as to return of tne bonus paid on tne second lease. We are also of the opinion tnat the iessee is in no nosition to demand a return of the bonus paid on the first lea&. Ti:at1e;se b:as executed on June i, 1930, a~r.d recited tn;t it ~;;a;to run for r term 01'ten years frcm June 2, 1'237. Tne lease was forfeited on knril 6, 1939, by the Land Commission- er. It is tnus apparent tnat that lease was outstelding, cn- forfeited, for more than twenty-two months from tne date of its execution, and for more than ten months after the date it was to t&e efr'ect. Even viawinr the situation in the li.ght contended by the lessee, that is; tnat the iease was not per- mitted to remain in effect for a.1entire year after June 2, 1337, the fact remains tnat it was outstanding, unforfeited, /or subatantiaily one yeer froratne dzte it purported to become effective. Clearly, under these fects, the lessee would not be entitled to a return of the $460.00 bonus. hOWeVer, we are not willing to concede tnat tne COUi- missioner acted erroneously in forfeiting tnat lease on April 0, 18938. On tilecontrary, it is our conviction tnat trie COIli- missioner's action was proper and timely, for the reasons wnicn we shall now point out. Honorable Baroom Oiler, Page 6 We quote from the deferred rental olausb of the lease dated June 1, 1936, ea follows: "If operetlone for the drilling of 8 well for 011 or ge8 er8 not oommeno8d on said land on or - before on8 Yeal'f'rO8i this,dets, this 18888 Sba11 ter- minate 88 to both pert.188,un1088 the 188880 8ha11, on or berore one mar from this date, pay or tender the lessor or f the le88Or'8 oredit in the l&nt State Bank eot1‘GoldthweiteTexas * l itthe sum of fifty aents rental per a&e, Which 8h8ll operate 88 rental end aOver the privilege of defer- ring aomm8naament of drilling operations for a per- iod of on8 gear." (mphaSi8 Supplied.) Unquestionably, under the authorities, the date r8- ferred to in ths underlined phrases of the quoted portion of the lease, is the date upon whlah the lease we8 executed. - The phreso "thl8 date", appearing In a written ln- strument, refer8 to the date of execution of the Instrument. It has the same meaning es "the present date." Covey v. Town of Waynoke, 284 P. 293, 294, 141 Okl. 154; Harlfsonv. Reed, 1fl.P. 159, 160, 81 Okl. 149; 41 Words & Phrases (Perm. ed.) 583, 584. A lrimllarbxpr888lon, "thi8 day", ha8 been held to refer to the time the writi was entered into by tha parties. Renshev v. FIrstHat. Bank, Tonn.) 63 9. W. 194. The detb upon whloh'ths in8trUIMit was entered Into IS set out in the first peragreph of the lease, whlah we quote a8 r0im8: "ThiS agreement mede end entered into the 1st ?k$%% ~t~?C&$~T~~~? kkiE%r called le88& l f + and Cllf&d Ashion hereinafter a8118&1~8888." (F4nphesls8uip;iidT) It 18 ObViOU8, there&e, that mder the express term8 of the 18888, the first rental v88 due and peyabl8 one year after June 1, 19% being June 2, 1937, end that 8uoh payment 1188more than kan months past due on April 6, 1938, when the Commlssloner forfeited the lease. Bonorebl4 h8Oa Qi148, Pago 7 We fllldno language In the InrtrmPlentvhloh -7 be oon8tru4d a8 making ruoh reohl dw and payable one yen, after the date the lea84 war to go Into 4ffeot. I? th4 parties Intended that the flrrt rental war to beoome due one ywr after the alleged erreotlve date, they have not eXpF4884d 8uoh Intent In the ln8trument. The only portion of the lease which oontaln8 language r4ferrlag t0 the elleg4d 4??4&lve date IS the ?ollovlng pare- graph, vhloh v4 quote: "The said 148aor, Glenn 0. A8hton, being agent for the Stat4 of Texa8, In the leasing of 8eid lands; and It 18 iurther egr44d that thl8 lease 8he11 run for a term of ten year8 f'rozqthe expiration o? the original lease, held by the Amerada Pet. COrpOrStlOn, vhloh expireson June 2, 1937." This paragraph Is susaeptlblso? the Interpretation that It merely sets out the term of the lease and not its effective date. It doe8 not 8tate dsflnltely that June 2, m IS the effective date of the lease. However, granting that the part148 Intended that the lea84 go into ef?eat on that date, the lnatrument no- where declares that the deferred rental payments should date iromthattime. The unexpressed Intent of the parties cannot SuPPlSnt the aleer Intent stated In the Instrument. Per01 evidence elluude oennot very the express terms of the instrument. 17 Tex. Jur. 862, Sea. 391. It 18,therefor4, the opinion of this department end you are 80 advl84d, that Clifford Ashton is entitled to neither of the refund8 he 418im8. Trusting that we have fully answered your Inquiry, we are APPROVED AU0 7, 1941 Your8 very truly /8/ Grover Seller8 ATTORNEY GENERAL OF !i?EXAS FIRST ASSISTANT By /(I/Peter Manlsaeloo ATTORNEY GERERAL Peter Manl8aeloo A88i8t8llt PM:lh APPROVED OPINION coMMITTEE By B. 0. Chairmen

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4124997/

KEN PAXTON ATTORNEY GENERAL OF TEXAS February 16, 2016 The Honorable Natalie C. Koehler Opinion No. KP-0067 Bosque County Attorney Post Office Box 215 Re: County responsibilities regarding interstate Meridian, Texas 76665 extradition (RQ-0050-KP) Dear Ms. Koehler: You ask which entity, as between a city police department and a county sheriffs office, "bear[s] responsibility for extradition across state lines" in connection with the transportation: of a person located outside the State back to Texas pursuant to an arrest warrant. 1 You also ask whether the county, if it is determined to bear this responsibility, may "be reimbursed by the agency who requested the warrant." Request Letter at 1. Based on the limited background information provided, we confine our discussion to (1) the general duty created by an arrest warrant with respect to a person arrested outside the State; and (2) the costs associated with interstate extradition, and we express no opinion regarding the specific circumstances in your case. See Request Letter at 1; Email at 1. The Texas Code of Criminal Procedure article 15.06 provides as follows: A warrant of arrest, issued by any county or district clerk, or by any magistrate ... shall extend to any part of the State; and any peace officer to whom said warrant is directed, or into whose hands the same has been transferred, shall be authorized to execute the same in any county in this State. TEX. CODE CRIM. PROC. art. 15.06. If a· person is arrested in a different county from the one in which the warrant was issued and the person does not post bail as provided in article 15 .18 of the Code of Criminal Procedure, the sheriff, after receiving notice, is obligated to "go or send for the arrested person and have the arrested person brought before the proper court or magistrate." Id. art. 15.20; see also id. arts. 15.18 (procedural requirements for out-of-county arrests), 15.19 (notification to sheriff); Tex. Att'y Gen. Op. No. L0-92-67, at 2 (construing article 15.20 to obligate the sheriff to transport an arrested person back from a distant county even when the 1 Letter from Honorable Natalie C. Koehler, Bosque Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at I (Sept. 9, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"); see also Email from Honorable Natalie C. Koehler, Bosque Cty. Att'y, at I (Oct. 14, 2015) (on file with the Op. Comm.) ("Email"). The Honorable Natalie C. Koehler - Page 2 (KP-0067) warrant is obtained by a city police department). The authority to execute an arrest warrant pursuant to article 15.06, however, is applicable only "in this State." TEX. CODE CRIM. PROC. art. 15.06; see generally Street v. Cherba, 662 F.2d 1037, 1039 (4th Cir. 1981) ("[g]enerally, an arrest warrant issued in one state may not be lawfully executed in another"). Thus, an arrest warrant, by itself, does not impose a duty on a sheriff or any other peace officer of this State to travel out of state to take custody of the person named in the warrant. Instead, the duty, if any, to take custody in another State is governed by state and federal extradition law. The interstate extradition of fugitives is controlled by the United States Constitution, federal law, and state law. The Extradition Clause of the U.S. Constitution provides that [a] person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. U.S. CONST. art. IV, § 2, cl. 2. Congress has implemented this constitutional provision in federal law, providing that [w]henever the executive authority of any State ... demands any person as a fugitive from justice, of the executive authority of any State . ." . to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State ... , charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State . . . from whence the person so charged has fled, the executive authority of the State ... to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged. 18 U.S.C. § 3182. With respect to costs, Congress has provided that "[a]ll costs or expenses incurred in any extradition proceeding in apprehending, securing, and transmitting a fugitive shall be paid by the demanding authority." Id. § 3195. The State of Texas has further implemented the Extradition Clause through general extradition provisions as well as through the adoption of the Uniform Criminal Extr~dition Act ("UCEA"), both located in chapter 51 (Fugitives from Justice) of the Code of Criminal Procedure. See generally TEX. CODE CRIM. PROC. arts. 51.01-.14. Pursuant to chapter 51, the Governor may make a demand for the return of a fugitive from another State and assign a person to transport the individual back to Texas, who may then be compensated for his services. For example, under the general provisions, The Honorable Natalie C. Koehler - Page 3 (KP-0067) [w]hen the Governor deems it proper to demand a person who has committed an offense in this State and has fled to another State, he may commission any suitable person to take such requisition. The accused, if brought back to the State, shall be delivered up to the sheriff of the county in which it is alleged he has committed the offense. Id. art. 51.09. The general provisions contemplate two alternate sources for compensation: Sec. 1. The officer or person so commissioned shall receive as compensation the actual and necessary traveling expenses upon requisition of the Governor to be allowed by such Governor and to be paid out of the State Treasury upon a certificate of the Governor reciting the services rendered and the allowance therefor. Sec. 2. The commissioners court of the county where an offense is committed may in its discretion, on the request of the sheriff and the recommendation of the district attorney, pay the actual and necessary traveling expenses of the officer or person so commissioned out of any fund or funds not otherwise pledged. Id. art. 51.10; see also Tex. Att'y Gen. Op. Nos. V-587 (1948) at 3-4 (construing identical language from the predecessor to article 51.10 and explaining that payment under section 1 is "an obligation of the State" butthat "should the State refuse ... then the Commissioners Court may in its discretion pay ... in accordance with Section 2"); V-525 (1948) at 4 (construing the same and noting that the discretion of the commissioners court to pay travel expenses is conditional on the agent having been appointed by the Governor pursuant to statute). Similarly, under the UCEA: Whenever the Governor of this State shall demand a person charged with crime ... in this State, from the Executive Authority of any other State ... he shall issue a warrant under the state seal, to some agent, commanding him to receive the person so charged if delivered to him and convey him to the proper officer of the county in this State in which the offense was committed, or in which the prosecution for such offense is then pending. In all cases of extradition, the commissioners court of the county where an offense is alleged to have been committed, or in which the prosecution is then pending may in its discretion, on request of the sheriff and the recommendation of the prosecuting attorney, pay the actual and necessary expenses of the officer or person commissioned to receive the person charged, out of any county fund or funds not otherwise pledged. The Honorable Natalie C. Koehler - Page 4 (KP-0067) TEX. CODE CRIM. PROC. art. 51.13 §§ 22, 24. Neither the general provisions nor the UCEA provisions establish any particular eligibility requirements, other than, in the case of article 51.09, that the person be "suitable," to be appointed as the Governor's agent to receive and return a fugitive from another State. Id. art. 51.09. With regard to your specific question about the duty to transport an arrestee in this case, you provide no further information regarding who was named as the Governor's agent or the manner in which the extradition was carried out. Thus, we can advise only generally that the person with the responsibility to transport an out-of-state arrestee back to the county in which the offense was allegedly committed is the person so commissioned by the Governor in the extradition requisition. With regard to the reimbursement of expenses, the designation of the Governor's agent must necessarily precede a determination of who is responsible for reimbursement of that agent's travel expenses. Thus, under the limited facts presented, we cannot advise about any reimbursement of expenses beyond what is provided under articles 51.10 and 51.13, section 24, of the Code of Criminal Procedure. The Honorable Natalie C. Koehler - Page 5 (KP-0067) SUMMARY Pursuant to articles 51.09 and 51.13 of the Code of Criminal Procedure, a person commissioned by the Governor in an extradition requisition to receive and return an out-of-state arrestee back to the county in which an offense was allegedly committed has the duty to carry out that responsibility. The actual and necessary expenses of a person so commissioned may be paid pursuant to article 51.10 or article 51.13, section 24, of the Code of Criminal Procedure. Very truly yours, ~?~ KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee BECKY P. CASARES Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4124998/

KEN PAXTON ATTORNEY GENERAL OF TEXAS February 16, 2016 The Honorable Rodney W. Anderson Opinion No. KP-0066 Brazos County Attorney 300 East 26th Street, Suite 1300 Re: Ad valorem taxation of real property Bryan, Texas 77803-5359 owned by the Texas A&M University System (RQ-0049-KP) Dear Mr. Anderson: You ask about ad valorem taxation ofreal property owned by the Texas A&M University System (the "System"). 1 Your questions concern two collegiate housing projects. The first is a student housing project built on land owned by the System. Request Letter at 1. You inform us that the System has entered into a ground lease agreement with CHF-Collegiate Housing College Station I, L.L.C. ("Lessee"). Id. at 1-2. You state that, pertinent to your question, the agreement requires the Lessee -to construct and operate a student housing facility to be managed by Texas A&M University ("Texas A&M"); vests title to improvements on the property in the Lessee for the life of the lease; provides for all improvements to become the property of the System upon expiration or termination of the_ lease; and provides the System an option to purchase the Lessee's right, title, and interest during the term of the lease. Id. at 2-3. As you note, section 11.11 o~ the Tax Code generally requires that property be publicly- owned and used for public purposes to be exempt from ad valorem taxes. Id. at 3; TEX. TAX CODE § 11.11; see generally Tex. Dep 't of Corr. v. Anderson Cty. Appraisal Dist., 834 S.W.2d 130, 13 I (Tex. App.-Tyler 1992, writ denied) (recognizing that the Legislature has authorized the exe:rµption of public property used for public .purposes in section 11.11 of the Tax Code). Because the project will provide housing only for students, faculty, and others "whose presence is desirable or necessary in relation to events of Tex.as A&M," you do not question that the property will be used for a public purpose'. Request Letter at 3. But because the Lessee will own the improvements during the term of the lease, you ask about the concept of equitable title and under what circumstances equitable title constitutes public ownership for tax-exemption purposes. Id. at 4. You also ask whether, under the ground lease agreement, the System holds equitable title to the property and improvement. Id. As a preliminary matter, it is beyond the purview of an attorney general opinion to construe particular agreements or determine whether particular property is tax exempt. See Tex. Att'y Gen. Op. Nos. GA-0485 (2006) at 2 (declining to determine whether specific property is tax exempt); GA-0725 (2009) at 1 (declining to express an opinion about a specific contract). Accordingly, while we can provide general legal advice applicable to your 1 Letter from Honorable Rodney W. Anderson, Brazos Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 5-6 (Aug. 26, 20 I 5), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Rodney W. Anderson - Page 2 (KP-0066) questions, we cannot provide a definitive answer as to whether the property in question is exempt from ad valorem taxation. Even when a public entity does not possess legal title to property, if it holds equitable title and the property is used for public purposes, the property is exempt from taxation. See Harris Cty. Appraisal Dist. v. Se. Tex. Haus. Fin. Corp., 991 S.W.2d 18, 23 (Tex. App.-Amarillo 1998, no pet.). "[E]quitable title is defined a~ the present right to compel legal title." Travis Cent. Appraisal Dist. v. Signature Flight Support Corp., 140 S.W.3d 833, 840 (Tex. App.-Austin 2004, no pet.); see also AHF-Arbors at Huntsville L LLC v. Walker Cty. Appraisal Dist., 410 S.W.3d 831, 837 (Tex. 2012). An entity that possesses a right to compel legal title generally holds equitable title. See TRQ Captain's Landing L.P. v. Galveston Cent. Appraisal Dist., 212 S.W.3d 726, 737 (Tex. App.-Houston [1st Dist.] 2006), aff'd, 423 S.W.3d 374 (Tex. 2014); Harris Cty. Appraisal Dist, 991 S.W.2d at 23. Whether a public entity has a present right to compel legal title and therefore holds equitable title for ad valorem tax purposes will depend on the particular facts. Compare Harris Cty. Appraisal Dist., 991 S. W .2d at 23 (determining that a housing finance corporation held equitable title to property in a lease-purchase agreement) and Anderson Cty. Appraisal Dist., 834 S.W.2d at 131 (determining that public entity held equitable title to property in lease-purchase agreement), with Hays Cty. Appraisal Dist. v. Sw. Tex. State Univ., 973 S.W.2d 419, 422 (Tex. App.-Austin 1998, no pet.) (determining that university did not hold equitable title to property because it did not have the right to compel transfer of legal title). You also ask about a different collegiate housing project concerning real property owned by the System and leased for a 40-year term to a different lessee for the purpose of developing, constructing, and operating student housing facilities. Request Letter at 4-6. You are particularly concerned that the lease agreement allows leasing of residential housing not only to students and faculty of Texas A&M, but also to students and faculty of Blinn College. Id. at 5. Moreover, you assert that the agreement "appears to permit [leases of residential housing] to persons who are not faculty, staff or students of Texas A&M or Blinn College." Id. 2 You ask whether, for an exemption under section 11.11 to apply, the use of the property must be limited to faculty, staff, and students of Texas A&M. Id. at 5-6. Although you ask specifically about subsection 11.1 l(d) of the Tax Code, a statutory provision is not construed in isolation, but in the context of the statute as a whole. Thus, your question requires consideration of section 11.11 as a whole, in particular subsection (a), which states a general rule about the tax status of eligible public property; subsection (d), which specifies state property that is taxable; and subsection (e), which specifies certain property that is exempt. Subsection (a) states that, with exceptions not pertinent here, "property owned by this state or a political subdivision of this state is exempt from taxation if the property is used for public purposes." TEX. TAX CODE § 11.11 (a). Subsection 11.11 (d) provides that "[p ]roperty owned by 2 A brief from the System asserts that the lease allows leasing ofresidential housing to persons who are not student, faculty, or staff of Texas A&M University or Blinn College only in the unlikely event that the System "ceases operation of an institution for higher education" on the Texas A&M campus. See Brief from Mr. Ray Bonilla, Gen. Counsel, Tex. A&M Univ. Sys. at 9 (Oct. 2, 2015) (on file with the Op. Comm.). The Honorable Rodney W. Anderson - Page 3 (KP-0066) the state that is not used for public purposes is taxable." Id.§ 11.ll(d). The subsection further explains that such property is not used for public purposes if the property is rented or leased for compensation to a private business enterprise to be used by it for a purpose not related to the performance of the duties and functions of the state agency or institution or used to provide private residential housing for compensation to members of the public other than st14dents and employees of the state agency or institution owning the property, unless the residential use is secondary to its use by an educational institution primarily for instructional purposes. Id. (emphasis added). The italicized language suggests that property leased as residential housing to persons other than the students and employees of the owner of the property is taxable, even if those persons are students and employees of another state agency or institution. Subsection (e) provides a tax exemption for certain property "held or dedicated for the support, maintenance, or benefit of an institution of higher education." Id. § 11.11 (e). Subsection (e) states that property that is not rented or leased for compensation to a private business enterprise to be used by it for a purpose not related to the performance of the duties and functions of the state or institution or is not rented or leased to provide private residential housing to members ofthe public other than students and employees ofthe state or institution is not taxable. If a portion of property of an institution of higher education is used for public purposes and a portion is not used for those purposes, the portion of the property used for public purposes is exempt under this subsection. Id. While the language in subsections (d) and (e) is similar, the exemption in subsection (e) is not limited to property owned by the state or institution. Rather, the exemption is for property "held or dedicated for ... an institution of higher education." Id. Texas A&M and Blinn College are both institutions of higher education. See TEX. EDUC. CODE§ 61.003(3), (4), (8); id § 130.168. On particular facts, the property in question could be determined to be "held or dedicated for the support, maintenance, or benefit of' Texas A&M, Blinn College, or both. See TEX. TAX. CODE § 11.ll(e). No judicial opinion of which we are aware has construed the quoted language from subsections (d) and (e) or addressed how to determine which subsection will apply in particular circumstances. Because subsection (d) concerns a "state agency or institution" while subsection (e) specifically concerns an "institution of higher education," a court could conclude that subsection (e) applies as the more specific statute. See Jackson v. State Office ofAdmin. Hearings, 351S.W.3d290, 297 (Tex. 2011) (stating the rule that "a specific statutory provision prevails as an exception over a conflicting general provision"). Thus, a court is likely to determine that under The Honorable Rodney W. Anderson - Page 4 (KP-0066) subsection 11.11 (e), property held or dedicated for the support, maintenance, or benefit of an institution or institutions of higher education leased to students or employees of such institution or institutions is exempt from ad valorem taxation. Your final question is whether an "otherwise eligible exemption [would] be lost" if a "part of the property is subleased to a person other than faculty, staff or students of Texas A&M or Blinn College." Request Letter at 6. A tax exemption may be lost when circumstances change so that the property no longer qualifies for the exemption. See TEX. TAX CODE § 25 .16 ("Property Losing Exemption During Tax Year"); Tex. Att'y Gen. Op. No. JC-0236 (2000) at 1-2. Thus, in particular circumstances, property that is held or dedicated for the support, maintenance, or benefit of an institution or institutions of higher education that is leased to provide private residential housing to members of the public other than students and employees of such institution or institutions may lose its tax exemption, in whole or in part. See TEX. TAX CODE § 11.11 (e) (providing that "[i]f a portion of property of an institution of higher education is used for public purposes and a portion is not used for those purposes, the portion of the property used for public purposes is exempt under this subsection"); Hays Cty. Appraisal Dist., 973 S.W.2d at 423 (determining that a building and parking lot leased to a university and subleased in part to private attorneys and commercial tenants was not entitled to tax exemption). The Honorable Rodney W. Anderson - Page 5 (KP-0066) SUMMARY Property is exempt under Tax Code section 11.11 if a public entity holds legal or equitable title to the property and the property is used for public purposes. An owner who has the present right to compel legal title holds equitable title. A court is likely to determine that under subsection 11.11 (e), property held or dedicated for the support, maintenance, or benefit of an institution or institutions of higher education that is leased to .students or employees of such institution or institutions is tax exempt. If such property is leased to provide private residential housing to members of the public other than students and employees of the institution or institutions, the property may lose its exemption under subsection 11.11 (e) of the Tax Code, in whole or in part. Very truly yours, ~?~ KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel ·vIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. HILL Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4176248/

Citation Nr: 1714078 Decision Date: 04/28/17 Archive Date: 05/05/17 DOCKET NO. 10-29 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to special monthly compensation (SMC). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1968 to February 1970. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for PTSD and assigned an initial 50 percent rating, effective March 25, 2005. Jurisdiction of the matter has been transferred to the Montgomery, Alabama RO. In October 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In testimony in support of his claim, the Veteran contended that he was unemployable due to his service-connected PTSD. In December 2014, the Board assumed jurisdiction of the TDIU claim and remanded the issue of a higher disability evaluation for PTSD for additional development, to include a VA examination. As will be discussed below, the Veteran, in this case, is also evaluated as 70 percent disabled due to diabetes mellitus and resultant neuropathy of all four extremities and is being granted SMC under 38 U.S.C.A. § 1114(s) herein. In a written statement received in March 2017, the Veteran appears to have raised the issue of entitlement to for sleep apnea as secondary to the Veteran's service-connected PTSD. The veteran is advised that his statement does not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.155(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. FINDINGS OF FACT 1. For the appeal period prior to September 17, 2007, psychiatric symptoms due to PTSD, and the severity of such, more nearly approximated a rating based on occupational and social impairment with deficiencies in most areas, such as work, family relations, and mood. 2. For the time period from September 17, 2007, the Veteran's service-connected PTSD disability is manifested by total occupational impairment and symptoms that approximate total social impairment. 3. Prior to September 17, 2007, the Veteran's service-connected disabilities did not render him unable to obtain and maintain gainful employment as he maintained full-time employment until that date. 4. As a consequence of this decision, the Veteran has one service-connected disability (PTSD) rated as 100-percent disabling from September 17, 2007, and service-connected disabilities arising from a common etiology (diabetes mellitus and resultant peripheral neuropathy of all four extremities) rated as 70 percent disabling, effective August 7, 2014. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the disability criteria for a 70 percent evaluation for PTSD, and no more, were met from March 25, 2005 until September 17, 2007. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2016). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 100 percent evaluation for PTSD have been met from September 17, 2007. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.130, Diagnostic Code 9411 (2016). 3. The criteria for a TDIU were not met for the period prior to September 17, 2007. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). 4. The criteria for entitlement to SMC (special monthly compensation) at the housebound rate from August 7, 2014, are met. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2016); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As it relates to the PTSD claim and the resulting TDIU claim, as the Veteran's appeal arises from his disagreement with the initial rating following the grant of service connection no additional notice is required. The United States Court of Appeals for Veterans Claims (Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, private treatment reports and records, VA treatment records, VA examination reports, Social Security records, and lay evidence, to include testimony of the Veteran at his October 2014 hearing. No additional pertinent evidence has been identified by the claimant as it relates to his claim for a higher disability evaluation or TDIU claim. As it relates to the necessity for an examination, the Veteran was afforded numerous VA examinations throughout the course of the appeal. The results from these examinations are sufficient in order to properly address the Veteran's claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate for rating purposes, because they were performed by medical professionals, were based on a thorough examination of the Veteran, and reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments by his representative and by providing testimony at his October 2014 hearing, which resulted in a Board remand for further development. The requested development was performed and complied with the directives of the Board remand. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. PTSD Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2016). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The General Formula for Rating Mental Disorders, Diagnostic Code 9411, provides that a 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent evaluation is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms cited above follow the phrase "such symptoms as" which indicates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating. The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. The Board must consider all symptoms of the veteran's condition which affect the level of occupational and social impairment. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002). The Global Assessment of Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." American Psychiatric Association : DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125 , 4.130 (2015). GAF scores from 71 through 80 is indicative that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more that slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). Scores ranging from 61 through 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 through 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 through 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A GAF score of from 31 through 40 contemplates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Veteran maintains that the symptomatology associated with his service-connected PTSD warrants a disability evaluation higher than that which is currently assigned. In conjunction with his claim, the Veteran submitted a June 2006 report from R. E., Ph.D., who diagnosed the Veteran as having both PTSD and anxiety disorder/panic attacks. He noted that when the Veteran began to talk about his Vietnam experiences, he began to almost work up a sweat; and it appeared he had an increased heart rate, almost as if he let the information possess his ability to control his body. He noted that the past events continued to cripple the Veteran's ability to fully function and have relationships with the opposite sex. He observed that over the years the Veteran had lived in an isolated environment, alone in a two bedroom apartment. He continued to isolate himself from his family even though he lived on a family property. Dr. E. indicated that the Veteran reported having recurring flashbacks of his military experiences, which were vivid and caused him to have insomnia and fear of sleeping due to the nightmares. He noted that the Veteran tried to work many hours to make himself tired so he had no choice but to sleep. The Veteran stated that past events continued to haunt him, left him feeling frustrated, sad, depressed, and emotionally numb at times. He also experienced anxiety when hearing news about the Iraq war. He noted that the Veteran could no longer hold his thoughts about his mental health and wanted to share with others for help. He observed that the Veteran was fearful that when he retired his inability to deal with his past trauma would increase. Dr. E. assigned a GAF score of 47. In conjunction with his claim, the Veteran was afforded a VA examination in August 2007. At the time of the examination, the Veteran reported having repeated flashbacks triggered by loud noises, fireworks, helicopter sounds, etc. He was averaging only 2-3 hours of sleep per night and would wake up in a cold sweat. He also reported doing a great deal of pacing. He had nightmares 4-5 times per week and would attack anyone if awakened. He experienced anhedonia with loss of all past interests. He was hypervigilant, preferring to avoid crowds and sit with his back to the wall to observe the door. He had survivor guilt with passive suicidal ideation. The Veteran also had emotional blunting and isolated himself and was irritable to the point of getting in many verbal altercations. All symptoms were noted to have increased in frequency and intensity by unstructured time and frustration over continuous Iraq war news. Mental status examination revealed he was oriented times four, recent and remote memory were good but concentration was extremely poor. He appeared distant with a vacant stare. His affect was sad and anxious. Speech was coherent and relevant but showed some psychomotor slowing. There was some concreteness in abstracting ability. Judgement was poor and the Veteran admitted to passive suicidal ideation and survivor guilt. He also admitted to hypervigilance and anhedonia. He had nightmares and flashbacks but showed no other delusions or hallucinations. The examiner rendered a diagnosis of PTSD and assigned a GAF score of 30. The examiner indicated that the Veteran's PTSD symptoms were poorly controlled by the structure of his work and noted that he was recently fired. He stated that unstructured time had caused a marked deterioration in the Veteran's condition and that the war news had increased all symptoms. He noted that the Veteran had not yet received treatment for PTSD because he was ashamed of what he saw as a weakness but was advised to seek such treatment since his condition had not improved and he remained isolated, hypervigilant, irritable, unable to work with others or supervisors, and had poor concentration and very poor social functioning. The examiner stated that the Veteran's PTSD had made him permanently disabled. In his April 2009 notice of disagreement, the Veteran indicated that he had married his wife in 2005 and that she was now turning against him. He reported that she stated that he had nightmares where he would thrash about yelling profanities. As a result, they slept in separate bedrooms. She indicated that he appeared to be fighting with someone and noted that she had bruises where she claimed he had hit her during those times. The Veteran stated that his wife said this happened so often she was afraid for her life and had moved out of the bedroom. He also noted that he was tired about her complaining about his hygiene and trying to get him to bathe, because if he did they would attack. He stated that when you know that you could be attacked at anytime, you could not let anything deter you and let your guard down. He stated that if he bathed, he could not take his weapons, ammunition, supplies, or equipment with him and that he had to be alert and on guard for the attack. He tried to get her to understand that bathing was not necessary for survival. He also noted that he was tired about her complaining about not going places and not getting out of the house, to include not going around family and friends. He stated that if he left he would be attacked. The Veteran indicated that he did not need to be around people or to go places because he would be attacked. He stated that at times he suspected they were talking to her and would convince her to join them against him. He noted that he had heard his wife talking about him. Records obtained from the Social Security Administration reveal that the Veteran was found to be disabled for Social Security purposes from September 17, 2007, his last day of employment, as a result of a primary diagnosis of anxiety-related disorders and as a secondary to other and unspecified arthropathies. At the time of a January 2014 VA examination, the Veteran was noted to have a depressed mood, anxiety, panic attacks, chronic sleep impairment, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported intermittent irritability, low frustration tolerance, and a quick temper. He noted engaging in verbal altercations with others. He endorsed some thoughts of harming others. His appetite was noted to be okay, he had no sex drive, and his sleep was not good as a result of the nightmares. He reported having panic attacks and hypervigilance with crowds. He also heard others talking when no one was there. He further noted being able to see through people like an x-ray machine. He stated that visual and auditory perceptions had been with him for a while. He also reported that he trusted no one. At his October 2014 hearing before the undersigned Veterans Law Judge, the Veteran testified that his symptoms were worsening. He reported having trouble sleeping and having intense nightmares. He indicated he was up all night moving around. He noted having hit his wife in his sleep. He also reported constantly checking the security of the home. He further testified as to having suicidal and homicidal thoughts. He also reported having road rage. He indicated that his wife put up with him. His spouse stated that his problems had increased. The Veteran left the room during the hearing and his wife indicated that his problems had increased in severity and that there was no intimacy. She noted that he sat in the chair and had to be forced to take a bath. She also reported that he was very isolated and detached. The Veteran reported having panic attacks at any time, especially if in a crowd. He also indicated that they never had company visit. In conjunction with the December 2014 Board remand, the Veteran was afforded an additional VA examination in November 2015. At that time, a diagnosis of PTSD with depressive features was rendered. At the time of the examination, the Veteran was noted to live with his spouse and both stated that the marriage was not good. His sleep problems disrupted his wife's sleep. He noted that he was hard to live with and was very isolative. He had limited contact with his family and no social relationships. He spent most of his day sitting in his tool room meditating. He stated he could not watch TV as it reminded him of Vietnam. He reported having frequent suicidal ideations. He indicated that he had installed security sensors around the house. The examiner stated that the Veteran was experiencing depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, memory loss, disturbances in mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The examiner reported that the Veteran would have problems interacting effectively with supervisors or co-workers due to irritability/anger and strong tendencies to isolate; would have reduced work performance due to attention/concentration and short term memory problems; would have problems with anxiety/hypervigilance in a workplace that involved a lot of people or a significant amount of noise; would have frequent daytime fatigue and struggles with mental stamina due to sleep disturbance and nightmares; and would have difficulty in positions with high emotions, cognitive, or social demands. Time Period Prior to September 17, 2007 After reviewing all of the evidence of record, to include findings from VA examinations, private psychiatric evaluations, and lay evidence from the Veteran, the Board finds that the Veteran's PTSD symptoms prior to this time included: depression, anxiety, panic attacks, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work like setting, inability to establish and maintain effective relationships, and obsessional rituals which interfered with routine activities. The Board finds based on VA and private examinations of the Veteran and his self-report of symptoms, and lay evidence, that PTSD symptoms were most consistently identified as interfering with his occupational and social functioning involved reported depression, anxiety, impulse control to include anger outbursts, difficulty adapting to stressful circumstances including at work, difficulty with concentration, and a difficulty or inability in establishing and maintaining effective work and social relationships. The Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas such as work, family relations, judgement, thinking, or mood as indicated for a higher 70 percent evaluation for PTSD. The Board finds that the private and VA examinations of record prior to this time provided competent, credible, and probative evidence with regard to the severity of the Veteran's PTSD. The Board also finds that the Veteran's symptoms of having had difficulty in adapting to stressful circumstances at work, difficulties with anger outbursts at work and at home, and difficulty or inability to establish or maintain effective work and social relationships were consistent with a higher 70 percent rating for PTSD, and these symptoms were supported by lay evidence of record. Resolving reasonable doubt in the Veteran's favor, the Board finds that for the rating period prior to September 17, 2007, the severity of the Veteran's psychiatric symptoms, overall, more nearly approximated the criteria for assignment of a 70 percent rating under Diagnostic Code 9411. The Board has reviewed all of the evidence of record, lay and medical, and finds that the Veteran did not meet the criteria for a higher 100 percent disability rating for PTSD during this time period. See 38 C.F.R. § 4.130. The record does not indicate total occupational and social impairment, due to symptoms of such a severity as described for a 100 percent evaluation for PTSD. The Board notes that while the August 2007 VA examiner indicated that the Veteran had become too disabled to work as a result of his PTSD and had been fired earlier that month, the Veteran has reported on numerous occasions, including in Social Security records and in his July 2014 TDIU application, that he worked on a full-time basis until September 17, 2007. Moreover, the Board finds that total social impairment was not indicated prior to this time as the Veteran was able to maintain relationships with his spouse and some family members. The Board finds that PTSD symptoms and the severity of such did not result in total occupational and social impairment as indicated for a 100 percent rating prior to September 17, 2007. The Board finds that the overall degree of severity of the Veteran's psychiatric symptoms and functional impairment was not consistent with a 100 percent rating for PTSD, and more closely approximated a severity of symptoms or functional impairment indicated for 70 percent rating for PTSD. The Board also has considered whether referral for extraschedular consideration for this time period is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation Services to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by PTSD are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Diagnostic Code 9411 specifically provides for disability ratings based on a combination of clinical psychiatric symptoms and findings. In this case, considering the lay and medical evidence, the Veteran's PTSD is manifested by symptoms which include, but are not limited to, depression, anxiety, problems with impulse control to include anger outbursts, difficulty adapting to stressful circumstances, difficulty with concentration, sleep impairment, and a difficulty or inability in establishing and maintaining effective work and social relationships. These symptoms are part of or similar to symptoms listed under the schedular rating criteria. The schedular rating criteria specifically include occupational and social impairment with deficiencies in most areas, and as caused by specific psychiatric symptoms. The schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442; see also 38 C.F.R. § 4.21 (2016). Additionally, the Board has considered the evidence, lay and medical, with regard to the Veteran's overall functional and occupational impairment caused by PTSD. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's PTSD, and referral for consideration of an extraschedular evaluation is not warranted. In the absence of these factors, the Board finds that the requirements for a referral for consideration of the assignment of an extraschedular evaluation for the Veteran's disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. As noted above, a TDIU prior to this time is not warranted as the Veteran was employed on a full-time basis until September 17, 2007. Time Period From September 17, 2007 Resolving reasonable doubt in favor of the Veteran the criteria for a 100 percent schedular evaluation for PTSD have been met from September 17, 2007 forward. The only criteria for a total disability rating for any disability rated in accordance with the VA General Rating Formula for Mental Disorders are total occupational and social impairment. Sellers v. Principi, 372 F.3d 1318, 1324 (Fed. Cir. 2004) The Veteran has been unemployed at all times from September 17, 2007. He has been assigned GAF scores that denote an inability to maintain employment and has been found by VA examiners to be unemployable as a result of his PTSD. The Social Security Administration, whose decisions while not binding upon VA are strongly considered when making determinations, found the Veteran to be unemployable, with the primary diagnosis being psychiatric disability, as of September 17, 2007, which coincides with the Veteran's last day of full-time employment. While psychiatric disabilities other than PTSD have been identified, all have been evaluated as a single service connected entity, and no examiner has distinguished service-connected and non-service connected disability. Cf. Mindenhall v. Brown, 7 Vet App 271 (1994). The Veteran does not have total social impairment inasmuch as he continues to live with and remain married to his spouse. However, his social circle is extremely limited. His symptoms thus approximate total social and occupational impairment. 38 C.F.R. § 4.7, 4.21 (2016). The criteria for a 100 percent rating are therefore met. TDIU At the outset, the Board notes that in Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU rating predicated on one disability may be awarded if that disorder is not ratable at the schedular 100 percent level. However, a separate TDIU rating cannot be awarded based on one service-connected disability if the Veteran is already receiving a 100 percent scheduler rating for that disorder. Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, the Veteran has been awarded entitlement to a 100 percent rating for PTSD beginning September 17, 2007. A review of the record shows that the Veteran has not alleged that service-connected disabilities, without regard to his PTSD, render him unable to obtain and maintain gainful employment. In fact, the Veteran has specifically alleged that his PTSD is a significant factor in his inability to work. Therefore, the findings in Bradley are not applicable in this case, and the issue of entitlement to TDIU beginning September 17, 2007, is moot as the Veteran is in receipt of a schedular 100 percent rating for his PTSD for that period. The evidence of record indicates that, prior to September 17, 2007, the Veteran did not report that he was unable to obtain and maintain gainful employment as a result of his service-connected PTSD. This was noted in the SSA determination and in the Veteran's TDIU application. As the Veteran was working up until September 17, 2007, the Board finds that there are no unusual or exceptional disability factors warranting referral of the Veteran's claim for TDIU under 38 C.F.R. § 4.16(b). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to TDIU prior to September 17, 2007, is not warranted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SMC SMC is "special" monthly compensation in addition to that which the Veteran otherwise receives for his service-connected disability or disabilities. VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). SMC is payable at the housebound (HB) rate where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently HB by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). The Board notes that in addition to PTSD being at 100 percent from September 7, 2007, service connection prior to August 7, 2014, was in effect for diabetes mellitus, evaluated as 10 percent disabling; peripheral neuropathy of the right upper extremity, rated as 10 percent disabling; peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, rated as 20 percent disabling; peripheral neuropathy of the left upper extremity, rated as 10 percent disabling; and impotence, rated as noncompensable. The combined rating of these disabilities was 50 percent prior to August 7, 2014. As of August 7, 2014, in addition to the schedular 100 percent evaluation for PTSD, service connection was in effect for diabetes mellitus, evaluated as 20 percent disabling; peripheral neuropathy of the right upper extremity, rated as 30 percent disabling; peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, rated as 20 percent disabling; peripheral neuropathy of the left upper extremity, rated as 20 percent disabling; and impotence, rated as noncompensable. The combined rating for these disabilities, arising from a common etiology was 70 percent. Accordingly, he is entitled to SMC at the housebound rate from August 7, 2014. ORDER An initial disability evaluation of 70 percent for PTSD prior to September 7, 2007, is granted. An initial disability evaluation of 100 percent for PTSD from September 7, 2007, is granted. A TDIU prior to September 7, 2007, is denied. SMC at the housebound rate from August 7, 2014, is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

01-03-2023

06-09-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125026/

KEN PAXTON ATTORNEY GENERAL OF TEXAS September 28, 2015 Ms. Katie Conner Opinion No. KP-0038 Brazos County Auditor 200 South Texas Avenue, Suite 218 Re: Whether the Open Meetings Act applies Bryan, Texas 77803 to district and county court-at-law judges when they meet to appoint county officials (RQ-0019-KP) Dear Ms. Conner: Your questions concern the Open Meetings Act (the "Act") and to what extent it may apply to "a group comprised solely of district and county court-at-law judges." 1 You provide two statutory examples of such judicial groups, asking whether each group constitutes a "governmental body" under the Act. See Request Letter at 2. The term "governmental body" is defined under the Act to include "a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members." TEX. Gov'TCODEANN. § 551.001(3)(A) (West Supp. 2014). The term also includes "a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality" and "the governing board of a special district created by law." Id. § 551.001(3)(D), (H). With this statutory language in mind, we examine each judicial group about which you ask. Your first example concerns district judges who meet to appoint a county auditor. Request Letter at 2. Pursuant. to chapter 84 of the Local Government Code, "the district judges having jurisdiction" in a county with a population of 10,200 or more "shall appoint a county auditor." 2 TEX. Loe. Gov'T CODE ANN.§§ 84.00l(a), .002(a) (West 2008). The judges shall appoint the auditor "at a special meeting held for that purpose." Id. § 84.003(a). The district judges also approve the appointment of assistants to the county auditor. Id. § 84.021(a). This office has previously opined that a group of district judges meeting to appoint a county auditor pursuant to chapter 84 of the Local Government Code is not a "governmental body" under the Act because the group "does not constitute a board, commission, department, committee, or agency within the executive or legislative department of the state nor is it a department, agency, or political subdivision of a county 1Letter from Ms. Katie Conner, Brazos Cnty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Mar. 24, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2 Brazos County has a population of 194,851. See U.S. Census Bureau, U.S. Dep't. of Commerce, 2010 Census of Population, http://quickfacts.census.gov/gfd/. Ms. Katie Conner - Page 2 (KP-0038) or a city or the governing board of a special district created by law." Tex. Att'y Gen. Op. No. JM- 740 (1987) at 4 (considering the predecessor to section 84.005 of the Local Government Code). The law governing the appointment of a county auditor has not substantively changed since 1987 when Opinion JM-740 was issued. Thus, the analysis and conclusion of that opinion is still applicable. A group of district judges meeting to appoint the county auditor pursuant to chapter 84 of the Local Government Code is not a "governmental body" under the Act. Your second example concerns district and county court judges who meet to appoint a community supervision and corrections department ("department") director. Request Letter at 2. Section 76.004 of the Government Code directs a specific group of judges to "appoint a department director" after publicly advertising the position, posting a job description, conducting a competitive hiring process, and reviewing eligible applicants. TEX. Gov'T CODE ANN. § 76.004(a), (h) (West 2013). This group of judges also establishes the department as a whole and approves the department's budget and community justice plan. Id § 76.0Q2(a). Against this background, we examine each relevant definition of "governmental body" in the Act. First, subsection 551.001(3)(A) of the Act defines "governmental body" as "a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members." Id.§ 551.001(3)(A) (West Supp. 2014). Although it establishes a department, the group of judges itself is not "a board, commission, department, committee, or agency" that is "directed by one or more elected or appointed members" because the judges are not elected or appointed to serve as a member of the group. Id Membership in the group is established, not by election or appointment, but by statute. See id § 76.002(a) (West 2013) (listing a specific group of judges). Thus, it is not a "governmental body" under subsection 551.001(3)(A). Next we examine subsection 551.001(3)(D), which defines a governmental body as "a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision ofa county or municipality." Id. § 55 l.001(3)(D). The group of judges has quasi-judicial power because it exercises judgment and discretion in its statutory functions, and its decisions are binding. See Fiske v. City of Dallas, 220 S.W.3d 547, 551 (Tex. App.-Texarkana 2007, no pet.) (defining "quasi-judicial power" to include these elements, among others). The group of judges is not, however, "a department, agency, or political subdivision of a county or municipality," and thus it is not a "governmental body" under subsection 551.001(3)(D). Finally, the definition of "governmental body" in subsection 551.001 (3)(H) of the Act refers to "the governing board of a special district created by law." ·TEX. Gov'T CODE ANN. § 551.001(3)(H) (West Supp. 2014). A previous opinion of this office concluded that a group of district and county judges appointing the director of a depcirtment pursuant to chapter 76 of the .Government Code comes within the scope of a "special district" and thus constitutes a "governmental body" as that term is defined by subsection 551.001 (3)(H) of the Act. See Tex. Att'y Gen. Op. No. DM-395 (1996) at 4. Since the time that DM-395 was issued, however, the Legislature has altered the role of district and county judges with respect to departments. See Tex. Att'y Gen. Op. No. JM-1185 (1990) at 3 (noting the relevance of a governmental body's function in determining whether it is a governmental body subject to the Act). Ms. Katie Conner - Page 3 (KP-0038) Opinion DM-395 based its conclusion on both the broad definition of"special district" used by an appellate court and the broad statutory responsibilities then in place for district and county judges with respect to departments, particularly those involving management and decision-making. See Tex. Att'y Gen. Op. No. DM-395 (1996) at 3-4 (examining Sierra Club v. Austin Transp. Study Policy Advisory Comm., 746 S.W.2d 298 (Tex. App.-Austin 1988, writ denied)). The court in Sierra Club defined "special district" as "[a] limited governmental structure created . . . to accomplish a primarily local benefit or improvement." Sierra Club, 746 S.W.2d at 301. The Attorney General in DM-395 stated that "[the committee of judges'] control over the CSCD directorship and CSCD finances, as well as its general managerial function with respect to the CSCD, makes it, we think, a 'governing body' of such special district within the [A]ct' s definition." Tex. Att'y Gen. Op. No. DM-395 (1996) at 4. Legislation passed in 2005, however, significantly scaled back the role of judges with respect to a department. See Act of May 16, 2005, 79th Leg., R.S., ch. 255, §§ 1, 4, 5, 7, 8, 12, 2005 Tex. Gen. Laws 454, 454-58 (codified at TEX. Gov'T CODE ANN. §§ 76.002, .0045, .0051, .009, & .010 (West 2013)). As a result of these changes, judges no longer have the authority to employ personnel, authorize the carrying of weapons, expend or authorize expenditures of department funds, or participate in the management of a department that they previously had. See id Instead, "[t]he responsibility of a judge described by Section 76.002 for personnel decisions is limited to the appointment of a department director and fiscal officer," and for budgetary decisions the responsibility "is limited to: (1) appointment of a fiscal officer; and (2) approval of the department's budget." TEX. Gov'T CODE ANN.§ 76.0045(a)-(b) (West 2013). Thus, the role of the district and county judges that appoint the department director is no longer that of a decision-making "governmental structure" inherent in the Sierra Club court's definition of a "special district." Because the managerial role of the district and county judges with respect to a department has been significantly curtailed, a court would likely conclude that the group of judges described in section 76.002(a) of the Government Code who appoint the director of a department is not a "governmental body" as that term is defined under subsection 551.001(3)(H) of the Act. 3 Assuming this conclusion, you next ask whether each group ofjudges is nonetheless required to post notice of some of its meetings. Request Letter at 2. The requirement under the Act that "written notice of the date, hour, place, and subject of each meeting" shall be given to the public applies to "each meeting held by [a] governmental body." TEX. Gov'T CODE ANN.§ 551.041 (West 2012) (emphasis added). If the group that is meeting is not a "governmental body" under the Act, it follows that the notice requirement in section 551.041 of the Act is inapplicable. Thus, the Act does not require either group of judges about which you ask to post notice of its meetings. Because your last question is premised on an affirmative conclusion that the groups in question constitute governmental bodies under the Act, we need not address it. 3 Because the statutory basis on which Opinion DM-395 relied has changed, its conclusion about the Act's application to the judges described in section 76.002(a) of the Government Code is no longer valid. Ms. Katie Conner - Page 4 (KP-0038) SUMMARY A group of district judges meeting to appoint the county auditor pursuant to section 84.003 of the Local Government Code is not a "governmental body" under the Open Meetings Act. Consequently, notice ofthe group's meetings is not required by the Act to be posted. A court would likely conclude that a group of district and county judges meeting to appoint a community supervision and corrections department director pursuant to chapter 76 of the Government Code as currently written is not a "governmental body" under the Act because of the statutory curtailment of the group's previous managerial role with respect to departments. Consequently, notice of the group's meetings is not required by the Act to be posted. Very truly yours, ~?~ KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee BECKY P. CASARES Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142620/

,. 581 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Honorable Claude A. ~~lllitms Cheirmen end ikeeutlve Clreotor Tsxee Unemployment Compensation Com&,saion Auetin, Texas Deer 3irr 8 in the vnom- Companaati~ Aa- OlQn mnd llpplie6 by bho ?ederal 0ofersmrnt. your letter that you are Interseted oxkly f SeoBlon the Departmental Approprla- 8 of oh appertain to the purohesing 6f 6upplIe8 I opinion is 80 llmitad. In the beginning, we wish to point out plome of the Federal Btetutsa whloh relate to the qusPrtlon kxt hend. ~sotifon 502 (a), Title 42, V.Q.C.A., provides in part es fo2lowe; Hon. Claude A. iillllems, pa&e 2 “(a) The Zoerd ahell frown tlma to tlm oartify to ths &oretery of the Troaaury ior peymsnt to each jtiete wbioh hea au unamploym?nt oompensetion law approved by the Board under the X‘ederel Unemployment Tax Aot, such amounts es the board detormlnes to be naoaaaary for tha proper end efficient administration of swh law during the fiscal year for whloh suoh peymsnt Is to be mde. . .” Saotlon 503 (a), Title 45, aupre, rwba in part as toi- lower “The Board shall maka no oartliloatlon tar pay- ment to any &ete unless It finds t&t the law of auoh &eta, approved by tha Board under the Frderal Unsmployrant Tax xot, lnoludaa provision far; ‘(8) ErrbOtit8JUlY1, 1941, tha a%panditt~a of all moneys raoaived purauent to hM.on 608 af thia title solely for tha purposes end in the emounta round nsoeaaery by the Board for the proper and errioient adminiatretfon or auoh btate lew~ end “(9) Mreotive July 1, 1941, the raplaoament, within a raaaonebla time, of any moneys raoalrad puxauant to jeotion 502 or this titla, whioh, be- oauaa of any a&ion or contingency, have bean lost or hsve been axpanded for purposes other then, or in amounta in exoeaa of, thoea found neeeaaexy by the Board for the proper admlniatretlon ot auah State law.” By virtue of the above quoted statutes and other pror~aiona of the Sooial Soourlty Aot, the Sooial Saourlty fioarxl hea pro- 3nulgatad tarloua atanderda, lnatruotiona, speoiiioatfons, rulaa end ra&.ations conowning the nenner end method in whioh the Texas Unamploymsnt Compensation Coannfaalon may expand the funds contained in the Unamploymont Compensation Administration Fund Insofar as sup Uad by tba Federal Oovexnnaant. The yadarel Statutes ani the various standards; inatruotions, lpaolfloetions, rulea and ragulationa of tha Sod.81 jaourity Board, promulgetad under 8e.M Fedora1 Stetutoa, muat ba iolL- lorad by the Ztete in order for tha State to receive the un- employment oorripensetion a&liniatration rude. Bon. Clautla A. Will$mma, paga 25 Ii the appliombla prorfiona of s‘eotlon e of the Da- partmanta Appropriation Bill, rupre, apply to puroliese8 0r auppliaa and equipment mede by the Unemployment Compensation Commission out of Sunda contained in the ‘c’uer:ploymeat Compen- setion Adminlatration Zuud as turniehsd by the Iaderel Govern- ment , then it will ba impassible for the Coomn;ireion to rollow th6 verioue rulers, reguletiono, etc. of the aooial jeourlty &era in this metter. In the Depertmental Appropriation Btll, aupre, wa find oartein lenguaga in Seotion 1 tbera0r whloh apeolfioelly rarer8 .to the Unemployment Compensation Commiss,ion. ?:e quote as followa I “All moneya granted to this Sate by the’ hderal ~ernmant tor the administration of the UnorPploymnt moa*ya~grentad ror travel ehell be expndealn ths amounts and in aooordanoe ulth the standerda or the Ssatel %ourlty Board end the rubs epll reylatfona adopted by the Unemployment Coap6maetion Comiraion to mad euoh stenaards. ;iut 0r .atats travel expe~a pale solely iroom ~aderel &mate aad dada in acaozdaaoo with the Fadarel’ ateaderd8 aa bsiryr naoearary iOr PM- per adminietratlon or the Unemploymnt Companeatioa Aat do not here to hare the approval af the ~ttornay Ganerel. RSalaries to the amployaea of tha UnamployakenO Compsnoetlgn Oonniiaaion end Paembers of the Golcaiaaion shell ba paid in acoordanoa with egreemahta medo betwaan the ComuSaaion end the Sootal Seawlty barb, but in no ease ahall suoh salarfpa ba leas then thoea auth- orlpad by tha Aot oreating the Unsmplopent Compensation Coreainaion.* (U~ndaraoortag: ours) Since it irr nail kUGWIi that the Sadsrel Funde in guestion oan ba obtained oaly~ if expended a.8~dlraotad by the 3oolal Saourity herd, we believe that the ebova undersoared langtaega wuld ina1aat.a that the general provision8 montainad in aeatioa 8 of the Iieperteentel Appropriation Bill, aupre, with rcdranoe to pqohaaaa of aupplfee and eguipnt, would not apply to auah Bon. Claude A. %'5115am6, page 4 parchares m&e by the Unemglopent Compensation Coma5aslon out of unmiployment oompmsatlon adm5n5stretlon funds sup_=lied by the federal Covernmmt. kctlon 22 (10) ot aaid Appropriation Bill reads aa followrr: "(10) United state8 81~~58 and irid. The pamper ofriosr or of any Stats i)spaxtiments, bureaua, ofilottrs or div51~5ons of atate aganolea are hereby authorlseb to make application for ad acoapt any gifts, grant*, or allotmeAt or iunds front the Unit& atate Oovem- ment to be Used OA jtate oOOperat5VO and other Fderal projeots and progmms in Texas, infiuaing OOAStl'UQtiOA oi pub158 buildings, repairs, arid in&mminmnts. Any or auoh fulsral fun&r a6 my be 46porrltab in the State Treamaxy are hereby appropriatrd to the apcroiflo pur- pose anthorlzod by the Federal GoverAment, and subloot to the llm5tatloA plaosd OA thir hot." (Underaoorlng oura) The abova uudrraoored provision would 5AdiOate that the general provie5oAA of 29Ot5OA 8 of the &Qartm~Atal Appropria- tion bill are applioable to the sxpatndlture of ~tha fu~dr 5~ qAeatlon* It 50 to bo noted, howover, that SaotWa 0 (lo), mpra, is in general kmggua~e an6 aekoe AO 8pwiiiO rrfor6noe to the fWkdS iA the UAat@e~At COmpeAAatiOAAdm.%AilltXmtiAA Fun6 aa reoelve(l from the Y&ral EovemmeAt, The 4Vth Legirlatura sAaote6 Eouee Bill Ho. 499, effebtlvo Way 21, 1941, whioh OOAOOXAS the question at hand. Said Bill reads in part fin followa~ *Thera lr ,heraby ureatad ln the &ate Treasury * rrpeolal rwd tc be known as the uAWU&dOJXfitSAt Com- pezmatlou hdmIn5stration Irund. All money& which are deposited or paid into this fund are hereby appro- priated an8 made uvailabLe to the Ccxn~ssion and shailbe co~tSnuoualg available to the Comilsrion for expenditure in aoaordanos w~lth the prov56Ione of th5a Act, and shall not lapse at any tlas or ba trarutarred to any other fund. All moamye~in this fund whloh am reoeived from the Tumloral Govesmwmt or any agesoy theroot shall be exm~nded solely for the ~+?wQoBe8and iA 585 ”” &A. Cl.SudS A. ~5lll~ma, pagS 8 the amottnts found neoeaaary by ths Social seourlty Boar4 for the Dropor aAd affiOieAt abaiA5StratioA Oi this Aot. The tu~4 shall oonslat of all m0ney8 appro- priated by this State; all WA@78 reoeived from tha United States of &ierloa, or cmy a&;encg thereof, ln- cludingl the ~oeial kcurit.7 BOSrd; ell ~loneya XaOaiV~ Worn any other bouroe for suoh purp08Sfi all moneys Oollected by the Gmm5885O~ ar wets or teor ohargeil by thS Comm5ae15on for tu~niah5ng photoaktlo or oertir56d OOpiOS or ra6orda or the Co~m5885O~, or tee8 ohu&SU by the COoDiSSiOA for makifig audits puraugt to the authority granted in this hot, u3d shall also incluQ0 say monoya raoelved from lAy agency of the United statea of jinwrlcra or any othhsr State a6 ootipeA8at5oA for servioae Or fa0115t508 rupplled to auoh agumy, my enouAt8 r~ceivoe pUrSeAt to any 8urSty bond or l~sur~~oo &~olloy Or iroar other aouroea iOx loaaoa SustaiAd by the UAmplOymAt CompSnsatlon AdPL5Aiatratlon FAA~, or by roaaOA 0r damage t0 SQufpmsAt or auppllea pUrChaC& irC5 moAe78 I@ auoh funb, and any preeSS48 raSlisSt.rror t&o &la The rlrst undbrecored prov5SioA u0uia 5n45aato that the ignd8 %A the ~AWlIQlO$'lWAtCf3RQMl8AtioA AdmiAietI'AtiOA BAA6 should bS diaburaod bjr tSs UAsmpkomAt CompeASStioA CWSi5885OA in the mnnwr eirS0t04 by the f3ocial. Security Board. The latter Paderaoorad provision would lad%oate thcxt the 45bburacrmont of these funds would be controlled by the pr0v1850~8 Of ~eotion g Of the ikpartmntel Appropriation Bill an4 &her appllaablo Stat0 Laws. 2tlll aAOthex law relatiag to the gut6tfOn at hand is $e‘,tiOA (1) of &tit316 522lb-9, ~el'IlOA'6 k?~Ot~~~%CCi~~ Statutes, which was eAseted by the 4dth LS@. p, 1995, Ch. 4oe. 3a id SWtiOA r ea & a 86 r O& Vdt ’ l’ "stcpte-Federal Coopsratlonr IA the adminis- tmtlon or this hot, the COE+ULf'iWiOAShall e~op8i'ata tO the iulleet OXteAt OOASiSt~At with the p2bVisiOAa “’“I’ 586 BOA. OlaUde A. allllame, page 6 0r thisAct, with tho soala ::eourlty Board, created by the Soolal L.eaurlty Act, approrul Auguet 14, 1985, a8 am~nde6 J okall make suoh reports, in auoh rora and containing euoh ia- rormatlon 88 tiie social Stcurity Boar4 zap rrcm time tc tima require, an4 shall ccmply with suoh prov5o5ons a8 the Scoial Seourity u0u4 may rmm tlm to time rind Aeoaaaary to assure the ocrraet- no88 and verir5aat5on 0r tush reportsi -4 aball OO~PLY with the rstxulat5oAa Draaorfbml by the aooial LeQW Board ~vamlnlt the exwndlturea of ouch ouxa ae say be allotte aA pa5& to this %ata under xltlo III of the bocial Security ht for tho purpooe of asa5atl~ $A the a4m5Alstrat5~A or this hot. *Upon requmt thereror, the Commleaion ohall iurAiPh to an7 agenoy of the UAitd %atea char&d with the a4m5A5~trat5oA 0r publlo works or aaa5atanoe through pub150 UnplOmAt, the name, addr~aa, oreiw~ ooaupatlon, nnd amplo)waAt atatur of aa8h reoiplent or benortta and eueh reo5pleAt~a ri@sta to rurthsr benefits under this AOO.” (Underaoorlng ours) Title 5 0r the %clal hourit tit 58 0045f5~4 as a 0. a. c. A., Yectlons 601-&M and is not out in part IA the flrot part or this OP~A~OA. To brletly sunmmlze, we rind speoiilo 1aAguago 5~ Rouse Bill 499, supra, a~4 the DepartmAtal~i\ppropriation Bill, oupra, both enaotod by the 47th Legislature, Be&uti bs~aion, which WUld iA&iCM¶t. that the iW48 5A qu8StiOn &mu14 be expsAde& by the Unsm@oyment Oompsnsation ~oxwiaaion in the manwr as dlreotrd by the %oial Seourlt7 &ala. ThoA, again, there is language in both Bills which would inei6ate 5~ 6 general my that ouch runes could be spent only 5~ aoaordaneo with the Laws of this atats appllooble to other general and lpeo5al funds. Yeotlon (5) of hrticls WBlb-9, eupra, clearly shows, a logialatlve intbnt that the fuA68 ia question should bo diS- burned in the mmmr direotell by the Social Ijeourlty Bcar4. IA View Or the tiAgUage iA hUW Bill i Hen. Claude A. ~*llllamti, pago 9 the Soala +aurity Board, we aoms to the concluclion tat the provisions of kation 8 of the Departmntal Approprla- tion Bill, supra, relating to the manner and xcethod of pur- ahasizig supplias and equipmsnt does not apply to such pur- ahases nmde by the l'exarr tlnuaiployxsmt Compensation CoBpLl~sion out of funds in the Unemployment %mpansation AdmInistration Fund obtained fror the Yoderal %marnmant when said purshasos are made in tha manner and method a8 raqulrad by the rules; regulationa, eto. of the hoial hourity Board. 'J;e trust that wo harm satisiactOrily anewered your guelttion. Yours vary truly AP L SEP 4, 19 &TTORmY cGaEsAx. OB T.mLha As?cfL&

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142626/

OFFICE Ok THE AlrOdNEY GENERAL OF TEXAS . AUSTIN xonomblo J%rt Ford Adzinistmtor lkmis Liquor Con& Eonrd * of the Texts Liquor ation In the Con;- lxe that he was 11, 1941, Horowblo Yt'. Lee O*BnioJ., ems, addressad the follcxLng EOS- sage to the Sonata of tie 47th Lsgislat~~ra: I .&s)E. tho odoics, cnn::cnt and con- .P$rr;ation of t&c Senate to the foll.o:?itig ~qgolntmnt:  , -. Ronorable Bert Fora, Mniniotrator, Page 2 - . .m BE A K5~?BmOF m LI:?.uoDCOlVizOL BOARDfor the, unexpired tern ending Novenbor 15th 1945: IS, J. 'Jhvmsnd of Lufkln, Anglina County. . Res&~otfully sub&.ttcd 6’. Lee O’D~niol Governor of Texas* W3net.or 1:‘. a. Towns&d iias enpointod ror the unexpired tom of Dr. Xr D. tidfield. Sea- tlon 5, fxtiole 1, Page 6, of the Texas Liquor Control Aat aedla f;ith the appolntnont of Jkard menbers and ths appolntnont of ths Chairwn for said Board under said Liquor Control Aot. UUcaer the above statemnt or facto, the Texas Liquor Control Board has unanl~zously re- ~quosted that 1 secure your valued opinion es to who is now actually Chalman of said Board.” Seotion 5 or the Texas Liquor Control Act’t;o-far as pertinent is as r0ibi7i3a OFhere 1s heraby orcatea a board mea the ‘Texas Liquor Control Board, oonsistlng of three (3) persons, all of whom shall be appointed by the Governor, by and with the advloo and ‘unsent of tho Sonate, and one of whoa ahall be designated b,y,t$e Govemor to the onaiman of the said Board, . . *Of the nX?mbars‘initially app0inte.d eaoh shall hold office from the date of his cppoint- rnont for the .folloviin5 rospeotlvo ts~ms, and until thair res:eotive successors shall qualify: One monbor for two (2) Ware, one for four (2)) years, and one for sir 16) year6 r333mtho ef- feot$vc date of the Act, Each membernay be jnitially appointed on or oubsoquont to thg date this Act Soas into effect. I;he Governor at tho tine of c-akini: and announcing the appolntnent of mid throo (3) ncabor:8, as well as in tha tqmlsslon issued by him to each of thorn, shall d~1Gnat.o which of ncld nc?Y~rs sbsll servo for each of the seld respective tams, end also which Honorable Bert Ford, Administrator, Page 3 shall be tho chairman’of the Board. (1 Prom your statecent it appears that on Hovembor 16, 1939, Dr. Ti. D. Rradfield of Dallas Ylaa given a recess appointment and nomed as chairman member or the Texas Ll- quor Control Doard, end served as suoh until his rajeotlon by the Senate on April 24, 1941. It further appears that in the nomination of Senator %‘. J. Pavrnsendof J&kin as a member, tho Gorornor made no designation of chairman of the Board. Upon the rcjootlon otDr. Eradfleld, the then chaSi-msn of the Doard, and his consequent legal retlrament as a rembor of the Eoard, there remained no le@l.ly deslg- nated chairman. . It IS the opinion of this department that the above-quoted statute contenplates that the selection of the chairman of the Roard Is to be made by the Governor, and though it was oontemplated, but not required, that such designation should be made in the nomination of the member ohosen to be chairman, it Is our opinion the power and right of the Governor to make such desl6netlon abides wi%h him and is not lost by his iallure to this time, to make such dcsiwatlo.?. ‘ihe administration of the lna would be trustrated under any other rule. The <touree contemplated by the law is of necessity that there should at all time8 be such cholrFa, ‘and no method Y~hatsoever is preso.rlbcd for the oelcotlon of a ohalrmnn except by the designation of the Governor. So that, you are respzotfully advised that the Doard should call the Governor*8 attention to the over- sight and request that hu doslgnato a chairman. This dss- ignatlon should be evidenced by the lo~uanco of a commls- 8ion recrtlng that there had been no previous designation of a ohairman, and that tho dcsl6neo is now a duly appolnt- ‘sd, quaIlflod and aatln6 member of tho Roard, Very truly yours A!Pl’ORNEYGZiGRALOF !PEZ$ BY 0s:T.x APPROVEDJUN 26, 1941 GENXRAZ OF Tz;{~,s

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142649/

Honorable George H. Sheppard Comptroller of Public Accounts Austin, Texas Dear Sir: Opinion No. O-3709 Re: Are gross redeipts, earned wholly within an incorporated city or town by a "motor carrier", holding permits as a contract or s ecial commodity carrier, under E hapter 277, Acts, Regular Session, 42nd 'Legislature, subject to an occupation tax under Article 14, H. B. 8, Acts, Regular Session., !+7th-Legislature? Your lstter of June 11, 1941, submits _ for our opinion the above question. Article 14, Section 1 (a), House Bill No. 8, Regular Session, 47th Legislature, levies,the following.occupational excise upon gross receipts: "Each individual, partnership, company, association, or corporation doing business as a 'motor buscompany' as defined in Chapter 270, Acts, Regular bession of the Fortieth Legis- lature, as amended by the Acts~of 1929, FirstCalled Session of the Forty-first Legislature, Chapter 78, or,as 'motor carrier' 'contrac-t carrier' as defined in Chapter 277, Acts Regular - gzssion of the Forty-second Legislature, over and by use of the public highways of this State, shall make quarterly on the first day of January, April, July, and October of each year, a report to the Comptroller, under oath, of the individual, partnership, company, association, or corporation by its pre- sident, treasurer, or secretary, showing the gross amount received from intrastate business done within this &ate in the payment of charges for transporting persons for compensation and any freight or commodity for hire, or from other sources of revenue received from intrastate business within this State during the quarter next preceding. Said individual, partner- ship, company, association, or corporation at the time of making said report, shall pay to the State Treasurer an occupa- tion tax for the quarter beginning on said date equal to two Honorable George R. Sheppard, Rage 2, O-3709 and tw,o tenths (2.2) per cent of said gross receipts, as shown by said report. . .' In order to clarify the scope and meaning of the term "intrastate business", the receipts from which are made taxable under the above act, the 47th Legislature, by House Bill No. 1039, provided as follows: "The term 'intrastate business' as used in Article XIV, Section 1 (a) of House bill No. 8, Acts of the Regular Session of the Forty-seventh Legislature shall mean and apply only to that portion of'revenues derived from transportation subject to the regulation of the Railroad Commission of Texas." The tax levy in question is upon the gross receipts of each individual, partnership, company, association or corporation doing business as a "motor carrier" or "contract carrier", as defined in Chapter 277, Acts, Regular session, 42nd Legislature. The definitions referred to are quoted, respectively, as follow3: "'The term "motor carrier" means any person, firm, corporation, cornparry,copartnership, association or joint stock association, and their lessees, receivers or trustees appointed by any court whatsoever owning,controlling, managing, operating or causing to be ,sperated any motorpropelled vehicle used in transporting property for compensation or hire over any public highway in this State, where in the course of such transportation a highway between two or more incorporated cities, towns or villages is traversed; provided, that the term "motor carrier" as used in this a-t shall not include, and this act shall not apply to motor vehicles operated exclusively within the incorporated limits of cities or towns. '1 The term "contract carrier" means any motor carrier as herein above-defined transporting property for compensation or hire over any highway in this State other than as a coinnon carrier. I" Although it is not definitely 80 stated, we shall assume, for purposes of answering your question, that the receipts upon which the question of taxability is raised, are receipts earned solely in the carriage of property from one point within an incorporated city or town to another point within the same incorporated city or town; and that it is not intended to include, on a pro rata mileage basis or otherwise, any part of the gross receipts or compensation earned and collected by a contract or special commodity carrier, for the transportation of property over the public highways, bstween two or more incorporated cities, towns or villages. Honorable George H. Sheppard, Page 3, O-Ja Under such construction and limitation of the facts, we do not believe a person, firm or corporation carrying property for compensation or hire, under contracts of carriage originating and ending within the limits of an incorporated city or town, is thereby constituted a "contract carrier", "special commodity carrier" or other "motor carrier", as-these terms are ,above defined, even though the same person, firm or norporation, using the same motor vehicles, is additionally en- gaged fn transporting property for compensation 6r hire over the public highways, between two or more incorporated cities, towns and villages, under permits issued to him or it by the Railroad Commission as a "contraot carrier" or "special com- modity carrier", under Chap. 277, Acts, Regular.Session, 42nd Legislature. . The gross receipts derived from this latter aspect dS the business would be taxable gross receipts, under Article 14, H.B. 8, Acts, 47th Legislature, because earned by such person, firm or corporation as "motor carriers", under the statutory definit'ion, subject to the jurisdiction and control of the Railroad Commission and therefore derived from "intrastate business" aa defined by H.B. 1039, Regular Session, 4'7th Legislature. But gross receipts of the same person, firm or corporation, earned wholly from the transportation of pr,operty from one point in any incorporated city or town to another point within said city or town would not be taxable. Such gross receipts would not accrue from "intrastate business'& as statutorily defined because such strictly intra-city operations would not be subject to the jurisdiction and authority of the Railroad Commission, under the following proviso or exoeption to the term "motor carrier", as defined in Chapter 277, Acts, Regular Session, 42nd Legislature: "Provided, that the term 'motor carrier' as used in this Act shall not include, and this Act shall not apply to motor vehicles operated exclusively within the incorporated limits of oities and towns." Wa understand that the departmental or administrative inter- ;;;;;;ion of Chapter 277, Acts, Regular Session, 42nd Legis- by the Railroad Commission is to this effect, and this fact i: entitled to great weight in support of our Conclusion. Trusting the foregoing fully answers your inquires, we are Yours very truly ATTGR~NEY GENERAL OF TEXAS PMN:lh/cg s/.Pat M. .Neff,-Jr. By .~ ".~~ APPROVED AUGUST 1, 1941 Pat M. Neff, Jr. ,y/CJrqv,srSellers Assistant FIRST A:BSISTANT ATTORNEY GENERAL

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142656/

OFFICE OF THE AfToRNEY GENERAL OF TEXAS AUSTlN Honorable L. P. Beard County Auditor Bell oounty Belton, Texaa Dear Sir: Opinion PO. O-3702 Rer Situa of taxation of road bulldingaquf~ntbelong- 3.q to l rerldent of Beu; county Ye are la reaelpt OS your letter in whlah you re- quert the opinion of thir department on the faatr ret out am follawrc “My dtentlon bsr beea aallsd to the fast that we heve a road aontraatoror builder in Bell County, or rather thlr 18 hia hostsand plaa8 of resldenae,who haa not rendered hl8 road bulldlag equipment to Bell Oounty for Ad valorem tax purporer. ?Ilr aontention18 that the equI.pment iraa not in Bell county on the lat. 0r atwry or the 1st of the year and for that reamn lr not rubjeat to being rendered for tax purposes ln Bell oounty. %Ul ppu pleame advile me under there aonditions If this pxwpertg la aubjeet to be- lng arrerred ln Bell 3 our&y for tar purposes.” Seotion 11 of Artiole VIII of the Conetltutlanof Texas provide8 aa follow: mnorable L. P. Heard, p-e 2 "All property, *ether awed by paraag~ or aorporatlonaahall be aaaeaeed for taxation, and the taxes paid in the oounty rlberealtwit- sd, but the Leglalaturemay, by a tvo-thlrda vote, authorire the payment of taxer of aon- residents of oouatlea to be made at th4 office of the Comptrollerof Pub110 haoouata. And 611 lands and other property not rendered for tPurt1w.sby the ovn4r theraof akmll b4 la nea a - ed at lta i%lr value by the proper offlaer." Artlole 7153 or the Revised Civil Statutes pro- tides as f’ollovar aAll property, real 8nd personal, eraopt mah as la required to be listed and ara~aeed othervise, ahall be listed and 488488ed in the oountyvhepe it la eltuated~ and all per- aanal property, aubjaat to taxation and tom- porarlly removed from the State or aounty, shall be listed and la8eaaed in tha aoaaty of the residence of the ornor thereof, or la the aounty vhere the prinalp41 ofti4e of au4h ovner la altuPtsd.* The road bullbing egulmeent you refer to la alaaa- 4d as tPngible peraonal property. T h e g e wr a l rule as to th e lltw o f taxation o f tsngfblo pereunal property v48 stated the Glpra4 court of Tame in the oaae of Qreat Southern% s4 Ia4uP4n44 oam- ~~v;,City of Austin, 243 le.W.,778. The aourt raid ar “Underthe ocnmon law, 'rabllla aeauuntur p4raomm~ vaa a vell-eatablbliahed mxlm, and personal property of every d444tiptionne taxable only at ths dmlaile of its ovaer, reg~dleaa of its a4tu4l laaatian. This la atlll the baa14 priaalple upan vhl.ohthe tuta- tlon of personal property rests. . . . I) It is true that the aatu4.laitua of cer&&'alaaasa of vlalble aridtwkble Honorable L. P. Heard, page 3 personal property, as vell as intangiblepro- perty having d.mllar charaateriatlbr,as, for example, money, Rtate and munloipal bonds, circulatingbank notes, and shares of stock in private oorporatlone,may have a altua for taxation vhere they are permanentlykept, aepcrrateand apart from the domiaile of the ouner. . . ." The rule of lav applloable in Texaa.la, therefore, that tangible personal property la taxable in the oounty of the dorialle of the omer unless the property has acqalred a permanent fixed lltua of its ovn separate an8 apart from that of the aountg of the ovwr~a domialle. %ere temporary abaenae fror the oounty of the ovner~a domlalle does not give trngible personal property a taxable altw in another oouat and remwe It from taxation in awh eountf of the ovwr 7a domlalle. This vaa pointed out by the Port Worth Court of Ulvll Appeals in the wee of City of Fort Worth v. Southland ffreyhoundLines, 62 8.W. 954, In that aaae the City of Fort Worth attempted to tax the motor bwaea of tbe Southland OrayYzoundLlaea, Ino., a aorporatlm vhoae ple4e of domlolle and prinolprl pl8ee of bualneaa vaa Bexar County, Texas. The aourt held that the footi that the busses operat- ed tempomrlly through the City of Fort Worth did not render then lubjeot to ttuatlon in Tnrrant County. The fast th+t the buaaea operated temporavAly~Ln a number of oouutlea plawd them in auab a eategory that they vere taxable only in Hexar County, Texw, the aountp of the oo~poratlon~a domialle. The reason for thiu yam beoauae the busses as tangible personal property had aoqulred no t-able altua in any other aounty. Boxever, in a ease vbere tamgible personal property does roqilire a permanent situ8 in a aounty other than the ooltstyof the ovner*a domlalle in relation to the tax year in qwation such property la taxable ia the county vhero the sake is actually located. The Court of Cioil Appeals of Texas Ln the oaae of Clampitt v. Johnson, 42 S.Y. 866, atat- ed as follova: "It 18 quite certain from the testimony in this oaae that appelleea moved their oattle Honorable L. P. Heard, page 4 TV?Sterling county intending to pasture them there until the following spring. The drought ln Runnele county had 80 seriously affected the range as rendered it neceeeary for them to proaure a range elecwhere. The cattle were moved in November, and it is a matter of cram- mon knowledge that new grass does not spring up and grow to any considerableextant in this etate ln the months of November, December, Jpnuary, and February. Hence we aa that it is reasonably certain that appel9&es’ pur- p;o; ?h~ to keep the cattle in Sterling County x tL;x thcg plaacd them there until the following spring, and this purpose vaa oarrled out, as shown by the agreed facts; and vhlle live atouk may be in a partlaular county un- der such alrcumatan~eras vi11 not render them aubjeot to taxation In said county, as, for tietanae, while being driven through the oounty, or held there temporarily for the purpose of sale or trade, still we are aat- isfled that the aattle referred to in this ease were situated in Sterling c?ountyon the 1st say of January, 1894, within the meaning of the tas laws, and were therefore subject to taxation In said oounty.' The test in each case vaa eat out by the &?lveaton Court of Civil Ap eala in the oaae of City of Galveston v. Haden, 214 S.W. 7g6. The Court stated aa follower "The law seems to be well settled In Texas ttlattha proper place to tax peXYVJna1 property le the resideme of the ovner, pro- vided it has not aoqtired a altua for purpoaes of taxation elsewhere, in whloh inatanae It la to be taxed where situated. ConIltltution of Texas, wt. 8, I 11; R.3. arta. 7510 and 7514~ City of Austin v. Xnauranoe Co., 21X S.W. 482. Indeed, the oaoea oLted in the foregoing Oon- cluaione so hold, partioularlythe ouffey Case, with reference to such phyeloal property as is here involved, and both litigants appear to proceed upon the assumption that such is Eonorable L. P. Heard, page 5 the rule, differing only aa to vhether thlo property van shovn to have a tltua where lo- cated. The question, then, u9on thin feature of the aase turna in thir court, on vhether or not the evidence vaa lrufflclentto support the trial court’s fX.ndlngthat the 9ro9ertg aa to vhiah any reeorery SOF taxbe war denied had in fast acquired a rltus outside of the alty of GRlveeton, vhere it8 ovnec realded.’ By way of appliaatlonof the above authorltleeto .the situation you present, the iact that the road equlplnent VW out of Bell County on the lrt day of January, ir not a fast vhbh ln ItrelP 9reventr the property froaabeing tarablo in Bell County. If the road build- eqUlgment has been lltua- ted in another oounty on a permanent baela In relation to the taring year In question then the r~ae vould be taxable In the eouuty vhere actually rituated and not’in Bell County. Siovevor, i? ouch road equIpkent, a8 Ir the ordinary same, la wed and awed from one oounty to snothor to vork on partlouler jobs, aad rwh equl9ment never auqulrer OZIaotual ritur in any county other than the ovner’r domiaile, then uuder the lava of thir Nate it Is ow 09lnlon the same vould be taxable in Bell aounty. We trust that the foregoing fully awvers your ln- W-Y. Yours very truly Al'T~.BY OBT@i$ALof TEXAS

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142675/

OFFICE OF THE AITORNEY GENERAL OF TEXAS AUSTIN 1 be Usble.for oie hali- the aourt when thi.deSen-1 and lays his fine~out ifi . . if&on apply to the the psaae wl@ah erq . . a 1058 ‘or 5ald cotte,~ or is the ,: e f uli amount OS snah t em. bven b his fine and lkys,hla I mBrief on 3eoond Queetlonr "&&are no oases Upoz this point, and it is' entirely 8 matter of reaaoning~froxr.the atetutee.: 2haever, it in mg o_ol.nionthat the aounty is ,ltible .: I . 1 c. - 361 Tfiem~ba.. Blantooi Jr., page 8 ror the full umouub of the t444 grorided ror in Artiale lOl% when the defsndaat lay4 hi4 tin4 out, bsowtne th~4 firat~esnt4n44 of Art&ale 10% 44e~ t4 shim that that ertiof.e ooald not apply to the fee6 provtd4d for in Artiol4 LO58 tithaut nullifying the tarmu of Artiole 1068 in 08444 vh4z4 the.defmbant pay8 his ?iue. It deema t,hst the t44s intendsd to be lffeat4d by Art1010 1055 as?4 on.lg tho4e fbr vhirh the dofemtaat In a alimlnal a&ion 14 liable, slid that this artlolo I8 not intended to affeat Co48 vLlal=ars the primary obligation of the aounty. ?Doe.s the C~~~~f#~louor’(~~ Couch oi 8haokelford County hats the authorlliy k, allor, la o hoommlorioxmr a aonthly.allowan0e af &%I.54 for 4atcmyblle lxpsJi44* haurrad in ~uparvtslng eoy.aty ~made, aalb oounty haiing a populatlrm of .b,Zll, and 4~ aa8essed raloa- tlon of about ‘~7,000,000, 4nd s6Jb ooami~~lanors r444ltin5 a regular eilary of Ql;4GQ p4r annti for th4ir ebrriaen as OoIrimimi-Cmsr? *%rhf on Third Qmstionr 'So ~axprerraauthority tar suoh an allmwmoe ap- pears ln the atatutar. Eowbver, drtials 2261 ohargon oodBsfoner8 with laylw out, rstablirhlng, oha~&ing and diecontinuing publia roads and highways, with buildif@,bridg44 and koepin& t&m in r4p4ir', aad with exeralsfng gsnaral crontrol ovsr ,131 roed4, hi$hwara, f4rri44 %ad bridges fa taefr oowsti4s. It appears that the commi44lon4r4 should bs reimbursed tor ex- ~~#JeB ~sCuTI'4d in the tJXOr@iB4 ot euoh duties, a@ that there *itadd be an implied aushqrity ?or an Qllov- an84 euoh 48 the on4 in'qusstion. "Z'ourth qUSB$iOIl: “DOt3B * Court the &mJtIi!N4iOn~r6 hOv4 the authority to employ 4tenographioe~ help rea8ouubly nooessary in sh4 diroharg6 of It4 duties, md peiy fir same cut of the fUndB Oft tact O$?+ty? r -. 262 Bon. Thomaa L. Blantoa, Jr., peg4 S *In ahaptsr g of title 44, the &mmIsnloners* G,ourt Ia &Yen a numb4r of duties MxIohtcday ma- a,aaarIly ,Invulve a larg4 amount ~of stenographical work. xhe statute doea not exprsealy airo the Con- mIaaioxmra* Court the authority to 4mpioy a .sten+ &mpher to 60,thiB work. JJow4v4r, BIa4B steao@YIphI- osl help Is .reasonably neoeaaary to carry out tie 4xpreaa prOti$ioru of the atatut4, it smear8 tlist the OoinmisrrlonerafCourt would have an Impll4d authority to employ auoh a BtsnogrBph4r, and to pay her out of.th4 oounty fuhda.4 This fiopartmut has repeatedly rulwl that Justio4s oi the P4a44 and County Judges In tse oouhtisa lra entitled to tL4.r full fses from the uouhty uhdsr Artiol4 lOS%, 0. C. i., for eaoh oLrImIaal aotion tried aud finally dlapoeed of by tima, regardl4aa or the method of aatlafaotfon of the fine and uosts. Pi4 sn4iose h4rsvIth a copy OS opinion No. O-610 of thi8 ik- p8rta14nt ror your Iniormatlon. It Is our opinion that you have corrsotly ansrered tb4 B4OOnd quemtion. ussume that your county operates under the .reaersl ii;s road law and vb bass our amv4r to your third cpestion upon that assumptlou. g!his 24prJrtnienthas rep4atsdly rule& that in countIss cperetiing under the general road law .that the uombmloners* court has no authority to allow, eaoh ooumiaaIonor 4 aonthly allovanoe for automobile sxpon~ea inaurred in supenlsiug oounty roads. For your Information w4 enclose herawith coplsr of op&nione 30s. O-3119 and 0-75E of this Department. Your third question Ia, therefor4, answered in the nsgtlive. Xt is fundarmntal law that tbe conmIaaIoners' court 28s only suoh authority 88 Is conferred upon It by the Cxx8titutiM and 8r;atutse of thie State, eIth+r ep4cifIcally or by scces~ary Impliuation. 'F-I@ have been unable to find any express or inpliod authority which vrould authorize the comIssiomrB* aourt of your oouaty tc employ a stenographer. 363 HOP. Thoavls L. BluIton, fr., pge 4 To,ur r0urth qoeatlon fs, thersfors, anspered In the negatitcr. Very tna1y yours BY FIRST AzSIS?AXT ‘C ATTORNEY GENEFiAL

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125005/

KEN PAXTON ATTORNEY GENERAL OF TEXAS January 25, 2016 The Honorable Chris Taylor Opinion No. KP-0059 Tom Green County Attorney 122 West Harris Re: Authority of a county comm1ss10ners Criminal Justice Center court to establish requirements for indigent San Angelo, Texas 76903 health care under the Texas Indigent Health Care and Treatment Act and relevant federal law (RQ-0041-KP) Dear Mr. Taylor: On behalf of the Tom Green County Treasurer, you ask about a county commissioners court's authority to establish requirements to provide indigent health care under the Texas Indigent Health Care and Treatment Act (the "Texas Act") and the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the "Welfare Reform Act"). 1 You note that the Texas Act bases eligibility for indigent health care in part on whether the person is a county "resident." Request Letter at 4-5. You ask whether a commissioners court may require an alien who is a resident of the county to be a citizen or a "qualified alien" under the Welfare Reform Act to receive county indigent health care. See id. at 1. The Texas Act, codified in chapter 61 of the Health and Safety Code, requires counties, public hospitals, and hospital districts to provide or arrange to provide health care for certain indigent persons. TEX. HEALTH & SAFETY CODE§§ 61.001-.068. A county must provide health care "to each of its eligible county residents" as prescribed by subchapter B, chapter 61, but only as "the payor of last resort" and "only if other adequate public or private sources of payment are not available." Id. § 61.022. Eligibility has two primary components-a residence requirement and income and resources standards. An. "eligible county resident" is a "resident of a county who does not reside in the service area of a public hospital or hospital district" who meets the income and resources standards established under subchapter A, chapter 61. Id.§ 61.002(2)-(3). A person is presumed to be a resident of the county "in which the person's home or fixed place of habitation to which the person intends to return after a temporary absence is located," or "[i]f a person does not have a residence, the person is a resident of the governmental entity or hospital district in which the person intends to reside." Id.§ 61.003(a)-(b). · The Texas Department of State Health Services (the "Department") establishes the "minimum eligibility standards and application, documentation, and verification procedures for 1 See Letter from Honorable Chris Taylor, Tom Green Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (July 31, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Chris Taylor - Page 2 (KP-0059) counties to use in determining eligibility" under the Texas Act. Id. § 61.006(a); see also id. § 61.008 (requiring Department rules for a county's determination of eligibility); 25 Tex. Admin. Code §§ 14.1-.201 (Tex. Dept. of State Health Servs., County Indigent Health Care Program). The Department's standards for the income and resources component of eligibility take into consideration a person's receipt of or eligibility for federal benefits which, in some instances, may preclude eligibility for county indigent health care benefits. TEX. HEALTH & SAFETY CODE § 61.006(c)-(e). A county must adopt the eligibility standards it will utilize for the fiscal year, which may be less restrictive than the standards the Department establishes under the Texas Act, but must not be more restrictive. Id. § 61.023(b), (d). Neither the residence requirement nor the income and resources component of eligibility makes distinctions based on citizenship or alienage. See Tex. Att'y Gen. Op. No. JC-0394 (2001) at 2 (stating that "[a]n individual's status as an alien does not preclude him or her from being a state or county resident under state statutes establishing public benefit programs"). 2 Nevertheless, a county's provision of indigent health care benefits under the Texas Act is subject to the Welfare Reform Act. See generally Tex. Att'y Gen. Op. No. JC-0394 (2001) (discussing a hospital district's provision of indigent health care); Welfare Reform Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of8 U.S.C. and 42 U.S.C.). The Welfare Reform Act expressly defines "qualified alien" and, with exceptions, generally allows only qualified aliens to be eligible for certain state or local public benefits. 8 U.S.C. §§ 1621, 1641(b). But while an individual must first be eligible to receive services under the Texas Act, the county's provision of county health care "services to aliens may not be inconsistent with" the Welfare Reform Act. Tex. Att'y Gen. Op. No. JC-0394 (2001) at 2. You specifically ask whether a commissioners court may adopt its own standards restricting county indigent health care to residents who are citizens or are qualified aliens. Request Letter at 1-2. A county commissioners court has only those powers expressly granted by the Texas Constitution and statutes and powers necessarily implied to accomplish its assigned duties. City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22, 29 (Tex. 2003). Although a commissioners court is required to adopt the county's eligibility standards, such county standards must be consistent with state statutes and the minimum standards adopted by the Department. See TEX. HEALTH & SAFETY CODE §§ 61.022, .023(b), (d). Thus, because the Texas Act does not make distinctions based on citizenship or alienage, state law does not authorize a commissioners court to adopt such restrictions. Ultimately, whether an alien who is an eligible county resident under the Texas Act as enacted by the Texas Legislature may receive county indigent health care will depend on the relevant provisions of the federal Welfare Reform Act governing the specific benefits at issue. 2 The only references in the Texas Act to aliens concern sponsored aliens. Cf TEX. HEALTH & SAFETY CODE §§ 61.008(a)(6), (c), .012. Chapter 62 provides coverage under the state Medicaid program for a child who is a qualified alien. Id. § 62.105. The Honorable Chris Taylor - Page 3 (KP-0059) SUMMARY State statutory and administrative law prohibits a county commissioners court from adopting county requirements that categorically restrict eligibility for county indigent health care contrary to state and federal law. Whether an alien who is an eligible county resident under the Texas Indigent Health Care and Treatment Act may receive county indigent health care will depend on the relevant provisions of the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 governing the specific benefits at issue. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. HILL Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126888/

2017 IL App (1st) 132884 SIXTH DIVISION FEBRUARY 10, 2017 No. 1-13-2884 THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 04 CR 24639 ) DORIAN FAULKNER, ) Honorable ) Thomas V. Gainer, Defendant-Appellant. ) Judge Presiding. JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion. OPINION ¶1 Following a bench trial, the circuit court of Cook County found defendant Dorian Faulkner guilty of one count of being an armed habitual criminal (AHC) and two counts of unlawful use or possession of a weapon by a felon (UUWF), and sentenced him to six years of imprisonment. On direct appeal, he argues that: (1) his AHC conviction should be reversed because it was predicated on a prior conviction for aggravated unlawful use of a weapon (AUUW) that was based on a statute found to be unconstitutional and void by People v. Aguilar, 2013 IL 112116; and (2) his AHC and UUWF convictions should be reversed because the State failed to prove beyond a reasonable doubt that he had constructive possession of the firearm and ammunition recovered by the police. On August 31, 2015, we issued an opinion affirming the UUWF convictions but reversing the AHC conviction. People v. Faulkner, 2015 IL App (1st) 132884. In September 2016, our supreme court issued a supervisory order directing us to 1-13-2884 reconsider that judgment in light of its decision in People v. McFadden, 2016 IL 117424. We now affirm the convictions for both AHC as well as UUWF. ¶2 BACKGROUND ¶3 On July 14, 2012, Chicago police officers conducted a compliance check on the defendant, who was released on parole 1 for an unrelated crime. At the defendant’s residence at 5210 South Morgan Street, the police recovered a .223-caliber assault rifle and ammunition from the attic, after which they arrested the defendant. On July 26, 2012, the defendant was charged with one count of being an AHC (count I) and two counts of UUWF (counts II and III). The AHC charge was predicated upon his two prior convictions for AUUW under case number 08 CR 0981001 and manufacture/delivery of a controlled substance under case number 09 CR 0948301. ¶4 On July 16, 2013, a bench trial commenced, during which the State presented two witnesses. Parole Officer Jack Tweedle testified that at about 8:30 a.m. on July 14, 2012, he and Officer Jim Hollenback, with the assistance of four other officers, conducted a parole compliance check at the defendant’s residence. He described the residence as a two-story, single-family home. Officer Tweedle testified that the purpose of the compliance check was to verify that the defendant was complying with the conditions of his parole contract. The officers knocked on the door multiple times, and the defendant took about five minutes to answer it. The defendant was alone at the time he answered the door. After entering the residence, Officer Tweedle found about three grams of cannabis in plain view on a coffee table in the living room. During the compliance check, the defendant remained in the living room with Officer Hollenback. Officer 1 The defendant was paroled on the unrelated crime on April 17, 2012. The evidence shows that as a condition of his release, he was prohibited from possessing a firearm or other dangerous weapons, and was subject to the search of his person, property and residence. -2­ 1-13-2884 Tweedle described the layout of the residence as having a small hallway leading from the front door to the living room area, a bedroom, a kitchen, and an entry leading to an enclosed back porch from the rear of the kitchen. Stairs led to the attic via an enclosed back porch. Neither the entry leading to the enclosed back porch nor the attic had a door. Officer Tweedle went upstairs and walked through the entire attic, where he found a loaded .223-caliber assault rifle. A box of .223-caliber bullets was also found. Officer Tweedle testified that nothing obscured his view of the rifle. The police officers confiscated the assault rifle and the box of ammunition. ¶5 Officer Cary Pozulp 2 testified that he assisted Officer Tweedle with the parole compliance check. He stated that the officers entered the first floor of the South Morgan Street residence after climbing a flight of exterior stairs. There was a flight of stairs leading from the first-floor unit to the attic, which could be accessed by a “closed dwelling” through the kitchen. There were no locks or doors barring entry from the first floor into the attic. Officer Pozulp met Officer Tweedle in the attic, where he recovered a .223-caliber assault rifle near the entrance of the attic. Officer Pozulp did not have to move anything to see the assault rifle, which was only partially covered by a wooden board. The assault rifle was loaded with one round in the chamber and had over 40 live rounds in the magazine. Officer Tweedle then alerted Officer Pozulp to a nearby box of .223-caliber ammunition, which contained an additional 43 rounds of ammunition. Officer Pozulp testified that, aside from the defendant and the police officers, no one else was present in the first-floor unit or in the attic at the time of the compliance check. He stated that the officers also recovered about three bags of cannabis from the living room. The defendant was read his Miranda rights and taken into police custody. At the police station, Officer Pozulp and Sergeant Dedore interviewed the defendant. When Officer Pozulp asked the defendant about the 2 It is unclear whether Officer Pozulp’s first name is spelled correctly in the transcript. -3­ 1-13-2884 assault rifle, he replied that “the hood’s crazy, we’re at war with these GDs out here,” and that “I’m not worried about that, and my lawyer will handle this.” On cross-examination, Officer Pozulp noted that, during police interrogation, the defendant neither stated that the assault rifle belonged to him nor that it was used “for protection.” However, Officer Polzup answered affirmatively when defense counsel asked whether the defendant had told the police to “go ahead and charge me with that gun. My lawyer got this.” ¶6 At the close of the State’s case-in-chief, the State, without objection from the defense, entered into evidence certified copies of the defendant’s prior felony convictions for AUUW (case No. 08 CR 0981001) and manufacture/delivery of a controlled substance (case No. 09 CR 0948301). These two prior felony convictions were offered as proof of the requisite predicate offenses supporting the defendant’s AHC charge. After the State rested, the trial court denied a defense motion for a directed finding. ¶7 Patricia Faulkner (Patricia) testified as the sole witness for the defense. She testified that the defendant is her great-nephew and that she had lived at the 5210 South Morgan Street residence since about 1980. Patricia stated that her siblings, Loretta Faulkner (Loretta) and Willie Faulkner (Willie), owned the building. Patricia lived in the basement, while the defendant lived in the first-floor unit. The attic was accessible from the enclosed back porch stairs of the first-floor unit, and the back porch could be accessed from the backyard. She stated that before the defendant moved into the residence in April 2012, other family members brought furniture and items into the apartment and also “tried to clear some things out to make the space better for him.” Some items in the attic were there before the defendant moved into the residence. Much of the furniture inside the first-floor unit belonged to other family members. Patricia testified that there were three copies of the key to the residence, which were held by her and her siblings, -4­ 1-13-2884 Loretta and Willie. Loretta’s key, however, was not “cut properly” and she no longer possessed it. At trial, Patricia also identified numerous bills and mailings that were addressed to different family members at the 5210 South Morgan Street location. She testified that she did not see the defendant bring a gun into the home in April 2012, nor did he ever tell her that he had a gun. She also never observed anyone else bring a gun into the home between April 2012 and July 2012. On cross-examination, Patricia stated that, at the time the defendant lived in the home, there was no door separating the attic stairs from the attic. However, the door separating the enclosed back porch from the backyard had a lock on it. Both she and the defendant had physical access to the attic. Before the defendant moved in, other family members had lived there from time to time, but the defendant was the only person living in the first-floor unit at the time of his arrest in the instant case. Patricia stated that she was not aware that there was a .223-caliber assault rifle and ammunition in the attic. In order to access the attic from the basement unit where Patricia lived, she would have had to walk through the laundry room next to her apartment and walk up the back stairs. ¶8 Following closing arguments, the trial court found the defendant guilty of all charges— one count of AHC and two counts of UUWF: “Okay. Yes, this is a case of [ ] constructive possession, and, yes, other people had access to this building, according to the testimony of [Patricia], before the [d]efendant moved in. There is evidence from [Patricia] that people were bringing things into that [first-floor] unit *** to make the place habitable for the [d]efendant when he was paroled in April of 2012. -5­ 1-13-2884 There is also evidence that the [d]efendant’s grandfather, who is [Patricia]’s brother, had a key. [Patricia] had a key, and [Patricia’s] sister, apparently, had a key at some point, but that key didn’t work anymore—it wasn’t cut right—and it didn’t work. There are—there’s access to the attic from the floor that the [d]efendant was living on; there’s access to *** the attic from [Patricia’s] apartment. [Patricia] testified that she had no idea that the gun was up there, so it clearly wasn’t her gun, even though she had access to *** the attic. I would note, for the record, that [Patricia] had a tremendous amount of difficulty walking in and out of the courtroom. She was aided by a cart that is on wheels that also has a seat which she sat in when she testified. She did not take the two or three steps up to the witness stand, and I asked her to do that only because I thought it would be more convenient for her. In any event, even if she could access the attic herself, in her condition, she clearly said it wasn’t her gun, though she had no idea it was up there. The fact that her brother, the [d]efendant’s grandfather, had access doesn’t mean he was up there. We need to look at what was up there. This is a very dangerous weapon that was locked and loaded and ready to go. -6­ 1-13-2884 Now, that alone would not be enough to prove that this [d]efendant, beyond a reasonable doubt, possessed that weapon. But when you combine the fact that this thing was up there, locked and loaded and ready to go, with the statement—and I believe the police officers because if the police officers were making this up, the statement from the police officers would have been, he admitted that that was his weapon, he kept it up there for protection. But that’s not what [Officer] Pozulp said. He said, this— the hood is crazy, we’re at war with these GDs. Which is tantamount to saying, I need this thing for my protection. I believe the police officers, I believe that the State has proven that this [d]efendant possessed that weapon beyond a reasonable doubt. There is a finding of guilty on all charges.” ¶9 On August 27, 2013, the trial court denied the defendant’s motion for a new trial and sentenced him to six years of imprisonment. 3 On that same day, the defendant filed a timely notice of appeal. In that appeal, the defendant challenged whether the State established the necessary predicate offenses to support the AHC conviction beyond a reasonable doubt. The basis of that argument was that his AHC conviction had been predicated, in part, on a prior 2008 conviction for AUUW for violating a statutory provision subsequently found to be unconstitutional. See People v. Aguilar, 2013 IL 112116 (concluding that the Class 4 version of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) violated the right to 3 The trial court found that counts II and III merged with count I. -7­ 1-13-2884 bear arms under the second amendment of the United States Constitution.) In turn, he argued that the 2008 AUUW conviction was void and thus could not serve as one of the two predicate convictions necessary to support the AHC offense. 4 Separately, the defendant’s appeal challenged whether the State established beyond a reasonable doubt that the defendant possessed the assault rifle and ammunition that were recovered from the attic by the police. ¶ 10 On August 31, 2015, we issued an opinion in which we agreed with the defendant that, in light of Aguilar, the 2008 AUUW conviction could not support the subsequent AHC conviction. We reasoned: “Because the defendant’s prior conviction for AUUW was based on a statute that was found to be unconstitutional and void ab initio in Aguilar, we cannot allow it to stand as a predicate offense for the defendant’s armed habitual criminal conviction in the instant case. Thus, we find that the State was required to, but could not, prove beyond a reasonable doubt an element of the offense of armed habitual criminal, where the statute underlying the AUUW conviction was found to be unconstitutional and, thus, the conviction cannot serve as a predicate offense for any charge.” Faulkner, 2015 IL App (1st) 132884, ¶ 20. Separately, our opinion affirmed the defendant’s UUWF convictions, as we agreed with the State that it had offered sufficient evidence of the element of possession. 4 The parties do not dispute that the defendant’s prior 2009 felony conviction for manufacture/delivery of a controlled substance (case No. 09 CR 0948301) satisfied one of two qualifying offenses under the AHC statute. Rather, they disagree on whether his 2008 felony conviction for AUUW satisfied the second of the two qualifying offenses under the statute. -8­ 1-13-2884 ¶ 11 On September 28, 2016, our supreme court entered a supervisory order, directing us to reconsider our judgment in light of People v. McFadden, 2016 IL 117424. Our August 31, 2015 opinion was withdrawn in light of the supervisory order. We then allowed the parties to file supplemental briefing with respect to the impact of McFadden before issuing this opinion. ¶ 12 ANALYSIS ¶ 13 We note that we have jurisdiction because the defendant filed a timely notice of appeal. ¶ 14 We now review (1) whether, in light of our supreme court’s McFadden decision, the State established the predicate offenses necessary to sustain a conviction for the AHC offense and (2) whether the State offered sufficient evidence of constructive possession to support the AHC and UUWF convictions. ¶ 15 We first conclude that, in light of our supreme court’s judgment in McFadden, the defendant’s 2008 AUUW conviction could, in fact, serve as a predicate conviction for the AHC conviction. ¶ 16 McFadden concerned a direct appeal from a UUWF conviction, based on the defendant’s possession of a firearm at a time when he had previously been convicted of AUUW. As in this case, the McFadden defendant’s prior AUUW conviction was based on the same AUUW statutory provision found to be unconstitutional by our supreme court’s decision in Aguilar. McFadden, 2016 IL 117424, ¶ 1. Similar to the defendant’s argument regarding his AHC charge in this case, the defendant in McFadden argued that Aguilar’s holding prevented the State’s use of the prior AUUW conviction to serve as a predicate offense for the UUWF charge. Id. ¶ 8. ¶ 17 Our appellate court agreed with the McFadden defendant and vacated the defendant’s UUWF conviction on the basis of Aguilar. People v. McFadden, 2014 IL App (1st) 102939. However, our supreme court reversed, reasoning that the defendant’s felon status was unaffected -9­ 1-13-2884 by Aguilar and that, unless the prior conviction was vacated, the prior felony conviction precluded the defendant from legally possessing a firearm. McFadden, 2016 IL 117424, ¶ 31 (“Although Aguilar may provide a basis for vacating defendant’s prior 2002 AUUW conviction, Aguilar did not automatically overturn that judgment of conviction. Thus, at the time defendant committed the UUW by a felon offense, defendant had a judgment of conviction that had not been vacated and that made it unlawful for him to possess firearms.”). ¶ 18 Our supreme court in McFadden relied largely on the United States Supreme Court’s holding “that under a federal felon-in-possession-of-a-firearm statute, a constitutionally infirm prior felony conviction could be used by the government as the predicate felony.” Id. ¶ 22 (citing Lewis v. United States, 445 U.S. 55, 65 (1980)). McFadden approvingly cited Lewis’ reasoning in holding that an AUUW conviction subject to vacatur under Aguilar may still serve as a predicate for a UUWF conviction. ¶ 19 The federal statute at issue in Lewis criminalized the possession of a firearm by “any person who has been convicted by a court of the United States or of a State *** of a felony.” (Internal quotation marks omitted.) 445 U.S. at 60. The defendant in Lewis had a prior felony conviction from a state court case in which he was unrepresented by counsel. Id. at 57. The Lewis court recognized that a conviction without the benefit of counsel was unconstitutional under the Sixth and Fourteenth Amendments. Id. at 59. ¶ 20 Despite the constitutional infirmity of the prior conviction, the United States Supreme Court nonetheless held that the prior felony subjected the defendant to liability under the felon- in-possession statute. The court reasoned that “Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack]” and that “its plain meaning is that the fact of a felony conviction imposes a - 10 ­ 1-13-2884 firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action.” (Internal quotation marks omitted.) Id. at 60-61. ¶ 21 The McFadden decision recognized that “under Lewis and its progeny, the fact of a felony conviction without any intervening vacatur or other affirmative action to nullify the conviction triggers the firearms disability.” McFadden, 2016 IL 117424, ¶ 24. McFadden applied the reasoning from Lewis to the UUWF statute, which prohibited possession of a firearm, by any person “ ‘if the person has been convicted of a felony under the laws of this State or any other jurisdiction.’ ” Id. ¶ 27 (quoting 720 ILCS 5/24-1.1(a) (West 2008)). The McFadden court reasoned that the UUWF statute “requires the State to prove only the defendant’s felon status” and did not suggest “any intent to limit the language to only those persons whose prior felon convictions are not later subject to vacatur.” Id. The McFadden court further reasoned that the language of the UUWF statute, as with the federal statute at issue in Lewis, was “ ‘consistent with the common-sense notion that a disability based upon one’s status as a convicted felon should cease only when the conviction upon which that status depends has been vacated’ ” (id. ¶ 29 quoting Lewis, 445 U.S. at 61 n.5) and “it is immaterial whether the predicate conviction ‘ultimately might turn out to be invalid for any reason.’ ” Id. (quoting Lewis, 445 U.S. at 62). McFadden concluded that “The UUW by a felon offense is a status offense, and the General Assembly intended that a defendant must clear his felon status before obtaining a firearm.” Id. ¶ 22 In his supplemental briefing, the defendant raises two arguments attempting to distinguish McFadden from the present case, which concern the use of the same prior AUUW felony as a predicate for the AHC offense. However, we find that our court has previously considered and rejected these arguments in People v. Perkins, 2016 IL App (1st) 150889, which - 11 ­ 1-13-2884 found McFadden applied to sustain an AHC conviction premised on the same predicate AUUW offense at issue. ¶ 23 First, the defendant contends that the holding of McFadden was limited to the UUWF offense and does not apply to support a conviction for AHC based on the form of AUUW invalidated by Aguilar. The defendant attempts to distinguish the offenses so as to categorize UUWF as a “status”-based offense but AHC as a “conduct”-based offense. The defendant argues that “[t]he UUWF statute at issue in McFadden merely requires proof of the defendant’s felony status—based on any prior felony—to obtain a conviction.” See 720 ILCS 5/24-1.1(a) (West 2014) (prohibiting possession of a firearm by any person “if the person has been convicted of a felony under the laws of this State or any other jurisdiction.”) He argues that this “generic ‘felon status’ principle” was the basis for McFadden’s holding “that a prior conviction under an unconstitutional statute could serve as a predicate offense for UUWF.” ¶ 24 In contrast, the defendant argues, an AHC conviction requires the State to “present evidence of at least two prior offenses from a carefully-considered list” that “represents the entire universe of criminal behavior that the legislature deemed worthy of a Class X conviction and sentence for ACH.” See 720 ILCS 5/24-1.7(a)(1)-(3) (West 2012). 5 Thus, he argues that the 5 The AHC statute provides, in pertinent part, the following: “(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses: (1) a forcible felony as defined in Section 2-8 of this Code; (2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon; *** or - 12 ­ 1-13-2884 AHC statute does not create a “broad sweeping firearm disability” for any prior felony conviction, as in the case of the UUWF statute in McFadden, or the federal felon-in-possession statute at issue in Lewis. In his reply brief, he further attempts to distinguish the UUWF offense from the AHC offense by arguing that “AHC is a recidivist offense” and that “invalid prior convictions cannot be used *** to prove the prior-felon element of a recidivist statute.” He thus argues that “Lewis and McFadden are based on findings of legislative intent that do not apply to the AHC statute.” ¶ 25 We reject the defendant’s attempts to distinguish McFadden as inapplicable to the AHC offense. Notably, our court rejected a similar argument in People v. Perkins, 2016 IL App (1st) 150889, in which we held, pursuant to our supreme court’s decision in McFadden, that a prior conviction for the form of AUUW invalidated by Aguilar may serve as a predicate for an AHC conviction. In Perkins, the defendant asserted that McFadden’s reasoning was limited to the offense of UUWF because “UUWF impose[d] a ‘status-based disability’ that precludes any convicted felon from possessing a firearm” whereas “the offense of armed habitual criminal requires the State to prove that the defendant was convicted of specific enumerated offenses.” Id. ¶ 6. The Perkins defendant thus argued that UUWF imposed a “status-based disability” whereas the AHC conviction “imposes a conduct-based disability *** based on a defendant’s commission of specific acts.” Id. The Perkins defendant proceeded to argue that “because the conduct of which he was previously convicted—possession of a firearm—was constitutionally protected, it (3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7 (West 2012). - 13 ­ 1-13-2884 cannot serve as a predicate for his armed habitual criminal conviction.” (Emphasis in original.) Id. ¶ 26 Our court in Perkins rejected this attempt to differentiate the UUWF offense from the AHC offense as “a distinction without a difference.” Id. ¶ 7. We explained: “In order to sustain its burden to prove that defendant is an armed habitual criminal, the State need only prove the fact of the prior convictions of enumerated offenses [citations], just as the State need only prove the fact of a prior felony conviction to support a UUWF conviction. Nothing in the armed habitual criminal statute requires a court to examine a defendant’s underlying conduct in commission of the enumerated offenses in order to find that the State has sustained its burden of proof. And because here, as in McFadden, Perkins’ prior convictions had not been vacated prior to his armed habitual criminal conviction, they could properly serve as predicates for that conviction.” Id. ¶ 27 The same reasoning from Perkins applies to the defendant’s attempt to distinguish the AHC statute in this case. Thus, we reject the defendant’s first argument raised in opposition to the application of McFadden to support the AHC offense in this case. ¶ 28 The second argument raised by the defendant to oppose the application of McFadden has also been rejected by our court. Specifically, the defendant asserts that United States Supreme Court precedent, including Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016) and Ex parte Siebold, 100 U.S. 371 (1880), precludes the use of a prior conviction, premised on a statute later held unconstitutional, as a predicate for the AHC offense. The defendant urges that - 14 ­ 1-13-2884 because the McFadden decision of our supreme court “did not address” this authority from the United States Supreme Court, we are “not bound by McFadden.” ¶ 29 In Montgomery, the United States Supreme Court held that the prohibition against mandatory life sentences without parole for juvenile offenders was a substantive rule of constitutional law entitled to retroactive effect. 577 U.S. at ___, 136 S. Ct. at 734. In so holding, the United States Supreme Court recognized: “A conviction or sentence imposed in violation of a substantive rule is *** void. See Siebold, 100 U.S. at 376. It follows *** that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced.” Id. at 731. ¶ 30 The defendant asserts that Montgomery and other United States Supreme Court precedent prevents “States from ever punishing a citizen, whether directly or collaterally, based on a law that is facially unconstitutional.” He asserts that our supreme court’s decision in McFadden violates this principle by permitting the State to use an unconstitutional conviction for AUUW to support a conviction for UUWF. He argues that, under Montgomery, the State “cannot give legal effect to a conviction under a facially unconstitutional criminal statute,” which will result if his prior AUUW conviction is allowed to support his AHC conviction. In other words, he argues that we cannot follow the reasoning of our supreme court in McFadden because it runs afoul of United States Supreme Court precedent. ¶ 31 Again, we note that this argument was addressed and rejected by our court in Perkins, which upheld an AHC conviction predicated on the form of AUUW invalidated by Aguilar. Perkins, 2016 IL App (1st) 150889, ¶¶ 8-9. In Perkins, the defendant similarly argued that, pursuant to Montgomery, Aguilar was entitled to “retroactive effect and that the State’s reliance on his prior UUWF and AUUW conviction violates Montgomery’s central premise: ‘There is no - 15 ­ 1-13-2884 grandfather clause that permits States to enforce punishment the Constitution forbids.’ ” Id. ¶ 8. (quoting Montgomery, 577 U.S. at ___, 136 S. Ct. at 731). ¶ 32 However, our court rejected the argument (repeated by the defendant in this case) that our supreme court’s decision in McFadden had ignored or violated Montgomery: “Perkins contends that our supreme court ‘ignored’ the decision in Montgomery. But as the State points out, prior to oral argument in McFadden, counsel sought and was granted leave to cite Montgomery as additional authority. In that motion, counsel advanced the same arguments presented here. In response, the State argued, as it does here, that Montgomery posed no constitutional impediment to affirmance of the defendant’s UUWF conviction given that defendant was not seeking to vacate his prior conviction ***, but instead was challenging his status as a convicted felon at the time of his trial. The State argued that in this context, Lewis v. United States, 445 U.S. 55, 60-62 (1980), which held that a defendant’s failure to vacate a prior felony conviction on grounds that it was unconstitutional was fatal to a challenge to a felon-in-possession conviction, controlled. We agree with the State. At the time of Perkins’ armed habitual criminal conviction he had prior UUWF and AUUW convictions. Because those convictions had not been vacated at the time Perkins possessed a - 16 ­ 1-13-2884 firearm ***, they could properly serve as the predicates for his armed habitual criminal conviction.” Id. ¶¶ 9-10. ¶ 33 The same reasoning from Perkins applies to support the defendant’s AHC conviction in this case. At the time of the defendant’s AHC conviction, he had two prior convictions, including an AUUW conviction, that were qualifying predicate offenses under the AHC statute. As those convictions had not been vacated at the time of the defendant’s arrest in July 2012, they could properly serve as the predicates for his AHC conviction. In light of the foregoing, we conclude that, pursuant to McFadden and Perkins, the defendant’s AHC conviction could be predicated on his prior conviction for AUUW, notwithstanding that the prior conviction stemmed from the statutory provision later held unconstitutional in Aguilar. ¶ 34 We now turn to the defendant’s separate argument, that his AHC and UUWF convictions should be reversed because the State failed to prove beyond a reasonable doubt that he had constructive possession of the firearm and ammunition recovered by the police. ¶ 35 When the sufficiency of the evidence is challenged on appeal, we must determine “ ‘whether, after viewing the evidence in the light most favorable to the [State], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Graham, 392 Ill. App. 3d 1001, 1008-09 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court affords great deference to the trier of fact and does not retry the defendant on appeal. People v. Smith, 318 Ill. App. 3d 64, 73 (2000). It is within the province of the trier of fact “to assess the credibility of the witnesses, determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in the evidence.” Graham, 392 Ill. App. 3d at 1009. The trier of fact is not required to accept any possible explanation compatible with the defendant’s innocence and elevate it to the status of - 17 ­ 1-13-2884 reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009). A reviewing court will not substitute its judgment for that of the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). A reviewing court must allow all reasonable inferences from the record in favor of the State. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). A criminal conviction will not be reversed “unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant’s guilt.” Graham, 392 Ill. App. 3d at 1009. ¶ 36 The defendant argues that the State failed to prove beyond a reasonable doubt that he had constructive possession of the assault rifle and ammunition that were found in the attic of the home, where he had been living in the first-floor unit for a short time; the apartment unit contained other family members’ possessions that had been moved and stored in the attic to make room for him; others had lived there before him; other family members received mail there and had keys to the unit; and he did not admit to owning the contraband. ¶ 37 The State counters that the evidence established beyond a reasonable doubt that the defendant possessed the assault rifle and ammunition, which satisfied the element of possession supporting both his convictions for AHC and UUWF. The State specifically argues that the defendant was proven to have constructive possession of the assault rifle and ammunition in his attic where the evidence showed that he had knowledge of the weapon’s presence and had exclusive control over the area where the weapon was located. ¶ 38 A person commits the AHC offense if he possesses a firearm after having been convicted of two or more enumerated predicate offenses. See 720 ILCS 5/24-1.7 (West 2012). A person commits the offense of UUWF if he possesses a firearm or firearm ammunition after having been convicted of a prior felony. See 720 ILCS 5/24-1.1(a) (West 2012). - 18 ­ 1-13-2884 ¶ 39 “Knowing possession” can be either actual or constructive. People v. Brown, 327 Ill. App. 3d 816, 824 (2002). Because the defendant was not found in actual possession of the assault rifle, the State had to prove that he constructively possessed it. See People v. McCarter, 339 Ill. App. 3d 876, 879 (2003). To establish constructive possession, the State must prove that the defendant: (1) had knowledge of the presence of the weapon and (2) exercised immediate and exclusive control over the area where the weapon was found. Id. “Evidence of constructive possession is often entirely circumstantial.” (Internal quotation marks omitted.) Id. “Knowledge may be proven by evidence of a defendant’s acts, declarations or conduct from which it can be inferred he knew the contraband existed in the place where it was found.” People v. Ross, 407 Ill. App. 3d 931, 936 (2011). “Control is established when a person has the ‘intent and capability to maintain control and dominion’ over an item, even if he lacks personal present dominion over it.” People v. Spencer, 2012 IL App (1st) 102094, ¶ 17 (quoting People v. Frieberg, 147 Ill. 2d 326, 361 (1992)). Control over the area where the contraband was found gives rise to an inference that the defendant possessed the contraband. See McCarter, 339 Ill. App. 3d at 879. “Knowledge and possession are questions of fact to be resolved by the trier of fact, whose findings should not be disturbed upon review unless the evidence is so unbelievable, improbable, or palpably contrary to the verdict that it creates a reasonable doubt of guilt.” People v. Luckett, 273 Ill. App. 3d 1023, 1033 (1995). ¶ 40 Viewing the evidence in a light most favorable to the State, a trier of fact could find that the defendant had constructive possession over the assault rifle and ammunition. The evidence shows that on July 14, 2012, Officer Tweedle found an assault rifle and ammunition in the attic of the defendant’s home. The first-floor unit, where the defendant lived, had stairs leading to the attic from the enclosed back porch. The enclosed back porch was accessible from the rear of the - 19 ­ 1-13-2884 kitchen. Neither the entry leading to the enclosed back porch nor the attic had a door. According to Officer Tweedle, the assault rifle was loaded and found along with a box of .223-caliber bullets nearby. Both Officers Tweedle and Pozulp testified that nothing obscured their view of the assault rifle, which was located near the entrance of the attic. At the time of the parole compliance check, the defendant was alone in the first-floor unit. The defendant’s great-aunt, Patricia, testified that the defendant was the only person living in the first-floor unit at the time of his arrest and that Patricia lived in the basement unit of the residence. Evidence was also presented to the trial court that when asked about the assault rifle during police interrogation, the defendant remarked that, “the hood’s crazy, we’re at war with these GDs out here” and that “I’m not worried about that, and my lawyer will handle this.” On cross-examination, Officer Pozulp confirmed that the defendant had told the police during interrogation to “go ahead and charge me with that gun.” ¶ 41 Given this evidence, we find that the trier of fact could reasonably have concluded that the defendant had knowledge of the presence of the weapon and maintained control over the area where the contraband was found. When questioned about the recovered assault rifle during police interrogation, the defendant neither registered surprise as to its existence nor made any attempt to deny his ownership of the weapon. Instead, he responded to police inquiry by making statements which were tantamount to an explanation as to his need for it—for protection. His statements, coupled with corroborating evidence of the weapon’s condition at the time it was found by the police (loaded with one round in the chamber, 41 live rounds in a banana magazine, along with an additional 43 rounds of ammunition in a nearby box), gave rise to a reasonable inference that the defendant had knowledge of the presence of the assault rifle and ammunition. The defendant now argues that his postarrest statements to the police were ambiguous at best and - 20 ­ 1-13-2884 that, “[i]n the absence of any other evidence corroborating [his] constructive possession,” they were not sufficient to support his convictions beyond a reasonable doubt. He specifically points out that the State produced no physical evidence such as fingerprints linking him to the assault rifle or ammunition. We reject this contention. As noted, evidence of constructive possession is often entirely circumstantial. McCarter, 339 Ill. App. 3d at 879; People v. Stack, 244 Ill. App. 3d 393, 399 (1993) (defendant’s knowledge of the existence of a firearm within his possession may be inferred from circumstantial evidence). Thus, in viewing the evidence in a light most favorable to the State, we find that the trial court could reasonably have construed the defendant’s statements to the police as a tacit confirmation of his knowledge that the weapon was located in the attic. See Ross, 407 Ill. App. 3d at 936 (“[k]nowledge may be proven by evidence of a defendant’s acts, declarations or conduct from which it can be inferred he knew the contraband existed in the place where it was found”); see generally People v. Brown, 327 Ill. App. 3d 816 (2002) (affirming defendant’s conviction for UUWF based on constructive possession, where the circumstantial evidence was corroborated by defendant’s statement to the police about the weapon). ¶ 42 We further find that the evidence presented at trial was sufficient to establish that the defendant exercised immediate and exclusive control over the attic where the assault rifle and ammunition were found. Evidence presented at trial showed that the defendant lived alone in the first-floor unit of the residence at the time of his arrest. The trial court also heard evidence that the attic, where the assault rifle and ammunition were recovered, was directly accessible from the defendant’s first-floor unit. Although Patricia testified that both she and the defendant had physical access to the attic, she stated that she was not aware of the presence of the assault rifle and the ammunition in the attic. The trial court, as the trier of fact, also noted for the record that - 21 ­ 1-13-2884 Patricia “had a tremendous amount of difficulty walking in and out of the court”; that she was “aided by a cart that is on wheels that also has a seat which she sat in when she testified”; and that she “did not take the two or three steps up to the witness stand.” Viewing the evidence in a light most favorable to the State, we find that the trial court could reasonably have concluded that the defendant exercised exclusive control over the attic where the contraband was found, where it could reasonably be inferred from the record that the defendant was the only able- bodied person living at 5210 South Morgan Street who could have climbed the attic stairs and accessed the attic space in order to place the weapon there. ¶ 43 Nonetheless, the defendant makes a number of arguments claiming that he had no exclusive control over the attic because others also could have accessed the attic. He points to Patricia’s testimony that Loretta and Willie each had a key to the residence; that before the defendant moved into the first-floor unit in April 2012, other family members had brought furniture and items into the apartment and had also “tried to clear some things out to make the space better for him”; that some items in the attic were there before the defendant moved into the residence; and that there was mail that was addressed to different family members at the 5210 South Morgan Street location. We reject this contention. Here, the trial court heard Patricia’s testimony that Loretta’s key was defective and that Loretta no longer possessed it. Although evidence was presented at trial that both Patricia and the defendant had access to the attic, it could not reasonably be concluded that Patricia could have climbed the stairs to the attic on her own, as noted by the trial court’s findings that she was physically limited. No evidence was presented to the trial court that Willie, as an owner of the residence, accessed the attic at any point before or during the defendant’s stay in the first-floor unit. Nor was any evidence presented to show that different family members, to whom mail was addressed at that location, physically - 22 ­ 1-13-2884 came to the residence to pick up their mail. Indeed, the trial court found that the fact that there was mail addressed to different family members at the 5210 South Morgan Street location in no way indicated that “they were coming into this house to get their mail and were going up into the [d]efendant’s apartment and up into that attic.” While Patricia testified that other family members brought furniture and items into the first-floor unit in preparation for the defendant’s arrival in April 2012, and the attic contained items before the defendant moved in, the trial court was not required to speculate whether the assault rifle and ammunition were among those items placed in the attic by someone else. See Siguenza-Brito, 235 Ill. 2d at 219 (the trier of fact was not required to accept any possible explanation compatible with the defendant’s innocence and elevate it to the status of reasonable doubt). Moreover, it was within the province of the trial court, as the trier of fact, to assess Patricia’s credibility and determine what weight to give to her testimony. See Graham, 392 Ill. App. 3d at 1009 (it is within the province of the trier of fact “to assess the credibility of the witnesses, determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in the evidence”). Thus, viewing the evidence in the light most favorable to the State, we find that the evidence established that the defendant had constructive possession of the assault rifle and ammunition that were recovered from the attic by the police. Accordingly, the defendant’s AHC and UUWF convictions must stand. ¶ 44 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 45 Affirmed. - 23 ­

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4108151/

J-S83044-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 In Re: A.L.K. a/k/a A.L.K.K., a/k/a IN THE SUPERIOR COURT OF A.K.K. PENNSYLVANIA Appeal of: B.K., mother No. 1050 WDA 2016 Appeal from the Order May 11, 2016 in the Court of Common Pleas of Allegheny County Orphans’ Court at No(s): CP-02-AP-0000013-2016 BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER*, JJ. MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 16, 2016 B.K. (Mother) appeals from the order entered May 11, 2016, which terminated involuntarily her parental rights to A.L.K. a/k/a A.L.K-K. a/k/a A.K.K. (Child).1 We affirm. Mother is the biological mother of Child, born in January of 2013. The Allegheny County Office of Children, Youth, and Families (CYF) initially became involved with Mother after reports of domestic violence and truancy with respect to an older child of Mother. Child was removed from Mother’s home in January of 2014 after Mother was arrested for driving while intoxicated and it was discovered that Mother had left Child without appropriate adult supervision. Child was placed with her biological father (Father) who was living at that time with Child’s paternal grandmother. Father subsequently relapsed into substance abuse, and Child was 1 The trial court signed this order on May 6, 2016, but it was entered on the docket on May 11, 2016. See Trial Court Opinion, 8/8/2016, at 2. * Retired Senior Judge assigned to the Superior Court. J-S83044-16 adjudicated dependent on December 17, 2014. On January 25, 2016, CYF filed petitions for terminating involuntarily the parental rights of both Mother and Father pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b). A hearing was held on May 6, 2016, and the orphans’ court granted CYF’s petition as to Mother.2 Mother filed a notice of appeal as well as a concise statement of errors complained of on appeal.3 The trial court filed an opinion on August 8, 2016. On appeal, Mother sets forth two issues for our review. 1. Is the [orphans’] court’s finding a grounds for involuntary termination of [Mother’s] parental rights under 23 Pa.C.S.[] § 2511(a)(2), § 2511(a)(5) and § 2511(a)(8) proven by a showing of clear and convincing evidence? 2. Is the [orphans’] court’s finding that termination of parental rights serves the developmental, physical and emotional needs and welfare of the Child as proved by clear and convincing evidence as required by 23 Pa.C.S.[] § 2511(b)? Mother’s Brief at 5 (unnecessary capitalization omitted). 2 At the close of the hearing, Father consented to the termination of his parental rights to Child and to Child’s adoption. 3 Mother filed her first notice of appeal on June 16, 2016, more than 30 days after the order terminating her parental rights. Along with that notice of appeal, she filed a motion for leave to appeal nunc pro tunc. The docket does not show that Mother received notice of the entry of that order pursuant to Pa.R.C.P. 236(b). Accordingly, the appeal period did not begin to run, and her notice of appeal is considered to be timely filed. See In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (declining to quash appeal where “the docket does not show that notice of entry of the termination order was given to Mother” and “[t]herefore, Mother’s appeal period was not triggered”). -2- J-S83044-16 We consider these issues mindful of the following. In cases involving the termination of a parent’s rights, our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand …. We must employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence. In re C.W.U., Jr., 33 A.3d 1, 4 (Pa. Super. 2011) (quotation marks and citations omitted). Our courts apply a two-part analysis in reviewing an order terminating parental rights. As we explained in In re L.M., [i]nitially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond. 923 A.2d at 511. Following our review of the certified record, the parties’ briefs, and the relevant law, we conclude that the opinion of the Honorable Dwayne D. Woodruff thoroughly and correctly addresses and disposes of Mother’s issues -3- J-S83044-16 and supporting arguments. Accordingly, we adopt the orphans’ court’s opinion, filed on August 8, 2016, as our own, and affirm the disposition of Mother’s issues on the basis of that opinion. The parties shall attach the copy of the orphans’ court’s August 8, 2016 opinion, attached to this memorandum, in the event of further proceedings. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/16/2016 -4- Circulated 11/29/2016 10:39 AM IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY COURT DIVISION IN THE INTEREST OF: A.L.K CIIlLDREN'SFAST TRACK APPEAL A/K/A A.L.K-K A/K/A A.K.K., A minor. Docket No. CP-02-AP-0000013-2016 Superior Court Docket No.-tfl":ttrWDA 2016 10S0 APPEAL OF: B.K. Natural Mother OPINION BY: Honorable Dwayne D. Woodruff 440 Ross Street, Room 5065 Pittsburgh, PA 15219 COPIES TO: MARY ELLEN McMEEKIN, ESQ McMEEKIN & VOLOVICH 555 Grant Street, Ste 120 Pittsburgh, PA 15219 CYNTHIA B. MOORE, ESQ Kids voice 700 Frick Building 437 Grant Street Pittsburgh, PA 15219 GINA M. ZIADY. ESQ ACBF Juvenile Court Project 436 Seventh Avenue Koppers Building, 11th Floor Pittsburgh, PA 15219 LILIAN ALEXA AKIN CYF Adoption Legal Unit 445 Fort Pitt Blvd Ste 101 Pittsburgh, PA 15219 1 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY COURT DIVISION IN THE INTEREST OF: A.L.K CHILDREN'S FAST TRACK APPEAL NK/A A.L.K-K NK/A A.K.K., A minor Docket No. CP-02-AP-0000013-2016 Superior Court Doc. No. 1010 WDA 2016 APPEAL OF: B.K. Natural Mother OPINION WOODRUFF, J. August 8, 2016 B.K. ("Mother") appeals from the Involuntary Termination of Parental Rights Order entered by this Court on May 6, 2016, terminating her parental rights to A.L.K. ("Child") pursuant to the Adoption Act, 23 Pa.C.S.A. 2511. The relevant facts and procedural history are as follows: Child was born in January, 2013 to B .K. ("Mother"). On January 27, 2014, the Allegheny County Office of Children, Youth, and Families ("CYF') - which had previously been involved with Child's family after reports of domestic violence and truancy of an older sibling- removed Child from Mother's home. N.T., 6/6/16, at 6-8. The January 27, 2014 removal of Child from Mother's home occurred after reports that Mother had been arrested for driving under the influence, and had additionally left Child at home in the care of an older sibling, without appropriate adult supervision. Id. 2 Following Child's removal from Mother's home, Child was placed with her biological father ("Father") who was residing in the home of Child's paternal grandmother. Id. at 9-10. This Court granted Mother supervised visitation. Id. On October 23, 2014, CYF filed a dependency petition after receiving reports that Father, who had previously suffered substance abuse problems, had relapsed. Id. at 8-9. On November 12, 2014, Child was removed from the care of her parents, and adjudicated dependent on December 17, 2014. Id. at 11. CYF filed a Petition for Termination of the Parental Rights of Mother and Father (TPR) on January 25, 2016. This Court conducted a hearing on the TPR petition on May 6, 2016, and that same day entered an order terminating the parental rights of Mother and Father. On June 16, 2016, Mother filed a Motion for Leave to file Appeal Nunc Pro Tune, which the Pennsylvania Superior Court docketed at 1010 WDA 2016. CYF filed an Application to Dismiss or Quash Appeal, which the Superior Court denied on July 14, 2016. That same day the Superior Court designated the case as a Children's Fast Track Appeal, and assigned a docket number of 1010 WDA 2016. On July 21, 2016, Mother filed a Children's Fast Track Notice of Appeal, docketed by the Superior Court at 1050 WDA 2016. That same day, Mother filed a Concise Statement of Errors Complained of on appeal pursuant to Pa.R.A.P. 1925(b). The record indicates that Mother filed an additional Notice of Appeal on July 25, 2016. On appeal, Mother raises the following issues for review: 1. The Trial Court erred in finding that the Petitioner had proved grounds for Termination under [23] Pa.C.S.A.§ 2511(a)(2),(5) and (8). 2. The Trial Court erred in finding that the Petitioner had proved by clear and convincing evidence that the conditions which led to the removal of the child had not or could not be remedied within a reasonable period of time. 3 3. The Trial Court erred in finding that the Petitioner had proved by clear and convincing evidence that Termination of the Natural Mother's Parental Rights would best serve the development, physical and emotional needs and welfare of the child as required by [23] Pa.C.S.A. § 251 l(b). Concise Statement of Errors Complained of on Appeal. Termination of parental rights is governed by section 2511 of the Adoption Act. Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 25ll(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 25ll(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond. In re LM., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A. § 2511). The burden is on the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.]., 985 A.2d 273, 276 (Pa. Super. 2009). In re I.E.P., 87 A.3d 340, 344 (Pa. Super. 2014). The appellate court must agree with only one subsection of 23 Pa.C.S.A. § 25ll(a), in addition to subsection 2511(b), in order to affirm the termination of parental rights. Id. (citations omitted). On appeal, Mother asserts that this Court erred in finding that (i) CYF had proved grounds for termination under 23 Pa.C.S.A. 2511(a)(2)(5) and (8); (ii) that the conditions which led to the removal of the child had not or could not be remedied within a reasonable period of time; and (iii) that Petitioner had proved by clear and convincing evidence that the termination of the Mother parental rights would best serve the developmental, physical and emotional needs and welfare of the child as required under Pa.C.S.A. Section 251 l(b). 23 Pa.C.S.A. § 2511(a)(2),(5) and (8) and§ 2511(b) provide as follows: 4 § 2511. Grounds for involuntary termination (a) General rule.«-The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. (5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child. (8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child. (b) Other considerations.--The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(l), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition. 5 23 Pa.C.S.A. § 2511. A review of the record and testimony provides clear and convincing evidence that termination was warranted under 23 Pa.C.S.A. §§ 2511 (a)(2), (a)(5), and (a)(8) as to Mother, and that termination of Mother's parental rights would best serve the physical and emotional needs and welfare of the child pursuant to §2511(b).1 At the May 6, 2016 hearing on CYF's Petition for Involuntary Termination, CYF presented the credible testimony that Mother suffers ongoing difficulties with substance abuse and homelessness, and has repeatedly been unable to demonstrate that she can provide Child with a stable and secure home environment. April Rosenberger, a CYF caseworker, testified credibly at the TPR hearing that in October 2, 2013 CYF received reports that Mother suffered drug and alcohol abuse and was intermittently homeless. N.T., 5/6/16, at 7. Accordingly, and following admissions by Mother to a history of substance abuse, CYF instituted a safety plan, which included a provision that Mother would not leave Child without appropriate adult supervision. Id. at 8. Thereafter, however, CYF became aware that Mother had left Child in the care of an older sibling, without adult supervision, after which CYF removed Child from Mother's care, and placed Child with Father, who had recently been released from a substance abuse rehabilitation program. Id. at 8-9. Mother was instructed to undergo drug testing, attend a "detox" program to achieve sobriety, and participate in weekly random urine screens after Mother admitted to an opiate dependency and tested positive in urine screens for controlled substances. Id. at 9-10; 12-13. This Court granted Mother supervised visitation with Child, and CYF instituted a family plan for Mother, with the goal of having Child returned to her care. Id. at 9-10; 12-13. In addition, Mother was instructed to secure housing, having been evicted from the home of relatives with 1 Mother does not contest that the Child has been out of her care for the statutorily requisite time frame. 6 whom she was residing. Id. at 14. To assist Mother in achieving these goals, CYF provided her with information about mental health and drug and alcohol treatment providers, and referred her to the Urban League in 2015 for assistance in obtaining housing. Id. at 14-15, 33. However, while Mother did initially attended a drug and alcohol treatment program at A and R services in 2014, after initially granting CYF permission to obtain her urine screens, Mother subsequently refused to provide CYF access to that information, thus precluding CYF from monitoring her compliance with her drug and alcohol treatment. Id. at 16. On October 23, 2014, CYF filed a dependency petition after reports of domestic violence between Mother and Father, reports that Father had relapsed, and in light of the fact that Mother, who stated that she was undergoing substance abuse treatment, failed to provide CYF with records of her treatment. Id. at 10-11. On November 12, 2014, Child was removed from Father's home, and subsequently adjudicated dependent on December 17, 2014, following Mother's admissions to suffering from drug and alcohol abuse and a lack of housing. Id. Following Child's removal from Father's home, CYF continued to monitor Mother's compliance with drug and alcohol treatment, during which time Mother indicated that she was attending drug and alcohol treatment programs, but failed to provide CYF with records of her participation. Id. at 16. After complaints by Mother that she lacked health insurance to obtain such drug and alcohol treatment, CYF accordingly provided Mother with information about public services through which she could obtain health insurance. Id. at 34. However Mother nevertheless failed to successfully complete a rehabilitation program. Id. at 16-17, 34. Moreover, CYF presented testimony that Mother, in her interactions with CYF caseworkers, occasionally appeared to be under the influence of a controlled substance. April Rosenberger testified that in April, 2016, when she attended a meeting with Mother at maternal grandmother's 7 house, she observed that Mother's eyes were "dilated [and] glassed over" and that she "appeared to be under the influence of something." Id. at 17. In addition, April Rosenberger testified that in December, 2015, while transporting Mother from a psychological evaluation, she observed Mother "talking very fast" and "[not] making a lot of sense" and thereafter Mother "passed out in [the] passenger seat," and although Ms. Rosenberger "yelled her name a couple of times, [s]he did not answer" but remained limp and asleep for the remainder of the two-hour drive, and appeared to be under the influence of drugs or alcohol. Id. at 17-18. Ms. Rosenberger further testified that Mother did not attend all of her scheduled urine screens, that the ones she participated in did not indicate that she was living a substance-free lifestyle, and further that as of the date of the TPR hearing, Mother had failed to secure appropriate housing. Id. at 24. Ms. Rosenberger testified that in March, 2016, Mother did enroll in a drug and alcohol treatment program, which is the only treatment program that Mother has complied with. Id. at 23. Moreover, Mother's efforts to maintain contact with Child have been irregular. Although Mother was granted visitation with Child in 2014, and initially visited Child regularly, since the ., !O. summer of 2015, Mother has attencionly approximately half of her scheduled visits with Child, who currently resides with her paternal grandmother. Id. at 25. In its determination that termination of Mother's parental rights was warranted, this Court additionally considered the testimony of Dr. Bernstein, a licensed psychologist, who testified that Mother's inability to secure stable housing (having lived in six different homes within the preceding one year period), together with Mother's drug use, were detrimental to Child's wellbeing. Id. at 49, 57-58. Dr. Bernstein further testified that he observed paternal grandmother interact with Child, and stated that Child related to paternal grandmother in a positive manner, and that paternal grandmother and Child "enjoy a strong bond". Id. at 44-45; 8 CYS Exhibit 4 (Report of Eric Bernstein) at 4. He testified that paternal grandmother appeared attentive to Child and invested in Child's wellbeing. Id. Dr. Bernstein further testified that while Mother had a "history of instability," in contrast, he believed paternal grandmother displayed the capacity to provide Child with routine, structure, love and affection and support a positive family relationship and that "at [Child's] young age ... stability, consistency and [a] healthy environment is key [and] grandmother is clearly in the best position to continue meeting [Child's] needs." N.T., 5/6/16. at 57; CYS Exhibit 4 (Report of Eric Bernstein) at 13. Dr. Bernstein did testify, however, that in his observations of interactions between Mother and Child, Mother provided Child with affection, interacted positively with her, and that a bond existed between Mother and Child. Id. at 46-57, 62-63. This Court additionally considered the testimony of Mother who confirmed that on May 6, 2016, the date of the TPR hearing, she was arrested on an outstanding warrant issued in Youngstown Ohio for drug possession, and further admitted to having additional drug charges pending against her. Id. at 69-70. Mother further admitted to her failure to attend scheduled visitations with Child, but asserted that she was precluded from doing so because of transportation difficulties. Id. at 72. She further testified that she had in the past been able to periodically secure housing for herself and Child, but acknowledged difficulty maintaining an appropriate residence. Id. at 74-75. Mother testified that, as of the date of the TPR hearing, she had received drug and alcohol and mental health services at Alpha House treatment center where she had been residing for thirty-seven days, and that she was making an effort to rehabilitate herself. Id. at 69, 78. However, Mother did acknowledge that she needed further treatment and rehabilitation in order to provide a stable home environment for Child. Id. Mother further reiterated that she received some drug and alcohol treatment following removal of Child from 9 her home, but that her previous attempts at rehabilitation and treatment had been unsuccessful, and that she was unable to secure further treatment in the past because she lacked health insurance. Id. at 77-78. Following the TPR hearing, and based upon the foregoing testimony and evidence, this Court concluded that CYF demonstrated by clear and convincing evidence that the statutory grounds for termination had been met. The evidence and testimony established that Mother failed to secure stable housing, complete drug and alcohol treatment, and attend regular urine screens. Mother was offered drug and alcohol treatment options to assist in her rehabilitation, yet CYF was unable to obtain from Mother any documentation that she was attending treatment, and Mother herself conceded that her previous efforts at treatment had failed. Moreover, at the TPR hearing, Mother acknowledged suffering mental health problems, and admitted to a continuing need to rehabilitate herself in order to provide a secure and stable home environment for Child. However, although Mother was given the opportunity, time, and resources to remedy the conditions that led to removal of Child, Mother only began her efforts to regularly attend rehabilitation after the filing of the TPR petition and continues to struggle with securing a suitable home. This Court acknowledges the evidence and testimony presented at the hearing that a bond exists between Mother and the Child, and that Mother exhibited an interest in parenting Child in the future. N.T., 516116 at 27-28. As our Superior Court has observed: [T]he application of Section (a)(8) may seem harsh when the parent has begun to make progress toward resolving the problems that had led to removal of her children. By allowing for termination when the conditions that led to removal continue to exist after a year, the statute implicitly recognizes that a child's life cannot be held in abeyance while the parent is unable to perform the actions necessary to assume parenting responsibilities. This Court cannot and will not subordinate indefinitely a 10 child's need for permanence and stability to a parent's claims of progress and hope for the future. In re J.F.M., 71 A.3d 989, 997 (Pa. Super. 2013). Here, based on the evidence and testimony, this Court concludes that Mother is unable to provide for the Child's essential parental care, control or subsistence, and that Child's welfare and her needs would be best served by termination of Mother's parental rights given Mother's ongoing failure to provide Child with stable and secure housing, Mother's own admissions to suffering from a drug dependency and ongoing mental health concerns, her failure to complete treatment programs, and her inability to meet her parenting obligations and provide the child with a stable, healthy, and secure environment. This Court concluded, furthermore, that the conditions which led to the removal of Child continue to exist and could not be remedied, within a reasonable period of time, given Mother's repeated failure to secure appropriate housing, her recent arrests on drug charges, her ongoing substance abuse, and her unreliability and inability to comply with CYF family plan goals in the over two year period that has elapsed since Child's removal from Mother's home. Finally, this Court, in terminating Mother's parental rights, considered the developmental, physical and emotional needs of Child pursuant to 23 Pa.C.S.A § 2511(b), and determined that termination was warranted. Based on the evidence and testimony of Dr. Bernstein together with that of April Rosenberger and Mother herself, this Court concluded that Child had developed a bond with paternal grandmother, who was able to provide the Child with a loving, stable and secure home environment, while Mother's repeated displays of instability and indications of substance abuse, would be detrimental to Child. In light of Mother's unreliability, her failure to complete rehabilitation and treatment and provide a stable housing 11 environment for Child, and her inability to provide Child with an environment of stability and security, this Court concluded that termination of Mother's parental rights would be in the best interests of Child. CONCLUSION After careful review of the testimony and evidence this Court concludes that CYF established by clear and convincing evidence that grounds for termination of parental rights of Mother existed pursuant to 23 Pa. C.S.A. §§ 2511 (a)(2), (a)(5), and (a)(8) and that termination of parental rights best served the needs and welfare of Child. Based upon the foregoing, this Court's May 6, 2011 Order should be affirmed. BY THE COURT: 12

01-03-2023

12-16-2016

https://www.courtlistener.com/api/rest/v3/opinions/4125015/

KEN PAXTON ATTORNEY GENERAL OF TEXAS December 21, 2015 The Honorable Wesley H. Mau Opinion No. KP-0049 Hays County Criminal District Attorney 712 South Stagecoach, Suite 2057 Re: Questions regarding a notice prohibiting San Marcos, Texas 78666 entry with a handgun onto certain premises under section 30.06 of the Penal Code and section 411.209 of the Government Code (RQ-0051-KP) Dear Mr. Mau: You present several questions about what constitutes a violation of section 411.209 of the Government Code as implicated by Penal Code section 30.06, which provides for a notice to prohibit entry with a handgun onto certain premises. 1 In connection with your request, you tell us that the Hays County Government Center ("Center") is "a large, three-story structure housing a variety of government offices." Request Letter at 1. You indicate that many of the offices in the Center are inhabited by courts or offices utilized by the courts but that several offices in the Center "do not serve the courts." Id at 2. And you inform us that Hays County has historically prohibited weapons from being carried within the entire building. Id You tell us that several signs are posted in the parking lot and at the entrance to the Center indicating that it is a "Weapons Free Zone." Id Further, you tell us that "a metal-detector-equipped security checkpoint" is located a short distance. inside the entrance to the Center. Id You also indicate that "there are no '30.06 signs' posted, and the existing signage does not reference 'a law or a concealed handgun license."' Id at 2-3. Finally, you state that the sheriffs deputies provide notice to licensees upon passing through the security station "that they may not proceed into the building with a firearm" due to subsection 30.06(a)(2)(B) of the Penal Code. Id at 3. With this context, you specifically ask: (1) Does a sign that says, "Weapons Free Zone," but which does not include the language of [subsection] 30.06(c)(3)(A), violate the restrictions imposed on the government by [section] 411.209, 1 See Letter from Honorable Wesley H. Mau, Hays Cnty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at I, 3 (Sept. 9, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Wesley H. Mau - Page 2 (KP-0049) generally (i.e., whether or not the Hays County Goverrunent Center constitutes court premises)? (2) Does oral notice by a security deputy to a license holder that he may not enter a building housing court[ s] and offices used by the courts, but which building also houses offices not directly used by the courts, such as the Hays County Goverrunent Center, violate the restrictions imposed on the goverrunent by [section] 411.209? (3) Is a license holder who wishes to enter the Goverrunent Center in violation of Texas Penal Code [section] 30.06, if the license holder is told by security personnel that possessing a firearm in the building is prohibited and the license holder refuses to relinquish any carried firearms and also refuses to exit the building? · Request Letter at 3. Relevant to your questions, subsection 41 l.209(a) provides that [a] state agency or a political subdivision of the state2 may not provide notice by a communication described by Section 30.06, Penal Code, or by any sign expressly referring to that law or to a concealed handgun license, that a license holder carrying a handgun under the authority of this subchapter is prohibited from entering or remaining on a premises or other place owned or leased by the goverrunental entity unless license holders are prohibited from carrying a handgun on the premises or other place by Section 46.03 or 46.035, Penal Code. TEX. Gov'T CODE § 411.209(a) (footnote added). As an initial matter, attorney general opinion KP-0047 recognized that the relationship between sections 30.06, 46.03, and 46.035 authorizes a goverrunental entity of the state to prohibit handguns from only those locations identified by sections 46.03 and 46.035. See Tex. Att'y Gen. Op. No. KP-0047 (2015) at 3. Opinion KP-0047 also concluded that although the full scope of subsection 46.03(a)(3) is unclear, it is at least clear that the Legislature intended to prohibit concealed handguns from goverrunent courtrooms and the offices essential to the operation of the courts. See id. at 4-5. Thus, it is only the courtrooms, and those offices determined to be essential to their operations, from which Hays County may prohibit concealed handguns without risk of incurring the civil penalty in section 411.209 of the Goverrunent Code. However, your first two questions also implicate the question whether certain notices "violate the restrictions imposed on the goverrunent by [section] 411.209." Request Letter at 3. Subsection 411.209(a) does not create an offense and penalty regarding the manner of the notice; 2 Hereinafter collectively referred to as "governmental entity." The Honorable Wesley H. Mau - Page 3 (KP-0049) instead, it creates an offense and penalty for a governmental entity that seeks to prohibit a licensee from carrying a handgun onto premises where handguns are lawfully permitted. See TEX. Gov'T CODE§ 41 l.209(a). Thus, these questions present the issue of whether a written notice that does not conform to the language required of a "written communication" in subsection 30.06(c)(3)(A), or an oral notice, function as notice to a licensee that handguns are prohibited such that if posted in an area where handguns are permitted would serve as grounds to support a complaint against the governmental entity. In other words, we must determine whether subsection 41 l.209(a) is implicated by an oral notice or a written notice that does not conform to the language provided in section 30.06. , In our consideration of section 411.209, we are mindful that the primary canon of statutory construction is to determine the intent of the Legislature. City ofLorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 641 (Tex. 2013). Like the courts, we seek that intent first and foremost from the text. See id Courts only "resort to rules of construction or extrinsic aids" when a statute's words are ambiguous. Entergy GulfStates, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); see also TEX~ Gov'T CODE § 311.023(3), (5) (allowing for the consideration of legislative history or the "consequences of a particular construction" to aid in statutory construction). The language of subsection 411.209(a) broadly refers to a notice that is "a communication described by Section 30.06, Penal Code" or "any sign expressly referring to that law or to a concealed handgun license." TEX. Gov'T CODE § 41 l.209(a). Section 30.06 describes notice given orally or by "written communication." See TEX. PENAL CODE § 30.06(b), (c)(3)(A)-(B) (specifying language for a "written communication"). Yet, other subsections of 411.209, which govern the attorney general's enforcement of section 411.209, refer to only a sign. See TEX. Gov'T CODE § 411.209(d) (requiring citizen complaint to describe the "specific location ofthe sign found to be in violation") (emphasis added), (f)(l) (requiring the office of the attorney general to give a governmental entity notice that "describes the violation and specific location of the sign") (emphasis added), (f)(3) (authorizing the office of the attorney general to give the governmental entity fifteen days "to remove the sign and cure the violation") (emphasis added). This limited language about a sign differs from the initial and broad description of a "communication described by section 30.06." Id § 41 l.209(a). Again, the Legislature has not acted with great clarity in this matter and enacted section 411.209 with internal ambiguities regarding the nature of the notice, the giving or posting of which by a governmental entity may subject the governmental entity to a penalty. Thus, we consider relevant legislative history. See id § 311.023(3) (allowing for the consideration of legislative history to aid in statutory construction). The bill analysis for Senate Bill 273, enacting section 411.209, states that "[w]hen uncooperative governments post signs to ban Texas citizens from carrying where it is legal, they are breaking the law and infringing on the second amendment rights of Texas citizens. S.B. 273 provides an enforcement mechanism ... to stop these illegal postings." SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. S.B. 273, 84th Leg., R.S. (2015) at 1. A similar motivation was behind the Legislature's 2003 addition of subsection 30.06(e) of the Penal Code, which operates to preclude a governmental entity from prohibiting the carrying of handguns from premises other than those listed in sections 46.03 and 46.035. See TEX. PENAL CODE§ 30.06(e). The bill analysis for the enactment of subsection 30.06(e) acknowledged that some governmental entities have misinterpreted the law to "allow[] them to ban weapons in any location other than the specific The Honorable Wesley H. Mau - Page 4 (KP-0049) places listed in the statute." House Research Org, Bill Analysis, Tex. S.B. 501, 78th Leg., RS., (2003) at 3-4. These statements are evidence that the Legislature intended to prevent governmental entities from trying to prohibit a licensee from carrying a handgun in locations other than ones identified in sections 46.03 or 46.035. These statements also indicate the Legislature intended to create an enforcement mechanism for subsection 30.06(e) to give teeth to the restriction . against governmental entities improperly seeking to exclude licensees from carrying handguns into lawful areas. Subsection 411.209(a) can reasonably be construed to be this enforcement mechanism intended to induce governmental entities to comply with the law. To effectuate the Legislature's intent to prevent governmental entities from seeking to wrongly exclude handguns from where they are lawful, a court would likely construe section 411.209 to be implicated by any type of notice that seeks to improperly prohibit handguns. Thus, any oral notice given by a governmental entity regarding the prohibition of handguns, if given where handguns are lawful, can serve as an improper exclusion in violation in section 411.209. And the sign about which you inquire that does not use the statutory language but states that the Center is a "Weapons Free Zone," if placed in an area where handguns are allowed, would similarly invoke the enforcement mechanism of section 411.209. This conclusion is bolstered by the fact that to conclude otherwise would thwart the intent of the Legislature. See TEX. Gov'T CODE§ 311.023(5) (authorizing in statutory construction the consideration of the "consequences of a particular construction"). If section 411.209 were construed such that a violation for the exclusion of handguns occurred only if the improperly placed notice was a written communication conforming to section 30.06, a governmental entity could avoid penalty by either providing oral notice or providing a nonconforming written notice. That is contrary to the Legislature's intent to stop governmental entities from infringing on Texas citizens' rights to carry handguns wherever the law allows. Your third question involves a license holder who, upon receiving proper notice, refuses to relinquish any concealed handguns or who refuses to exit the building. See Request Letter at 3. The plain language of section 30.06 provides that a license holder commits an offense if the license holder carries a concealed handgun on the property of another without consent and received notice that entry on the property with a concealed handgun was forbidden. See TEX. PENAL CODE § 30.06(a). By the terms of the statute, a license holder carrying a concealed handgun who fails, after notice, to exit premises from which sections 46.03 or 46.035 prohibit concealed handguns commits an offense generally punishable as a Class A misdemeanor. Id § 30.06(d). Conversely, a licensee who refuses to relinquish any concealed handgun or refuses to exit the building after being· given notice by a governmental entity does not commit an offense if the building is not one from which sections 46.03 and 46.035 prohibit concealed handguns. See id § 30.06(e). The Honorable Wesley H. Mau - Page 5 (KP-0049) SUMMARY Pursuant to Opinion KP-0047, it is only the courtrooms, and those offices determined to be essential to their operations, from which Hays County may prohibit concealed handguns without risk of incurring a civil penalty under section 411.209 of the Government Code. A court would likely conclude that section 411.209 of the Government Code can be implicated by a governmental entity that seeks to improperly prohibit handguns from a place where handguns may be lawfully carried through oral notice or by a written notice that does not conform to section 30.06 of the Penal Code. By the terms of section 30.06 of the Penal Code, a license holder carrying a concealed handgun who refuses, after notice by the governmental entity, to exit premises from which Penal Code sections 46.03 or 46.035 prohibit handguns commits an offense punishable as a misdemeanor. Conversely, a licensee who refuses to relinquish any concealed handgun or refuses to exit the building after being given notice by a governmental entity does not commit an offense ifthe building is not one from which sections 46.03 and 46.035 prohibit concealed handguns. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee CHARLOTTE M. HARPER Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4149941/

Motion Granted and Order filed February 28, 2017 In The Fourteenth Court of Appeals ____________ NO. 14-16-01022-CV ____________ IN THE INTEREST OF K.L., CHILD On Appeal from the 257th District Court Harris County, Texas Trial Court Cause No. 2015-37805 ORDER The clerk’s record was filed on February 9, 2017. On February 14, 2017, appellant, the State of Texas, filed a motion for this court to instruct the district clerk to file a legible version of the clerk’s record because many of the pages are illegible or difficult to read. According to the motion, another method for preparing the record exists that would produce clearer pages. The motion is GRANTED. Accordingly, we ORDER the Harris County District Clerk to prepare, certify, and file in this court a legible version of the complete clerk’s record at no additional cost to the parties. The new version of the clerk’s record must be filed by March 20, 2017. PER CURIAM

01-03-2023

03-03-2017

https://www.courtlistener.com/api/rest/v3/opinions/4289328/

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT ERNEST RICCI, Appellant, v. VENTURES TRUST 2013-I-H-R by MCM CAPITAL PARTNERS, LLC, its Trustee, Appellee. No. 4D16-1774 [June 28, 2018] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE-13-007175 (11). Kevin L. Hagen of Law Offices of Hagen & Hagen, P.A., Fort Lauderdale, and Margery E. Golant of Golant & Golant, P.A., Boca Raton, for appellant. Richard S. McIver and Melissa A. Giasi of Kass Shuler, P.A., Tampa, for appellee. PER CURIAM. Affirmed. GERBER, C.J., GROSS and CIKLIN, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.

01-03-2023

06-28-2018

https://www.courtlistener.com/api/rest/v3/opinions/4142678/

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Honorable Jack Borden County Attorney veatherford, Texas Dear Sir: Tn your letter oertaln sxplanatory faot response to two qimrtiona a sred payment of ike to have an opinion on the "(3) In a ease where the owner of prop- erty does not sign a rendition for the Batno, but said property la aaaeassd by the Tax iiaaesciorand Colleotor and plaoed on ths rolla at suah atmemment, in the name of the last k~ov~~c.wner,and the tar rolls are appmved by the Ibard ot Bqualieation over a period Bonorabla Jaok Borden, I”ags2, of sever81 years, under such praotloe onn the Ccaai~~iommi Court, upon applloation of the heirs, or a purohasacof auoh property, under authority:of Artiole 7350, legally reduoe the aaseaoed valuation of suah property for the years the taxes are dsllnquent? "(8) If the above question irsannrered in the afffmatlre, then would the owner or ownma of auoh propsrty be entitled to pay the delinquent taxes of said reel estate on the valuea rixed by the Commlseloners Court in It.8 reduatione, plu8 the 6s intereat, as pro- vid8d in House Bill No. 78 of the 47th Legis- lature.* From your letter we gather that the only possible irregularity claimed in aonneotlon with the nmklng with the aa8ea8ment IS that it was an offlas a8888ment, whioh x8 pr88u!aai8 that the Tax Ams888or did not oall at the proporty owner88 rasidenae or plaoo of businese for the purpO8e of obtaining 6 li8t of the tsixpayer'apaoperty. If this oon8tituted an irrqularity we are of the opinion that suah irregularity was not oi such materiality as to make the aaeewmmnt void. From the opinion of the Au8tl.n Court of Civil Appeal8 in Killer8 * Mutual Fire Ineuraho8 Company 9. Auatl.5,201 S. Vi.825, we quote: "The sixth and @109Ollth 88fSi&IMl~nt8 Of error8 are not sup;::orted by a 8tatwnant euffiolent to oall $09 0onslderation. If the sxoeption of whloh meatlon ia made was ever oon8idered and pareed upon by the trial ciourt,the 8iJateItieht falls to rebrealit. :;ea:e not called upon to seareh the reoord to eupplament the statement. lbtwer, the tenth aseignment is a8 to a rlnd- ing by the oourt to the etfeot that notloe was not given to appellant by appellee that the prop- 8rty was plaO8d oh the as8essment rolls, and that would probably be eufriclent. It is not olalmed that the value of the property was improperly as- eeseed or that any injury was suffered tram the failure to give notloe. Appellant haa no oause for oomplaint on aaoount of laok of riotia6. Ae 8aid by Cooley (page 60): honorable Jaok Borden, Page 3 wt~~h3re a law imposea a tax or aw38ement upon propetty aooording to it6 value, notloe of every etep In the tax proo8edlnge Is not neoueary; the owner Is not deprived ot prop- erty without due process of law if he has an opportunityto question the validity or the amount of aueh tax or aa8e88ment either berore thut amount la i'lnallydetermined or In Subsa- quent proNedIIAg8 for its aolleotlon.~" See also Meifter 9. City ol San Antonio, 195 S. 14.93Z, and City of Eouaton v. Stewart, 90 S.W. 49. Xe alao refer to Artiole 7193, ReVi8ed OlvIl Ststutes, rrad- in&?a8 fOllOW8: *In all oa8e6 of idlure tibobtain a rrtato- ment of real and personal property fram any oau80, the al)L8esor of taxes shall aeoertain the amount and value o? auoh property and ae8ess the lame aa he believes to be the true and full value thereof; and 8uoh a8eessment shall be as valid and bindIng aa If suah property had been rendered by tipsproper owner thereor." fn our opinion No. o-1468 w* sxpr688ed the *Ien that ifand In8ofar ae etlol8 7300, Revised Oidl Statutes, attempts to allow a reassesetmentof tares by the 0011d8SiOl+ erm* oourt on unknown and unrendered pI%p8rty, wNoh atv8eaa- msnt wae not originally void, the 8WBe is ulmon8titutionrl, but that Insofar as suoh ArtIole purporte to allow a reas- sessment In oa,sea where the ori(pind aas8Sement was void the 8MB 18 aonetItutlona1. Vie have already said that In our opinion the aasesaaent In whhiohyou are Interested was not origInally void. Lien08our anewer to your iirat question ,Irra negative one, making It unneoassaryto anewer your other question. We encloee copy of our OpiniOn No. 0-146Z, and note, from your letter that yog already have a oopy of OUT opinion No. O-930 In v:hIchwe held that ,trtiole734Bb, Vernon*8 &no- tated Civil Statutea, 1~ unconstitutional. Yours very truly ATTORNEY GEXERAL CP Tiias GRL:W TI-JCLOSURE

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125017/

KEN PAXTON ATTORNEY GENERAL OF TEXAS December 21, 2015 The Honorable Allison Palmer Opinion No. KP-0047 51 st Judicial District Attorney 124 West Beauregard Re: The extent to which firearms may be San Angelo, Texas 76903-5850 excluded from buildings that contain courts, offices utilized by the courts, and other county officials (RQ-0040-KP) Dear Ms. Palmer: You seek an opinion about whether provisions of the Penal Code prohibit the exclusion of firearms from certain colinty buildings. 1 You state that the Tom Green County Sheriff currently secures the district courthouse and the Tom Green County Justice Center and does not allow firearms inside the buildings even if the carrier has a concealed handgun license. See Request Letter at 1. You also tell us about the different offices that are located within other county buildings that house courts and ask whether firearms may be excluded from each of these buildings "even if the possessor of the firearm has a concealed handgun license." Id. at 2. Chapter 411 of the Government Code was amended in 2015 with the enactment of Senate Bill 273. Act of May 23, 2015, 84th Leg., R.S., ch. 593, § 1, 2015 Tex. Gen. Laws 2000, 2000- 2001 (codified at TEX. Gov'T CODE § 411.209). The primary change under Senate Bill 273 is the. creation of enforcement measures available against the state or a political subdivision that seeks to wrongfully exclude a person from carrying a handgun where the person may lawfully do so. See id. Section 411.209 provides: A state agency or a political subdivision of the state may not provide notice by a communication described by Section 30.06, Penal Code, or by any sign expressly referring to that law or to a concealed handgun license, that a license holder carrying a handgun under the authority of this subchapter is prohibited from entering or remaining on a premises or other place owned or leased by the governmental entity unless license holders are 1 See Letter from Honorable Allison Palmer, 51st Judicial Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (July 14, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Allison Palmer - Page 2 (KP-0047) prohibited from carrying a handgun on the premises or other place by Section 46.03 or 46.035, Penal Code. TEX. Gov'T CODE§ 411.209(a); see also id. §§ 411.171-.209 (subchapter H providing for the licensing of handguns). 2 Because section 411.209 references sections 46.03, 46.035, and 30.06 of the Penal Code, we briefly discuss each provision. See id. § 411.209(a). Section 46.03 of the Penal Code prohibits a person, including a licensee, from carrying firearms and other prohibited weapons, including handguns, in certain locations identified in, the section. 3 See TEX. PENAL CODE§ 46.03(a), (f) ("Except as provided by Subsection (e-1), it is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code."). The enumerated locations include premises of schools and educational institutions, polling places during voting, and other specified locations. See id. § 46.03(a)(l)-(6). Relevant here, section 46.03 prohibits handguns from "the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court." Id. § 46.03(a)(3). Penal Code section 46.035 lists the locations where a license holder may not carry a handgun. See id. § 46.035(b). The list of prohibited places in section 46.035 includes the premises of certain businesses involved in the sale of alcoholic beverages, the premises of a correctional facility, the premises of certain places of worship, and "in the room or rooms where a meeting of a governmental entity is held and ifthe meeting is an open meeting." 4 Id. § 46.035(b)(l)-(6), (c). Section 30.06 of the Penal Code is a criminal trespass statute that essentially allows property owners to prohibit license holders from carrying concealed handguns onto their property by providing the prescribed notice. See id. § 30.06(a)-(b); see also id. § 30.06(c)(3) (providing ·exact language necessary to be included on any written communication intended to provide notice that entry with a handgun is prohibited). But it excepts that property which is "owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under section 46.03 or 46.035." Id. § 30.06(a), (e). The exception in subsection 30.06(e) means that a governmental entity does not have general authority to prohibit concealed handguns from its public buildings other than a location listed in sections 46.03 and 46.035. See id.§ 30.06(e); see also SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. S.B. 273, 84th Leg., R.S. (2015) at 1 ("When uncooperative governments post signs to ban Texas citizens from carrying where it is legal, they are breaking the law and infringing on the 2 House Bill 910, also passed in 2015, amended subchapter H and mostly removed the requirement of concealment with respect to an individual's license to cany a handgun. See Act of May 29, 2015, 84th Leg., R.S., ch. 437, §§ 16-28, 2015 Tex. Gen. Laws 1706, 1710-1714 (codified at various provisions in TEX. Gov'T CODE ch. 411, subch. H). 3As you ask about only section 411.209 of the Government Code, we limit this opinion to a consideration of only the prohibition of handguns. 4 You do not ask us to address the scope of subsection 46.035(c). See Request Letter at 1-2. The·Honorable Allison Palmer - Page 3 (KP-0047) second amendment rights of Texas citizens. S.B. 273 provides an enforcement mechanism ... to stop these illegal postings."). Taken together, these three provlSlons authorize a political subdivision to prohibit handguns from only the locations identified in Penal Code sections 46.03 and 46.035. Your questions do not implicate any limitation or expansion of the kinds of locations from which a governmental entity may prohibit handguns. Rather, you ask only about the scope of the location identified in subsection 46.03(a)(3) concerning the "premises of any government court or offices utilized by a court." Request Letter at 1; TEX. PENAL CODE § 46.03(a)(3). Your questions implicate many fact sensitive issues that cannot be resolved in an attorney general opinion. However, we will provide the legal guidance that we can. When construing statutes, courts seek to ascertain and give effect to the Legislature's intent. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). "The plain meaning of the text is the best expression of [that] intent[.]" Molinet v: Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011 ). "If a statute ... assigns a particular meaning to a term, [courts] are bound by the statutory usage." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). "Undefined terms ... are typically given their ordinary meaning[.]" Id To determine the scope of the prohibition in subsection 46.03(a)(3), we need to construe the phrase "premises of any government court or offices utilized by the court," which requires an examination of the term "premises." TEX. PENAL CODE § 46.03(a)(3). Subsection 46.035(f) defines the term "premises" for purposes of section 46.03. Id. § 46.035(f)(3); see also id. § 46.03(c)(l) (defining "premises" by reference to section 46.035). "'Premises' means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage; or other parking area." Id. § 46.035(f)(3) (emphasis added). "[T]he word 'or' is a disjunctive conjunction that indicates a choice between two alternatives generally corresponding to 'either' or 'either this or that.'" Gunn v. Phillips, 410 S.W.2d 202, 206 (Tex. Civ. App.-Houston 1966, writ refd n.r.e.). The common meaning of "building" is "a structure with a roof and walls, such as a house, school, store, or factory." NEW OXFORD AMERICAN DICTIONARY 228 (3d ed. 2010); see also TEX. PENAL CODE § 30.01(2) (defining "building" as "any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use"). Section 46.03 neither provides nor directs us to a definition of "government court," but article V, section 1 of the Texas Constitution vests judicial power in listed courts and "such other courts as may be provided by law." 5 TEX. CONST. art. V, § 1. It is likely that a court would determine that a "government court" under section 46.03 is any of the judicial bodies created by either the Texas Constitution or by the Legislature. We also consider the meaning of"offices utilized by the court." TEX. PENAL CODE§ 46.03(a)(3). Section 46.03 does not define the term "office," but a Texas court of appeals has defined "office" 5 The Legislature has provided for the courts in chapters 22 through 30 of the Government Code, which contain provisions for each of the different types of courts, and all of which have judicial authority to determine rights as between persons or property. See TEX. Gov'T CODE §§ 22.001-.302 (appellate courts), 24.001-.954 (district courts), 25.0001-.2702 (statutory county courts), 26.001-.353 (constitutional county courts), 27.001-.061 Gustice courts), 29.001-.105 (municipal courts), 30.00001-.01904 (municipal courts of record). Created by the Texas Constitution or by the Legislature, these bodies are courts established by the government. The Honorable Allison Palmer - Page 4 (KP-0047) as a "place where a particular kind of business ... is transacted." Anderson v. State, 17 Tex. Ct. App. 305, 310 (1884). The common meaning of "utilize" is to "make practical and effective use of." NEW OXFORD AMERICAN DICTIONARY 1909 (3d ed. 2010). Thus, the phrase "premises of any government court" generally means either (1) a structure utilized by a court created by the Texas Constitution or the Legislature, or (2) a portion of such a structure. And the premises of an office utilized by the court generally means a building or portion of a building that is a place where the business of a government court is transacted. But such alternatives still do not provide any clarity with respect to where section 46.03 prohibits handguns. If the Legislature intended for the entire structure with a government court in it to be a location from which firearms are excluded, it could have redefined "premises" to mean only a building. See Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009) (recognizing that the Legislature chooses "its words carefully and intentionally"). It did not. To so construe subsection 46.03(a)(3) would essentially render the language "portion of a building" meaningless-a construction that, like the courts, we try to avoid. See Hanson v. Jordan, 198 S.W.2d 262, 263 (Tex. 1946) (stating that courts "should avoid a construction which renders any provision meaningless"). By including the "portion of a building" language, the Legislature evidenced an intent to have the prohibition in subsection 46.03(a)(3) equally apply to an area that is less than the entire structure. Thus, the disjunctive "or" in the phrase may not provide a discretionary choice between two alternatives as much as recognition that flexibility is necessary to accommodate the different kinds of spaces courts utilize in various types of buildings. Further, when considering the statute as a whole, under subsection 46.03(a)(3) a court may issue written regulations or provide authorization concerning the allowance of firearms on its premises. See TEX. PENAL CODE§ 46.03(a)(3) (establishing an offense for carrying a prohibited weapon "on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or authorization of the court"). A court's authority with regard to such regulations or authorization would not include areas of the building that are beyond the operations of the court. This is some indication that the Legislature intended the prohibition in subsection 46.03(a)(3) to have a limited reach. Yet, in the greater context of sectfon 411.209' s penalty against a governmental entity improperly excluding handguns, the Legislature also amended subsection 46.035(c), Penal Code, to prohibit handguns from the "room or rooms where a meeting of a governmental entity is held." TEX. PENAL CODE § 46.035(c) (emphasis added). By this amendment, the Legislature indicated that it knows how to limit the handgun prohibition to a specific room in which an activity is conducted. The Legislature chose to use the term "government court," instead of government courtroom. Id. § 46.03(a)(3). So, though the Legislature may have intended subsection 46.03(a)(3) to have a limited reach, it did not expressly limit section 46.03(a)(3) to only the room that houses the government court. The Legislature has not clearly demarcated, or established, a precise boundary in a building or portion of a building at which handguns are prohibited or permitted. Yet, it has established an enforcement scheme that can be properly effectuated only where such a boundary is determined ;md definitive. Similarly, the Legislature has not provided the Attorney General's Office with The Honorable Allison Palmer - Page 5 (KP-0047) specific authority to make rules governing this enforcement scheme. While the outside limits of subsection 46.03(a)(3) may be unclear, at the very least it can be said that the Legislature intended to prohibit concealed handguns from the rooms that house government courts and offices central to the business of the courts. 6 Accordingly, in the absence of clarity from the Legislature and in order to provide concrete advice to governmental entities seeking to secure their courts without penalty, we construe subsection 46.03(a)(3) to encompass only government courtrooms and those offices essential to the operation of the government court. Section 46.03(a)(3) recognizes the power of government courts to override the ban on concealed handguns in that a court may issue "written regulations or written authorization" allowing the carrying of concealed handguns in their spaces. Likewise, we routinely acknowledge that decisions such as this are for the governmental entity in the first instance, subject to the applicable review. See, e.g., Tex. Att'y Gen. Op. KP- 0007 (2015) at 2 (concluding that the determination of whether the expenditure of public funds is for a public purpose is for the governmental body in the first instance, subject to judicial review). Accordingly, the responsible authority that would notify license holders of their inability to carry on the respective premises must make the determination of which government courtrooms and offices are essential to the operation of the government court. And it is that authority that could face the statutory civil penalty. TEX. Gov'T CODE§ 41 l.209(a) (prohibiting "[a] state agency or a political subdivision of the state" from providing improper notice). If this authority is not the government court itself, the responsible authority would presumably consult with the government court to determine what government courtrooms and offices are essential to its operation. 6 Toward that end, these parameters from the Legislature will presumably prevent a governmental body from using pretext to attempt to exclude the licensed carrying of handguns where the law allows it. The Honorable Allison Palmer - Page 6 (KP-0047) SUMMARY For purposes of section 411.209 of the Government Code, the phrase "premises of any government court" used in Penal Code subsection 46.03(a)(3) generally means either (1) a structure utilized by a court created by the Texas Constitution or the Legislature, or (2) a portion of such a structure. The premises of a "government court or office utilized by the court" means a government courtroom or those offices essential to the operation of the government court. The responsible authority that would notify license holders of their inability to carry on the respective premises must make the determination of which government courtrooms and offices are essential to the operation of the government court, in consultation with the government court. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee CHARLOTTE M. HARPER Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125022/

KEN PAXTON ATTORNEY GENERAL OF TEXAS November 4, 2015 The Honorable Charles Perry Opinion No. KP-0042 Chair, Committee on Agriculture, Water, and Rural Affairs Re: Whether a police department or Texas State Senate sheriffs office may display the national Post Office Box 12068 motto, "In God We Trust," on its patrol Austin, Texas 78701-2068 vehicles (RQ-0059-KP) Dear Senator Perry: You ask whether a police department or sheriffs office may display the national motto, "In God We Trust," on its patrol vehicles. 1 You explain that the Childress Police Department has decided to display the motto on its patrol vehicles and has come under attack for this decision. Request Letter at 1. Use of the motto in various circumstances has been challenged as a violation of the U.S. Constitution's Establishment Clause, which states: "Congress shall make no law respecting an establishment of religion." U.S. CONST. amend. I. We therefore analyze whether the Establishment Clause prohibits the action you describe. Congress adopted "In God We Trust" as the national motto of the United States in 1956. 36 U.S.C. § 302 (originally enacted as Act of July 30, 1956, ch. 795, 70 Stat. 732 (1956)). In addition, Congress has required use of the motto on coins and printed currency of the United States. 31 U.S.C. §§ 5112(d)(l), 5114(b). Against constitutional challenges to these statutes, courts across the country have consistently held that the statutes do not violate the Establishment Clause of the' First Amendment. Newdow v. Peterson, 753 F.3d 105, 107 (2d Cir. 2014), cert. denied, 135 S. Ct. 1008 (2015); Newdow v. Lefevre, 598 F.3d 638, 645 (9th Cir. 2010); Kidd v. Obama, 387 Fed. App'x. 2 (D.C. Cir. 2010) (per curium); Gaylor v. United States, 74 F.3d 214, 217-18 (10th Cir. 1996); O'Hair v. Murray, 588 F.2d 1144, 1144 (5th Cir. 1979) (per curium); Aronow v. United States, 432 F.2d 242, 244 (9th Cir. 1970). Furthermore, the United States Supreme Court has on multiple occasions noted that the motto is a constitutional "reference to our religious heritage." Lynch v. Donnelly, 465 U.S. 668, 676 (1984); see also Cnty. ofAllegheny v. ACLU, 492 U.S. 573, 602-03 (1989). Although a number of courts have addressed the motto in other contexts, no court of wl;rich we are aware has specifically addressed the display of the motto on law enforcement patrol vehicles. See Lambeth v. Bd. of Comm 'rs of Davidson Cnty., 407 F.3d 266, 273 (4th Cir. 2005) (holding that inscription of the national motto on a county building facade did not violate the 'Letter from Honorable Charles Perry, Chair, Senate Comm. on Agric., Water, & Rural Affairs, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 5, 2015), http://www.texasattomeygeneral.gov/opinion/requests- for-opinion-rqs ("Request Letter"). The Honorable Charles Perry - Page 2 (KP-0042) Establishment Clause); Myers v. Loudoun Cnty. Sch. Bd., 251 F. Supp. 2d 1262, 1275 (E.D. Va. 2003) (holding that a school's display of posters with the national motto did not violate the Establishment Clause); Schmidt v. Cline, 127 F. Supp. 2d 1169, 1181 (D. Kan. 2000) (concluding the same for a display by a county treasurer). In recent decisfons considering other types of religious displays challenged under the Establishment Clause, the Supreme Court has explained that its analysis is driven by the nature of the display in question and by reference to our nation's historical practices and understandings. See Van Orden v. Perry, 545 U.S. 677, 686 (2005) (declining to apply the Lemon test); Lynch, 465 U.S. at 679-80, 685.,.-86; see also Town of Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014). In upholding the placement of the Ten Commandments monument on the Texas State Capitol grounds, the Court emphasized the "passive use" of the text in the monument and "the role the Decalogue plays in America's heritage." Van Orden, 545 U.S. at 689, 690-91. And in upholding the use of a creche in a municipality's Christmas display, the Court underscored the "passive" nature of the creche and "the historical origins of this traditional event long recognized as a National Holiday." Lynch; 465 U.S. at 680, 685-86. Similarly, displaying "In God We Trust" on police vehicles is a passive use of a motto steeped in our nation's history that does not coerce Citizen approval or participation. 2 The Supreme Court recently upheld the right of a municipality to open its town meetings with prayer, and in doing so, Justice Kennedy explained that "legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer that they would rather not hear and in which they need not participate." Galloway, 134 S. Ct. at 1827. A police department's display of the motto likewise does not suggest "that those who disagree are compelled to join the expression or approve its content." Id. at 1825. Courts upholding the display of the motto in other contexts have emphasized that "[i]ts use is of a patriotic or ceremonial character." Aronow, 432 F.2d at 243. "The motto symbolizes the historical role of religion in our society, ... fosters patriotism, and expresses confidence in the future." Gaylor, 74 F.3d at 216. The fact that a display has "religious content" or promotes "a message consistent with a religious doctrine" does not by itself "run afoul of the Establishment Clause." Van Orden, 545 U.S. at 690. "There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch, 465 U.S. at 674. A law enforcement department's decision to display the national motto on its vehicles is consistent with that history. Thus, a court is likely to conclude that a law enforcement department's display of"In God We Trust" on its patrol vehicles is permissible under the Establishment Clause of the U.S. Constitution. 2 If the Supreme Court instead analyzed this question under a coercion test that did not assess historical significance, a court will still likely find that the display of the national motto on law enforcement vehicles is constitutional, as it does not coerce individuals into participation or approval of the message. See Galloway, 134 S. Ct. at 1825 (Kennedy, J.) (concluding that a prayer at a town meeting did not involve coercion); see also id. at 1838 (Thomas, J., concurring) ("to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts-not the subtle coercive pressures allegedly felt by respondents in this case"). The Honorable Charles Perry - Page 3 (KP-0042) SUMMARY A court is likely to conclude that a law enforcement department's display of the national motto, "In God We Trust," on its patrol vehicles is permissible under the Establishment Clause of the United States Constitution. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127038/

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED BIRDIE M. VARNEDORE, M.D., Petitioner, v. Case No. 5D16-1831 TODD E. COPELAND, ESQUIRE, O/B/O AND AS TRUSTEE FOR KYONDA HACKSHAW AND GUARDIAN AD LITEM FOR K.C.F. AND J.L.S., MINORS, Respondents. ________________________________/ EDGARDO M. RODRIGUEZ, M.D., Petitioner, v. Case No. 5D16-1879 TODD E. COPELAND, ESQUIRE, O/B/O AND AS TRUSTEE FOR KYONDA HACKSHAW AND GUARDIAN AD LITEM FOR K.C.F. AND J.L.S., MINORS, Respondents. ________________________________/ Opinion filed February 10, 2017 Petition for Certiorari Review of Order from the Circuit Court for Orange County, Keith F. White, Judge. Christian P. Trowbridge, Craig S. Foels, and Eric P. Gibbs, of Estes, Ingram, Foels & Gibbs, P.A., Orlando, for Birdie M. Varnedore, M.D., Petitioner. T’anjuiming A. Marz, and Patrick H. Telan, of Grower, Ketcham, Eide, Telan, & Meltz, P.A., Orlando, for Edgardo M. Rodriguez, M.D., Petitioner. Carlos R. Diez-Arguelles, of Diez- Arguelles, & Tejedor, P.A., Orlando, and Susan W. Fox, and Heather M. Kolinsky, of Fox & Loquasto, P.A., Orlando, for Respondents. EDWARDS, J. Claims for punitive damages can have significant, multi-faceted impacts on litigation and litigants. The Florida Legislature enacted statutory thresholds and Florida’s Supreme Court adopted complementary procedures that govern the proof and pleadings required to pursue punitive damages. The statute and rule cast the trial court in the role of gatekeeper. Here, the Petitioners and the defendants below, Dr. Rodriguez and Dr. Varnedore, petition this court for a writ of certiorari to quash the trial court’s order permitting Respondent, Todd Copeland on behalf of and as trustee for Kyonda Hackshaw and her children, to amend the medical malpractice complaint by adding claims for punitive damages against the Petitioners.1 1 Although the underlying claims of medical negligence are different as to each Petitioner, they arise out of related diagnosis and treatment, and the principles governing the process of amending pleadings to assert punitive damage apply uniformly. We have thus, sua sponte, consolidated the two cases for the purpose of discussing and resolving them in a single opinion. 2 Respondent moved to amend his complaint to assert claims for punitive damages, but did not attach a copy of the proposed amended complaint to his motion. Petitioners objected to the lack of the proposed complaint. Respondent served an evidentiary proffer in advance of the hearing, but also made additional, oral evidentiary proffers during the hearing over Petitioners’ objections. At the conclusion of the five and a half hour hearing, the trial court announced that it was granting Respondent’s motion to amend as to certain defendants and denying it as to others. The trial court, however, did not provide a basis for its rulings in its oral pronouncement or in its later written order. For the reasons discussed below, we find that the trial court departed from the essential requirements of law. The writ of certiorari is granted and the case is remanded for further proceedings. Certiorari review A writ of certiorari will issue if the trial court departed from the essential requirements of the law, the departure resulted in material injury to the petitioner, and the injury cannot be remedied in a postjudgment plenary appeal. Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011). The essential requirements of the law for seeking leave to file a pleading asserting a claim for punitive damages in a civil action are enumerated in section 768.72, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.190. Section 768.72(1) provides that defendants in civil actions shall be free from claims of punitive damages and related financial discovery unless the claimant makes “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat. (2015). The subsection further provides that a “claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.” Id. 3 Rule 1.190(a) and (f) describe the procedural requirements for amending a complaint to seek a claim for punitive damages. Parties have a substantive right “not to be subjected to a punitive damage claim and attendant discovery of financial worth until the requisite showing under the statute has been made to the trial court.” Estate of Despain v. Avante Grp., Inc., 900 So. 2d 637, 641 (Fla. 5th DCA 2005) (citing Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla. 1996); Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995)). Accordingly, certiorari review is available to determine whether the trial court complied with all applicable requirements and analysis before granting a motion to amend pleadings to assert claims for punitive damages. See Globe Newspaper, 658 So. 2d at 520; Tilton v. Wrobel, 198 So. 3d 909, 910 (Fla. 4th DCA 2016); Munroe Reg’l Health Sys., Inc. v. Estate of Gonzalez, 795 So. 2d 1133, 1134 (Fla. 5th DCA 2001). Given the nature of the applicable statute and rule, the court must consider both the pleading component and the evidentiary component of each motion to amend to assert punitive damage claims. Henn v. Sandler, 589 So. 2d 1334, 1335-36 (Fla. 4th DCA 1991). Pleading component of motion to add punitive damages The only basis for awarding punitive damages against individual defendants, such as Petitioners, is “if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” § 768.72(2), Fla. Stat. (2015). In this case, Respondent relies on claims of gross negligence to justify recovery of punitive damages. “Gross negligence means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Id. at § 768.72(2)(b) (internal quotation marks omitted). 4 As previously stated, a party wishing to pursue punitive damages must first file a motion seeking leave of court to file an amended complaint and then make “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Id. at § 768.72(1); see also Fla. R. Civ. P. 1.190(f). In this case, Respondent filed a motion to amend his pleadings to seek punitive damages; however, he did not attach a proposed amended complaint to his motion, nor did he file the proposed amended complaint prior to the hearing on his motion to amend. Pursuant to rule 1.190(a), “[i]f a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion.” Fla. R. Civ. P. 1.190(a). Moving to amend without attaching a copy of the proposed amended pleading is insufficient. See Taylor v. City of Lake Worth, 964 So. 2d 243, 244 (Fla. 4th DCA 2007) (holding that the rule 1.190(a) requirement of attaching a proposed amended pleading to the motion to amend is mandatory). Respondent argues that rule 1.190(f) does not require a plaintiff to attach a proposed amended complaint to its motion. The requirement of rule 1.190(a), however, was adopted by the Florida Supreme Court in the same opinion in which it created rule 1.190(f). Amends. to the Fla. R. of Civ. P. (Two-year cycle), 858 So. 2d 1013, 1013-14 (Fla. 2003) (“Therefore, to make [Florida Rules of Civil Procedure] 1.070(j) and 1.190(a) consistent and avoid confusion, we adopt the proposed corresponding amendment to rule 1.190(a), which requires a party that files a motion to amend a pleading to attach the proposed amended pleading.”). In the same opinion, the Florida Supreme Court amended rule 1.190 to add subdivision (f), in order to ensure that the parties opposing 5 motions to amend a pleading to assert a claim for punitive damages had adequate prehearing notice of the record evidence and proffered evidence relied on by the plaintiff in the motion to amend. Id. at 1014-15. Thus, filing the proposed amended complaint with the motion to amend is an essential legal requirement of moving to amend to add claims for punitive damages. In order to perform its function as a gatekeeper, the trial court must understand the specific claim proposed by the plaintiff that may justify an award of punitive damages. “Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are.” Bank of Am. Nat’l Ass’n v. Asbury, 165 So. 3d 808, 809 (Fla 2d DCA 2015). Thus, when entertaining a motion to amend in order to add a claim for punitive damages, the trial court must first consider whether the proposed amended complaint actually sets forth a claim that the defendants’ conduct was grossly negligent, as defined by statute. Absent sufficient allegations, there would be neither a reason nor a framework for analyzing the proffered evidentiary basis for a punitive damages claim. Because there was no proposed amended complaint on file at the time of the hearing, the trial court repeatedly asked Respondent to state what claims he was making and against whom he was making such claims. At some point during the hearing, Respondent finally provided a copy of a proposed amended complaint. Hearings on motions to add punitive damages can be complex and contentious. It is patently unfair to allow Respondent’s failure to comply with the requirements of rule 1.190(a) to force Petitioners’ counsel to choose whether to read the just-provided proposed amended complaint or to actively participate in the hearing. 6 Respondent’s unexplained failure to file the proposed complaint resulted in confusion, made it unreasonably difficult for Petitioners to prepare and argue their position, and hampered the trial court in its effort to fulfill its role as gatekeeper. We find that the trial court departed from the essential requirements of the law when it heard and ruled on Respondent’s motion to amend when Respondent did not attach a proposed amended complaint to its motion as required by rule 1.190(a). We grant the writ, quash the order, and remand for further proceedings. Evidentiary component of motion to add punitive damages Because Respondent, on remand, may choose to file another motion to amend, we believe it would be helpful to the parties and to the trial court to complete our analysis of the additional requirements of section 768.72 and rule 1.190(f). If the proposed amended complaint contains sufficient allegations of gross negligence, the trial court must next consider whether plaintiff has established a reasonable factual basis for its punitive damage claims. The factual basis relied on by the moving party may consist of evidence of record, proffered evidence, or both. Fla. R. Civ. P. 1.190(f). During the hearing in this case, Respondent sometimes relied on record evidence, such as deposition testimony and, at other times, Respondent relied on witness testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers, arguing that the proffers did not comply with the requirements of section 768.72 or rule 1.190(f). Petitioners also asserted that some of the proffers put forward new liability theories, which were not alleged in the operative, second amended complaint, and not discussed in any expert witnesses’ depositions. 7 When the Florida Supreme Court adopted rule 1.190(f), it referred to Beverly Health and Rehabilitation Services, Inc. v. Meeks, 778 So. 2d 322 (Fla. 2d DCA 2000). Amendments, 858 So. 2d at 1014. The plaintiff in Meeks filed a bare bones motion, completely lacking any factual bases, to amend its pleading to add punitive damage claims against the defendant nursing home. 778 So. 2d at 323. On the day of the hearing, the plaintiff filed 200 pages of exhibits supporting its motion to amend. Id. at 324. The trial court went forward with the hearing, but advised defense counsel that it could have additional time to respond if needed; however, no such request was made. Id. at 324. The Second District Court of Appeal suggested that “to require written proffers to be filed a reasonable time prior to future hearings would appear to be a reasonable method to assure that such hearings do satisfy the spirit of the statute [section 768.72] and the requirements of due process.” Id. at 325. By adopting rule 1.190(f), the Florida Supreme Court reinforced “the committee’s intent of requiring the motion and the supporting evidence or proffer to be served on all parties at least twenty days before the hearing.” Amendments, 858 So. 2d at 1014. A similar requirement to file documents in advance of a hearing is found in Florida Rule of Civil Procedure 1.510(c). Rule 1.510(c) requires the party moving for summary judgment to serve its notice identifying and/or attaching record evidence at least twenty days prior to the hearing. Fla. R. Civ. P. 1510(c). The opposing party must serve its disclosure of opposing record evidence at least five days prior to the hearing. Fla. R. Civ. P. 1.510(c). Neither the movant nor the opponent may rely upon any evidence, even if already on file, unless it was identified in its timely filed notice. State Farm Mut. Auto. Ins. Co. v. Figler Family Chiropractic, P.A., 189 So. 3d 970, 974 (Fla. 4th DCA 2016). 8 “Determination of the appropriateness of the motion is better facilitated when issues and evidence are clearly identified in advance of the hearing on the motion.” Id. We conclude that the term “proffer” for purposes of rule 1.190(f) refers only to timely filed documents and excludes oral representations of additional evidence made during the hearing. Thus, the trial court cannot properly consider plaintiff’s counsel’s oral or other proffers of evidence which are first presented during the hearing. Counsel, however, is free to suggest inferences that may be drawn from the timely filed evidence and proffers. After all, the decision of whether to grant the motion to add punitive damages will be based, at least in part, upon the trial court’s determination of whether a reasonable jury could infer from the evidence and proffer that a defendant’s conduct amounted to reckless or careless indifference to the plaintiff’s life or safety. Because the trial court did not state its basis for granting the motion, we cannot determine to what extent the trial court improperly relied on Respondent’s untimely and inappropriate oral proffers. Petion v. State, 48 So. 3d 726, 735 (Fla. 2010). Respondent additionally has not attempted to prove that the court’s error was harmless. See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014). The trial court departed from the essential requirements of the law by overruling Petitioners’ objections and permitting Respondent to make inappropriate oral proffers. For this additional reason, we grant the writ, quash the order, and remand for further proceedings. Stating basis for granting motion to amend Petitioners further assert that the trial court erred by failing to state the bases upon which it granted Respondent’s motion to assert punitive damages. Because punitive damages may only be pursued after the trial court finds the plaintiff has met or exceeded 9 the section 768.72(1) threshold, it follows that the trial court, serving as a gatekeeper, is required to make an affirmative finding that plaintiff has made a “reasonable showing by evidence,” which would provide a “reasonable evidentiary basis for recovering such damages” if the motion to amend is granted. SAP Am. Inc. v. Royal Flowers, Inc., 187 So. 3d 946, 947 (Fla. 3d DCA 2016); see also Petri Positive Pest Control, Inc. v. CCM Condo. Ass’n, 174 So. 3d 1122, 1122 (Fla. 4th DCA 2015); Royal Caribbean Cruises, Ltd. v. Doe, 44 So. 3d 230, 235-36 (Fla. 3d DCA 2010); Henn, 589 So. 2d at 1335. We agree that when granting a motion to amend to add punitive damages, the trial court must make the aforementioned affirmative finding. However, because we are remanding this case to the trial court for further proceedings, we will not at this time address Petitioners’ additional, related argument that the trial court must make detailed factual findings.2 PETITION GRANTED, ORDER QUASHED, REMANDED FOR FURTHER PROCEEDINGS. SAWAYA and LAMBERT, JJ., concur. 2In Estate of Despain v. Avante Group, Inc., 900 So. 2d 637, 642-44 (Fla. 5th DCA 2005), we held that appellate courts would review, de novo, a trial court’s finding that a section 768.72(1) reasonable basis exists for asserting punitive damages. Because the evidence of record and proffered evidence upon which plaintiff relies must be timely filed in advance of the hearing, the trial court does not have a superior vantage point to this court. 10

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4413453/

Reversed and remanded and Opinion filed July 2, 2019. In The Fourteenth Court of Appeals NO. 14-18-00467-CV HOUSTON COMMUNITY COLLEGE SYSTEM, Appellant V. HV BTW, LP, Appellee On Appeal from the 152nd District Court Harris County, Texas Trial Court Cause No. 2017-56765 OPINION This is a dispute involving an easement agreement. In three issues, Houston Community College (HCC) challenges the trial court’s grant of summary judgment in favor of HV BTW, LP (the Partnership) on the grounds that HCC is entitled to immunity from suit and the Partnership did not conclusively establish the easement agreement was properly executed by HCC. We conclude that HCC did not meet its burden to show its entitlement to immunity from suit. We further conclude that the trial court erred in rendering summary judgment in favor of the Partnership. Accordingly, we reverse and remand. Background HCC owns a vacant lot on Lumpkin Road in Houston, Texas (the Property). The Partnership owns an adjacent commercial building on Old Katy Road. In 2013, the Partnership approached HCC about obtaining an easement on the Property from Lumpkin Road. HCC agreed to grant the easement. HCC and the Partnership executed an “Easement Acquisition Agreement.” An “Access Easement and Right of Way Agreement” was attached as an exhibit to the Easement Acquisition Agreement. We refer to these agreements collectively as the Easement Agreement or the Agreements. The Agreements were signed on behalf of HCC by its acting chancellor Renee Byas and approved as to form by HCC’s general counsel. As set forth in the Easement Agreement, as consideration for the easement, The Partnership agreed to construct “at its sole cost and expense, certain parking facilities on the Property” in accordance with plans approved by HCC and the Partnership.1 After the Agreements were signed, Byas left HCC. The Partnership alleges that it “spent over $500,000 in engineering and permitting costs and fees, demolition costs, grading, and constructing drainage, curbs, and landscaping on the HCC Property.” According to the Partnership, the only things left to be done are paving the road and parking lot and striping the parking lot. To do the paving work, the Partnership needed approval from CenterPoint Energy, which had a utility easement on the Property. To obtain the approval, CenterPoint required a signed “Consent to Encroach” from HCC. The Partnership submitted the consent form to HCC. HCC refused to sign it unless the Partnership 1 It is not clear from the record what type of parking facilities were to be constructed, but in its live petition, the Partnership refers to the facilities as a parking lot. 2 agreed to a license agreement instead of an easement. The Partnership filed a lawsuit against HCC alleging breach of contract and seeking a declaration that the Partnership has an easement on the Property. The Partnership sought actual damages, specific performance, and attorney’s fees. HCC filed a plea to the jurisdiction. The Partnership filed a motion for final summary judgment. The trial court rendered final summary judgment and ordered HCC to file an executed Access Easement and Right of Way Agreement in the Harris County real property records. The trial court also declared that the Partnership has an easement on the Property and awarded the Partnership attorney’s fees. Discussion In three issues, HCC contends the trial court erred in implicitly denying its plea to the jurisdiction because, according to HCC, it is immune from suit as to the Partnership’s claims. Alternatively, HCC argues the trial court erred in granting summary judgment in favor of the Partnership. I. No Error in Denying Plea to the Jurisdiction HCC argues it is entitled to immunity from suit as a political subdivision for which immunity has not been waived. The Partnership contends immunity has been waived under chapter 271 of the Local Government Code, which waives governmental immunity from suit for a governmental entity that enters into a contract for services. See City of Galveston v. CDM Smith, Inc., 470 S.W.3d 558, 563 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). HCC, as a public community college, is a political subdivision of the state and, thus, protected by governmental immunity. See Thielemann v. Blinn Bd. of Trustees, No. 01-14-00595-CV, 2015 WL 1247018, at *2 (Tex. App.—Houston [1st Dist.] Mar. 17, 2015, no pet.) (mem. op.); see also Tex. Civ. Prac. & Rem. 3 Code § 101.001(3)(A)–(B). Governmental immunity includes both immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether. Lubbock Cty. Water Control & Imp. Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014); CDM Smith, 470 S.W.3d at 563. A governmental entity that enters into a contract necessarily waives immunity from liability, voluntarily binding itself like any other party to the terms of agreement, but it does not waive immunity from suit. Church & Akin, 442 S.W.3d at 300; CDM Smith, 470 S.W.3d at 563. Unlike immunity from liability, immunity from suit deprives the courts of jurisdiction and thus completely bars the plaintiff’s claim. Church & Akin, 442 S.W.3d at 300; CDM Smith, 470 S.W.3d at 563. We review a plea challenging the trial court’s jurisdiction de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); CDM Smith, 470 S.W.3d at 564. The standard of review for a jurisdictional plea based on evidence “generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Miranda, 133 S.W.3d at 228. Under this standard, we credit evidence favoring the nonmovant and draw all reasonable inferences in the nonmovant’s favor. See id. The defendant must assert the absence of subject-matter jurisdiction and present conclusive proof that the trial court lacks subject-matter jurisdiction. Id. If the defendant discharges this burden, the plaintiff must present evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea will be sustained. Id. As discussed, under chapter 271 the legislature waived sovereign immunity as to local governmental entities that enter into contracts for goods or services for 4 the purpose of adjudicating claims for breach of contract. Tex. Loc. Gov’t Code §§ 271.151(2)(A), 271.152. Section 271.151(2)(A), in relevant part, defines the types of contracts subject to the waiver of immunity: “a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.” Id. § 271.151(2)(A). HCC argues that chapter 271 does not apply because the subject contract (1) does not provide for goods or services to HCC, (2) does not include certain essential terms, and (3) was not properly executed under the statute.2 HCC further contends that the Partnership is not entitled to the remedy of specific performance under chapter 271 or to a declaration regarding the validity of the easement. A. Contract for Services HCC argues that the Easement Agreement is not a contract for services to HCC because “an easement is an interest in land” and HCC will not receive a direct benefit. The dispositive issue is whether the Partnership, in agreeing to construct parking facilities on the Property, agreed to provide a service to HCC. Chapter 271 does not define “services,” but the supreme court has interpreted the term in this context as “broad enough to encompass a wide array of activities.” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 839 (Tex. 2010); CDM Smith, 470 S.W.3d at 566. It generally includes any act performed for the benefit of another under some arrangement or agreement whereby such act was to have been performed. CDM Smith, 470 S.W.3d at 566. The services provided need not be the primary purpose of the agreement. Kirby Lake Dev., 320 S.W.3d at 839; CDM Smith, 470 S.W.3d at 566. 2 It is undisputed that the Agreements are not contracts for goods. 5 HCC cites three cases in support of the argument that the Easement Agreement does not provide for services to HCC. See Church & Akin, 442 S.W.3d at 297; Water Expl. Co. v. Bexar Metro. Water Dist., 345 S.W.3d 492 (Tex. App.—San Antonio 2011, no pet.); City of Garden Ridge v. Ray, No. 03-06-00197- CV, 2007 WL 486395 (Tex. App.—Austin Feb. 15, 2007, no pet.) (mem. op.). Each case is distinguishable from the facts of this case. In the first case, Church & Akin leased a marina from the Lubbock County Water Control and Improvement District. Church & Akin, 442 S.W.3d at 303. The lease prohibited Church & Akin from using the premises for any other purpose than as a marina without consent. Id. Church & Akin argued that by operating the marina it was providing a service to the Water District. Id. at 302. The supreme court disagreed because under the lease, the Water District did not obligate Church & Akin to operate a marina—it only restricted Church & Akin from using the premises for a different purpose without consent. Id. at 303. The court concluded, “When a party has no right under a contract to receive services, the mere fact that it may receive services as a result of the contract is insufficient to invoke chapter 271’s waiver of immunity.” Id. In the Water Exploration Company case, the San Antonio Court of Appeals held that the assignment by Water Exploration Company (WECO) of leases of groundwater property rights, wells, pumps, and easements to Bexar Metropolitan Water District (BexarMet) was not a contract for services because the nature of the property was a lease of real property even though WECO was required (1) to cure any failure to meet water quality standards or allow BexarMet to terminate the lease for any such failure, and (2) to maintain a minimum amount of water production with an option to cure any such failure. 345 S.W.3d at 496–98. The court construed these provisions as options to cure, not as services. Id. at 501. 6 Because BexarMet had leased a real estate interest from WECO, BexarMet was responsible for operating, maintaining, repairing, and replacing existing facilities and constructing new ones and WECO’s options to cure were contingent on the leased property being unusable, the court held that the leases did not trigger governmental immunity under chapter 271. Id. The Garden Ridge case involved a drainage culvert maintained by the City of Garden Ridge pursuant to an easement agreement granted in favor of the city. 2007 WL 486395, at *1. Ray sued the city for flooding related to the city’s construction and maintenance of the culvert. Id. No statutory waiver applied to Ray’s breach of contract claim. Id. at *1 n.1. The facts of this case are more akin to a case cited by the Partnership, Clear Lake City Water Authority v. Friendswood Development Co., 256 S.W.3d 735 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d), disapproved on other grounds by Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012). In that case, Friendswood Development agreed to arrange for the construction of water distribution lines, sanitary sewer lines, and drainage facilities to provide service to houses Friendswood Development proposed to build. Id. at 738–39. Clear Lake City Water Authority agreed to purchase or lease the completed facilities. Id. at 739. We concluded that Friendswood Development’s agreement to construct the facilities and to build streets, roads, and bridges constituted a provision of services to the Water Authority because it was “authorized to provide, among other things, water supply, waste disposal, and drainage facilities to the land within its boundaries.” Id. at 751. Under the Easement Agreement, the Partnership was required to construct parking facilities on HCC’s property “[a]s consideration for the Easement to be granted.” No other consideration was required. Courts have frequently held that the 7 construction of facilities to benefit a governmental entity is a service for purposes of chapter 271. The supreme court held that developers provided services to a city’s water authority when the developers agreed to construct, develop, and bear all risk of loss or damage to sewer facilities because the developers were required to lease the sewer facilities to the water authority. Kirby Lake Development, 320 S.W.3d at 839. As mentioned, we held that an agreement to construct facilities and to build streets, roads, and bridges constituted a provision of services to a water authority. Friendswood Development Co., 256 S.W.3d at 751. Sister courts have reached similar conclusions. For example, a development agreement required a real estate developer to provide services to a city by constructing a road, designing and constructing a turn lane, and working with the Texas Department of Transportation concerning location, alignment, design and construction of the lane. Town of Flower Mound v. Rembert Enters., Inc., 369 S.W.3d 465, 473 (Tex. App.—Fort Worth 2012, pet. denied). HCC also argues “easement agreements do not . . . waive immunity under [s]ection 271.151.” But none of the cases relied on by HCC involved the construction of facilities for the local governmental entity, and all of the cases involved easements granted to—not by—the local governmental entity. See Valley Mun. Util. Dist. No. 2 v. Rancho Viejo, Inc., No. 13-07-545-CV, 2008 WL 384320, at *1, 4 (Tex. App.—Corpus Christi Feb. 14, 2008, no pet.) (mem. op.) (involving easement granted to local governmental agency and no provision of goods or services); City of San Antonio v. Reed S. Lehman Grain, Ltd., No. 04-04-00930- CV, 2007 WL 752197, at *1 (Tex. App.—San Antonio Mar. 14, 2007, pet. denied) (mem. op.) (involving sewer line easement granted to city); Garden Ridge, 2007 WL 486395 at *1 (involving drainage culvert maintained by city pursuant to easement granted to city). In this case, HCC purportedly granted the easement to 8 the Partnership in exchange for the construction of parking facilities. We conclude that the Partnership’s construction of parking facilities as consideration for the grant of an easement is a service to HCC. Accordingly, the Easement Agreement is an agreement for services within the purview of chapter 271. B. Essential Terms Included In its opening brief, HCC argues that the Easement Agreement lacks an essential term—a description of the property to be transferred—because it purportedly does not include a legal description of the easement. In its reply, HCC also argues that the Easement Agreement lacks essential terms as to time of performance, price, and the work to be done. Chapter 271 does not define “essential terms.” City of Houston v. Williams, 353 S.W.3d 128, 138 (Tex. 2011). But the supreme court has characterized essential terms for purposes of chapter 271 to include, among other things, the names of the parties, the price to be paid, the service to be rendered, the property at issue, and the time of performance. Id. at 138-39; Kirby Lake Development, 320 S.W.3d at 838. The essential terms must outline the basic obligations of the parties. Kirby Lake Development, 320 S.W.3d at 838; CDM Smith, 470 S.W.3d at 565. Courts consider each contract separately on a case-by-case basis to determine its essential terms. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Clear Creek Indep. Sch. Dist. v. Cotton Commercial USA, Inc., 529 S.W.3d 569, 580 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). We first look to the agreement’s language to identify its essential terms. Cotton Commercial USA, 529 S.W.3d at 580. The Easement Agreement states the names of the parties. As to price, HCC agreed to grant an easement in exchange for 9 the construction of parking facilities. The construction of parking facilities, as discussed above, is the service to be rendered. Moreover, as to the description of the property, the Access Easement and Right of Way Agreement, which is attached as an exhibit to the Easement Acquisition Agreement, refers to the “Easement Area” as “a non-exclusive, perpetual easement and right-of-way over, upon, and across that certain strip of land in Harris County, Texas, more particularly described on Exhibit ‘A’ attached hereto.” Exhibit A is a legal description of the Easement Area.3 We next examine whether the services described in the Easement Agreement are sufficiently definite to make the agreement an enforceable contract. See id. To be enforceable, a contract’s essential terms must be sufficiently definite to confirm that both parties intended to be contractually bound. Id. In that connection, the terms must also be sufficiently definite to enable a court to understand the parties’ obligations and give an appropriate remedy if they are breached. Id. We rely on guiding principles of contract interpretation to determine whether the services described in the contract are sufficiently definite. Id. at 581 (citing Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016)). Several principles of contract interpretation guide our analysis: (1) partial performance may remove uncertainty and establish that a contract enforceable as a bargain has been formed, even when some terms are missing or left to be agreed upon; (2) because the law disfavors forfeitures, we conclude terms are sufficiently definite whenever the language is reasonably susceptible to that interpretation; and 3 Even if we were to interpret the Agreements as separate agreements, we have held that a series of documents, when read together, can establish an agreement’s essential terms and bring an agreement within the purview of chapter 271. See La Marque Indep. Sch. Dist. v. Healthy Res. Enter., Inc., 357 S.W.3d 761, 764-65 (Tex. App.—Houston [14th Dist.] 2011, no pet.). The Easement Agreement, including this legal description, was attached to the trial court’s final judgment. 10 (3) when construing an agreement to avoid forfeiture, we may imply terms that reasonably can be implied. See id. The Easement Agreement describes in general terms the parties’ basic obligations: construction of parking facilities in exchange for the grant of an easement on the Property. When parties have “already rendered some substantial performance or have taken other material action in reliance upon their existing expressions of agreement,” courts “will be more ready to find that the apparently incomplete agreement was in fact complete.” Fischer, 479 S.W.3d at 242; Cotton Commercial USA, 529 S.W.3d at 583. As to the parties’ performance, the Partnership undisputedly has completed grading and constructing drainage, curbs, and landscaping on the Property. According to the Partnership, the only thing left to do is pave the road and parking lot and stripe the parking lot. HCC did not intervene while this work was being performed. Thus, the parties’ performance supports an inference that the parties had a meeting of the minds as to their respective obligations. See Cotton Commercial USA, 529 S.W.3d at 582. The parties’ actions here raise a fact question regarding whether they intended to conclude a binding agreement. Thus, we will “endeavor, if possible, to attach a sufficiently definite meaning to the bargain.” Fischer, 479 S.W.3d at 239; Cotton Commercial USA, 529 S.W.3d at 583. If HCC were correct in its assertion that the Easement Agreement lacks essential terms, then the agreement would be unenforceable, which would result in the disfavored outcome of complete forfeiture. See Cotton Commercial USA, 529 S.W.3d at 583. Despite the Easement Agreement’s lack of detailed specificity about how the services would be rendered and when, the parties’ actions—the Partnership’s substantial performance and HCC’s acquiescence—raise a fact question regarding whether the Easement Agreement states every essential term 11 and is therefore enforceable. See id. at 584–85 (noting school district’s failure to challenge enforceability of contract until after work was completed indicated that contract’s essential terms were sufficiently definite). The Easement Agreement outlines the parties, the subject matter, and the basic obligations, including a sufficiently definite description of the services to be provided, so that a court could understand the parties’ obligations. See id. at 585. Given the jurisdictional evidence presented by the parties, we conclude that whether the Easement Agreement states each essential term required under chapter 271 is an issue for the factfinder on remand. C. Properly Executed HCC contends that the Easement Agreement was not properly executed under chapter 271 because it was required to be, but was not, approved by HCC’s board of trustees. The Partnership argues that (1) the focus under chapter 271 is not on whether a contract complies with all the policies and procedures for the execution of a contract but instead is on whether the governmental agency had the authority to execute a contract; and (2) Byas, as chancellor, had the authority to sign the Agreements. Under chapter 271, a local governmental entity must be “authorized by statute or the constitution to enter into a contract.” Tex. Loc. Gov’t Code § 271.152; TXU Energy Retail Co. L.L.C. v. Fort Bend Indep. Sch. Dist., 472 S.W.3d 462, 465 (Tex. App.—Dallas 2015, no pet.). As we have noted, chapter 271 “does not require that the contract at issue be properly executed by the governmental entity; rather, the requirements of the statute are satisfied if the contract was properly executed on behalf of the entity.” City of Houston v. Clear Channel Outdoor, Inc., 233 S.W.3d 441, 446 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (emphasis in original). Moreover, whether a contract is binding is a 12 question that goes to the merits of the case, not a question of whether the contract was properly executed.4 Id.; see also El Paso Educ. Initiative, Inc. v. Amex Props., LLC, 564 S.W.3d 228, 238 (Tex. App.—El Paso 2018, pet. filed). With these principles in mind, we turn to the facts of this case. HCC concedes that it is authorized by statute to enter into contracts through its governing board. See Tex. Educ. Code § 130.084 (setting forth “powers and duties” of “[t]he governing board of a junior college district”). HCC board policy dictates that “[a]n individual member may act on behalf of the Board with the official authorization of the Board.” Also, under board policy in effect at the time Byas signed the Agreements, she had authority delegated by the board to award certain contracts without board approval. “Purchases or sales of real property,” however, required approval of the board. HCC relies on an opinion from the Dallas Court of Appeals for the proposition that, “[a]bsent [b]oard approval, both as a matter of law and HCC [p]olicy, there is no contract.” See LTTS Charter Sch., Inc. v. C2 Const., Inc., 358 S.W.3d 725 (Tex. App.—Dallas 2011, pet. denied). In that case, a contractor had been retained to construct school facilities for LTTS Charter School. Id. at 730. No written contract was signed, and the school board did not vote to approve an agreement with the contractor. Id. at 742–44. The court held under those circumstances that a contract for services had not been properly executed under chapter 271. Id. at 744. Here, unlike in LTTS, the Agreements were signed by HCC’s representative. 4 HCC argues that Byas “could not legally make a binding, enforceable contract” and “HV[’s] attempt to bind HCC to the Easement Agreement circumvents the policies behind the Texas Open Meetings Act and Texas Education Code.” See Tex. Gov’t Code §§ 551.001– 551.146 (Open Meetings Act). But these arguments as articulated are relevant to whether the Easement Agreement is binding, not whether it was properly executed. Thus, we do not reach these issues as part of our jurisdictional inquiry. See Clear Channel Outdoor, 233 S.W.3d at 446. 13 So, at issue is whether Byas, as HCC’s representative, had the authority to sign the Agreements on behalf of HCC. See Clear Channel Outdoor, 233 S.W.3d at 446 (holding purchase agreement was properly executed after having been signed on behalf of the City of Houston); Amex Props., 564 S.W.3d at 243 (holding fact question existed as to whether a lease was properly executed when some evidence showed the lease had been executed “on behalf of” charter school operator). HCC argues that Byas did not have the authority to sign the Agreements because (1) the board policy in place at the time did not authorize the chancellor execute the Easement Agreement and the Easement Agreement is not a contract for HCC to purchase anything; (2) HCC approved a policy after the fact allowing the chancellor to execute easement agreements; and (3) Byas did not have the authority to grant an easement because it is an interest in land.5 We address each argument in turn. Board Policy in Effect When Easement Agreement Signed. The Agreements were signed in 2013. The Partnership argues that board policy allowed the chancellor “to initiate and execute contracts valued at up to $100,000.” However, that policy was issued in 2015. Prior to that, a policy had been issued in 2014 that increased the chancellor’s ability to “award [a]ny contract or purchase order” up to $75,000. There is no evidence in the record of the contract dollar limit before that date, but the 2014 policy is some evidence that when she executed the Agreements, Byas had the ability to award contracts for some dollar amount less than $75,000 because the 2014 policy merely increased the dollar amount for a 5 HCC argues that the Partnership had the burden to show the Easement Agreement was properly executed. To the contrary, HCC was required to assert the absence of subject-matter jurisdiction and present conclusive proof that the trial court lacks subject-matter jurisdiction, i.e., that the Easement Agreement was not properly executed. Miranda, 133 S.W.3d at 228. The Partnership was required to present evidence sufficient to raise a material issue of fact regarding jurisdiction only if HCC discharged its burden. See id. 14 policy previously in place. There is no evidence in the record as to the value of the parking facilities or of the easement itself.6 As to HCC’s argument that Byas lacked authority to execute the Easement Agreement because it is not a contract to purchase anything, first, the 2014 policy was not limited to purchases—it applied to “[a]ny contract or purchase order.” Second, to say that the Easement Agreement is not a contract for HCC to purchase anything is inaccurate. As discussed, HCC was to receive parking facilities in exchange for the grant of the easement. Accordingly, HCC was purchasing parking facilities. We conclude HCC has not shown on this record that the Easement Agreement required board approval because there is some evidence that the board policy in place at the time had delegated Byas the authority to execute the Easement Agreement. Amended Board Policy. HCC asserts that the amended board policy instituted in 2017 allowing the chancellor to execute easement agreements is evidence that the chancellor did not have the authority to grant easements before 2017. The Partnership argues to the contrary that the amended policy “simply articulated the fact that the [c]hancellor had the authority to negotiate and sign easements, which all past [c]hancellors . . . had regularly done in the past” based on comments at the board meeting approving the amendment. At the meeting, the then current chancellor stated that “there is normally no payment on the easements and [granting easements] would not exceed [my] signature authority limit.” He 6 The Partnership argues that the chancellor could grant any easement because such a grant does not involve HCC’s expenditure of funds. It is not clear on this record whether HCC’s policy was limited to HCC’s expenditure of funds or whether the policy applied to contracts valued at a certain dollar amount. The 2015 policy expressly refers to contracts “valued at up to $100,000.” 15 further remarked that easements do “not convey real property [or] involve expenditure of funds outside [my] approval limits.” He stated that he brought the issue to the board based on general counsel’s recommendation, “as the easements for existing properties might not be included in the blanket execution of all documents.” We conclude based on this evidence that there is also a fact question as to whether HCC chancellors had the authority to grant easements prior to the 2017 board policy amendment. Interest in Land. Lastly, HCC argues Byas did not have the authority to transfer an interest in land to the Partnership. Although an easement is an interest in land, board policy only required board approval of, in relevant part, “sales of real property.” An easement is defined as “[a]n interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose.” Easement, Black’s Law Dictionary (7th ed. 1999). An easement “does not give the holder the right to possess, take from, improve, or sell the land.” Id. Accordingly, the grant of an easement is not a sale of real property. See Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012) (“An easement does not divest a property owner of title, but allows another to use the property for [a specific] purpose.”); Saturn v. Barnett, No. A-16-CA-505-LY, 2016 WL 7392240, at *1 n.2 (W.D. Tex. Dec. 20, 2016) (noting easement gives right to cross property but gives “no other property rights”), report and recommendation adopted, No. 1:16-CV-00505-LY, 2017 WL 9850919 (W.D. Tex. Jan. 12, 2017). Conclusion. The record here undisputedly includes two written contracts signed by HCC’s representative. See Amex Props., 564 S.W.3d at 239. Viewed in the light most favorable to the Partnership, as we are required to do, the record shows that (1) when Byas was chancellor, she had authority delegated by the board to award contracts up to a certain dollar amount; (2) there is no evidence of the 16 dollar value of the Easement Agreement; (3) before the board amendment was passed expressly giving chancellors authority to grant easements, chancellors had granted easements because “there is normally no payment on the easements and [granting easements] would not exceed [the] signature authority limit”; and (4) granting an easement is not the sale of real property, which would trigger the requirement for board approval. Given the jurisdictional evidence presented by the parties, we conclude that the resolution of whether the Easement Agreement was properly executed on behalf of HCC is an issue for the factfinder on remand. See id. at 243. D. Specific Performance Available HCC argues that the Partnership is not entitled to the remedy of specific performance under chapter 271.7 See Tex. Loc. Gov’t Code § 271.153 (Limitations on Adjudication Awards). The supreme court recently held that a prior version of the statute did not foreclose a lawsuit for specific performance against a local governmental entity when immunity was waived for breach of contract. Hays St. Bridge Restoration Group v. City of San Antonio, 570 S.W.3d 697, 708 (Tex. 2019). HCC argues the current version of the statute forecloses such a lawsuit. The version of the statute at issue in Hays applied to only one type of contract: “a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.” Act of June 17, 2005, 79th Leg., R.S., ch. 604 § 1, 2005 Tex. Gen. Laws 1548, 1548 (amended 2013) (current version at Tex. Loc. Gov’t Code § 271.151(2)(A)). Under that version of the 7 HCC incorrectly asserts that specific performance is the sole remedy the Partnership seeks. The Partnership also seeks actual damages for its costs incurred in constructing the parking facilities. 17 statute, “[t]he total amount of money awarded in an adjudication brought against a local governmental entity for breach of contract subject to [chapter 271 was] limited to” only certain types of damages. Id. at 1548–49 (current version at Tex. Loc. Gov’t Code § 271.153). The supreme court held that since the statute limited damages, not remedies, it did not foreclose the plaintiff’s lawsuit for specific performance. Hays, 570 S.W.3d at 707–08. Therefore, chapter 271 waived immunity from suit for specific performance. Id. In 2013, the legislature added another type of contract to chapter 271: “a written contract, including a right of first refusal, regarding the sale or delivery of not less than 1,000 acre-feet of reclaimed water by a local governmental entity intended for industrial use.” Tex. Loc. Gov’t Code § 271.151(2)(B). The legislature also expressly stated that “[a]ctual damages, specific performance, or injunctive relief may be granted in an adjudication brought against a local governmental entity for breach of [such] a contract.” Id. § 271.153(c). HCC argues that the 2013 amendment indicates the legislature intended to waive immunity for specific performance only as to cases involving certain contracts for the sale or delivery of reclaimed water. The supreme court in Hays expressly declined to reach this issue. 570 S.W.3d at 708 n.65. The Partnership argues to the contrary that because the legislature did not amend any provisions of chapter 271 relating to service contracts but instead added a new category of contracts subject to waiver of immunity, the legislature did not intend to limit the remedies available under chapter 271 relating to service contracts. The court in Hays noted that former section 271.153(a) “limits ‘[t]he total amount of money awarded’ to enumerated categories of damages,” while former subsection (b) “clarifies that ‘[d]amages awarded’ against a local governmental entity ‘may not include’ certain additional categories.” Id. at 707–08. The court 18 concluded that to read former section 271.153 “as impliedly prohibiting every suit seeking an equitable remedy against a local governmental entity would too greatly restrict the general waiver of immunity in section 271.152.” Id. at 708. After the 2013 amendment, none of the relevant language in chapter 271 changed. We ascertain the legislature’s intent “from what it enacted.” See Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 438 (Tex. 2016). The 2013 amendment added a new category of contracts for which immunity is waived. Tex. Loc. Gov’t Code § 271.151(2)(B). The monetary damages available for breach of this new category of contracts includes “actual damages,” which is not the same as the types of damages that are available for breach of service contracts. Id. § 271.153(a) (limiting the “total amount of money awarded” for breach of service contracts to “the balance due and owed by the local governmental entity under the contract,” “the amount owed for change orders or additional work the contractor is directed to perform,” “reasonable and necessary attorney’s fees,” and “interest”), (c) (including “actual damages” for breach of relevant contracts for the sale or delivery of reclaimed water). These distinctions between available damages lead us to conclude that the legislature intended for the two types of contracts to be treated differently. The legislature expressly excluded certain types of damages for breach of either type of contract. Id. § 271.153(b) (“Damages . . . may not include [certain] consequential damages[,] exemplary damages[,] or . . . damages for unabsorbed home office overhead.”). The legislature did not similarly limit the types of equitable remedies available for breach of service contracts. If the legislature had intended to eliminate specific performance as an available remedy for service contracts, it could have done so. See Wasson Interests, 489 S.W.3d at 438 (“[T]his Court presumes the Legislature deliberately and purposefully selects words and 19 phrases it enacts, as well as deliberately and purposefully omits words and phrases it does not enact.”). Because the legislature did not expressly exclude specific performance as an available remedy for service contracts, we conclude that chapter 271 did not foreclose the Partnership’s lawsuit for specific performance under the current version of the statute. E. Declaratory Judgment Proper HCC further argues that the Partnership cannot bring a claim seeking a declaration to circumvent HCC’s entitlement to immunity. Under the Uniform Declaratory Judgments Act (UDJA), “[a] person interested under a deed . . . may have determined any question of construction or validity arising under the instrument . . . and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem. Code § 37.004(a). The supreme court has acknowledged that a party can bring a claim under the UDJA to determine the rights of parties to a contract subject to chapter 271. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323, 328 (Tex. 2006) (holding immunity from suit was waived under chapter 271 as to lawsuit for declaratory judgment seeking determination of whether loss was covered under insurance policy). HCC argues, however, that in seeking a declaration as to the validity of the easement, the Partnership is improperly seeking to impose liability for breach of contract. We do not agree with this characterization: in asking the trial court to determine whether the Partnership has an easement, which HCC disputes, the Partnership is seeking an adjudication of its property rights.8 8 The Partnership asked the trial court for the following declaration: “Plaintiff and its customers, lessees, sublessees, licensees, agents, successor[s] and assigns have a valid, non- exclusive easement over and across the HCC Property for vehicular and pedestrian [access] from Lumpkin Road to the HVBTW Property and for parking upon the HCC Property.” 20 It is settled law that the UDJA may be used to determine the validity of an easement. See, e.g., Shelton v. Kalbow, 489 S.W.3d 32, 56–57 (Tex. App.— Houston [14th Dist.] 2016, pet. denied) (holding it was proper for trial court to render declaratory judgment that deed granted easement for public use of road); Ray, 2007 WL 486395, at *3 (“While we agree that the UDJA may be used to determine the validity of an easement, . . . [t]here is no dispute that the easement in this case is valid.”); Roberson v. City of Austin, 157 S.W.3d 130, 136 (Tex. App.— Austin 2005, pet. denied) (“[W]e note that a large number of easement cases have been decided under the UDJA.” (citing Tex. Civ. Prac. & Rem. Code §§ 37.002(b), 37.004)). HCC signed the Easement Agreement and now disputes its validity. Accordingly, the Partnership was entitled to seek a declaration regarding whether it has an easement on the Property. See Shelton, 489 S.W.3d at 56–57. F. Conclusion: No Error in Denying Plea to Jurisdiction We conclude that the trial court did not err in implicitly denying HCC’s plea to the jurisdiction because (1) the Easement Agreement is a services contract; (2) there are fact questions regarding whether the Easement Agreement includes the essential terms of the parties’ agreement and whether it was properly executed on behalf of HCC; (3) specific performance is an available remedy for breach of a services contract under chapter 271; and (4) the Partnership is entitled to a declaratory judgment under the UDJA and chapter 271 as to the validity of the Easement Agreement. We overrule HCC’s issues challenging the trial court’s denial of its plea to the jurisdiction. We turn to HCC’s challenge to the trial court’s summary judgment. II. Error in Granting Summary Judgment HCC argues that the trial court erred in granting final summary judgment in favor of the Partnership because (1) as a matter of law, the Easement Agreement is 21 not an agreement for the sale of goods or services to HCC, and (2) the Partnership did not establish that the chancellor and general counsel of HCC had authority to grant an easement on behalf of HCC.9 We have already concluded that the Easement Agreement is an agreement for the sale of services to HCC, but we agree that the Partnership did not conclusively establish that Byas, as chancellor, had the authority to execute the Easement Agreement. We review a trial court’s grant of summary judgment de novo. St. Anthony’s Minor Emergency Ctr., L.L.C. v. Ross Nicholson 2000 Separate Prop. Tr., 567 S.W.3d 792, 796 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). We consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A party filing a traditional motion for summary judgment has the initial burden of showing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a plaintiff moves for summary judgment on its cause of action, it must conclusively prove all essential elements of its claim as a matter of law. Leonard v. Knight, 551 S.W.3d 905, 909 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005); Wyrick v. Bus. Bank of Texas, N.A., No. 14-18-00062-CV, 2019 WL 1941839, at *4 (Tex. App.—Houston [14th Dist.] Apr. 9 As mentioned, HCC’s general counsel approved the Easement Agreement as to form. We have not found any evidence in the record indicating that general counsel had the authority to execute the Easement Agreement, and the Partnership did not present any such evidence in support of its motion for summary judgment. 22 30, 2019, no pet. h.). The nonmovant has no burden to respond to a motion for summary judgment unless the movant conclusively establishes each element of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). The Partnership moved for summary judgment on its breach of contract claim against HCC. Accordingly, the Partnership was required to present conclusive proof of each element of breach of contract, including the existence of a valid contract. See Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). To establish the existence of a valid contract signed by an agent for a principal, a claimant is required to show the agent had actual or apparent authority to execute the contract. See 2616 S. Loop L.L.C. v. Health Source Home Care, Inc., 201 S.W.3d 349, 356 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The Partnership argues that Byas, as chancellor, had actual authority to execute the Easement Agreement. The Partnership presented the following evidence in support of this argument: (1) HCC’s procurement policy approved on August 25, 2014, which increased the chancellor’s ability to “award [a]ny contract or purchase order” up to $75,000; (2) HCC’s Purchasing and Acquisition policy issued February 16, 2015, in which the board of trustees granted the chancellor “authority to initiate and execute contracts valued at up to $100,000”; and (3) minutes from a board meeting dated January 19, 2017 during which the board delegated to the chancellor “authority to negotiate, approve, and execute real property easements and rights of way” and the chancellor stated that easements do not “convey real property [or] involve expenditure of funds outside [the chancellor’s] approval limits.” As noted above, the Easement Agreement was signed on October 13, 2013. 23 The documents presented by the Partnership all reflect policies instituted after that date. The August 2014 procurement policy states that the chancellor’s ability to award a contract was increased to $75,000, so it amounts to some evidence that prior to August 2014, Byas had the ability to award a contract for an amount less than $75,000. However, this policy is not conclusive evidence that Byas had the authority to execute the Easement Agreement because there is no evidence of the value of the Easement Agreement or of the dollar limit on Byas’s ability to award contracts when she executed the Easement Agreement.10 The February 2015 Purchasing and Acquisition policy increased the $75,000 ceiling to $100,000 but similarly does not mention the ceiling prior to August 2014. The board minutes are also some evidence that chancellors had authority to grant easements prior to 2017 because the then current chancellor articulated at the board meeting, as noted in the minutes, that the granting of easements “does not convey real property and it does not involve expenditure of funds outside [my] approval limits.” But he also stated that he brought the issue to the attention of the board on the recommendation of HCC’s general counsel because “the easements for existing properties might not be included in the blanket execution of all documents.” We conclude, based on this record, the Partnership did not conclusively prove as a matter of law that Byas had the authority to execute the Easement Agreement. Accordingly, the trial court erred in granting summary judgment in favor of the Partnership on its breach of contract claim. Conclusion Having concluded that the trial court did not err in implicitly denying HCC’s 10 As mentioned, this record does not establish whether HCC’s policy was limited to HCC’s expenditure of funds or whether the policy applied to contracts valued at a certain dollar amount. 24 plea to the jurisdiction but the Partnership did not conclusively establish its entitlement to summary judgment on its breach of contract claim, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion. /s/ Frances Bourliot Justice Panel consists of Justices Christopher, Bourliot, and Zimmerer. 25

01-03-2023

07-02-2019

https://www.courtlistener.com/api/rest/v3/opinions/7606062/

Affirmed.

01-03-2023

07-29-2022

https://www.courtlistener.com/api/rest/v3/opinions/4149943/

Motion Granted; Order filed February 28, 2017 In The Fourteenth Court of Appeals ____________ NO. 14-16-00790-CV NO. 14-16-01016-CV ____________ VERAKISHA ROACH, JEREMY BRADY, DERON R. HARRINGTON, SUSAN HERBST SOTO, CAROLE STEWART ANHALT AND PERCY ISGITT, Appellants V. HEATHER INGRAM, ET AL, Appellees On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 15-DCV-223241 ORDER On October 7, 2016, appellants filed a notice of appeal from an interlocutory order signed September 22, 2016, which was assigned to this court under our appellate number 14-16-00790-CV. On December 21, 2016, appellants filed a notice of appeal from the final judgment in the same trial court cause number, which was assigned to this court under our appellate number 14-16-01016-CV. On February 21, 2017, appellants filed an unopposed motion to consolidate the related appeals. The motion is GRANTED and we issue the following order: We order the appeals pending under our appellate cause numbers 14-16- 00790-CV and 14-16-01016-CV CONSOLIDATED. Both appeals are currently abated for mediation. The mediation deadline in cause number 14-16-01016-CV will apply to both cause numbers. PER CURIAM Panel consists of Justices Donovan, Brown, and Wise.

01-03-2023

03-03-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127875/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 94-1106 of : : July 7, 1995 DANIEL E. LUNGREN : Attorney General : : MAXINE P. CUTLER : Deputy Attorney General : : ______________________________________________________________________________ JAMES W. NIELSEN, CHAIRMAN OF THE BOARD OF PRISON TERMS, has requested an opinion on the following question: Are investigators of the Board of Prison Terms required to have a license to carry a concealed firearm while off duty? CONCLUSION Investigators of the Board of Prison Terms are not required to have a license to carry a concealed firearm while off duty. ANALYSIS Penal Code section 12025, subdivision (a)1 provides: "A person is guilty of carrying a concealed firearm when he or she does any of the following: 1 All references hereafter to the Penal Code are by section number only. 1. 94-1106 "(1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person. "(2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person." Section 12027 exempts certain persons from the terms of section 12025. It states: "Section 12025 does not apply to, or affect, any of the following: "(a)(1)(A) Any peace officer, listed in Section 830.1 or 830.2 whether active or honorably retired, other duly appointed peace officers, honorably retired peace officers listed in subdivision (c) of Section 830.5, other honorably retired peace officers who during the course and scope of their employment as peace officers were authorized to, and did, carry firearms, full-time paid peace officers of other states and the federal government who are carrying out official duties while in California, or any person summoned by any of these officers to assist in making arrests or preserving the peace while he or she is actually engaged in assisting that officer. . . ." (Emphasis added). If not exempt from the provisions of section 12025, a person must obtain a license to carry a firearm capable of being concealed. ('' 12050-12054.) Section 12050 states in part: "(a)(1) The sheriff of a county or the chief or other head of a municipal police department of any city or city and county, upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying is a resident of the county, may issue to that person a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person in either one of the following formats: "(A) A license to carry concealed a pistol, revolver, or other firearm capable of being concealed upon the person. "(B) Where the population of the county is less than 200,000 persons according to the most recent federal decennial census, a license to carry loaded and exposed in that county a pistol, revolver, or other firearm capable of being concealed upon the person. "(2) A license issued pursuant to this section is valid for any period of time not to exceed one year from the date of the license, or in the case of a peace officer appointed pursuant to Section 830.6, three years from the date of the license. "(b) A license may include any reasonable restrictions or conditions which the issuing authority deems warranted, including restrictions as to the time, place, manner, 2. 94-1106 and circumstances under which the person may carry a pistol, revolver, or other firearm capable of being concealed upon the person." We are asked whether investigators of the Board of Prison Terms ("Board") are required to have a license to carry a concealed firearm while off duty.2 We conclude that they need not have a license, since they are exempt from the terms of section 12025 as "duly appointed peace officers" (' 12027, subd. (a)(1)(A)). The Board is composed of nine commissioners who meet with inmates at state prisons concerning applications for parole, parole conditions, revocations of parole, and denials of post conviction credits. ('' 3040, 5075, 5076.1, 5077.) Investigators of the Board provide security for the commissioners and executive staff. They are employed in the state civil service "peace officer" class, having been designated peace officers by the Secretary of the Youth and Adult Correctional Agency. The investigators are also defined as peace officers under the terms of section 830.5, which states: "The following persons are peace officers whose authority extends to any place in the state while engaged in the performance of the duties of their respective employment and for the purpose of carrying out the primary function of their employment or as required under Sections 8597, 8598, and 8617 of the Government Code. Except as specified in this section, these peace officers may carry firearms only if authorized and under those terms and conditions specified by their employing agency: ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "(b) A correctional officer employed by the Department of Corrections or any employee of the Department of the Youth Authority having custody of wards or any employee of the Department of Corrections designated by the Director of Corrections of any medical technical assistant series employee designated by the Director of Corrections or designated by the Director of Corrections and employed by the State Department of Mental Health to work in the California Medical facility or employee of the Board of Prison Terms designated by the Secretary of Youth and Adult Correctional Agency or an employee of the Department of Youth Authority designated by the Director of the Youth Authority or any superintendent, supervisor, or employee having custodial responsibilities in an institution operated by a probation department, or any transportation officer of a probation department." ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." 2 Peace officers may carry concealable weapons, without licenses, while engaged in the performance of their duties under the terms and conditions specified by their employing agencies. (Struessel v. City of Glendale (1983) 141 Cal. App. 3d 1047; California State Employees' Association v. Way (1982) 135 Cal. App. 3d 1059; California State Employees' Association v. Enomoto (1981) 118 Cal. App. 3d 599; 72 Ops.Cal.Atty.Gen. 167 (1989); 70 Ops.Cal.Atty.Gen. 20 (1987).) 3. 94-1106 (Emphasis added). In 1987 we addressed the question whether district attorney investigators were exempt from the requirement of obtaining a license to carry a concealable weapon while off duty. We concluded that the investigators were exempt under section 12027 from the licensing requirements otherwise necessary to carry a concealable weapon while off duty. (70 Ops.Cal.Atty.Gen., supra, 27.) In reaching this conclusion, we quoted from our opinion in 63 Ops.Cal.Atty.Gen. 385, 388-390 (1980) dealing with Department of Corrections peace officers: "`Turning to the words of section 12027, we find that the Legislature has exempted from the provisions of section 12025 "duly appointed peace officers." Department of Corrections peace officers are "duly appointed peace officers" while they are on duty at work or while they are off duty. In the absence of countervailing circumstances, it must be assumed that the Legislature meant to say what it said in drafting the statute. (Tracy v. Municipal Court (1978) 22 Cal 3d 760, 764.) If the Legislature had intended the exemption in section 12027 to apply to peace officers only when they were acting with peace officer authority it could have so stated. "`We note that when the Legislature has determined to limit the exemption of section 12027 to a person while such person is acting in the course of a certain duty, it has done so. Thus, subdivision (a) of section 12027 provides that a person summoned by any peace officer to assist in making an arrest or preserving the peace is exempt "while he is actually engaged in assisting such officer." Likewise, subdivision (c) exempts members of the armed forces "when on duty." Subdivision (e) exempts certain guards and messengers "while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bouillon, bonds, or other thing of value within this state." Likewise, subdivisions (f), (g) and (h) exempt members of shooting clubs, licensed hunters or fishermen, and members of antique gun clubs during the period they are engaged in such activities. Had the Legislature wanted to place a similar restriction on peace officers and restrict their section 12027 exemption to duty hours, presumably it would have done so as in the case of the other classes referred to in that section." (70 Ops.Cal.Atty.Gen., supra, 25-26.) In 72 Ops.Cal.Atty.Gen., supra, 167, we were presented with the question whether a county deputy probation officer must obtain a license to carry a concealed firearm while off duty. We concluded that he need not, stating in part: "Under the provisions of section 830.5 probation officers are `peace officers' at all times. In prior opinions we have pointed out the distinction between the `status' of peace officer and the `authority' of a peace officer and that both need not exist at the same point in time. [Citations.] Applying this distinction to section 830.5 peace officers, we see from the introductory paragraph that they are `peace officers whose authority extends to any place in the state while engaged in the performance of their duties, etc. . . .' (Emphasis added.) Accordingly, under the wording of section 830.5, they have the `status' of a peace officer without any time limitation, thus at all times, 4. 94-1106 although they have the authority of a peace officer only while engaged in the performance of their duties, etc. The `while' clause modifies their authority, not their status. [Citation.] "We conclude that probation officers are `peace officers' within the meaning of section 12027. Accordingly, since they are peace offices at all times, they are exempt from the proscriptions of section 12025 at all times. [Citations.]" (Id., at p. 172.) In 1993 the Court of Appeal reviewed various of our opinions dealing with the right of a peace officer to carry a concealed firearm while off duty. In Orange County Employees Assn., Inc. v. County of Orange (1993) 14 Cal. App. 4th 575, the court ruled that a county could not preclude various county peace officers from carrying concealed firearms while off duty. It stated: "Penal Code sections 830.33, 830.35, and 830.36 all state that officers employed in those respective categories are peace officers. Each goes on to add, however, `Those peace officers may carry firearms only if authorized and under terms and conditions specified by their employing agency.' "The parties agree this limiting language allows the agencies named in these sections to regulate the carrying of firearms, concealed or not, by on-duty personnel. They also agree the statutes cannot reasonably be read to take away from off-duty officers the same right to bear arms enjoyed by other citizens. For example, vacationing deputy coroners could not be required to seek permission from the county to visit a rifle range or go duck hunting. The question is, then, what is the effect of the limiting language of these specific sections on the grant of authority to carry concealed weapons `to other duly appointed peace officers' in Penal Code section 12027? "We will rely upon a series of five opinions issued by the Attorney General to help resolved this dispute. They are persuasive not only for their reasoning, but for the Legislature's reaction--or lack thereof--as well. While not binding on us, the opinions of the Attorney General are entitled to great weight. (See Henderson v. Board of Education (1978) 78 Cal. App. 3d 875, 883; Fremont Police Assn. v. City of Fremont (1975) 48 Cal. App. 3d 801, 803.) "In May of 1980, the Attorney General decided that `Department of Corrections peace officers are "duly appointed peace officers" while they are on duty at work or while they are off duty.' (63 Ops.Cal.Atty.Gen. 385, 388 (1980).) Those officers were peace officers per Penal Code section 830.5 and consequently enjoyed the exemption in section 12027 from the ban on concealed firearms. Section 830.5 did not then purport to regulate the carrying of firearms, however. "In apparent response, the Legislature added the following language effective in September of 1980: `Such peace officer may carry firearms only if authorized and under such terms and conditions as are specified by their employing agency . . . .' The Attorney General answered this question the year after the statutory change: `Is a 5. 94-1106 Department of Corrections peace officer, as defined in Penal Code section 830.5, permitted to carry concealed a concealable firearm without the license required by Penal Code section 12025?' (64 Ops.Cal.Atty.Gen. 832 (1981).) He concluded as follows: `[T]he authority to carry firearms is . . . qualified, i.e., such peace officer may carry firearms only if authorized and under such terms and conditions as are specified by the Department of Corrections.' (Id., at p. 835, italics in original.) "The Attorney General's opinion also noted, `The firearms provision of section 830.5 does not distinguish between firearms carried concealed or openly, or between firearms which are concealable or otherwise. Consequently, the act of carrying concealed a concealable firearm is within the purview of the statute. (64 Ops.Cal.Atty.Gen., supra, at pp. 835-836.) "The author added a problematic phrase, however; and it proved to be the understated key to the opinion: `[T]he exemption in section 12027 is now qualified by the authority of the Department of Corrections, under section 830.5, to allow or disallow the concealed carrying of concealable firearms or to set the terms and conditions of such carrying by its officers without a license while acting as peace officers.' (64 Ops.Cal.Atty.Gen., supra, at p. 837, italics added.) We say `problematic' because off-duty officers sometimes must act as peace officers, as we consider more fully anon, and in that sense are never off duty. Taken literally, the emphasized language would imply that at the very moment an off-duty officer might need it most, i.e., when thrust into the role of a peace officer, it would become unlawful to carry a firearm contrary to the employer's rules. "The Attorney General was next asked, `Does the Chief of the California State Police Division have the authority to prohibit or allow Security Officers of the California State Police Division to carry concealed firearms while off duty?' (65 Ops.Cal.Atty.Gen. 527 (1982).) Penal Code section 830.4, the applicable statute, provided, `Such peace officers may carry firearms only if authorized by and under such terms and conditions as are specified by their employing agency . . . .' "The Attorney General answered the question in the negative, reasoning `the Legislature did not intend to grant the employing agency any such control over the nonemployment related conduct of its security officers.' (65 Ops.Cal.Atty.Gen., supra, at p. 533.) The opinion also persuasively pointed out peace officers have general obligations that go beyond their duties to a particular agency. For example, Penal Code section 142 requires any officer to receive custody of any person who has been arrested by a citizen. Every peace officer is obliged to enforce the Alcoholic Beverage Control Act and report every violator, and failure to do so is a misdemeanor. (Bus. & Prof. Code, ' 25619.) The Attorney General referred to other examples of extraneous duties as well. (65 Ops.Cal.Atty.Gen., supra, at p. 534; Health & Saf. Code, ' 4477 [`Every state fish and game warden, police officers of cities, sheriffs and their deputies and other peace officers of the State of California, within their respective jurisdictions, shall enforce the provisions of this article.']; Fish & G. Code, ' 10508 [similar].) 6. 94-1106 Finally, the opinion recognized that peace officers have the right to make arrests for offenses committed in their presence for violations unrelated to their particular employment. (Pen. Code, ' 836.) "The next opinion in the series addressed this question: `Does a district attorney have the authority to prohibit or allow the carrying of firearms by welfare fraud investigators employed in his office while such persons are off duty?' (70 Ops.Cal.Atty.Gen. 20 (1987).) Based on similar statutory language, the Attorney General concluded that a district attorney has no such power. He provided additional reasons: "Although a peace officer is not required to have a license as set forth in section 12027, this exemption means only that he may carry concealed a concealable weapon without committing the crime specified in section 12025. It does not mean, of course, that he may carry a weapon while on duty if prohibited by his employer. Employers normally control the (lawful) activities of their employees in employment situations. Different considerations are present when determining whether a weapon should be carried while performing employment-related duties. In noting that a city may place more restrictive standards upon the conduct of its police officers in the use of firearms than [those] applicable to private citizens, the court in Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal. App. 3d 364, 375-376, stated: [&] "[T]he city, as employer of the officer and a potential codefendant in a suit for wrongful death or injury, has an interest in the officer's conduct which it lacks toward a private citizen. . . . Police officers are constitutionally subject to many burdens and restrictions that private citizens are not."' (70 Ops.Cal.Atty.Gen., supra, at p. 27.) "Finally, in 72 Ops.Cal.Atty.Gen. 167 (1989), the Attorney General reached a similar determination with respect to the right of deputy probation officers to carry concealed firearms while not on duty. Penal Code section 835, the statute designating them as peace officers contains this provision: `Except as specified in this section, these peace officers may carry firearms only if authorized and under those terms and conditions specified by their employing agency.' The opinion relied on its four predecessors on the points pertinent here and added no new analysis or relevance to the present case. "Citing various pieces of legislative history potentially proving the Legislature originally intended to permit agencies to regulate the carrying of concealable firearms both on and off duty, county counsel argues the Attorney General is simply wrong. County counsel also reminds us the statutes themselves make no distinction between on- and off-duty peace officers. Finally, he attacks the Attorney General's assumptions that (1) because the statutes speak of `firearms' and not concealable weapons they must not refer to off-duty activities since the Legislature could not have intended to require employer approval for off-duty hunting trips and the like, and (2) employers would have no reason to control the carrying of firearms by their off-duty officers. 7. 94-1106 "There is no reason to attempt to divine what the Legislature intended in 1980, however, and we decline the invitation to do so. As noted earlier, the Legislature's reactions to the Attorney General's interpretations tell the story. "In 1982, the Attorney General interpreted the language, `may carry firearms only if authorized and under terms and conditions specified by their employing agency,' to refer only to on-duty officers. This is the identical wording contained in the implementing statutes we consider here (Pen. Code, '' 830.33, 830.35, and 830.36). When those statutes were passed in 1989, the Legislature was presumably aware of the Attorney General's interpretation. (See Henderson v. Board of Education, supra, 78 Cal.App.3d at p. 883.) Whatever the Legislature intended in 1980, in 1989, it surely intended the scheme as explained in the Attorney General's opinions. "Moreover, in various amendments to Penal Code section 830.5 over the past decade . . . the Legislature has specifically authorized on- and off-duty regulation of concealable firearms of state correctional officers. Had it intended county officers to be subjected to similar controls, it surely would have said so. "The Supreme Court put it this way: `[A]lthough [People v.] Lobaugh [(1971) 18 Cal. App. 3d 75] has been followed by the Courts of Appeal since 1971, the Legislature has not reacted to it despite repeated scrutiny of [Vehicle Code] section 23153. Section 23153 (or its predecessor, former ' 23101) was amended in 1972, 1976, 1977, 1978, 1980, 1981, 1982, and 1983, with a major rewriting and renumbering in 1981. "Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it." [Citations.] "There is a strong presumption that when the Legislature reenacts a statute which has been judicially construed it adopts the construction placed on the statute by the courts." [Citation.]' (Wilkoff v. Superior Court (1985) 38 Cal. 3d 345, 353.) "So it is here. Similar presumptions apply in the case of Attorney General opinions (Henderson v. Board of Education, supra, 78 Cal. App. 3d 875, 883), and among the statutes we have reviewed the Legislature has sought to avoid the Attorney General's interpretation only with respect to state correctional officers covered by Penal Code section 830.5. We must assume the Legislature knew what it was doing when it employed the language of the statutes at issue in this case. If the county wishes to restrict the carrying of concealed weapons by the affected officers, it will have to apply to the Legislature." (Id., at pp. 577-583; fns. omitted.) Accordingly, while the Legislature has expressly authorized certain peace officers to carry firearms while off duty (' 830.5, subd. (c) ["The following persons may carry a firearm while not on duty: a parole officer of the Department of Corrections or the Department of Youth Authority, a correctional officer employed by the Department of Corrections or any employee of the Department of Youth Authority designated by the Director of Corrections"]), the issue of licensure presents a separate issue. Under section 12027, subdivision (a)(1)(A), "duly appointed peace officers" are exempt from 8. 94-1106 the prohibition against carrying a concealed firearm contained in section 12025. As long as the person has the status of being a duly appointed peace officer, the statutory exemption for possessing a firearm applies regardless of when or where the person may exercise peace officer powers. Such has been our consistent interpretation for 15 years, recently approved by the Court of Appeal in its Orange County decision. We conclude that investigators of the Board are not required to have a license to carry a concealed firearm while off duty. ***** 9. 94-1106

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126938/

2016 IL App (1st) 141660 SECOND DIVISION December 27, 2016 No. 1-14-1660 THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 98 CR 23340 ) TONY GONZALEZ, ) The Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge Presiding. JUSTICE PIERCE delivered the judgment of the court, with opinion. Justice Mason concurred in the judgment and opinion. Presiding Justice Hyman dissented, with opinion. OPINION ¶1 Petitioner Tony Gonzalez appeals from the trial court’s second-stage dismissal of his amended petition for postconviction relief brought pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Gonzalez asks this court to reverse the dismissal of his amended postconviction petition asserting claims of actual innocence and a Brady violation and requesting remand for a third-stage evidentiary hearing. ¶2 BACKGROUND ¶3 Following a 1999 jury trial, Gonzalez was convicted of one count of first degree murder and two counts of attempted murder. Before trial, petitioner moved to suppress the identification testimony of two State witnesses, Luis Marrero and Yesenia Rodriguez, asserting that the lineup composition was suggestive. The trial court denied the motion. On appeal, this court reversed 1-14-1660 Gonzalez’s convictions and remanded for a new trial based on the submission of an erroneous jury instruction regarding the evaluation of eyewitness identification testimony. People v. Gonzalez, 326 Ill. App. 3d 629 (2001). ¶4 The following is a summary of the evidence outlined in our order affirming Gonzalez’s conviction following his 2003 trial. People v. Gonzalez, No. 1-03-1286 (2006) (unpublished order under Supreme Court Rule 23). On July 23, 1998, Marrero, Hector Rivera, and Waldemar Nieves spent the evening drinking at a bar in the Humboldt Park neighborhood in Chicago. In the early morning hours of July 24, they left the bar and went to Nieves’ house a block away. Nieves went to bed but Marrero and Rivera stayed with Nieves’ 15-year-old sister, Rodriguez, who had been dating Marrero for two months, and Illuminata Nieves, Rodriguez’s mother. Marrero left the apartment twice to buy more alcohol. Rodriguez and Marrero left the apartment at 2 a.m., arguing about Marrero’s excessive alcohol consumption. They were standing at the corner of the apartment building when a man with a gun came out of the alley and shot at them, hitting Marrero twice. ¶5 Marrero testified that when he and Rodriguez were arguing in the alley, he was facing Rodriguez and had his back to the gunman, who shouted “Jiver killer.” Marrero turned around and faced the gunman who had a t-shirt on the top of his head. When Marrero was shot, he fell to the ground, facing the shooter, and was shot a second time. The man ran into the apartment building. ¶6 Inside the apartment, the gunman shot Rivera and Illuminata, then returned to the alley and shot Marrero a third time in the back as he lay on the ground. Marrero testified this gave him another opportunity to see the shooter’s face. He then pointed the gun at Rodriguez but she -2- 1-14-1660 begged him not to shoot. He struck Rodriguez in the head with the butt of his gun. Rivera later died from his injuries. ¶7 A couple of days after the shooting, Detective Reynaldo Guevara visited Marrero at the hospital and showed him a photographic array of six pictures of Hispanic men. Gonzalez’s picture was the only one with numbers visible underneath his face and a white background. The other five pictures had dark backgrounds and no numbers visible. Marrero identified Gonzalez as the gunman. Marrero testified that he told police the gunman had a “spot” by his neck after he saw the photo array. He also told the officers that the shooter had a gold tooth. On cross-examination, Marrero denied that the arrest placard under petitioner’s photo or the white background influenced his selection of petitioner’s photo. About two weeks later, Marrero identified Gonzalez in a police lineup. Marrero testified he had seen Gonzalez in the neighborhood but did not know his name or if he belonged to a gang. Marrero stated no one in Nieves’ apartment on the night of the shooting, including himself, was affiliated with a gang. The neighborhood store sold shiny wraps used to cover a tooth to resemble a gold tooth. ¶8 Rodriguez gave an account of the shooting that was consistent with Marrero’s version including that the gunman had shouted “Jiver killer.” She stated that police who responded to the scene interviewed her in Spanish. She told police the shooter was a male Hispanic and denied telling the police the shooter was a “black Hispanic” or that the shooter had obscured his face. She did not notice that the shooter had a gold tooth or a birthmark. ¶9 The parties stipulated that two hours after the shooting Marrero’s blood alcohol level was 88 milligrams per deciliter; a normal range is less than 10 milligrams per deciliter. ¶ 10 Detective Guevara, who also testified at Gonzalez’s first trial, stated he was a gang crimes specialist assigned to a violent crime unit. He stated the Latin Jivers and the Spanish Cobras were -3- 1-14-1660 rival gangs in the area where the shooting occurred. The day after the shooting, Guevara interviewed Rodriguez at her apartment. She told him that the shooter had a white t-shirt tied around his head that did not conceal his face. Rodriguez also told him that the gunman had shouted “Jiver killer.” Knowing the two gangs were at war, Guevara brought Rodriguez to the police station and showed her a book of photographs of members of the Spanish Cobras gang. She identified Gonzalez’s photograph on page 36 of the 37-page Spanish Cobras book. ¶ 11 Guevara interviewed Marrero while he was in the hospital and showed him an array of about six photos from which Marrero selected Gonzalez as the gunman. Guevara stated Marrero told him the shooter had a birthmark, but Guevara did not include this statement in his police report. ¶ 12 Gonzalez was arrested two weeks later. Guevara arranged a lineup where Rodriguez and Marrero separately identified Gonzalez. Guevara testified Rodriguez and Marrero were together for about ten minutes before looking at the lineup but did not interact during their separate viewings of the lineup. Guevara admitted this was not good police procedure, although he did not “see anything wrong with that.” Gonzalez was the only individual who was in the lineup whose picture was in the photographic array. ¶ 13 For the defense, a dentist testified she reviewed Gonzalez’s dental records and examined his mouth; he had not had any front teeth prepared for a crown. People v. Gonzalez, 2011 IL App (1st) 093016-U, ¶ 9. ¶ 14 The jury convicted Gonzalez of first degree murder of Rivera and attempted murder of Marrero and Illuminata. He was sentenced to consecutive terms of 30 years’ incarceration for murder and six years’ incarceration on each of the attempt murder convictions, for a total of 42 years. -4- 1-14-1660 ¶ 15 On direct review, this court affirmed. See People v. Gonzalez, No. 1-03-1286 (2006) (unpublished order under Supreme Court Rule 23). In rejecting petitioner’s argument that the evidence was legally insufficient to sustain his conviction, we found Marrero and Rodriguez “confidently and independently” identified petitioner one to two days after the shooting. Each made multiple identifications of petitioner after having “multiple opportunities to observe the face of the shooter from just a few feet away,” and gave a description of the shooter that described the petitioner. Although there were differences, “their testimonies were corroborative in several ways.” We further noted that defense counsel “made sure the jury was aware of the discrepancies between the eyewitnesses’ testimonies and various police reports, the purported suggestiveness of the photographic and lineup identifications, and the fact Marrero had been drinking before the shooting.” Finally, we concluded that “given the fact that Rodriguez reliably testified that Gonzalez was the shooter and that Marrero corroborated most of the details of her testimony, the evidence against petitioner was not closely balanced.” People v. Gonzalez, No. 1-03-1286 (2006) (unpublished order under Supreme Court Rule 23). ¶ 16 On August 2, 2009, Gonzalez filed a pro se postconviction petition pursuant to section 122-1 of the Act (725 ILCS 5/122-1 et seq. (West 2010)) asserting his innocence. In the petition, Gonzalez stated that on June 26, 2009, he obtained newly discovered evidence rising to the level of actual innocence when he read a news report of a federal wrongful conviction case won by Juan Johnson on June 23, 2009, against the City of Chicago involving witness intimidation by Chicago police detective Reynaldo Guevara. Attached to Gonzalez’s petition were a photocopy of the photographic lineup viewed by Marrero and a transcript of Guevara’s testimony at his trial. ¶ 17 In October 2009, the trial court dismissed the petition at the first stage as frivolous and patently without merit. Gonzalez appealed, contending his petition stated the gist of a claim of -5- 1-14-1660 actual innocence based on newly discovered evidence sufficient to survive the first stage of postconviction review. In July 2012, this court reversed the summary dismissal, finding that Gonzalez’s postconviction petition should proceed to the second stage of review because his claim of actual innocence was “not based on a fanciful factual allegation or an indisputably meritless legal theory.” Gonzalez, 2011 IL App (1st) 093016-U, ¶ 19. ¶ 18 Through counsel, Gonzalez filed an amended postconviction petition, alleging that he was deprived of his due process rights because newly discovered evidence of his actual innocence demonstrated Guevara engaged in a pattern and practice of framing suspects by orchestrating false identifications and that the State failed to tender exculpatory evidence of Guevara’s complaint history prior to Gonzalez’s retrial in 2003 in violation of Brady v. Maryland, 373 U.S. 83 (1963). He also argued that his trial counsel was ineffective for failing to investigate Detective Guevara’s history of misconduct. Gonzalez attached an affidavit from retired Chicago police Detective William Dorsch who testified that between 1971 and 1985 he served as a gang crimes officer and at one time worked a homicide case with Guevara. Also attached were documents relating to other cases alleging misconduct by Guevara and a photocopy of the six head shot photographic array that Guevara showed Marrero. Notably, the amended petition and attached exhibits did not include any affidavits from Marrero or Rodriguez or any other person involved in the investigation or trial that resulted in petitioner’s conviction. ¶ 19 On May 15, 2014, the trial court granted the State’s motion to dismiss Gonzalez’s amended postconviction petition stating, “I find the Petitioner has not established the prerequisite standard for relief under the Postconviction Act. One of the factors is that there’s no affidavits, and also there has not been an actual, the actual innocence claim has not been supported by sufficient evidence.” It is from this order that Gonzalez now appeals. -6- 1-14-1660 ¶ 20 ANALYSIS ¶ 21 First, we consider whether Gonzalez’s amended postconviction petition made a substantial showing of actual innocence that entitles him to a third-stage evidentiary hearing. ¶ 22 The Act provides a process by which a criminal defendant may challenge his or her conviction. 725 ILCS 5/122-1 et seq. (West 2010). A postconviction proceeding is a collateral attack upon the prior conviction and affords only limited review of constitutional claims not presented at trial. People v. Greer, 212 Ill. 2d 192, 203 (2004). A postconviction action is “not a substitute for, or an addendum to, direct appeal.” People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). The purpose of the postconviction proceeding is to permit inquiry into constitutional issues involved in the original conviction and sentence that were not, nor could have been, adjudicated previously on direct review. People v. Morgan, 187 Ill. 2d 500, 528 (1999). A postconviction petition is a collateral proceeding and not a chance to relitigate a defendant’s innocence or guilt. People v. Lucas, 203 Ill. 2d 410, 417-18 (2002). ¶ 23 To obtain relief under the Act, a petitioner must show there was a substantial deprivation of his or her constitutional rights in the proceedings that produced the conviction. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). The Act “provides for postconviction proceedings that may consist of as many as three stages.” Id. at 472. ¶ 24 At the first stage, the trial court reviews the petition and may summarily dismiss it if the court determines it is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2010); People v. Perkins, 229 Ill. 2d 34, 42 (2007). In this case, we reversed the summary dismissal of Gonzalez’s petition at the first stage and remanded for second-stage proceedings noting “the petition sets forth sufficient facts and a legal theory that arguably support a constitutional claim.” Gonzalez, 2011 IL App (1st) 093016-U, ¶ 29. At the second stage, counsel -7- 1-14-1660 is appointed and the State may move to dismiss the petition. See People v. Rivera, 2014 IL App (2d) 120884, ¶ 7. At the second stage, the petitioner bears the burden of making a substantial showing of a constitutional violation. Id. All well-pleaded facts not positively rebutted by the trial record are taken as true. Id. If a substantial showing of a constitutional violation is made, the petition advances to the third stage for an evidentiary hearing; if not, the petition is dismissed. Id. At the third stage, the trial court hears evidence and determines whether, based on that evidence, the petitioner is entitled to relief. People v. Chatman, 357 Ill. App. 3d 695, 698 (2005); People v. Garcia, 2015 IL App (1st) 131180, ¶¶ 46-47. ¶ 25 We review de novo the dismissal of petitioner’s amended postconviction petition at the second stage. People v. Suarez, 224 Ill. 2d 37, 42 (2007). We may affirm the dismissal based on any reason supported by the record because we review the judgment, not the trial court’s reasoning. People v. Anderson, 401 Ill. App. 3d 134, 138 (2010). ¶ 26 Actual Innocence ¶ 27 Gonzalez argues that the trial court erred when it dismissed his amended postconviction petition without an evidentiary hearing where his petition sufficiently alleged facts to support his claim of actual innocence based on the newly discovered evidence that Detective Guevara engaged in a pattern and practice of framing suspects by orchestrating false identification evidence against them. ¶ 28 A claim of actual innocence is not the same as a claim of insufficiency of the evidence or reasonable doubt or mere impeachment of trial witnesses, but a claim of vindication or exoneration. People v. House, 2015 IL App (1st) 110580, ¶¶ 41, 46. To succeed on a claim of actual innocence, the petitioner must present new, material, non-cumulative evidence that is so conclusive it would probably change the result on retrial. People v. Washington, 171 Ill. 2d 475, -8- 1-14-1660 489 (1996); People v. Sanders, 2016 IL 118123, ¶ 24. “Conclusive” means the new, material, non-cumulative evidence, considered with the trial evidence, would “probably lead to a different result.” People v. Coleman, 2013 IL 113307, ¶ 96. “Probability, not certainty, is the key as the trial court in effect predicts what another jury would likely do, considering all the evidence, both new and old, together.” Id. ¶ 97. See People v. Davis, 2012 IL App (4th) 110305, ¶ 62 (“New evidence need not be completely dispositive of an issue to be likely to change the result upon retrial.”). Evidence is (i) new if it was “discovered after trial and could not have been discovered earlier through the exercise of due diligence,” (ii) material if it is “relevant and probative of the petitioner’s innocence,” and (iii) noncumulative if it adds to the evidence heard at trial. Coleman, 2013 IL 113307, ¶ 96. ¶ 29 Ignoring for a moment the lack of evidence to support any wrongdoing by Detective Guevara in this case, Gonzalez’s actual innocence claim suffers from a fundamental problem. A freestanding claim of actual innocence requires just that—a freestanding claim. “Under the due process clause of the Illinois Constitution of 1970 (Ill. Const. 1970. art. I, § 2), a [petitioner] can raise in a post-conviction proceeding a ‘free-standing’ claim of actual innocence based on newly discovered evidence. [Citation.] A free-standing claim of innocence means that the newly discovered evidence being relied upon ‘is not being used to supplement an assertion of a constitutional violation with respect to [the] trial.’ [Citations.]” People v. Orange, 195 Ill. 2d 437, 459 (2001) (quoting People v. Hobley, 182 Ill. 2d 404, 443-44 (1998)). ¶ 30 Here, Gonzalez is offering newly discovered evidence—Guevara’s pattern of coercing, improperly influencing, and intimidating witnesses in other cases—to supplement his assertion that the State committed a Brady violation in this case, while at the same time using this evidence -9- 1-14-1660 to support his claim of actual innocence. This is impermissible because “the evidence being relied upon to support a freestanding claim of actual innocence” cannot be “used to supplement an assertion of a constitutional violation with respect to defendant’s trial.” People v. Brown, 371 Ill. App. 3d 972, 984 (2007). As a result, Gonzalez’s actual innocence claim fails. ¶ 31 Even if we were to consider the merits of Gonzalez’s actual innocence claim, he would fare no better. With respect to any claim made in a postconviction petition, section 122-2 of the Act instructs that a postconviction petition shall have attached thereto affidavits, records, or other supporting evidence, or shall state why the same are not attached. 725 ILCS 5/122-2 (West 2014). The purpose of section 122-2 of the Act is to establish that the verified allegations in the petition are capable of objective or independent corroboration. People v. Delton, 227 Ill. 2d 247, 254 (2008). A petitioner’s failure to either attach the necessary “affidavits, records, or other evidence or explain their absence is fatal to a post-conviction petition [citation] and by itself justifies the petition’s summary dismissal.” (Internal quotation marks omitted.) Id. at 255. ¶ 32 Gonzalez’s amended petition contained numerous affidavits from individuals who were not involved in any way with this particular case and numerous transcripts of testimony from other hearings and trials, again not related to this case. The record filed in this court contains seven volumes of the appendixes attached to Gonzalez’s amended postconviction petition. This voluminous record establishes exactly what postconviction counsel intended for it to establish—a pattern of pervasive misconduct on the part of Detective Guevara—yet it is completely devoid of any verified allegations capable of objective or independent corroboration that either of the two primary witnesses in petitioner’s case, Marrero and Rodriguez, were improperly influenced by Guevara sufficient to warrant a third-stage evidentiary hearing under the Act. -10- 1-14-1660 ¶ 33 For example, Gonzalez included an affidavit from Officer Dorsch who stated that in the late 1980s or early 1990s he worked on a homicide case with Guevara. They arranged a photographic array of possible suspects for two juvenile witnesses. When one of the witnesses hesitated selecting a photo, Dorsch witnessed Guevara point to one of the photographs and told the witness “that’s him.” Dorsch was concerned and called felony review but they approved the charges after independently interviewing the witness. The next day, Dorsch talked to the juvenile about the seriousness of the charges and the importance of his identification. The juvenile admitted he had not actually witnessed the shooting. Dorsch immediately contacted the assistant State’s Attorney and all charges against the suspect were dropped the next day. ¶ 34 Gonzalez’s appendices also led us to review relevant Illinois case law that confirms that Detective Guevara engaged in a pattern and practice of manipulating witnesses. One of the earlier cases critical of Guevara’s conduct is People v. Johnson, 272 Ill. App. 3d 479 (1995). After a bench trial, Juan Johnson was convicted of first degree murder and sentenced to 30 years’ imprisonment. ¶ 35 After a party at a nightclub with over 200 attendees, many of whom were members of “friendly” street gangs, several fights broke out. Johnson, 272 Ill. App. 3d at 481-82. The victim died after being beaten with a piece of lumber. The prosecution’s witness, Juan Michel, did not speak to police on that night but Guevara contacted him the following day to recount his memory of the incident and to look through “gang books” at the police station. Id. at 482. Michel identified Johnson’s photo from the “gang book” and identified him in a lineup as having beaten the victim. Id. Another witness viewed a lineup with Guevara and identified Johnson. Id. at 483. At trial, however, the witness was reluctant to place Johnson at the scene of the beating and -11- 1-14-1660 testified that he was more certain the day after the incident when he identified Johnson at a lineup conducted by Guevara than he was at trial. Id. at 485. ¶ 36 On direct review, this court affirmed the convictions but remanded, directing the trial court to allow Johnson and his codefendants to file postconviction petitions and conduct a hearing on their claim of ineffective assistance of counsel. Id. at 489. After his release from prison, Johnson filed a wrongful conviction lawsuit against the City of Chicago and Guevara, whom Johnson alleged framed him for the 1989 murder. ¶ 37 More recently, this court decided companion cases involving Guevara misconduct and witness coercion: People v. Montanez, 2016 IL App (1st) 133726 and People v. Serrano, 2016 IL App (1st) 133493. Jose Montanez and Armando Serrano were convicted of murder in 1994 and filed appeals from directed findings entered against them at the close of their postconviction third-stage evidentiary hearing. The petitions were based on an affidavit from the principal witness at trial who swore that his testimony was “false in all respects” and was coerced by Detective Guevara. (Internal quotation marks removed.) Montanez, 2016 IL App (1st) 133726, ¶¶ 11-12; Serrano, 2016 IL App (1st) 133493, ¶¶ 11-12. We held that Montanez and Serrano met their burden to proceed with their actual innocence claims and reversed and remanded to the trial court to adjudicate the reinstated third-stage postconviction proceedings. Montanez, 2016 IL App (1st) 133726, ¶ 46; Serrano, 2016 IL App (1st) 133493, ¶ 47. ¶ 38 There was no physical evidence or eyewitness testimony presented at Montanez’s or Serrano’s trial. Montanez, 2016 IL App (1st) 133726, ¶ 10; Serrano, 2016 IL App (1st) 133493, ¶ 10. Francisco Vicente, the main witness for the prosecution, was an admitted drug addict who had four felony cases pending against him. Montanez, 2016 IL App (1st) 133726, ¶ 6; Serrano, 2016 IL App (1st) 133493, ¶ 6. Vicente allegedly told Guevara that Montanez confessed his -12- 1-14-1660 crime to him. Montanez, 2016 IL App (1st) 133726, ¶ 6; Serrano, 2016 IL App (1st) 133493, ¶ 6. The trial judge, when making his ruling, remarked “were it not for the testimony of Vicente, there wouldn’t have been much evidence here. His testimony is crucial.” (Internal quotation marks omitted.) Montanez, 2016 IL App (1st) 133726, ¶ 10; Serrano, 2016 IL App (1st) 133493, ¶ 10. ¶ 39 But in 2004, Vicente submitted an affidavit stating that his trial testimony was “ ‘false in all respects’ ” and his testimony was coerced by Detective Guevara. Montanez, 2016 IL App (1st) 133726, ¶ 11; Serrano, 2016 IL App (1st) 133493, ¶ 11. Specifically, Vicente said that Detective Guevara threatened, physically coerced, and promised him leniency for his crimes in exchange for implicating Montanez and Serrano for murder. Montanez, 2016 IL App (1st) 133726, ¶ 11; Serrano, 2016 IL App (1st) 133493, ¶ 11. In addition, Vicente averred that he received money and special treatment in prison for supplying false testimony for Guevara. Montanez, 2016 IL App (1st) 133726, ¶ 11; Serrano, 2016 IL App (1st) 133493, ¶ 11. At the 2013 postconviction evidentiary hearings, Detective Guevara invoked his fifth amendment right and refused to answer questions on the basis that he might incriminate himself. Montanez, 2016 IL App (1st) 133726, ¶ 13; Serrano, 2016 IL App (1st) 133493, ¶ 30. ¶ 40 This court, in remanding Montanez’s case to the trial court, noted, “In our view, any allegation that Guevara coerced a person to provide evidence is relevant to whether defendants in the case at bar were similarly coerced.” (Internal quotation marks omitted.) Montanez, 2016 IL App (1st) 133726, ¶ 34 (quoting People v. Reyes, 369 Ill. App. 3d 1, 21 (2006)). Significantly, the Montanez court noted the following: “Petitioner called witnesses and introduced other sworn testimony at the evidentiary hearing in an attempt to establish Guevara’s pattern of police misconduct. William Dorsch, a retired Chicago police department detective, testified about a case he worked on -13- 1-14-1660 with Guevara a couple of years before this case came about. In that case, the detectives were conducting a photographic lineup with two supposed eyewitnesses. Dorsch testified that when one of the witnesses seemed unable to make an identification, Guevara pointed to one of the pictures and said ‘that’s him.’ The witness then agreed with Guevara’s suggestion and went on to identify the person in a live lineup. Dorsch conducted the lineup with the second witness by himself, and the witness was unable to make an identification. The witnesses later admitted that their statements were false and that they were being paid by a third party. The charges against the accused were dropped. Dorsch, however, did not remember many of the particulars of the case such as the names of those involved. Dorsch also never reported the incident to his superiors and had since begun to work as an investigator with the Innocence Project and received compensation for his work.” Montanez, 2016 IL App (1st) 133726, ¶ 16. ¶ 41 And in Serrano, we again noted that the only direct evidence of guilt was the State’s witness Vicente’s testimony and observed: “At the [evidentiary] hearing, Detective Guevara invoked his fifth amendment right, refusing to answer any questions on grounds that he might incriminate himself. When questioned in detail about the allegations of misconduct in this investigation, Guevara refused to answer each question, invoking his fifth amendment protections. Similarly, Vicente invoked the fifth amendment and refused to give testimony to backup his sworn recantation. There were several indications that he feared prosecution for having previously perjured himself at defendants’ trial. Vicente did not take the opportunity to repudiate the content of the affidavit. Vicente told the court that he feared for his safety and he was escorted from the building.” Serrano, 2016 IL App (1st) 133493, ¶ 14. -14- 1-14-1660 ¶ 42 Serrano also noted that the petitioner offered into evidence a statement from another witness that corroborated claims that Guevara used violence and other inducements to obtain false testimony from the purported witness against Serrano and Montanez. Id. ¶ 15. ¶ 43 On July 20, 2016, Cook County prosecutors dropped murder charges against Serrano and Montanez. Steve Schmadeke, 2 Men Released After 1993 Murder Charges Dropped: ‘It’s been a lot of pain,’ Chi. Trib., Jul. 16, 2016, http://www.chicagotribune.com/news/local/breaking/ct- murder-conviction-dropped-met-20160720-story.html. ¶ 44 In People v. Reyes, 369 Ill. App. 3d 1, 2 (2006), this court consolidated two appeals following codefendants’ simultaneous trials before separate juries. Reyes was convicted of two counts of first degree murder, two counts of aggravated kidnapping, and home invasion and sentenced to life in prison without the possibility of parole. Id. Gabriel Solache was also convicted of two counts of first degree murder, two counts of aggravated kidnapping, and home invasion but was sentenced to death. Id. A third defendant, Adriana Mejia, pleaded guilty and was sentenced to natural life imprisonment. Id. at 3. Solache’s sentence was commuted to natural life in prison and his convictions and sentences were affirmed on appeal. Id. at 2 (citing People v. Solache, No. 1-03-1149 (2003) (unpublished order under Supreme Court Rule 23)). ¶ 45 According to trial court testimony, Reyes and Solache were involved in the murder of Mariano and Jacinta Soto and the kidnapping of their children. Id. at 3. The police found Mejia with the Sotos’ children and arrested her, Reyes, and Solache. Id. at 4. The police took Reyes and Solache to a different police station for questioning. Id. ¶ 46 Reyes and Solache each gave written inculpatory statements to Guevara. Id. at 6. No physical evidence linked Reyes to the crime and no DNA matched his profile. Id. at 9. Prior to trial, defendants filed motions to suppress their statements, asserting that Detective Guevara -15- 1-14-1660 coerced them. Id. at 5. Specifically, Reyes alleged that Guevara obtained statements from him “as a result of physical, psychological and mental coercion.” (Internal quotation marks omitted.) Id. ¶ 47 The trial court conducted a series of hearings on the motions to suppress. Id. At the hearing, Reyes testified that Guevara, in the multiple interviews he conducted, struck him, asked him why he had committed the crime, and threatened that he would “get the electric chair” if he continued to deny his involvement in the crimes. Id. Reyes, who had limited English proficiency, testified that he was unable to read or write, and that when he signed the written statement— which was in English—he did not know what it said. Id. at 6. Guevara also did not read Reyes his Miranda rights. Id. at 7. ¶ 48 Maria Rivera, a defense witness, testified that Guevara interviewed her in 1996 regarding a shooting near her house and that she did not see the individuals who did the shooting. Id. at 8. Guevara ordered her to identify a person in the lineup as one of the individuals who shot the victims. Id. Rivera told the assistant State’s Attorney that Guevara told her to identify the person even though she had not seen that person commit the shooting. Id. ¶ 49 In August 2003, this court affirmed Solache’s convictions and sentences (People v. Solache, No. 1-03-1149 (2003) (unpublished order under Supreme Court Rule 23)), and a few weeks later this court affirmed Reyes’ convictions and sentences. People v. Reyes, No. 1-01-2875 (2003) (unpublished order under Supreme Court Rule 23). The court expressly rejected petitioners’ claims that their statements were coerced, noting that the cases “hinge[d] almost entirely on credibility.” (Internal quotation marks omitted.) Reyes, 369 Ill. App. 3d at 11. The court emphasized that it was not required to give more credence to petitioners’ claim over Guevara’s. Id. -16- 1-14-1660 ¶ 50 In 2003, Reyes and Solache each filed a postconviction petition. Reyes sought relief based on ineffective assistance of counsel for failing to investigate the abuse by Guevara which rendered his inculpatory statement involuntary. Solache’s petition was to similar to Reyes’ petition and asserted 14 claims essentially contending that Solache’s confession was the product of a beating by Guevara. In support, Solache presented what he termed “substantial new evidence that Detective Guevara has systematically used improper techniques, including excessive physical force, to coerce false statements from suspects and civilians.” In Solache’s view, this “new evidence” consisted of 23 allegations that “establish a clear pattern and practice of misconduct and abuse by Detective Reynaldo Guevara.” (Internal quotation marks omitted.) Id. The trial court summarily dismissed both petitions as frivolous and patently without merit. Id. at 12. ¶ 51 Reyes and Solache each appealed. This court consolidated the two appeals and, in December 2006, we reversed the summary dismissals and remanded for second-stage postconviction proceedings because the petitions alleged the gist of a constitutional claim. Id. at 24. ¶ 52 On June 29, 2016, the circuit court found that Reyes and Solache had made a substantial showing that they were denied their constitutional right to due process by a preponderance of the evidence. The circuit court ordered new hearings on their motions to suppress. “After reviewing the evidence in third-stage evidentiary proceedings, it is abundantly clear that, the uncontradicted accounts of these specific interactions entailing abuse, coercion and improper influence in addition to the negative inference drawn from Det. Guevara’s assertion of his 5th amendment privilege against self-incrimination lend credence to petitioners’ allegations of abuse and coercion. A majority of the new evidence presented by petitioners is credible and, given that those accounts are unrebutted, the new -17- 1-14-1660 evidence is conclusive enough to establish that the outcome of petitioners’ previous motion to suppress would likely have been different. Had petitioners been armed with these multiple credible and unrebutted accounts of the incidents introduced in these proceedings at the time of their motion to suppress, the court would have likely rendered a different decision and excluded their statements from introduction during trial in protection of their right to due process. In order to determine whether petitioners’ new evidence in support of their claim of abuse and coercion would render their confessional statements involuntary and, therefore, inadmissible at trial, a new motion to suppress hearing should be held.” People v. Reyes, Nos. 98 CR 1244002, 98 CR 1244003 (Cook Co. Cir. Ct. June 29, 2016) (order granting hearing on motion to suppress). The State has appealed this order. ¶ 53 Another case petitioner relies on is People v. Almodovar, 2013 IL App (1st) 101476. Robert Almodovar was convicted of first degree murder, attempted murder, and aggravated battery with a firearm, and sentenced to life. Id. ¶ 2. There was no physical evidence directly linking Almodovar to the crime scene. Id. ¶ 7. The State’s case centered on the testimony of two surviving victims and their identification of Almodovar. Id. One of the witnesses testified at a hearing on the first postconviction petition that Guevara, prior to taking him to a lineup, showed him photographs of Almodovar, asked him to identify Almodovar in the lineup and told him not to mention that Guevara showed him the pictures. At the lineup, the witness said he recognized the two people who had been in the photos and pointed them out. Id. ¶¶ 42, 43. The other witness also testified at the hearing and reaffirmed her trial testimony. She denied that Guevara did anything improper or suggestive regarding her identification of Almodavar nor did she observe -18- 1-14-1660 him do anything to improperly influence the other witness in his identification of the petitioner. Id. ¶¶ 48, 49. ¶ 54 We reversed the first-stage dismissal of the petitioner’s successive postconviction petition because the allegations that Guevara used improper procedures to influence witnesses to identify the petitioner met the “cause and prejudice test” were sufficient to allow the petition to advance to the second stage. Id. ¶¶ 75, 79. ¶ 55 The Almodovar court found Reyes, 369 Ill. App. 3d 1, similar because Almodovar was convicted in large part through Guevara’s investigative efforts. Almodovar alleged that the evidence used against him was obtained by Guevara through suggestive identification procedures and Guevara’s pattern of abuse was established (Almodovar, 2013 IL App (1st) 101476, ¶ 64), and “ ‘any allegation that Guevara coerced a person to provide evidence is relevant to whether defendants in the case at bar were similarly coerced.’ ” Id. ¶ 67 (quoting Reyes, 369 Ill. App. 3d at 21). This similarity was sufficient to meet the cause and prejudice test to allow the petitioner to file a successive postconviction petition. Id. ¶ 75. ¶ 56 Thus, Reyes involved claims by the petitioners that Guevara abused them to obtain incriminating statements and the claim by a witness that Guevara improperly influenced her testimony and Almodovar involved a witness claiming improper conduct to obtain an identification. In both cases, Guevara denied all of these allegations of misconduct, putting Guevara’s credibility squarely at issue in both cases. In contrast, in this case we are reviewing the dismissal of a second-stage postconviction petition where there is a complete failure to make a substantial showing of a constitutional violation involving Guevara’s misconduct towards the petitioner, Rodriguez, Marrero, or any other witness that was involved in the trial that led to defendant’s conviction in this case. Rather, Gonzalez urges us to assume that because Guevara -19- 1-14-1660 was guilty of misconduct in other cases, the same must be true in this case. Importantly, other than pointing to evidence in other cases, Gonzalez fails to identify with reasonable certainty the nature, source, character and availability of evidence of the same misconduct that allegedly occurred in his case. Delton, 227 Ill. 2d at 254. ¶ 57 Gonzalez points out, and we acknowledge, that as criminal cases in Cook County involving Guevara have been gradually coming to light, he has begun to invoke his fifth amendment privilege against self-incrimination in various criminal and civil litigation matters. For postconviction analysis purposes, after reviewing Gonzalez’s appendix there is little doubt that Guevara was engaged in a pattern of improperly influencing witness identifications. There is no question the affidavits and transcripts appended to Gonzalez’s amended postconviction petition highlighting Guevara’s misconduct in other cases is sufficient to meet the standards for first stage review, which is a low threshold. People v. Cummings, 375 Ill. App. 3d 513, 516 (2007); People v. Edwards, 197 Ill. 2d 239, 244, (2001) (a court may summarily dismiss a petition at the first stage as frivolous or patently without merit if it fails to present the gist of a constitutional claim.) However, at the second stage, the petitioner bears the burden of making a substantial showing of a constitutional violation. Rivera, 2014 IL App (2d) 120884, ¶ 7. Gonzalez has failed to make a substantial showing of a constitutional violation. ¶ 58 We disagree with Gonzalez that he has satisfied the Washington standard of actual innocence: that the evidence in support of his claim here is new, material, noncumulative evidence that is so conclusive it would probably change the result on retrial. Washington, 171 Ill. 2d at 479. The evidence offered by Gonzalez simply amounts to evidence of Guevara’s misconduct in other cases. This proffered evidence is immaterial, it does not support a claim of actual innocence, and it would not have any bearing on this result on retrial in the absence of -20- 1-14-1660 evidence that Guevara engaged in similar misconduct in this case. Significantly, Gonzalez has not submitted any affidavits, or any other evidence for that matter, with his amended petition showing that Guevara engaged in any wrongdoing in this particular case. In fact, postconviction counsel acknowledges the absence of such evidence but argues that petitioner’s case should advance to a third-stage evidentiary hearing in order to access the subpoena power available at the third stage to embark on a search for unknown and unidentifiable evidence that might tend to show that Guevara engaged in any wrongdoing in this case. That is not how the Post-Conviction Hearing Act works. ¶ 59 Postconviction counsel has advanced several theories to support petitioner’s speculative position that Guevara improperly influenced the identification witnesses in this case. Counsel theorizes that because there are certain “hallmark features” present here that were also present in other Guevara misconduct cases, Guevara necessarily must have coerced, improperly influenced, and intimidated the two main witnesses in this case. First, postconviction counsel argues that Yesenia Rodriguez was exactly the type of witness Guevara preyed upon—a young teen who spoke Spanish. Second, counsel suggests that Yesenia Rodriguez, like other witnesses in other cases, changed her description of the shooter after being interviewed by Guevara; initially she described the assailant as a black-Hispanic, 18-to-20-years-old with a black jersey wrapped around his face that concealed his identity and then changed to a post-Guevara interview description of a thin white-Hispanic, between five-foot-seven and five-foot-ten inches with a white t-shirt tied around his head. The third “hallmark feature” counsel identifies is the lineup identification made by Marrero after a suggestive photo array (petitioner’s photo was the only one of six that showed a man holding a placard with an arrest number on it and had a white -21- 1-14-1660 background.) Finally, counsel argued that the State only presented evidence that came directly or indirectly through Guevara. ¶ 60 While all of these “hallmark features” may in fact be common to other documented cases that Guevara was involved in, Gonzalez simply cannot overcome the fact that there are no affidavits, records, or supporting evidence filed in this proceeding evidencing Guevara improperly influenced, coerced, or intimidated any witness or improperly influenced any identification in this case. Without an affidavit, record, or other supporting evidence of misconduct related to a witness in this case, historical “hallmark features” of Guevara’s misconduct are insufficient. “Generalized claims of misconduct [alleged by petitioner], without any link to [petitioner’s] case, i.e. some evidence corroborating [petitioner’s] allegations, or some similarity between the type of misconduct alleged by [petitioner] and that presented by the evidence of other cases of abuse, are insufficient to support a claim of coercion.” People v. Anderson, 375 Ill. App. 3d 121, 137-38 (2007). In this case, there is no specific misconduct by Guevara alleged so there can be no similarity drawn to his documented misconduct that would support the conclusion that petitioner is entitled to a third-stage evidentiary hearing. ¶ 61 Gonzalez also argues that he attached “sworn testimony from Guevara himself who in the face of questioning about allegations of wrongdoing invoked his Fifth Amendment privilege to remain silent.” Guevara may have invoked his constitutional privilege in other cases, but again, there is no indication that he did so in relation to this particular case. 1 In his brief, Gonzalez states there is material “new evidence that Detective Guevara would plead the Fifth Amendment in response to questions related to his investigation of Tony Gonzalez” because “during a recent deposition in the federal civil litigation, Rivera v. Guevara, et al., 12-cv-04428, Guevara pled the 1 Gonzalez cites generally to the seven-volume supplemental record in support of this argument. -22- 1-14-1660 Fifth Amendment in response to every question regarding his conduct while employed by the Chicago Police Department, including the a [sic] question of whether he framed Tony Gonzalez.” Similarly, at oral argument, postconviction counsel argued that, when deposed in the case of “Jaque Rivera” regarding his involvement in Gonzalez’s case, Guevara invoked his fifth amendment privilege. Certainly, a negative inference may be drawn from a party’s refusal to testify. See People v. Whirl, 2015 IL App (1st) 111483, ¶ 107. However, Gonzalez has made these allegations without including this deposition testimony with his postconviction petition and without any citation to the record here, thereby foreclosing further consideration of this point. ¶ 62 In People v. Orange, 168 Ill. 2d 138 (1995), the petitioner’s amended postconviction petition was denied without an evidentiary hearing. At his trial, the petitioner testified specifically that his confession was coerced through physical torture. Id. at 145. The petitioner raised several issues in his amended petition, including ineffective assistance of trial counsel based on counsel’s failure to investigate his torture claim. The petitioner claimed that had trial counsel subpoenaed police disciplinary files he would have discovered corroborative evidence of coercive activities at Area 2. According to the petitioner, when he requested an attorney during his interrogation at Area 2, the police struck him in the mouth, used electroshock, stuck needles in his buttocks, repeatedly squeezed his scrotum, and placed a bag over his head in their attempts to coerce his confession. Id. at 147. To support his claim, petitioner submitted numerous affidavits from watchdog groups detailing the misconduct of officers in Area 2 over a two-year period. Id. at 148. ¶ 63 The Orange court noted that trial counsel’s deposition indicated an awareness of petitioner’s claimed coercion and of the general Area 2 torture allegations but counsel chose not to pursue that issue. Moreover, the court found: -23- 1-14-1660 “the affidavits submitted by defendant in support of his amended post-conviction petition are generalized and do not support the claims of torture or coercion made by him in this case. Because generalized allegations of coercive activity in Area 2, without other evidence, would not establish that this defendant was coerced into confessing (People v. Jones (1993), 156 Ill. 2d 225, 245 (occurrences of past police brutality have no relevance to instant case)), we believe that it was not unreasonable for counsel to curtail his investigation.” Id. at 150-51. ¶ 64 Unlike Orange, in this case there are no specific allegations that Guevara abused, coerced, improperly influenced, or intimidated petitioner or any witnesses involved in Gonzalez’s conviction. Similar to Orange, petitioner here has made nothing but generalized, speculative allegations of coercion. See also People v. Maxwell, 173 Ill. 2d 102, 120-21 (1996) (holding that without some evidence that petitioner was injured, evidence of the treatment of other suspects, through reports of physical abuse and coercion of confessions at Area 2, could not alone be the basis for a postconviction evidentiary hearing); People v. Hinton, 302 Ill. App. 3d 614, 626 (1998) (Grieman, J., specially concurring) (rejecting petitioner’s contention that he was entitled to an evidentiary hearing on his postconviction petition because he had new evidence which showed “systematic torture” at Area 2); Hobley, 182 Ill. 2d at 448-49 (1998) (postconviction petitioner’s request to proceed to an evidentiary hearing denied finding “new evidence” consisting of the OPS report and transcripts of testimony from other alleged victims of abuse did not alter the court’s determination that petitioner did not suffer injuries consistent with his claims of abuse); People v. Murray, 254 Ill. App. 3d 538, 553 (1993) (holding petitioner’s allegations of abuse of other suspects were properly excluded because they were “general in nature”). Gonzalez’s generalized, speculative allegations are insufficient to advance the amended petition to a third-stage hearing. -24- 1-14-1660 Petitioner simply has not established that there exists a sound basis for a third-stage evidentiary hearing to address whether he is entitled to relief based on a substantial violation of a constitutional right. ¶ 65 Had Gonzalez presented any evidence, however slight, that Guevara coerced, improperly influenced, or intimidated a witness in this case, similar to the misconduct evidenced in the petitions filed in Montanez and Serrano (witness recanted trial testimony and claimed coercion by Guevara), Reyes and Solache (petitioners claimed before trial and at trial that Guevara coerced incriminating statements and a witness claimed he was ordered by Guevara to identify petitioners in a lineup), or Almodovar (witness testified that Guevara showed him photographs of petitioner prior to a lineup and asked him not mention the suggestive procedure), a convincing argument would have been made to advance respondent’s petition to a third-stage evidentiary hearing. Without any evidence whatsoever that any witness against Gonzalez was improperly influenced by Guevara, we find that the circuit court properly dismissed Gonzalez’s actual innocence claim at the second stage. ¶ 66 Brady Violation ¶ 67 Does the petition establish a Brady violation? ¶ 68 Under Brady v. Maryland, 373 U.S. 83 (1963), prosecutors are required to disclose exculpatory evidence to the defendant. Members of the prosecution team are responsible for disclosing evidence of innocence, including witnesses’ statements or physical evidence. To establish a Brady violation, a defendant must show that: “(1) the undisclosed evidence is favorable to the accused because it is either exculpatory or impeaching; (2) the evidence was suppressed by the State either willfully or inadvertently; and (3) the accused was prejudiced because the evidence is material to guilt or punishment.” People v. Beaman, 229 Ill. 2d 56, 73-74 -25- 1-14-1660 (2008). Furthermore, a defendant “must establish that he requested the evidence in question, and that the State in fact possessed it and failed to disclose it.” People v. House, 141 Ill. 2d 323, 387 (1990). ¶ 69 Gonzalez argues that he is entitled to a third-stage evidentiary hearing because he made a substantial showing of a violation of his constitutional rights on his Brady claim where the State withheld evidence of Detective Guevara’s pattern and practice of coercing and manipulating witness testimony. This evidence, Gonzalez claims, would have impeached Guevara’s credibility and undermined the reliability of the witness identifications that were procured by Guevara. ¶ 70 Citing Gauger v. Hendle, 349 F. 3d 354, 360 (7th Cir. 2003), the State characterizes Gonzalez’s assertion of the prosecution’s obligations under Brady as “overreaching.” The State asserts the prosecution had neither actual knowledge nor imputed knowledge of any wrongdoing by the police department as a whole, or Guevara in particular. The State argues that nevertheless, the evidence presented in Gonzalez’s postconviction petition was not material and that Gonzalez cannot demonstrate his evidence of Guevara’s conduct in other cases was “of such conclusive character that it will change the result on retrial of his case.” ¶ 71 Gonzalez claims it was an “open and notorious secret” that Guevara framed suspects with coerced and manipulated identification testimony and argues that “much of the supporting evidence was known to the Cook County State’s Attorney at the time of Gonzalez’s retrial in 2003.” He further states that “every allegation against Guevara set forth in the exhibits attached to Gonzalez’s petition and summarized in the chart on page [sic] of this brief, was made prior to Gonzalez’s retrial in 2003” and therefore the State’s Attorney’s office had actual knowledge of scores of allegations made against Guevara for fabricating false eyewitness identification testimony. -26- 1-14-1660 ¶ 72 We reject Gonzalez’s Brady claim. If what Gonzalez claims is true, that “every allegation against Guevara set forth in the exhibits attached to Gonzalez’s petition and summarized in the chart on page (sic) of this brief, was made prior to Gonzalez’s retrial in 2003” then that same information had to have been available to Gonzalez, particularly those cases that reached this court. See Johnson, 272 Ill. App. 3d at 479; People v. Arcos, 282 Ill. App. 3d 870 (1996). As Gonzalez has pointed out, it was an “open and notorious secret” that Guevara was known as someone who framed suspects with coerced and manipulated identification testimony. Furthermore, even if the information regarding Guevara’s misconduct in other cases would have been useful for impeachment at trial, and even if the State should have disclosed it, it is not of such conclusive character that it would have changed the result of Gonzalez’s case. See People v. Collins, 2013 IL App (2d) 110915, ¶ 16-18 (police officer’s suspension for knowingly providing inaccurate information in an unrelated case could not be used as impeachment where the claim that the officer had a motive to testify falsely was speculative, remote, and uncertain.) As we have repeatedly stated, Guevara’s misconduct in other cases is not relevant in this case where there are absolutely no allegations or evidence of coercion, improper influence, or manipulation of any witness or in the investigation that produced the identification testimony at trial. Therefore, we affirm the dismissal of Gonzalez’s Brady claim at the second stage. ¶ 73 CONCLUSION ¶ 74 Based on the foregoing, we affirm the judgment of the trial court dismissing Gonzalez’s amended postconviction petition at the second stage. ¶ 75 Affirmed. ¶ 76 PRESIDING JUSTICE HYMAN, dissenting, with opinion. -27- 1-14-1660 ¶ 77 The overwhelming majority of police officers and detectives act ethically and with common goals of community safety and addressing criminal behavior. But a civil society cannot tolerate the few rogue police officers and detectives who pervert the system by using illegal and nefarious means to make arrests and secure convictions. Newly discovered evidence demonstrates Detective Guevara engaged in a pattern and practice of framing suspects by orchestrating false identifications against them. His unlawful and disgraceful conduct casts an ugly pall over any case he worked on, most notably between about 1982 and 2005, the year he retired with a full police pension. ¶ 78 A conviction corrupted by law enforcement misconduct must not be let to stand as it undermines the very core of the legal system and threatens the public’s perception of the fairness and credibility of the entire criminal justice process. See People v. Bryant, 2016 IL App (1st) 140421, ¶ 33 (Hyman, J, special concurrence) (procedural fairness, not actual outcome, has greater effect on how people view the legal system). There is more than enough here to reverse the trial court’s dismissal of Gonzalez’s amended postconviction petition at the second stage, and to order a third-stage evidentiary hearing. One need not see flames to know that there has been a fire. ¶ 79 Evaluation of Gonzalez’s petition must be conducted in the context of other specific instances of Guevara’s alleged professional misconduct during investigations. The documents filed by Gonzalez raise grave concerns about the decades of unsavory police tactics used by Guevara. The affidavit from retired Chicago police detective William Dorsch stated he served as a gang crimes officer for 14 years between 1971 and 1985. Dorsch’s affidavit related an earlier instance where Guevara pointed out a photograph to a young female witness, telling her whom to identify as the perpetrator. Gonzalez also included documents relating to other cases alleging -28- 1-14-1660 misconduct by Guevara and a photocopy of the six-photo array that Guevara showed Marrero in the hospital. ¶ 80 The second stage of postconviction review tests the legal sufficiency of the petition. People v. Domagala, 2013 IL 113688, ¶ 35. Unless the record affirmatively refutes the petitioner’s allegations, they are taken as true, and the question presented is whether those allegations establish or “show” a constitutional violation. Id. “In other words, the ‘substantial showing’ of a constitutional violation that must be made at the second stage [citation] is a measure of the legal sufficiency of the petition’s well-pled allegations of a constitutional violation, which if proven at an evidentiary hearing, would entitle petitioner to relief.” (Emphasis in original.) Id. See People v. Lee, 2016 IL App (1st) 152425, ¶ 61 (petition dismissed at second stage because “ ‘no reasonable probability that the outcome of the proceedings would have been different’ ” even if affiants testified at an evidentiary hearing). The “affidavits and exhibits which accompany a petition must identify with reasonable certainty the sources, character, and availability of the alleged evidence supporting the petition’s allegations.” People v. Delton, 227 Ill. 2d 247, 254 (2008). ¶ 81 Section 122-2 of the Act requires that a petition “shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122-2 (West 2004). This requirement establishes that the allegations in a postconviction petition are capable of objective or independent corroboration. Delton, 227 Ill. 2d at 254. When reviewing the dismissal of a petition, an appellate court looks to the allegations in the petition, construed liberally in favor of petitioner and in light of the record and transcript, to determine whether the petitioner has alleged sufficient facts to require an evidentiary hearing. People v. Pittman, 192 Ill. App. 3d 943, 946 (1989). While affirming the dismissal of a petition -29- 1-14-1660 without holding an evidentiary hearing, Pittman noted our supreme court held in People v. Washington, 38 Ill. 2d 446, 451 (1967), that where the issue was the right to an evidentiary hearing where the petition was not accompanied by the required supporting affidavits, the petition itself was a sworn statement by the accused and in the absence of anything in the record disputing the allegations, the accused was entitled to a hearing to determine truth or falsity. Pittman, 192 Ill. App. 3d at 948. ¶ 82 The majority notes the amended petition included an affidavit from Detective Dorsch and included a seven-volume appendix relating to several cases “alleging misconduct by Guevara,” as well as a copy of the photographic array shown to Marrero. Supra ¶ 18. These cases do not simply “allege” misconduct; in every case the defendant prevailed on the issue. See Johnson, 272 Ill. App. 3d 479; Cruzado, 299 Ill. App. 3d 131; Solache, No. 1-03-1149; Reyes, 369 Ill. App. 3d 1; Almodovar, 2013 IL App (1st) 101476; Montanez, 2016 IL App (1st) 133726; Serrano, 2016 IL App (1st) 133493. The majority goes so far as to state the “hallmark features” of this case may “in fact be common to other documented cases that Guevara was involved in.” (Emphasis in original.) Supra ¶ 60. Several intersecting features reappear including (i) the type of witness Guevara historically preyed on (Spanish-speaking teenager), who (ii) changed his or her description of the shooter after being interviewed by Guevara; (iii) a suggestive photo array shown to the other eyewitness; and (iv) no other evidence introduced at trial to corroborate the two eyewitnesses’ testimony. Surprisingly, even though the majority recognizes “there is little doubt that Guevara was engaged in a pattern of improperly influencing witness identifications,” the majority holds these “hallmark features” are insufficient to advance to the third stage of an evidentiary hearing. Supra ¶ 57. -30- 1-14-1660 ¶ 83 The majority summarizes the several cases all with a common thread—Guevara investigated the crimes that occurred. Johnson, 272 Ill. App. 3d 479; Cruzado, 299 Ill. App. 3d 131; Solache, No. 1-03-1149; Reyes, 369 Ill. App. 3d 1; Almodovar, 2013 IL App (1st) 101476; Montanez, 2016 IL App (1st) 133726; and Serrano, 2016 IL App (1st) 133493. Supra ¶¶ 37-56. It is significant that the majority opinion states, “Serrano also noted that the petitioner offered into evidence a statement from another witness that corroborated claims that Guevara used violence and other inducements to obtain false testimony from the purported witness against Serrano and Montanez.” Supra ¶ 42. This occurred during the evidentiary hearing on the postconviction petition. At this stage in this case, no affidavit or further documentation would change what happened during this investigation because the two eyewitnesses and one detective who testified have not voluntarily come forward. Each witness’s testimony was interwoven in the one narrative that Gonzalez was guilty based on photographic identification followed by a live lineup. And Guevara was the detective. At an evidentiary hearing Gonzalez could subpoena witnesses and proffer evidence. Without an evidentiary hearing to explore Dorsch’s statements and subpoena Guevara, I believe this court runs the real risk of dooming a possibly innocent man and damaging public trust and confidence in the legal system by rationalizing away a hearing on the extent of Guevara’s activities in this case. ¶ 84 In 2011, when we reversed the trial court’s summary dismissal of Gonzalez’s petition at the first stage and remanded for second-stage proceedings we stated: “With the news of the verdict in another case involving Detective Guevara, defendant has offered facts to support a legal theory of his actual innocence. This evidence is non-cumulative because it has not been presented in another form or suggested earlier by other means. Moreover, the evidence, taken as true and liberally construed, also is material and of such conclusive character that it would probably -31- 1-14-1660 change the result on retrial. Defendant’s conviction was largely based on the eyewitness testimony of Rodriguez and Marrero, who were interviewed and shown pictures by Detective Guevara.” People v. Gonzalez, 2011 IL App (1st) 093016-U, ¶ 23. This court further pointed to the State’s contention that Juan Johnson, the defendant who prevailed in the federal case, was not involved in Gonzalez, having “misse[d] the mark” because “the purveyor of false identifications from Johnson’s case was Detective Guevara, who secured the identifications of [Gonzalez] in the instant case.” Id. ¶24. ¶ 85 The majority gives short shrift to these compelling statements and merely notes the reversal of the summary dismissal, despite the means by which Guevara obtained confessions and witnesses’ statements. ¶ 86 Significantly, Gonzalez included an affidavit from the same detective who came forward in Montanez and Serrano. Supra ¶ 18. Detective Dorsch stated that during the late “80’s/early 90’s” he was assigned to a homicide case with Guevara. They arranged a photographic array of possible suspects for two juvenile witnesses. When one witness hesitated to pick a photo, Dorsch witnessed Guevara point to one of the photographs and tell the witness “that’s him.” Dorsch was concerned and called Felony Review, but it approved the charges after independently interviewing the witness. The next day, Dorsch talked to the juvenile about the seriousness of the charges and the importance of his identification. The juvenile admitted he had not actually witnessed the shooting. Dorsch immediately contacted the assistant State’s Attorney and all charges against the suspect were dropped. ¶ 87 Here, Guevara testified at both trials about his investigation and the statements of the two eyewitnesses. Guevara interviewed Rodriguez at her apartment on the day after the shooting. -32- 1-14-1660 Guevara stated Rodriguez told him that the shooter had a black shirt tied around his head that did not conceal his face. ¶ 88 Rodriguez testified that police who responded to the scene interviewed her in Spanish. She told police the shooter was a male Hispanic but she did not see his face because he had a black shirt wrapped around his head that concealed his face. ¶ 89 Marrero’s blood alcohol level two hours after the shooting showed he had been drinking heavily. Marrero was still hospitalized when Guevara interviewed him and showed him a six- photo array. Five of the six photographs had dark backgrounds and no numbers visible; Gonzalez’s picture was the only photograph with numbers showing underneath his face and a white background. From this unduly suggestive array Marrero identified Gonzalez as the gunman. In the next few days, Guevara interviewed Rodriguez, a 15-year-old girl who was shown mug shots from a “gang book.” About two weeks later, Gonzalez was arrested. Guevara arranged a lineup and testified Rodriguez and Marrero were together for about 10 minutes before looking at the lineup but viewed the lineup separately. Admitting this was poor police procedure, Guevara testified he did not “see anything wrong with that.” Gonzalez was the only person in the lineup whose picture had been identified by both witnesses. ¶ 90 “Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent *** courtroom identification.” (Emphasis added.) Simmons v. United States, 390 U.S. 377, 383-84 (1968). Other than Marrero and Rodriguez, there was no other evidence presented even tending to incriminate Gonzalez. ¶ 91 Our system should afford defendants recourse when their convictions rest solely on questionable eyewitness identifications. It is regrettable that the criminal justice system, -33- 1-14-1660 particularly in Cook County, has seen lengthy episodes of witness intimidation and coerced confessions by law enforcement. Record million dollar settlements have been reached between the City of Chicago and wrongfully convicted persons. To paraphrase the majority, “how does any of that relate to this case?” It is this—the same detective who has been responsible for multiple wrongful convictions investigated this case and interviewed the two witnesses who later identified Gonzalez. The cases summarized by the majority involve Juan Johnson, Jose Montanez, Armando Serrano, Arturo Reyes, Gabriel Solache, and Robert Almodovar, whose wrongful convictions were based on evidence engineered by Detective Guevara. ¶ 92 The relevance of evidence that police officers who questioned the defendant in one case had coerced suspects in other cases must not be lost. It serves to inform the court that it cannot ignore the implications of egregious misconduct. As the court stated in People v. Cannon, 293 Ill. App. 3d 634, 640 (1997), “Here, evidence of other acts of brutality to obtain confessions could serve two purposes: First, it might prove intent, plan, motive, and a course of conduct of the officers—all relevant to [the defendant’s] claim he was tortured. [Citation.] Second, evidence of other similar acts could be used to impeach the credibility of the Area 2 police officers who will testify at the hearing.” ¶ 93 And, regarding Guevara, individually, we have said, “In our view, any allegation that Guevara coerced a person to provide evidence is relevant to whether defendants in the case at bar were similarly coerced.” Reyes, 369 Ill. App. 3d at 21 (applying the test enunciated in People v. Patterson, 192 Ill. 2d 93, 145 (2000) (test of “new,” “material,” and “likely change the result upon retrial” to a first-stage proceeding)). ¶ 94 Finally, the majority’s rejection of Gonzalez’s Brady claim flips the prosecution’s responsibility for disclosure of exculpatory evidence to a defendant. Supra ¶ 72. The majority -34- 1-14-1660 states the same information regarding allegations against Guevara was available to Gonzalez, citing People v. Johnson, 272 Ill. App. 3d 479 (1995), and People v. Arcos, 282 Ill. App. 3d 870 (1996). First, in neither Johnson nor Arcos was there any allegation of witness intimidation or coercion. Guevara testified for the prosecution, but only as to his part in the investigations. Certainly, however, by the time of Gonzalez’s second trial, the State and the Chicago police department were well aware of Guevara’s activities in multiple cases. The State failed to tender exculpatory evidence of Guevara’s complaint history prior to Gonzalez’s retrial in 2003. The failure of the prosecution to turn over potentially impeaching information about Guevara violated Brady requirements. ¶ 95 The majority also places the responsibility on a defendant to “ ‘establish that he requested the evidence in question, and that the State in fact possessed it and failed to disclose it.’ ” Supra ¶ 68 (quoting House, 141 Ill. 2d at 387). In House, the State had disclosed what it had been provided by the hospital and was unaware that hospital nurses’ notes pertaining to a victim’s condition also existed. The supreme court held the State was not under a duty to discover and disclose the notes. More importantly, possession and control of the information was not imputed to the State’s Attorney’s office. We must not extrapolate the supreme court’s refusal to impose on the State an imputed knowledge of nurses’ notes about a hospitalized witness to the facts at issue here. ¶ 96 To this point, the State does have imputed knowledge of police records. The prosecution cannot escape its duty under Brady by contending that the suppressed evidence was “known only to police investigators and not to the prosecutor.” Kyles v. Whitley, 514 U.S. 419, 438 (1995). As the United States Supreme Court explained in Kyles, “any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the -35- 1-14-1660 police for the prosecutor, and even for the courts themselves, as the final arbiters of the government’s obligation to ensure fair trials.” Id. ¶ 97 Apparent in this case is the insurmountable obstacle that there were only two eyewitnesses who cannot be expected to come forward to supply an affidavit supporting Gonzalez. Similarly, in People v. Williams, 47 Ill. 2d 1, 4 (1970), the petitioner alleged that his constitutional rights had been violated because of misrepresentations which had been made to him by his attorney while the State contended that the petition was insufficient to entitle the petitioner to a hearing because it was not accompanied by supporting affidavits. The Williams court, in rejecting the State’s argument, stated that the only affidavit that the petitioner could possibly have furnished, other than his own sworn statement, would have been that of his attorney who allegedly made the misrepresentation to him, and that the difficulty in obtaining such an affidavit was self-apparent. The Williams court noted that to construe the Post-Conviction Hearing Act so strictly as to require an accompanying affidavit would be to defeat the purpose of the Act by denying the petitioner a hearing on the factual issues raised by the pleadings. The supreme court elaborated in People v. Collins, 202 Ill. 2d 59 (2002), stating “requiring the attachment of ‘affidavits, records, or other evidence’ will, in some cases, place an unreasonable burden upon post-conviction petitioners.” Id. at 68. The same principle applies with equal, if not increased force, to Gonzalez. ¶ 98 This court has been repeatedly called on to review postconviction petitions in cases involving Chicago police department officers accused of misconduct in the course of criminal investigations. Only the “truth-finding” purpose of a third-stage evidentiary hearing can help to negate this awful legacy, as it has done for others in situations similar to that of Gonzalez. The trial judge at a third-stage evidentiary hearing determines the credibility of witnesses, decides the weight to be given testimony and evidence, and resolves any evidentiary conflicts. Domagala, -36- 1-14-1660 2013 IL 113688, ¶ 34. The factual record requires the granting of a third-stage hearing. So does the law. And, so does the credibility of the criminal justice system. -37-

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126956/

Digitally signed by Reporter of Decisions Illinois Official Reports Reason: I attest to the accuracy and integrity of this document Appellate Court Date: 2017.01.23 08:26:22 -06'00' Mitchell v. Village of Barrington, 2016 IL App (1st) 153094 Appellate Court JODIE MITCHELL, Plaintiff-Appellant, v. VILLAGE OF Caption BARRINGTON, an Illinois Municipal Corporation, Defendant- Appellee. District & No. First District, Fourth Division Docket No. 1-15-3094 Rule 23 order filed September 8, 2016 Rule 23 order withdrawn November 23, 2016 Opinion filed November 23, 2016 Decision Under Appeal from the Circuit Court of Cook County, No. 12-CH-34218; the Review Hon. David B. Atkins, Judge, presiding. Judgment Affirmed. Counsel on Barbara J. Bell, of Arlington Heights, for appellant. Appeal James J. Powers, of Clark Baird Smith LLP, of Rosemont, for appellee. Panel JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices McBride and Burke concurred in the judgment and opinion. OPINION ¶1 Plaintiff Jodie Mitchell was employed as a paramedic for defendant Village of Barrington (Village). In 2007, Mitchell sustained an injury while on the job. The Village eventually determined that Mitchell’s injury prevented her from being able to perform her duties and terminated her from that position. Mitchell later sought health care benefits under the Public Safety Employee Benefits Act (Act) (820 ILCS 320/1 et seq. (West 2012)), and the Village denied that request, finding she was not covered under the Act. Mitchell subsequently submitted a formal application for benefits under the Act, and her request was again denied. Mitchell filed this lawsuit, seeking benefits under the Act. The Village filed a motion for summary judgment and the trial court granted that motion finding Mitchell’s claims were barred by the doctrine of laches. Mitchell now appeals the trial court’s ruling on summary judgment. ¶2 Background ¶3 On January 21, 2007, Mitchell responded to a call-for-service at a residential home in Barrington by driving an ambulance. Upon exiting the ambulance, Mitchell slipped on a patch of ice and injured her back. Mitchell worked several of her following shift days, but then went on a medical leave of absence in April 2007. ¶4 The Village terminated Mitchell’s employment in January 2008, issuing her termination letter on January 29, 2008. In the letter, the Village explained that “you are at maximum medical improvement, and it appears there will be no significant change in your medical condition in the foreseeable future.” The letter went on to explain that because of Mitchell’s “ongoing inability to perform [her] job duties, the Village of Barrington Board of Trustees at its January 28, 2008 Board Meeting acted on a motion authorizing and approving [her] separation from employment.” ¶5 Mitchell disagreed that there would be no significant change in her medical condition and that the Village “jumped the gun” in terminating her, believing that she would have been able to come back to work soon. ¶6 After her termination, Mitchell sought health insurance benefits under the Act (820 ILCS 320/1 et seq. (West 2012)). The Act provides for health benefits for firefighters who suffer catastrophic injuries in the line of duty. Section 10(a) of the Act states: “An employer who employs a full-time law enforcement, correctional or correctional probation officer, or firefighter, who, on or after the effective date of this Act suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer’s health insurance plan for the injured employee, the injured employee’s spouse, and for each dependent child of the injured employee until the child reaches the age of majority or until the end of the calendar year in which the child reaches the age of 25 if the child continues to be dependent for support or the child is a full-time or part-time student and is dependent for support.” 820 ILCS 320/10(a) (West 2012). -2- ¶7 To determine whether Mitchell is eligible for benefits under the Act, it is necessary to examine the history of Mitchell’s employment with the Village. Mitchell was hired by the Village on August 1, 1988 as a “paramedic.” At the time of that hire, Mitchell did not participate in any type of testing process administered by the Village’s Board of Fire and Police Commissioners as that Board did not exist in 1988. At the time Mitchell was hired, she already possessed a “Firefighter II” certification from a prior employer. Mitchell was not required to have that certification for her paramedic position with the Village. When hired, Mitchell worked a traditional 24-hour on, 48-hour off schedule. ¶8 In 1994, the Village decided to convert its paramedic positions to full-time firefighters. Accordingly, the Village sent Mitchell and other paramedics a letter in March 1994 offering the paramedics an opportunity to become sworn full-time “Firefighters/Paramedics” who would be subject to appointments and promotions by the Village’s Board of Fire and Police Commissioners. Among other things, the letter clarified that any paramedic that declined the offer “will continue to be classified as a Civilian Paramedic under the Village’s Pay Plan with continuing participation in the Illinois Municipal Retirement Fund.” For personal reasons, Mitchell declined the Village’s offer to become a sworn firefighter/paramedic and thus remained a civilian paramedic. ¶9 In June 1999, the Village’s manager sent Mitchell a letter explaining a potential staffing concern that had arisen due to the “two-in, two-out” respirator protection standards that had been promulgated by the U.S. Department of Labor. The letter also confirmed that Mitchell preferred to remain a civilian paramedic instead of becoming a full-time firefighter. ¶ 10 As a result of the Village’s need to comply with the new “two-in, two-out” regulations and address Mitchell’s desire to remain a paramedic with her same responsibilities and duties, the Village offered Mitchell the following arrangement: “It has therefore been determined that you may continue as a paramedic working a 24/48 hour shift schedule and meet the requirements of the standard beyond September 1999 provided you are qualified to assist with fire suppression and related duties. The Village has determined that in order for you to do so the following requirements must be met: — Maintain certification as Firefighter II. — Successfully complete a program of annual training, defined by the Fire Chief to meet rescue/fire suppression team operations requirements. A portion of this training may be provided outside of the normal work schedule. — Successfully demonstrate the ability to meet any standards required of a rescuer wearing self-contained breathing apparatus. — Continue to meet all job requirements for that of paramedic including that of rescuing persons within burning structures where atmospheres are immediately dangerous to life and health.” ¶ 11 On August 11, 1999, then-Fire Chief Danley sent Mitchell a memo that further clarified that the types of standards that she would be expected to satisfy when assisting with fire suppression. The memo clarified that “[i]t is intended that you would not normally be assigned as part of the initial attack crew.” Only firefighter/paramedics would have been assigned to the “initial attack crew.” -3- ¶ 12 Mitchell ultimately agreed to the arrangement that had been proposed by Village manager Irvin, which allowed her to remain a civilian paramedic, and Mitchell’s agreement was expressed by signing the bottom of the Village Manager’s June 1999 letter. ¶ 13 After 1999, Mitchell remained a civilian paramedic with the Village’s fire department. She was paid in accordance with the wage scales found in the collective bargaining agreements negotiated between the Village and International Association of Firefighters (Union). The Union was Mitchell’s exclusive bargaining representative for purposes of negotiating wages, hours, and other terms and conditions of employment. The Union negotiated hourly rates for Mitchell that consistently ranged from 7.5% to 9.6% less than the wages for full-time firefighter/paramedics. In accordance with the lower pay, Mitchell’s duties were less than those of a full-time sworn firefighter. Mitchell presented no evidence that her job title with the Village was ever changed from civilian paramedic to full-time firefighter or sworn firefighter/paramedic. ¶ 14 After her injury, Mitchell was represented by an attorney, Thomas Duda, for purposes of a workers’ compensation claim against the Village. On August 31, 2009, Duda wrote a letter to the Village’s human resources coordinator, Julie Meyer, regarding “Jodie A. Mitchell v. Village of Barrington Fire Department, Demand for Payment of Health Premiums per the Act, 820 ILCS 320/10.” In that letter, Duda stated that he represented Mitchell in the workers’ compensation claim against the Village, and then demanded payment by the Village of Mitchell’s past and future health insurance premiums pursuant to section 10 of the Act (820 ILCS 320/10 (West 2008)). ¶ 15 In response, on November 3, 2009, the Village’s attorney wrote to Duda, denying the request for health care premiums pursuant to section 10 and stated: “Ms. Mitchell is not a firefighter covered by the Act, nor was she a sworn member of the Fire Department. Thus, by definition, she is not eligible for consideration for this benefit.” The letter went on to state: “Should you disagree with this position, you are welcome to submit any and all evidence you have that demonstrates Ms. Mitchell should be covered by the Act. If she is covered, the Village would of course review her application at that time and determine whether her injury qualifies her for benefits.” ¶ 16 On March 24, 2011, Duda wrote to the Village to again demand Mitchell’s health insurance premiums. Specifically, the letter states: “The undersigned is writing once again now that the above-captioned claims have been settled to demand payment of health insurance premium benefits for Jodie A. Mitchell who suffered a catastrophic injury while responding to an actual emergency on January 21, 2007. Attached is a copy of the previous correspondence forwarded to your attention with no response. Once again we are demanding for compliance with statutory obligations by the Village. To date, no ‘decision’ has been communicated to your former employee or this office.” ¶ 17 On April 1, 2011, the Village’s attorney responded that the Village had responded to the demand for health insurance premiums back in November 2009, wherein the attorney made it clear that he did not believe Mitchell was covered by the Act (820 ILCS 320/1 et seq. (West 2012)), because she was never a sworn employee. The letter went on to state: “We invited you and your client to submit a response if you disagreed. You never provided a response and, hence, we considered the matter closed. We believe your attempt—over a year later—to revive this claim is untimely. Without waiving our position on this matter, however, should you disagree and truly believe your client is entitled to benefits, your client is welcome to complete -4- the enclosed application and submit any and all evidence you have that demonstrates: (i) Ms. Mitchell is covered by the Act; (ii) she is eligible for benefits, and (iii) this renewed demand is timely.” ¶ 18 On April 4, 2011, Beverly Zak, a representative from Duda’s law office, forwarded the application to Mitchell to fill out so that it could then be submitted to the Village. ¶ 19 On May 3, 2011, Duda wrote to Mitchell and stated that he had been advised that Mitchell retained a new attorney, Stanley Jakala, to represent her case to recover health care premiums pursuant to section 10. The letter then advised that Duda would not be “opening a file and not undertaking to represent you in this regard in any fashion.” ¶ 20 On September 2, 2011, Mitchell’s new counsel, Jakala, wrote to the Village, advising that he was now representing Mitchell and that Mitchell was renewing her rights to health care benefits pursuant to the Act. The letter also enclosed Mitchell’s application for Public Safety Employee Benefits Act benefits, which she had signed and dated on May 21, 2011. ¶ 21 On April 26, 2012, Mitchell’s amended complaint states the Village’s attorney denied her health insurance benefits based on her Public Safety Employee Benefits Act application. ¶ 22 On September 10, 2012, Mitchell filed her Complaint for Declaratory Judgment against the Village, seeking health insurance benefits under the Act. She filed a first amended complaint on April 12, 2013. In the amended complaint, Mitchell alleged that her duties as a licensed emergency technician/paramedic “were the same as the paramedic duties performed by sworn paramedics/firefighters who were employed by the Village.” The amended complaint also stated that Mitchell was “never a sworn firefighter” and that she had been a paramedic for the Village for her entire career “without her being appointed to that position by the Fire and Police Commission of Barrington.” ¶ 23 After the close of discovery, the Village filed a motion for summary judgment on April 7, 2015. In its motion, the Village argued that it was entitled to summary judgment because: (1) Mitchell’s complaint was barred by the five-year statute of limitations, (2) Mitchell’s deposition testimony proved that she had not suffered a “catastrophic injury” within the meaning of the Act, (3) the undisputed record evidence showed that Mitchell was not a full-time sworn firefighter for eligibility purposes under the Act, and (4) Mitchell was guilty of laches. The motion also argued that the Village had a rational basis in declining health care benefits to Mitchell, thereby defeating Mitchell’s equal protection claim. Following briefing and oral arguments on the motion for summary judgment, the trial court granted summary judgment in favor of the Village based on its finding that Mitchell’s claim was barred under the doctrine of laches and its finding that Mitchell failed to prove her constitutional equal protection claim. With respect to laches, the trial court’s order found that there was a 16-month delay between the time the Village denied Mitchell’s request for health care benefits pursuant to the Act and the time she reasserted her request for the health care benefits and filed a formal request. The court found that “[b]ecause Mitchell inexplicably waited significantly longer than a six month time period to even make an attempt to reassert her rights, the court finds that such a delay was unreasonable.” With respect to the equal protection claim, the court found that the Village offered several rational reasons why it treated civilian paramedics differently than full-time firefighters: “Barrington notes that Mitchell did not have the same responsibilities, and thus was not exposed to the same dangers, as those that receive PSEBA benefits in that Mitchell could not enter burning buildings as part of a first ‘attack team’ and she generally did not perform engineer driving and pumping duties on a full-time basis.” In granting the -5- Village’s motion for summary judgment on those two grounds, the trial court did not consider the other arguments the Village made in support of summary judgment. For the reasons that follow, we affirm the trial court’s ruling granting summary judgment in favor of the Village. ¶ 24 Analysis ¶ 25 Summary judgment is appropriate when the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). The purpose of summary judgment is not to try an issue of fact, but to determine if one exists. Id. In reviewing a grant of summary judgment, the appellate court will construe the record strictly against the movant and liberally in favor of the nonmoving party. Id. Summary judgment should not be allowed unless the moving party’s right to judgment is clear and free from doubt. Id. If the undisputed facts could lead reasonable observers to divergent inferences, or if there is a dispute as to a material fact, summary judgment should be denied. Id. We review a grant of summary judgment de novo. Id. We may affirm a grant of summary judgment on any basis appearing in the record, “ ‘whether or not the [circuit] court relied on that basis or its reasoning was correct.’ ” Urban Sites of Chicago, LLC v. Crown Castle USA, 2012 IL App (1st) 111880, ¶ 21 (quoting Freedberg v. Ohio National Insurance Co., 2012 IL App (1st) 110938, ¶ 26). ¶ 26 In its motion for summary judgment and on appeal, the Village argued that it was entitled to summary judgment because: (1) Mitchell’s complaint was barred by the five-year statute of limitations, (2) Mitchell’s deposition testimony proved that she had not suffered a “catastrophic injury” within the meaning of the Act, (3) the undisputed record evidence showed that Mitchell was not a full-time sworn firefighter for eligibility purposes under the Act, and (4) Mitchell was guilty of laches. The motion also argued that the Village had a rational basis in declining health care benefits to Mitchell, thereby defeating Mitchell’s equal protection claim. The trial court found that Mitchell’s claim was barred under the doctrine of laches. On review, the appellate court reviews the judgment of the court and not the reasons given for that judgment (Nelson v. Aurora Equipment Co., 391 Ill. App. 3d 1036, 1044 (2009)), and we may affirm the trial court based on any reason found in the record. Urban Sites of Chicago, LLC, 2012 IL App (1st) 111880, ¶ 21. ¶ 27 On appeal, Mitchell argues that she is entitled to benefits under the Act because she should be considered a “firefighter” within the meaning of the Act. The Village argued in both the trial court and on appeal that Mitchell was not eligible for benefits under the Act because she was not a full-time firefighter or a sworn firefighter/paramedic. We will first consider the issue of Mitchell’s eligibility for benefits under the Act because the resolution of this issue may be dispositive of all the issues in this case. ¶ 28 The Act provides enhanced health care benefits for full-time firefighters and their families if the firefighter is killed or suffers a catastrophic injury in the line of duty. Section 10(a) of the Act states: “An employer who employs a full-time law enforcement, correctional or correctional probation officer, or firefighter, who, on or after the effective date of this Act suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer’s health insurance plan for the injured employee, the injured employee’s spouse, and for each dependent child of the injured employee until the child reaches the -6- age of majority or until the end of the calendar year in which the child reaches the age of 25 if the child continues to be dependent for support or the child is a full-time or part-time student and is dependent for support.” 820 ILCS 320/10(a) (West 2012). The legislature modified the Act to add that the definition of a firefighter included licensed emergency medical technicians (EMTs) who are sworn members of a public fire department. Specifically, section 3 of the Act provides: “For the purposes of this Act, the term ‘firefighter’ includes, without limitation, a licensed emergency medical technician (EMT) who is a sworn member of a public fire department.” 820 ILCS 320/3 (West 2012). We can determine whether Mitchell was eligible for health insurance benefits under the Act by interpreting the language of the statute. ¶ 29 The rule of statutory construction is to give effect to legislative intent. Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994). The language of the statute is the best indication of legislative intent. Id. If the language is clear and unambiguous, we give the terms their ordinary meaning and interpret the language without reference to extrinsic materials. Chestnut Corp. v. Pestine, Brinati, Gamer, Ltd., 281 Ill. App. 3d 719, 723 (1996). The presence of surplusage should not be presumed in statutory construction and each word, clause, or sentence must, if possible, be given some reasonable meaning. Hirschfield v. Barrett, 40 Ill. 2d 224, 230 (1968); Stroger v. Regional Transportation Authority, 201 Ill. 2d 508, 524 (2002) (a statute must be construed as a whole and, if possible, in a manner such that no term is rendered meaningless or superfluous). ¶ 30 First, Mitchell presented no evidence that her job classification with the Village was as a full-time firefighter or sworn firefighter/paramedic. Instead, Mitchell argues that she should be considered a firefighter within the meaning of the Act because she claims she performed duties from time to time that were similar to that of a full-time firefighter. Initially, we note the Village offered Mitchell the opportunity to become a sworn firefighter/paramedic on at least two occasions and Mitchell insisted that she remain a civilian paramedic and was therefore paid at a pay rate lower than a full-time firefighter or sworn firefighter/paramedic. ¶ 31 The record demonstrates that Mitchell was trained to perform some limited support roles to firefighters, such as locating fire hydrants, laying and connecting the hose, carrying ladders, changing air packs, etc. Mitchell was allowed to go into a hazardous atmosphere to rescue one of the Village’s firefighters or paramedics, but she was not allowed to rescue a member of the public. Mitchell was never trained to be part of an initial attack crew, and only firefighters/paramedics would be assigned as part of an initial attack crew. Nonetheless, we note the record shows Mitchell’s job title and primary job duty was as a paramedic. Although Mitchell had a support role for firefighters, we see no merit to her claim she is a full-time firefighter. Moreover, Mitchell’s argument that she should be considered a full-time firefighter instead of a civilian paramedic because of her support role for firefighting fails as a matter of law. The argument has been considered by this court before and rejected in the context of pension benefits. McLear v. Village of Barrington, 392 Ill. App. 3d 664, 670 (2009). In McLear, the plaintiffs claimed that they should be classified as “firefighters” for purposes of transferring pension funds because they participated in firefighting activities, in addition to paramedic duties, while responding to emergency calls for the Village. Id. In finding that the plaintiffs could not be considered “firefighters” for purposes of receiving additional pension funds, the court reasoned: -7- “[T]he sole authority to issue certificates of appointment must rest in the board of fire and police commissioners. Here, the plaintiffs were not appointed by the board of fire and police commissioners as firefighters until 1995, when they also underwent physical agility, polygraph, and psychological exams as part of the process of being appointed. See 65 ILCS 5/10-2.1-6(h) (West 2006).” Id. at 673. As such, in McLear, the court recognized that a paramedic cannot be classified as a “firefighter,” even if he or she participated in firefighter duties, until he or she is appointed a firefighter, i.e., becomes a sworn firefighter. Here, Mitchell was never appointed to become a sworn firefighter and, in fact, expressed her desire on numerous occasions not to assume those additional responsibilities or become a sworn member of the fire department. Although McLear concerned pension rights, we see no convincing reason why we should depart from the rationale in McLear. As such, because Mitchell did not fall within the purview of the Act, she is not entitled to health insurance benefits under the Act. ¶ 32 Mitchell also argues that she is a “firefighter” as provided under the amended definition to the Act, which defines firefighters as including licensed EMTs who are sworn members of a fire department. Mitchell argues that because the Act provides that a firefighter under the Act “includes, without limitation” “sworn” EMTs, it does not exclude “unsworn” paramedics and EMTs. We disagree. The amended statute provides: “For the purposes of this Act, the term ‘firefighter’ includes, without limitation, a licensed emergency medical technician (EMT) who is a sworn member of a public fire department.” 820 ILCS 320/3 (West 2012). ¶ 33 Mitchell concedes in her complaint and first amended complaint that she “was never a sworn firefighter.” The admissions in her pleadings constitute judicial admissions. Konstant Products, Inc. v. Liberty Mutual Fire Insurance Co., 401 Ill. App. 3d 83, 86 (2010) (“A party’s admissions contained in an original verified pleading are judicial admissions ***.”); Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 557 (2005) (a statement of fact that has been admitted in a pleading is a judicial admission and is binding on the party making it). Given the fact that Mitchell was never a sworn member of the fire department, she does not fall within the purview of the Act, which requires her to be a licensed EMT “who is a sworn member of a public fire department.” (Emphasis added.) 820 ILCS 320/3 (West 2012); Stroger, 201 Ill. 2d at 524 (a statute must be construed as a whole and, if possible, in a manner such that no term is rendered meaningless or superfluous). ¶ 34 To read the statute as suggested by Mitchell—that both “sworn” and “unsworn” EMTs are included in the amended definition of a firefighter—would render the legislature’s use of the word “sworn” superfluous. If the legislature had intended to include both “sworn” and “unsworn” licensed EMTs in its definition of a firefighter, the legislature could have simply eliminated the word “sworn” when it drafted the amendment and simply defined firefighter as to include licensed EMTs. However, it did not do this. We cannot interpret a statute to render a term or phrase superfluous. Hirschfield v. Barrett, 40 Ill. 2d 224, 230 (1968) (the presence of surplusage should not be presumed in statutory construction and each word, clause or sentence must, if possible, be given some reasonable meaning); Stroger, 201 Ill. 2d at 524 (a statute must be construed as a whole and, if possible, in a manner such that no term is rendered meaningless or superfluous). Based on principles of statutory construction, we reject Mitchell’s argument that the amended definition of a firefighter includes both sworn and unsworn EMTs. -8- ¶ 35 Further, “it is a fundamental principle of statutory construction that the express mention of one thing in a statute excludes all other things not mentioned.” Requena v. Cook County Officers Electoral Board, 295 Ill. App. 3d 728, 733 (1998); see also People v. Fink, 94 Ill. App. 3d 816 (1981). In this case, the legislature amended the statute so that the term firefighter also included licensed EMTs who are sworn members of a public fire department. Under statutory construction jurisprudence, the inclusion of “sworn” licensed emergency medical technicians excludes other positions not mentioned, including “unsworn” licensed emergency medical technicians. Therefore, we reject Mitchell’s argument that unsworn civilian paramedics are considered firefighters under the amended definition of a firefighter contained in the Act. ¶ 36 Finally, we find Mitchell’s equal protection clause claim also fails. Mitchell argues that, in denying her claim for health insurance benefits under the Act, the Village is impermissibly treating civilian paramedics differently than full-time firefighters in violation of her equal protection rights. Whether the Act violates constitutional rights is a question of law, which we review de novo. Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 323 (1996). We interpret a statute as constitutional if “reasonably possible.” In re Jonathon C.B., 2011 IL 107750, ¶ 79. The Supreme Court of Illinois routinely recognizes that statutes have a strong presumption of constitutionality. People v. Sharpe, 216 Ill. 2d 481, 486-87 (2005). To defeat this presumption the party challenging must “clearly establish” the alleged constitutional violation. Id. at 487. ¶ 37 The equal protection analysis is the same under either the Illinois or United States Constitution. People v. Shephard, 152 Ill. 2d 489, 499 (1992); U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2. The equal protection clause “guarantees that similarly situated individuals will be treated in a similar fashion, unless the government can demonstrate an appropriate reason to treat them differently.” In re Jonathon C.B., 2011 IL 107750, ¶ 116. This guarantee allows the legislature to create distinctions between different groups of people as long as that distinction avoids “criteria wholly unrelated to the legislation’s purpose.” Id. The rational basis test, which the parties concede is that test to be applied here (Majid v. Retirement Board of Policemen’s Annuity & Benefit Fund, 2015 IL App (1st) 132182, ¶ 48 (“[t]he deferential rational basis test applies to a statutory classification that does not affect fundamental rights or create a suspect classification”)), “simply inquires whether the means employed by the statute to achieve the stated purpose of the legislation are rationally related to that goal.” People v. Breedlove, 213 Ill. 2d 509, 518 (2004). The court will not make this rational basis inquiry, however, until the movant proves he or she is similarly situated to the comparison group. People v. Masterson, 2011 IL 110072, ¶ 25 (“As a threshold matter, though, it is axiomatic that an equal protection claim requires a showing that the individual raising it is similarly situated to the comparison group.”). If a movant cannot meet this preliminary threshold, the equal protection claim fails. People v. Whitfield, 228 Ill. 2d 502, 512 (2007). ¶ 38 First, Mitchell’s equal protection claim fails because she has presented no evidence to show how full-time sworn firefighters are similarly situated to unsworn civilian paramedics like her. Id. at 513 (if a movant cannot meet this preliminary threshold in showing that she is similarly situated to the comparison group, the equal protection claim fails). ¶ 39 Second, assuming Mitchell had properly presented her equal protection argument and shown that she is similarly situated to sworn firefighter/paramedics who receive enhanced health insurance benefits under the Act, we find that there is a rational basis for the Village to -9- treat civilian paramedics like Mitchell differently than full-time firefighters and sworn firefighter/paramedics for purposes of providing health care benefits. Majid, 2015 IL App (1st) 132182, ¶ 48 (“The deferential rational basis test applies to a statutory classification that does not affect fundamental rights or create a suspect classification.”). First, the State legislature has enacted laws that require employers to bear the increased costs of enhanced insurance coverage for full-time firefighters and sworn EMTs. The legislature did not require employers, such as the Village, to bear increased costs to provide enhanced insurance for civilian paramedics. Furthermore, we note that full-time firefighters and sworn firefighters/paramedics are required to perform more tasks—and specifically dangerous, life-threatening tasks—that civilian paramedics are not required to perform. In other words, civilian paramedics are not required to perform the same dangerous tasks as sworn firefighter/paramedics and full-time firefighters. The employers of firefighters and firefighter/paramedics should be able to provide those employees with enhanced health care benefits as an incentive for them to perform their dangerous jobs without the employer also incurring the additional financial burden of providing the enhanced health care coverage to other employees with less dangerous jobs like civilian paramedics. Sworn firefighter/paramedics and full-time firefighters should be able to perform the dangerous work required of them with the knowledge that if they suffer a catastrophic injury that prevents them from returning to work, they will receive enhanced insurance coverage. “If a court can reasonably conceive of circumstances that justify distinguishing the class benefitted by the statute from the class outside its scope, the classification is constitutional.” (Internal quotation marks omitted.) Id. Thus, because the Village had a rational basis to treat full-time firefighters and sworn firefighters/paramedics differently than civilian paramedics, Mitchell’s equal protection claim fails. Based on our finding that Mitchell was not eligible for benefits under the Act and our resolution of the equal protection argument, it is not necessary to address the other arguments raised by the parties. ¶ 40 Conclusion ¶ 41 For the reasons above, we affirm the trial court’s ruling granting summary judgment in favor of the Village. ¶ 42 Affirmed. - 10 -

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4289283/

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Smith v. Schweitzer, Slip Opinion No. 2018-Ohio-2396.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2018-OHIO-2396 THE STATE EX REL. SMITH, APPELLANT, v. SCHWEITZER, WARDEN, APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Smith v. Schweitzer, Slip Opinion No. 2018-Ohio-2396.] Habeas corpus—Prison sentences run consecutively by operation of statute— Immediate release denied, and judgment affirmed. (No. 2017-1331—Submitted January 23, 2018—Decided June 28, 2018.) APPEAL from the Court of Appeals for Warren County, No. CA2017-05-074. ________________ Per Curiam. {¶ 1} Appellant, Herbert Allen Smith, appeals the dismissal of his petition for a writ of habeas corpus that he filed against appellee, Thomas Schweitzer, warden of the Lebanon Correctional Facility, where Smith is incarcerated. We affirm. SUPREME COURT OF OHIO Background {¶ 2} In 1977, Smith was convicted of kidnapping and was sentenced to 5 to 15 years in prison. On August 3, 1981, he was released on parole. While under supervision, he committed a new felony. Between December 2, 1981, and May 7, 1991, he was a parole violator at large. On October 17, 1994, Smith pleaded guilty to one count of robbery. The common pleas court judge sentenced him to 6 to 15 years’ imprisonment. The sentencing entry did not indicate whether this term was to be served concurrently with or consecutively to the time remaining on his kidnapping sentence. {¶ 3} Smith received parole a second time in 2005 and escaped detention. He remained at large for the next six years, until he returned to confinement in September 2012. {¶ 4} On May 22, 2017, Smith filed a petition for a writ of habeas corpus against Schweitzer, alleging that Smith had now served more than 15 years on his robbery sentence and was therefore entitled to immediate release. Smith asserted that he had also completed his sentence on the original kidnapping charge because, he said, the two sentences had run concurrently, and the Department of Rehabilitation and Correction has no authority to alter a prison sentence. {¶ 5} On August 29, 2017, the Twelfth District Court of Appeals granted Schweitzer’s motion to dismiss, concluding that Smith was not entitled to immediate release because his sentences ran consecutively by operation of law. State ex rel. Smith v. Schweitzer, 12th Dist. Warren No. CA2017-05-074 (Aug. 29, 2017). Smith appealed. Analysis {¶ 6} Smith claims that he is entitled to a writ of habeas corpus because he has served more than 16 years’ imprisonment on a 15-year prison sentence. He blames the department for unilaterally extending his sentence by running his two 2 January Term, 2018 terms consecutively without judicial sanction. The first issue to resolve, then, is whether the two sentences were consecutive or concurrent. {¶ 7} In 1994, when Smith received his second sentence, the Revised Code stated: A sentence of imprisonment shall be served consecutively to any other sentence of imprisonment, in the following cases: *** (3) When it is imposed for a new felony committed by a probationer, parolee, or escapee. See former R.C. 2929.41(B), Sub.H.B. No. 51, 142 Ohio Laws, Part I, 1875, 1885. Because Smith was on parole when he reoffended, his sentences ran consecutively by operation of the statute, even though the sentencing entry was silent. See, e.g., State ex rel. Thompson v. Kelly, 137 Ohio St.3d 32, 2013-Ohio-2444, 997 N.E.3d 498, ¶ 8-10 (holding that consecutive sentences for offenses committed while on parole were mandatory); see also Richards v. Eberlin, 7th Dist. Belmont No. 04- BE-1, 2004-Ohio-2636, ¶ 10 (same). {¶ 8} Based on this law, it is clear that the department did not change Smith’s sentence or aggregate his sentences on its own initiative. The court of appeals correctly denied the petition for a writ of habeas corpus. Judgment affirmed. O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., concur. DEGENARO, J., not participating. _________________ Herbert Allen Smith, pro se. 3 SUPREME COURT OF OHIO Michael DeWine, Attorney General, and Jerri L. Fosnaught, Assistant Attorney General, for appellee. _________________ 4

01-03-2023

06-28-2018

https://www.courtlistener.com/api/rest/v3/opinions/4125009/

KEN PAXTON ATTORNEY GENERAL OF TEX.AS January 8, 2016 Dr. Vincent J.M. Di Maio Opinion No. KP-0055 Presiding Officer Texas Forensic Science Commission Re: Responsibilities of the Texas Forensic 1700 North Congress Avenue, Suite 445 Science Commission under article 39.14 of the Austin, Texas 78701 Code of Criminal Procedme (RQ-0032-KP) Dear Dr. Di Maio: The Texas Forensic Science Commission ("Commission") asks about its responsibility to "notify relevant parties of exculpatory, impeachment or mitigating information" under the Code of Criminal Procedure. 1 Your specific questions are: (1) As a state agency with possession of information that may be covered by Article 39.1 [4]2 of the Texas Code of Criminal Procedure, what is the Commission's notification responsibility when it receives such information? (2) If the Commission notifies the prosecutor with jurisdiction over the case, is that notification sufficient with the understanding the prosecutor will assess the matter and determine whether notification to the defendant is necessary? Or does the Commission need to provide separate defendant notification? (3) If a laboratory disclosure involves professional misconduct by a forensic scientist with the potential to impact criminal cases in many different jurisdictions, does the Commission need to notify the prosecutor in each jurisdiction or may it communicate the information to the Texas District and County Attorney's Association for distribution to its membership? 1 See letter from Lynn Garcia, Gen. Counsel, Tex. Forensic Science Comm'n, to Honorable Ken Paxton, Tex. Att'y Gen. at 1, (July 15, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2 A telephone call to your office verified that your questions concern article 39.14 of the Code of Criminal Procedure instead of article 39.15. Telephone conference with Tex. Forensic Science Comm'n (Sept. 10, 2015). Dr. Vincent J.M. Di Maio - Page 2 (KP-0055) (4) Are the notification obligations the same for the prosecutor representative on the Commission as the forensic scientists, or does the prosecutor have obligations beyond those of other members because of his unique position? Request Letter at 2 (footnote added). The Commission was created to provide a process to report and investigate alleged negligence and misconduct affecting the integrity of various types of laboratories and offices in Texas that process forensic science used in criminal proceedings. See Pena v. State, 226 S.W.3d 634, 649 (Tex. App.-Waco 2007) (citing Sen. Comm. on Crim. Justice, Bill Analysis, Tex. S.B. 1263, 79th Leg., R.S. (2005)), rev 'don other grounds, 285 S.W.3d 459 (Tex. Crim. App. 2009); see also TEX. CODE CRIM. PROC. art. 38.01 (governing the Commission); Tex. Att'y Gen. Op. No. GA-0866 (2011) at 1-2 (describing functions of the Commission). Under article 38.01 of the Code of Criminal Procedure, the Commission has its own reporting requirements. See generally TEX. CODE CRIM. PROC. art. 38.01, § (4)(e) (requiring the Commission to make its investigation reports available to the public); see also id art. 38.01, §§ (7), (8), (10) (detailing the reporting requirements of the Commission's investigative reports). You tell us that the Commission is investigating a complaint involving forensic video analysis and has received information that may be exculpatory in nature. Request Letter at 2. You note that a prosecutor and defendant in a particular criminal case may not be aware of any potentially exculpatory information received by the Commission unless made aware of it by the Commission. See id In this context, you are concerned that the "Commission may receive information that could constitute 'exculpatory, impeachment, or mitigating' information as the term is described in Article 39 .1 [4] of the ... Code of Criminal Procedure." Id We look to article 39.14(h), which pertains to "exculpatory, impeachment, or mitigating" evidence, to address your questions. TEX. CODE CRIM. PROC. art. 39.14(h); see Request Letter at 1-2. Article 39.14(h) provides that "[n]otwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged." TEX. CODE CRIM. PROC. art. 39.14(h). By its plain language the duties imposed by article 39.14(h) devolve upon the state. Id; see Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (stating that a statute is to be interpreted according to its plain language). Thus, we consider how a court would construe the term "state" in article 39.14(h) to determine whether the Commission has a duty thereunder to make certain notifications. The primary cannon of statutory construction is to ascertain and give effect to the Legislature's intent. Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013). Courts determine that intent by looking at the "plain meaning of the text, given the context of the statute as a whole." Id Absent a judicial or statutory definition, the term "state" is capable of numerous definitions. See, e.g., Texas v. White, 74 U.S. 700, 721 (1868) (defining "state" broadly as a "political community of free citizens occupying a territory of defined boundaries"); Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939-40 (Tex. 1993) (stating that the "ordinary meaning of 'state' ... envisions an entity having statewide jurisdiction" instead of an entity with Dr. Vincent J.M. Di Maio - Page 3 (KP-0055) "local or limited jurisdiction"). Yet, the language and context of article 39. l 4(h) indicate the term "state" has a limited scope. In providing that prosecutions shall be carried on "in the name and by authority of The State of Texas," and that prosecutors shall represent the state in criminal matters, the Code of Criminal Procedure identifies local prosecutors as representatives of the state for criminal purposes. TEX. CODE CRIM. PROC. arts. 1.23, 2.01-.02; see also Black's Law Dictionary 1341 (9th ed. 2009) (defining "prosecutor" to mean "[a] legal officer who represents the state ... in criminal matters"). The language in article 39.14 itself, when considered as a whole, also indicates that a prosecutor is the individual acting for the state. See Fredericksburg Care Co. L.P. v. Perez, 461 S.W.3d 513, 520 (Tex. 2015) (construing statute as a whole and not pursuant to isolated provisions). Article 39.14(a) requires the state to produce certain information as soon "as practicable after receiving a timely request from the defendant." See TEX. CODE CRIM. PROC. art. 39.14(a). Similarly, under article 39.14(b), the court has authority to order "one or more of the parties" to disclose certain information, which by its plain language does not include someone who is not a party to an action. Id art. 39.14(b). Article 39.14(k) provides that "at any time before, during, or after trial the state" shall disclose the discovery of the existence of additional information required to be disclosed to the defendant or to the court. Id art. 39.14(k). Again, the timing requirement of this provision makes sense only if it imposes burdens upon those directly involved in the trial. Additionally, the legislative history suggests that the Legislature intended for the article 39.14 burden to fall upon prosecutors. See Fin. Comm'n a/Tex. v. Norwood, 418 S.W.3d 566, 586 (Tex. 2013) (recognizing that legislative history may be considered when construing a statute). The bill analysis for the 2013 bill amending and implementing article 39.14(h) indicates that the bill "requires prosecutors to tum over to the defense" any relevant information. Senate Comm. on Crim. Justice, Bill Analysis, Tex. S.B. 1611, 83rd Leg., R.S. (2013) (emphasis added) (describing criminal discovery as the "exchange of relevant information between prosecutors and the defense"). For these reasons, a court would likely construe the term "state," as used in article 39.14(h), to mean the prosecution representing the State of Texas in criminal cases. Moreover, with respect to the Commission specifically, the "exculpatory, impeachment, or mitigating" evidence that must be disclosed is that which "tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged." TEX. CODE CRIM. PROC. art. 39. l 4(h). Yet, the Commission is specifically prohibited by its own statute from making any findings that are related to the guilt or innocence of a party in a criminal case. Id art. 38.01, § (4)(g). Accordingly, it is likely that a court would determine that article 39.14(h) imposes no notification duties on the Commission. Your second and third questions presume that the Commission has a duty under article 39.14(h) and ask about various methods by which to comply with the statute. See Request Letter at 2. Given our conclusion to the first question, we need not address these questions. We can advise you, however, that the lack of a duty under article 39. l 4(h) does not negate the requirement in article 38.01, § (4)(e) for the Commission to make its completed investigation reports available to the public. See generally TEX. CODE CRIM. PROC. art. 38.01, § (4)(e). Moreover, there is nothing Dr. Vincent J.M. Di Maio - Page 4 (KP-0055) in article 38.01 that expressly prohibits the Commission from notifying relevant parties of exculpatory, impeachment, or mitigating information. Your fourth question is whether the prosecutor member of the Commission has a duty that differs from the other members of the Commission. See Request Letter at 2; see also TEX. CODE CRIM. PROC. art. 38.01, § (3)(a)(2) (requiring that the Commission include a prosecuting attorney). Given our conclusion that the Commission likely has no notification duties under article 39.14(h), the prosecutor member of the Commission would have a duty to comply with article 39.14 only in his or her capacity as a prosecutor for the state in a particular case. See TEX. CODE CRIM. PROC. art. 39.14(a); see generally Tex. Att'y Gen. Op. No. KP-0041 (2015) at 4. Dr. Vincent J.M. Di Maio - Page 5 (KP-0055) SUMMARY A court would likely conclude that article 39.14(h) of the Code of Criminal Procedure does not create a duty for the Texas Forensic Science Commission to notify relevant parties of exculpatory, impeachment, or mitigating information. Given the conclusion that the Commission likely has no notification duties under article 39. l 4(h), the prosecutor member of the Commission would have a duty to comply with article 39.14 only in his or her capacity as a prosecutor for the state in a particular case. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee CHARLOTTE M. HARPER Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125010/

KEN PAXTON ATTORNEY GENERAL OF '.l;'EXAS December 21, 2015 The Honorable Val J. Varley Opinion No. KP-0054 Red River District and County Attorney 400 North Walnut Street Re: Whether the common-law doctrine of Clarksville, Texas 75426-4012 ~ incompatibility prohibits simultaneous service as a county sheriff and a member of the board of trustees of a school district (RQ-0036-KP) Dear Mr. Varley: On behalf of the Clarksville Independent School District (the "District"), you ask whether an individual may serve as a member of the District's Board of Trustees while simultaneously serving as the Red River County Sheriff (the "Sheriff'). 1 You state that amember of the District's board has been appointed to fill the vacant office of the Sheriff. See Request Letter at 1. You direct our attention to a previous attorney general opinion, GA-0328, which concluded that a sheriff may not serve as a school district trustee, and seek our opinion due to differing circumstances. See id. at 3; see also Tex. Att'y Gen. Op. No. GA-0328 (2005). You tell us that while the geographic territories of the District and Red River County (the "County") overlap, no close working relationship exists between the Sheriff and the District as it did in GA-0328. See Request Letter at 1-3. You suggest that this difference is significant enough to warrant a conclusion that a person may simultaneously hold the two positions. See id. at 3-4. The common-law·doctrine of incompatibility comprises three aspects: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. KP-0023 (2015) at 1. Self-appointment incompatibility derives from the Texas Supreme Court, which said that "[i]t is because of the obvious incompatibility of being both a member of a body making the appointment and an appointee of that body that the courts have ... declared that all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint." . Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). Self-employment incompatibility prohibits a person from holding both an office and an employment that the office supervises. See Tex. Att'y Gen. Op. No. GA-0536 (2007) at 4 (stating that "the key aspect of self-employment incompatibility is supervision"). Accepting your assertion that neither office at issue here appoints nor employs the other, we examine your question under the conflicting-loyalties incompatibility analysis. See Tex. Att'y Gen. Op. No. KP-0023 (2015) at 1-2. ~ 1 See Request Letter from Honorable Val J. Varley, Red River Dist. & Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1(July7, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Val J. Varley - Page 2 (KP-.0054) A Texas court first described conflicting-loyalties incompatibility in the case of Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), in which the court held the offices of school trustee and city alderman to be incompatible. Id at 153. The court said that there are in the city council or board of aldermen various directory or supervisory powers exertable in respect to school property located within the city or town and in respect to the duties of school trustee performable within its limits-e.g., there might well arise a conflict of discretion or duty in respect to health, quarantine, sani~ary, and fire prevention regulations. If the same person could be a school trustee and a member of the city council or board of aldermen at the same time, school policies, in many important respects, would be subject to direction of the council or aldermen instead of to that of the trustees. Id (citations omitted). In determining whether two offices are incompatible, "the crucial question is whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994). Conflicting- loyalties incompatibility applies only when the two positions are both officers. See Tex. Att'y Gen. Op. No. GA-0393 (2006) at 3; see also Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (stating that a person is an "officer" if "any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others"). This office has previously determined that the positions of school district trustee and sheriff are public offices under Aldine: See Tex. Att'y Gen. Op. Nos. GA-1083 (2014) at 2 (school trustee), GA-0393 (2006) at 4 n.5 (sheriff). · In instances in which the respective jurisdictions of the two offices overlap, there is an increased risk that an officer's loyalty and duties to one entity will interfere with his or her loyalty and duties to the other. See generally Tex. Att'y Gen. Op. Nos. JC-0339 (2001) at 3, JM-203 (1984) at 10. Thus, when overlapping jurisdictions have authority to contract with each other or each have taxing authority, this office has usually concluded that the dual service is prohibited. See Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 4-5 (overlapping contracting authority), GA- 0032 (2003) at 5 (overlapping taxing authority). A school district has general contracting authority. See TEX. EDUC. CODE § 11.1511 (c)(4) (authorizing a school district to enter into contracts as authorized by law). Contracts for the county are generally entered into by the commissioners court while a sheriff has only limited contracting authority. See Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941) (recognizing that the commissioners court "alone has authority to make contracts binding on the county" and that the sheriff has only that contracting authority expressly conferred by statute). With the Sheriffs limited contracting authority, little potential exists for a contract between the District and the Sheriff. See TEX. Gov'T CODE § 511.012(b) (authorizing agreements between sheriffs regarding the transferring and receiving of prisoners); TEX. Loe. Gov'T CODE§ 351.0415 (authorizing a sheriff to contract with a person to operate a jail commissary). And though a school district may impose a tax, a sheriff may not. See TEX. EDUC. CODE § 11.1511 (b)(8) (authorizing school district board to adopt tax rate); TEX. TAX The Honorable Val J. Varley - Page 3 (KP-0054) CODE § 1.04(12) (identifying school districts and counties as taxing units). Thus, there is no concern here about overlapping taxation authority. Accordingly, the fact that the Sheriff serves territory that overlaps with the District's jurisdiction is not determinative, and we consider the duties of the two positions. You tell us there is "little interaction" between the offices of a district board trustee and the Sheriff. Request Letter at 3. You state that the Sheriff "does not operate on the [District] campus in any official capacity." Id You also state that any report involving criminal 'activity is dealt with by the school resource officer, who is provided by the Clarksville Police Department. See id at 1, 3. You inform us that if the school resource officer determines that charges should be filed, they are referred not to the Sheriff but to the Clarksville Police Department, which serves as the primary point of contact for law enforcement matters. See id 3-4. Because the Clarksville Police Department and its school resource officer perform the law enforcement duties with respect to the District, the potential for conflicting interests that may arise from an individual serving as a District school trustee and the Sheriff is remote. Accordingly, under the facts you describe, a court would likely conclude that the doctrine of conflicting-loyalties incompatibility does not prohibit the dual service you describe. The Honorable Val J. Varley - Page 4 (KP-0054) SUMMARY A court would likely conclude that, under the facts you describe, the common-law doctrine of incompatibility does not prohibit an individual's simultaneous service as the Red River County Sheriff and as a board trustee of the Clarksville Independent School District. Very truly yours, . KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee CHARLOTTE M. HARPER Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127022/

STATE OF MICHIGAN COURT OF APPEALS SANDRA FOSTER and WILLIAM FOSTER, UNPUBLISHED February 16, 2017 Plaintiffs-Appellants, v No. 328283 Monroe Circuit Court M & H PARTY STORE, INC., LC No. 14-036470-NI Defendant-Appellee. Before: STEPHENS, P.J., and SAAD and METER, JJ. STEPHENS, P.J. (Concurring). I adopt the reasoning of Quinto v Woodward Detroit CVS, 305 Mich. App. 73; 850 NW2d 642 (2014), disapproving Kennedy’s1 application of the open and obvious doctrine to shopkeepers. However, the trial court here based its ruling not on whether the puddle was open and obvious, but on a finding that defendant met its duty to warn invitees by posting wet-floor signs. Plaintiffs’ argument that the continuous placement of the signs was a special aspect was an indirect assertion that the warnings were inadequate or ineffective. I agree with the majority that this argument was not well developed or supported by material facts or citation. I write separately only to note that the clear liquid was not open or obvious and that the adequacy of warnings in such circumstances, when supported by competent evidence, can defeat a motion brought under MCR 2.116 (C)(8) and (10). Such was not the case here. /s/ Cynthia Diane Stephens 1 Kennedy v Great Atlantic & Pacific Tea Company, 274 Mich. App. 710; 737 NW2d 179 (2007). -1-

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4413452/

Dismissed and Memorandum Opinion filed July 2, 2019. In The Fourteenth Court of Appeals NO. 14-18-01003-CV MATT TAHMASEBI, Appellant V. ELISA TAHMASEBI, Appellee On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Cause No. 15-DCV-222811 MEMORANDUM OPINION This is an appeal from a judgment signed October 19, 2018. The clerk’s record was filed December 10, 2018. The reporter’s record was filed December 17, 2018. No brief was filed. On May 15, 2019, this court issued an order stating that unless appellant filed a brief on or before June 17, 2019, the court would dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).  Appellant filed no brief or other response. Accordingly, the appeal is ordered dismissed. PER CURIAM Panel consists of Justices Christopher, Bourliot, and Zimmerer. 2

01-03-2023

07-02-2019

https://www.courtlistener.com/api/rest/v3/opinions/4125284/

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 169 CA 16-00117 PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. LANCE FERRAND, PLAINTIFF-APPELLANT, V MEMORANDUM AND ORDER TOWN OF NORTH HARMONY AND BRUCE STEVENS, DEFENDANTS-RESPONDENTS. BRIAN CHAPIN YORK, JAMESTOWN, FOR PLAINTIFF-APPELLANT. WEBSTER SZANYI LLP, BUFFALO (MICHAEL P. MCCLAREN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. Appeal from an order and judgment (one paper) of the Supreme Court, Chautauqua County (Paul B. Wojtaszek, J.), entered September 24, 2015. The order and judgment granted the motion of defendants for summary judgment dismissing the complaint. It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs. Memorandum: In this personal injury action arising from a collision between a pickup truck and a snowplow, plaintiff appeals from an order and judgment that granted the motion of defendants for summary judgment and dismissed the complaint. We affirm. Pursuant to statute, “the provisions of [the Vehicle and Traffic Law] . . . shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway,” although that provision does not exempt the operators of such “vehicles or other equipment from the consequences of their reckless disregard for the safety of others” (Vehicle and Traffic Law § 1103 [b]). The statute applies to, inter alia, vehicles and equipment owned or operated by a town (see § 1103 [a]), and it is well settled that the statute applies to the operators of snowplows when they are “actually engaged in work on a highway” (§ 1103 [b]; see Wilson v State of New York, 269 AD2d 854, 854-855, affd sub nom. Riley v County of Broome, 95 NY2d 455, 461-463). Contrary to plaintiff’s contention, Supreme Court properly concluded that defendants met their burden on the motion of establishing that “the snowplow was a vehicle ‘actually engaged in work on a highway’ that was exempt from the rules of the road except to the extent that those operating the snowplow acted with ‘reckless disregard for the safety of others’ ” (Roberts v Anderson, 133 AD3d 1384, 1385; see Guereschi v Bouchard, 286 AD2d 997, 998, lv denied 97 NY2d 613; see also Oliveira v City of Mount Vernon, 209 Fed -2- 169 CA 16-00117 Appx 82, 83). Plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). Contrary to plaintiff’s further contention, he failed to raise a triable issue of fact whether the snowplow operator acted in reckless disregard for the safety of others. That standard requires evidence that a person has acted “in conscious disregard of a known or obvious risk that [was] so great as to make it highly probable that harm [would] follow” (Primeau v Town of Amherst, 17 AD3d 1003, 1003, affd 5 NY3d 844; see Saarinen v Kerr, 84 NY2d 494, 501; see generally Bliss v State of New York, 95 NY2d 911, 913). Here, defendants met their burden of establishing that the snowplow operator did not act with such reckless disregard (see Curella v Town of Amherst, 77 AD3d 1301, 1302; see generally Primeau, 17 AD3d at 1003-1004), and plaintiff failed to raise a triable issue of fact (see Catanzaro v Town of Lewiston, 73 AD3d 1449, 1449; see also Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d 705, 706-707; Ring v State of New York, 8 AD3d 1057, 1057). Entered: February 10, 2017 Frances E. Cafarell Clerk of the Court

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4413454/

Motion Granted; Appeal Dismissed and Memorandum Opinion filed July 2, 2019. In The Fourteenth Court of Appeals NO. 14-19-00428-CV HILARIO R. HERNANDEZ A/K/A HILARIO RAMOS HERNANDEZ, Appellant V. CHRISTINA M. FOOS, INDIVIDUALLY AND AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF BELINDA G. HERNANDEZ, DECEASED, Appellee On Appeal from the County Court at Law No. 2 & Probate Court Brazoria County, Texas Trial Court Cause No. PR39396 MEMORANDUM OPINION This is an attempted appeal from an interlocutory order signed in an ancillary probate matter. The order appealed is not a part of the record in the underlying case. There is no final judgment or interlocutory order from which an appeal may be taken in this case. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). On June 12, 2019, appellant filed a motion to consolidate this appellate cause with his appeal from the ancillary probate matter containing an appealable interlocutory order. Appellees filed a response requesting that we dismiss this cause appellate cause for lack of jurisdiction. Because there is no appealable order or final judgment in this cause, we dismiss this appeal and deny appellant’s motion to consolidate. See Tex. R. App. P. 42.3(a). PER CURIAM Panel consists of Justices Wise, Jewell, and Hassan. 2

01-03-2023

07-02-2019

https://www.courtlistener.com/api/rest/v3/opinions/1731222/

504 S.W.2d 917 (1973) Carl B. DUNLAP, Appellant, v. MARS PLUMBING SUPPLY CO., Appellee. No. 15244. Court of Civil Appeals of Texas, San Antonio. December 26, 1973. David L. Hooper, Abilene, for appellant. Wolff & Wolff, San Antonio, for appellee. *918 BARROW, Chief Justice. Appellant has perfected his appeal from a judgment in the sum of $9,000, entered after a nonjury trial in appellee's suit to recover rental payments due under a written lease agreement, and for damages to the leased premises. Findings of fact and conclusions of law were filed wherein the trial court found that $4,200 was due appellee for unpaid rental, and $4,800 was owed for damages to the premises. Appellant asserts three assignments of error, all of which relate to the award for damages to the premises. Appellant and appellee entered into a written lease agreement whereby appellant leased certain premises in San Antonio for a term of five years from March 1, 1967, for the sum of $650 per month, with any holding-over to be on a month-to-month basis at $1,300 per month. The premises were not surrendered until August 31, 1972, and appellant does not now question that $4,200 rental is due appellee under the terms of the lease.[1] The agreement provides in part that all fixtures alterations, additions and improvements (except trade fixtures) put in at the expense of appellant would become the property of appellee and be surrendered with the premises as a part thereof at the termination of the lease. Appellant also covenanted to keep the premises in good repair, and to deliver the premises to appellee at the end of the term in good order and condition, reasonable wear and tear excepted. It is undisputed that before the surrender of the premises to appellee, the air-conditioning duct work, ceiling tile, wall panels and doors were removed from the premises. Appellee sought damages for the removal of such items and the damage thereby caused to the premises. The trial court, after finding such damaged condition, found that the reasonable cost to repair same on August 31, 1972, was $4,800. The court further found that the difference in market value on August 31, 1972, immediately before and immediately after such damage was $4,800. Appellant asserts by his first point that such findings are erroneous and in conflict with other findings of the court. Under this point it is urged that the damage findings as of August 31, 1972, are in conflict with a supplemental finding by the court that the items were removed from the premises in November, 1971. Appellant, therefore, asserts that there is no evidence of the reasonable market value of the premises immediately before the premises were surrendered on August 31, 1972. Such argument overlooks appellant's covenant in the written lease to surrender such improvements to appellee at the expiration of the lease in good order and condition, ordinary wear and tear excepted. It is settled that where the tenant fails to discharge his obligation to return the property in good condition, the landlord may recover as the measure of damages the reasonable cost of repairs to place the property in the obligated condition. Baroid Division, National Lead Co. v. Early, 390 S.W.2d 866 (Tex.Civ.App.—Eastland 1965, no writ); J. L. Whitworth Estate v. Mangels of Texas, Inc., 363 S.W.2d 851 (Tex. Civ.App.—Waco 1963, no writ); 35 Tex. Jur.2d, Landlord & Tenant, Section 102. Appellant's obligation arose on August 31, *919 1972, when the premises were surrendered to appellee; and, therefore, it is immaterial when the items were actually removed from the premises. There was testimony from Mr. Sam Rosenstein, the president of appellee, as well as from Mr. Charles Madden, a general contractor, that they inspected the premises shortly after same were surrendered to appellee, and that the items sued upon herein had been removed. Mr. Madden testified that the reasonable cost of repairing the damage caused by such removal was $4,980, including the sum of $160.50 necessary to replace 107 broken windows. Since the trial court only allowed a recovery of $4,800, it is immaterial that Mr. Rosenstein could not testify that all of the windows were broken at the time the premises were surrendered to him. Appellant's first point is without merit and overruled. The trial court also found that the difference in market value of the property on August 31, 1972, immediately before such items were damaged and immediately after such damage was $4,800. Appellant's third point urges that the trial court erred in admitting the testimony of Mr. Madden in support of this measure of damages, in that he was not qualified to so testify. The qualifications of Mr. Madden to testify regarding the reasonable market value of the premises immediately before the damage are very meager in that he had only seen the property once, and he admitted that he was not a real estate expert. Nevertheless, any error in the admission of this testimony would be harmless. Although appellee made only a general allegation of damages, the thrust of its proof relates to the reasonable cost of repairs. As pointed out heretofore, this is a valid measure of damages, and the sum of $4,800 is fully supported in the record. The trial court's finding of $4,800 difference in market value is consistent with the finding of the cost of repairs. The judgment is fully supported by the finding of the cost of repairs; and, therefore, any error in the admission of testimony of market value is harmless. Rule 434, Texas Rules of Civil Procedure. Appellant's final point of error relates to the admission of five photographs made shortly before the trial in March of 1973, which portray various views of the property, and particularly the damaged parts thereof. Mr. Rosenstein testified that said photographs fairly reflect the condition of the property shortly after it was surrendered to appellee. With this foundation, the trial court properly admitted said photographs. Dallas Ry. & Terminal Co. v. Durkee, 193 S.W.2d 222 (Tex.Civ.App.— Dallas 1946, writ ref'd n. r. e.); 2 McCormick & Ray, Texas Law of Evidence, Section 1465. It is true that on cross-examination, Mr. Rosenstein admitted that he was not sure if a broken window shown in one photograph was broken on August 31, 1972. Nevertheless, appellant did not subsequently move to strike this or any of the other photographs. As pointed out heretofore, the damage finding of the trial court apparently eliminated any claim for broken windows. Mr. Rosenstein's qualification to his prior testimony that the photographs reflected the condition on August 31, 1972, would only go to the weight to be given said photographs. The trial court did not err in admitting the five pictures in that the condition of the premises was relevant to the issues in controversy. The pictures probably did not contribute much to the trial, in that they are all of very poor quality. This point does not demonstrate reversible error and is overruled. The judgment of the trial court is affirmed. NOTES [1] Appellant signed the lease individually and d/b/a Dunlap Sales and Service. A few months later, he incorporated under the name of Dunlap Sales and Service, Inc. This corporation later merged with Artko Corporation and continued to operate the business as Dunlap Service, Inc. Appellant continued in this organization until he resigned in April, 1972. In August, 1972, he formed Mikelco, Inc. Appellant contended in the trial court that he was not responsible for the unpaid rent or for the damages caused by the removal of the property because of this change of ownership. It was not shown that appellee released appellant from his liability on the lease agreement, and appellant does not assert any such defense on this appeal.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/4125018/

KEN PAXTON ATTORNEY GENERAL OF TEXAS December 14, 2015 The Honorable Robert L. Nichols Opinion No. KP-0046 Chair, Committee on Transportation Texas State Senate Re: Authority of the Metropolitan Transit Post Office Box 12068 Authority of Harris County to participate in Austin, Texas 78711-2068 the Uptown Houston Transit Project otherwise known as the Post Oak Boulevard Dedicated Bus Lanes Project (RQ-0028-KP) Dear Senator Nichols: You seek our opinion on the authority of the Metropolitan Transit Authority of Harris County (METRO) to participate in the Uptown Houston Transit Project, otherwise known as the Post Oak Boulevard Dedicated Bus Lanes Project ("Project"). 1 In 2003, Harris County voters approved a referendum on METRO's transit authority system, including the METRO Solutions Transit System Plan ("Transit Plan"). See Scarbrough v. Metro. Transit Auth. of Harris Cty., 326 S.W.3d 324, 327-29 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) (discussing the referendum election, referencing METRO's Resolution No. 2003-93 and Resolution No. 2003-77, and acknowledging the voter's approval of the Transit Plan). The Transit Plan included a METRORail component that contained, among other segments, an Uptown/West Loop segment involving approximately 4.4 miles of commuter light rail along Post. Oak Boulevard. See Notice of Special Election, METRO, at 1 (Resolution No. 2003-77 & Exhibits A, A-4). 2 You tell us that "[i]nstead of constructing light rail on Post Oak, the current project, which is a joint ventur~ between the City of Houston, METRO and Uptown, intends to utilize the same approved light rail route along Post Oak but with a different technology; known as a Bus Rapid Transit." Request Letter at I. Yo.u also tell us that the Project will "allegedly not be built or funded by METRO, but METRO will nevertheless fully participate in the Project by operating and maintaining the dedicated Project bus lanes and dedicated Project buses." Id And you state that METRO will develop "bus specifications, operating plans, fare collection policy and systems, bus schedules and ·other system characteristics necessary to operate the dedicated bus service. 1 See Letter from Honorable Robert L. Nichols, Chair, Senate Comm. on Transp., to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (June 15, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). Your question is the same question that was before a court in Cosmopolitan Condominium Owners Ass 'n v. Metropolitan Transit Authority of Harris County, No. 2015-34192 (270th Dist. Ct., Harris Cty., Tex. June 15, 2015). This cause has been dismissed by the court and the question is no longer in litigation. See Order of Dismissal (10/29/2015) (on file with the Op. Comm.). 2 Available at https://ridemetro.org/METROPDFs/AboutMETRO/Referendum/Referendum2003-web.pdf. The Honorable Robert L. Nichols - Page 2 (KP-0046) METRO will also procure the dedicated buses." Id You therefore question whether METRO's involvement in the Project is illegal "in that it would violate the contract METRO entered into with the voters via the 2003 referendum," given that the voters approved light rail on Post Oak. Id at 2. The "contract with the voters" doctrine stems from article I, section 16 of the Texas Constitution, which prohibits laws that impair the obligation of contracts. TEX. CONST. art. I,§ 16 notes of decisions; see San Saba Cty. v. McCraw, 108 S.W.2d 200, 202-04 (Tex. 1937) (orig. proceeding). This doctrine is "grounded in ... election orders and propositions." Tex. Att'y Gen. Op. No. JC-0400 (2001) at 5. Essentially, the election order calling for a bond election and establishing the purposes for which bonds will be issued becomes a contract with the voters once the voters approve the bonds. See id. Thus, proceeds of bonds approved by voters "may only be expended for the purpose for which they were approved." Tex. Att'y Gen. L0-98-060, at 2. "They may not be expended for an additional or different project." Id. When an election order states only a general purpose for which bonds will be issued and does not specify particular projects for which the proceeds will be used, the governing body is free to exercise its discretion in expending the funds within the scope of the general purpose. Id. at 2-3. Where the election order specifies · the projects for which bond proceeds will be used; the proceeds can only be used for those projects and cannot be applied to other projects. See id. at 3; see generally Fletcher v. Ely, 53 S.W.2d 817, 818 (Tex. Civ. App.-Amarillo 1932, writ ref d) (distinguishing discretion of governmental body to expend bond proceeds when bond proposal does not identify the specific road to be paved but indicates only that route must be between two points against its discretion when a proposal identifies the particular route and road to be paved). Courts considering the question look to the relevant documents comprising the "contract with the voters" to ascertain the governmental body's intent with regard to the proceeds. S~e City of San Antonio v. Headwaters Coal., Inc., 381 S.W.3d 543, 551 (Tex. App.-San Antonio 2012, pet. denied). Here, we consider METRO's resolutions calling for the 2003 special election. 3 See id. The resolution calling for the special election stated that the proposition to be submitted to the voters was a proposition to authorize METRO to issue bonds, notes, and other obligations payable, in whole or in part, from seventy-five percent (75%) of METRO's sales and use tax revenues for the acquisition, construction, repair, equipping, improvement or extension of METRO's transit authority system, including the METRO Solutions Transit System Plan, as described herein, which includes bus service expansions and construction of extensions ofMETRO's rail system known as "METRORail," to approve such plan and construction of the METRORail and commuter line components thereof, and to dedicate twenty-five percent (25%) of METRO's sales and use tax 3 Initially approved on August 18, 2003, METRO Resolution No. 2003-77 called for a special election. See Notice of Special Election, METRO, at 1 (Resolution No. 2003-93 & Attachment 1, Resolution No. 2003-77), supra note 2. METRO Resolution No. 2003-93, approved on August 28, 2003, approved, adopted, ratified, and confirmed the August 18, 2003 resolution. See id. The Honorable Robert L. Nichols - Page 3 (KP-0046) revenues through September 30, 2014, for street improvements and mobility projects, as authorized by law and with no increases in the current rate ofMETRO's sales and use tax .... Notice of Special Election, METRO, at 1 (Resolution No. 2003-93 & Attachment 1, Resolution No. 2003-77) (emphasis added). The ballot language sought voter approval of [a]uthorization of METRO to issue bonds, notes and other obligations payable, in whole or in part, from 75% of metro's sales and use tax revenues in an aggregate principal amount not to exceed $640,000,000 for METRO's transit authority system, including the metro solutions transit system plan ... , which includes bus service expansions ... and construction of extensions and new segments of metro's rail system known as "metrorail," approval ofsuch plan and construction of all segments of the metrorail and commuter line components ... , and dedication of25% of metro's sales and use tax revenues through September 30, 2014, to street improvements and related projects, as authorized by law, and with no increase in the . current rate of metro's sales and use tax. Id. at 2 (Exhibit D) (emphasis added). Both the resolution language and the ballot language explicitly reference METRORail "commuter line components." As noted earlier, the commuter line component has different rail segments, one of which is the Uptown/West Loop segment described as "[a]pproximately 4.4 miles north from Westpark along Post Oak Blvd. and the West Loop 610 to the Northwest Transit Center. Serves the Galleria and Uptown businesses on Post Oak Boulevard. This segment or line will have approximately 7 stations." Id. at 1 (Exhibit A-4). The plain language of the election order and the ballot language clearly indicate that METRO intended some portion of the bond proceeds to be spent on commuter line components. Similarly, the exhibits incorporated into the resolution calling for the special election clearly identify which of the particular rail components were to benefit from the bond proceeds. See id. (Exhibits A & A-4). Thus, a court would likely determine that METRO's contract with the voters included the expenditure of a portion of the bond proceeds on the Uptown/West Loop 4.4 mile rail segment. See Fletcher, 53 S.W.2d at 818 (stating that when the voters approve a specific project, "the proceeds of the bond issue are 'earmarked' with the character of a trust fund which may not be diverted to another purpose or project.· ... ''.) (citing Black v. Strength, 246 S.W. 79 (Tex. 1922)). In briefing submitted to this office, METRO argues that its contract with the voters comprises only section 14 of the Notice of Special Election, entitled METRO's Agreement with the Voters, which section does not contain a requirement for rail only on Post Oak Boulevard. 4 Yet, section 14 refers to and incorporates by reference Exhibit A-4, which describes 4.4 miles of light rail along Post Oak Boulevard. See Notice of Special Election, METRO, at 1 (Resolution No. 2003-93 & Attachment 1, Resolution No. 2003-77) (Exhibit A-4). A court would likely 4 See Brief from Alva I. Trevino, Gen. Counsel, METRO at 5-6 (Nov. 10, 2015) (hereinafter "METRO Brief') (on file with the Op. Comm.). The Honorable Robert L. Nichols - Page 4 (KP-0046) consider the entirety of the order and notice of the election to determine the nature of the contract made by the voters. See generally City ofSan Antonio v. Headwaters Coal., Inc., 381 S.W.3d 543, 552 (Tex. App.-San Antonio 2012, pet. denied) (determining that the plain language of the bond ordinance constitutes the contract with the voters). In addition, METRO argues that "[v]oter approval of the planning and construction of additional light rail lines and bus service expansions was needed" only to satisfy Houston City Charter requirements. METRO Brief at 4. METRO asserts it "did not need voter approval to construct light rails, but it was required to g~t City of Houston approval to utilize rail on Houston's city streets." Id. The Transportation Code authorizes metropolitan rapid transit authorities to "call an election to determine the voters' will on any issue that the board is authorized to decide under this chapter or on the exercise of any discretionary power of the board under this chapter." TEX. TRANSP. CODE § 451.072(b). Importantly, this provision allows the board to "specify whether the results of the election are binding on the authority." Id. In submitting the question oflight rail to the voters in the 2003 election, METRO submitted the proposition as a binding one. These arguments are unavailing. Whether METRO' s participation in the Project violates that contract it made with the voters is a separate question. The voters must receive "substantially the benefits expected by them when they cast their votes." Thayer v. Greer, 229 S.W.2d 833, 836 (Tex. Civ. App.-Amarillo 1950, writ ref d n.r.e.). In determining whether a governmental body violates its contract with the voters, "[t]he law does not require a literal performance, but there must be left to the parties substantially the benefits expected." Fletcher, 53 S.W.2d at 821. If there is a change in the use of the proceeds as approved by the voters but "the changes have not materially detracted from these benefits," courts will generally find that there has been substantial compliance with the "contract." Id. The question whether METRO's participation in the Project ultimately violates its contract with the voters will require the resolution of several fact questions, including questions regarding the actual expenditure of the bond proceeds and whether the Project will prevent the development of the promised rail segment, 5 and is beyond the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1 (noting that this office does not resolve disputed fact questions in attorney general opinions). 5 In connection with a previous request for an attorney general opinion, RQ-1217-GA (2014 ), which was subsequently withdrawn, METRO acknowledged that it "cannot ~gree to build a bus line to the exclusion of the METRORail that the voters specifically approved." See Letter and brief from Honorable Vince Ryan, Harris Cty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 4 (Aug. 28, 2014) (on file with the Op. Comm.). The Honorable Robert L. Nichols - Page 5 (KP-0046) SUMMARY A court would likely determine that the Metropolitan Transit Authority's contract with the voters included the expenditure of a portion of the bond proceeds on the Uptown/West Loop 4.4 mile rail segment. Whether METRO's participation in the Uptown Houston Transit Project violates that contract with the voters requires the resolution of fact issues that are beyond the purview of an attorney general opinion. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee CHARLOTTE M. HARPER Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142949/

..-. 59 L 2 c-3 4 OFFICEOF THEATTORNEYGENERAL OFTEXAS AUSTIN BLULO0.MAWW Arromlmv amlr91L tionorableArnold kjth Oounty Attorns~ Yontgomory, Tour DQ8r arr XOUP rooeat re rent an thr,above stated II offl.ao aad aska "An, person %nteraatab, for him- rolf, or ar,agemt or 8ttarney of am- tathor,&all at all time* hate the right’to exmine the bDOk#, ~8~8~8, plats, eapr OP ether wditor belong- b&t t0 th0 OfitoQ Of Uy mW*rOr, on the payamt ef the fee 15xed w lit?. ’ Bon. Arnold &Ith, Page HO. 2 "Please ulrlae me on the following quem- tion, ‘Ca n lurveyor A o o unty oharge a fee for allowing an lndlrIQu~l the right to euaine Any book, paper or re00rd in hlr OffIOe?'" under the mtatutem orrrting thm ofiiom of oounty lurvmyor, Artialm 6~W-S~Q8, lnolumite, the crountysurveyor ir given the ourtody of the oounty l urteylng moor&m, la charged with theb rafe k8epIng, and i8 required to give bond. while under Artlole 5292, LIU~PM,my Intororted moh hnr A right to eretnine the reoordm in him OiiiOe. r- rt- 1018 5944, Bmrnon'a Annotated Cltil Statpter, protldmm auoh term for oounty lurreyorr an& read@, in i)lrt, am ?0110*8t ‘County surveyors shall raoelro the fol- lwlng fee&: . . . &AtXinAtiOn Or pAperr And rCoortl8 In hi8 offlae at the requemt of any person 25d. . .I Artiolo 6292, mupra, prorleeo In lS?oot that mnr pmrmon Intererted, for hlmeelf, or am agent or attorney of anothar, rhall at ill tImem haYe the right to examine the bookm, papers, platm, nupa or other arohlror belonging to the offfoe of any surveyor, on the 'papent of the fee fixed by lav, and tha tern 'flxmQ'by law" ir lmt forth In Artiole 8344, mupra, Wmly: *examination 0r pmpmrm ana rreordm In hI8,off~or at the request of any person 2:b$'. We am o$ the opinion th8t this prorlmIon of Article 3944 authorlxsm the oounty luneyor to ohmme twmty- firm aontr to AAOh prrmon for rm@h lunlnetlon he ny We of thm noore in htm orfioo. Xt doer not buthorlxr a obargr of twmnty-five oentm for cash paper wamlnee. Thim im olmar- ly apparent when rmfmrenom i8 mabo to thm lour6e oi Artialm 3944, naarly, the Aotm of 1876, Chmptmr 164, pagr 892, Emo- tlon 16. ?hero it warn provided that the oounty murroyor aa~ll roceire the iollowlngI ee81 for eaoh exmdnmtion OS papers and reoorbs in him office, at the requsat of any psrmon wlehing to examine them, 26$; . . ." In vlmw of the foregoing ltatute you am rmmpmot- fully that it is the OpiniOn Of thi8 eSpArtment $hAt AeTiBee under Artlole 5844, muprm, the aounty murteyor 18 entitlm4 Hon. Arnolb #Ith, Page no. J to A fee of twenty fire oentm ?or eaeh examination of ths papers and r*oordm In him offioe. This departBent ha8 heretofore ruled to the same efieot on a question ldentlorl with the one presented In your inquiry in Opinion tie.O-8122, other questions are almo paS#Sd upon %n maid OpinXon. Ye onolomm 8 oopy o? the ammo for your information. Trusting that the foregoing fully anmwerm your inquiry, we arm Pours rmry truly, VED APR 25, 1941 APMRnEY GE#FBbL OP PEXA8 FIRST ASSISTANT Area11 WIllFum ATTORNEY GENERAL Ammimtant AU:lh ho.

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125280/

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 89 CA 16-00985 PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ. JOSEPH T. GRABAR AND CAROL A. GRABAR, PLAINTIFFS-RESPONDENTS, V MEMORANDUM AND ORDER NICHOLS, LONG & MOORE CONSTRUCTION CORP., DEFENDANT-APPELLANT. BARCLAY DAMON LLP, BUFFALO (TYSON R. PRINCE OF COUNSEL), FOR DEFENDANT-APPELLANT. MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS. Appeal from an order of the Supreme Court, Erie County (Timothy J. Drury, J.), entered January 20, 2016. The order, insofar as appealed from, denied that part of the cross motion of defendant for summary judgment dismissing the complaint with respect to the Labor Law § 240 (1) claim. It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, defendant’s cross motion is granted in its entirety, and the complaint is dismissed. Memorandum: Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Joseph T. Grabar (plaintiff) when the trailer on which plaintiff was standing tipped, and he fell. Plaintiff was on the bed of the trailer in order to place fuel in a welder that was located on the trailer, and it is undisputed that the trailer bed was approximately 20 inches from the ground. We agree with defendant that Supreme Court erred in denying that part of its cross motion for summary judgment dismissing the complaint with respect to the section 240 (1) claim, and we therefore reverse the order insofar as appealed from, grant the cross motion in its entirety, and dismiss the complaint. We conclude that the trailer “did not present the kind of elevation-related risk that the statute contemplates” (Toefer v Long Is. R.R., 4 NY3d 399, 408; see Amantia v Barden & Robeson Corp., 38 AD3d 1167, 1168). Indeed, the injured plaintiff in Tillman v Triou’s Custom Homes (253 AD2d 254, 257) fell from the truck bed on which he was working after it tipped due to flat tires, and we held that the Labor Law § 240 (1) cause of action should have been dismissed. -2- 89 CA 16-00985 We reject plaintiffs’ contention that our determination in Doyle v Niagara Mohawk Power Corp. (2 AD3d 1404) compels a different result. We take judicial notice of our records in that appeal and note that we agreed with Supreme Court that the plaintiff should have been provided with a ladder in order to tighten a coupling located above a tar kettle, rather than standing on the top of the tar kettle onto which tar had leaked, causing him to slip and fall. Here, however, plaintiff was not engaged in a task that entailed “a significant risk inherent in [it] because of the relative elevation at which the task must be performed” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). Labor Law § 240 (1) is applicable when “[t]he contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich, 78 NY2d at 514; cf. Hyatt v Young, 117 AD3d 1420, 1420; Potter v Jay E. Potter Lbr. Co., Inc., 71 AD3d 1565, 1566-1567), neither of which is present here. Entered: February 10, 2017 Frances E. Cafarell Clerk of the Court

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142692/

297 ATTOINEYLUElE&U OBTELAS AUSTIN Qerald c. Mann Attorney General Eon. Xaanin X. Brown, Jr. Orimlnal District Attorney port Worth, Texar Deer Slrr

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4149948/

Motion GRANTED in Part and Order filed February 27, 2017. In The Fourteenth Court of Appeals ____________ NO. 14-17-00138-CV ____________ IN RE AMY HENRY, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 306th District Court Galveston County, Texas Trial Court Cause No. 17-FD-0305 ORDER On February 24, 2017, relator Amy Henry filed a petition for writ of mandamus asking this court to order the 306th Judicial District Court, in Galveston County, Texas, to vacate the Order Granting Extraordinary Relief that the Honorable C.G. Dibrell signed on February 21, 2017, as visiting judge in trial court number 17- FD-0305. 1  Relator also filed a motions for temporary relief asking this court to stay the Order Granting Extraordinary Relief and stay the proceedings below, pending a decision on the petition for writ of mandamus. See Tex. R. App. P. 52.8(b), 52.10. It appears from the facts stated in the petition and the motions that relator’s request for relief requires further consideration and that relator will be prejudiced unless immediate temporary relief is granted. We therefore GRANT relator’s motion in part and issue the following order: We ORDER the following part of the Order Granting Extraordinary Relief STAYED until a final decision by this court on relator’s petition for writ of mandamus, or until further order of this court: We do not stay the hearing on temporary orders that the trial court has set for March 2, 2017. In addition, the court requests Mark Henry, the real party-in-interest, to file a response to the petition for writ of mandamus on or before March 9, 2017. See Tex. R. App. P. 52.4. Additionally, we ORDER relator to comply with Texas Rule of Appellate Procedure 9.9 by redacting the names of the children from the appendix to the mandamus petition. See Tex. R. App. P. 9.9. If relator fails to file an appendix in compliance with this rule by March 9, 2017, this court shall strike the appendix. 2  PER CURIAM Panel consists of Chief Justice Frost and Justices Donovan and Wise. 3

01-03-2023

03-03-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127079/

IN THE COURT OF APPEALS OF MARYLAND CC Baltimore City No.59 24-C-15-000487 Argued: February 7, 2017 September Term, 2016 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (“AFSCME”) MARYLAND COUNCIL 3 AND AFSCME LOCAL 1072 v. UNIVERSITY OF MARYLAND,COLLEGE PARK Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ. PER CURIAM ORDER Filed: February 17, 2017 AMERICAN FEDERATION OF * IN THE STATE, COUNTY AND MUNCICPAL EMPLOYEES (“AFSCME”) MARYLAND * COURT OF APPEALS COUNCIL 3 AND AFSCME LOCAL * OF MARYLAND v. * No. 59 UNIVERSITY OF MARYLAND, * September Term, 2016 COLLEGE PARK PER CURIAM ORDER The petition for writ of certiorari in the above-entitled case having been granted and argued, it is this 17th day of February, 2017, ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the writ of certiorari be, and it is hereby, dismissed as being moot. /s/ Mary Ellen Barbera Chief Judge

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4143698/

miss AW®RNEY CGIB:NEHRAH.. OF "JL‘EXAS v , _ , Am-'rrm 11, Tms A‘rl'¢l-m OH:RI:IHAI. HM¢M¢T.M.M mrsme Auth.‘£‘m¢ non Sh.'z Oph\w No. 0~£618 fm AM¢IRMM&M- ¢¢Buzmt¢mot¢choluuca armstde W¢mhmmdywhwdwn,!% human WMMMMNMWMMM Wwwwumnmmmm mhtmmmmwwmdw M¥‘Mh“ ~Mkt`u h Brh amanda mv Aruch MW,WGiMMIMMuMIo-nz “hugtum¢hwuidd.xmt¢£mum MWNWMM¢¢“WMHM~ mhwméhvktuomy¢nwdww» mwhmummmwmh MM.mB¢MW¢NMW¢I-¢u mmwmmdwqmmwm m,u¢mdwmuhwmumm MMH¢¢MMWM . wmm¢¢tqmwd¢pmdmnpm mcnamum;wagmwpmwmmsv£m!d districtiinkr¢¢t¢d.* HMT.M.T¢M¢,WZ BtcdcolsdHomBmNo.mAchFody~atdhlqt¢- hhm,neg\hr£udon.$p¢chllm,m¢¢&£.tb¢pod$mo{tho£qmu_ untimmt»vhlchyoun£or.nadsn£ouwsz ‘5¢¢:.!5. Mdndiztmict. widow Mdhmdrtmdhdlh\chmud nqmdpdhy¢ml¢o¢uydhqdlmmd &¢Mktndlddbdbhwldk¢w$cpu~ MMMWMW¢¢\W Mmayhu¢bhhm¢lml¢mylchodmy mHtM-mmummhrd MMM¢MM¢¢HMMMM ¢u:hml!ld&¢£nho¢&¢mkt.hchdhgwm ¢HHMMMMWBMM hummdtmlhct,wmhpopumpmm umqhmwhwdhmqhgmtnmw mask . . AM&W¢RMMW,BIM¢MM MMNMM Huwl!_m!h.?$$hmq» M£MMMM WMW MMMQIMMMWMMM MMMIMMhW-WWM mmdnpmhhosw bwmetbwh¢€ MMMMWMMWMMWM wmnwwwmtdmugmm¢.hmud§ngom ¢mdhwmmhazuch%%uuhmmwldm MMMW¢M¢MWMMB MGMMMMM“MRMMAWW Bm» W¢mlthchtrmbyhm¢¢ml§dww MQLLMMMWMMMMW mende¢dm-hww umw mregom£o¢mbrhgddmwthéd.mdkmmtwh mh¢ml!hwmouth£rthuhu?%qpf$n$¢hmdm poultry mbmcmal’¢cpwmdig¢mdmp¢g¢\§$oniwhy‘s H.md Booko£rws$choo\laws,wh$chcuds: °A¢mttou'¢m£¢r mudndsb\ctmgdhwdbywcommdwe$wum, GM)*.M~NMMWH.¢MWMHMI¢M mmaddophimh¢hodl¢emdmdermnmlmw jptidhnbm~Wm&-dwh¢v¢bemmlbkbfhdmopwnddds deputmd¢orultng,¢xcq:tu¢ppliabkboocbwk subjectth MMRMAMAWMM:L numwmmmndmmu.w NMMMMHRWMEWWMWMM dwmhymdhndhbtngdmumwhhrudo unli.mbm!h.mmmlqmmm Sp¢chllavs,pg¢¢¢_$& Wdapmdh¢¢dudcada\pn- :MMMWHM“MWAMM&W.M%R R.C¢S»BZS,¢IMMM¢M¢¢MMM&IRMAM AWWWM¢M l Y¢rrtnlyywz .A‘I.'TGRRE¥ mo.'€ m _____ .. '- =-.~-.;nr faulme MC.CMR A¢¢\M APP‘RGVED Af!.`.'\. $@, IM /s/ owns Sdio' mar Assm\m A‘I“£‘ORRE¥ m CCC:R.S.'I!I

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4128137/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT September 30, 2010 The Honorable Edmund Kuempel Opinion No. GA-0804 Chair, Committee on Licensing and Administrative Procedures Re: Whether a particular activity constitutes an Texas House of Representatives offense under chapter 47 of the Penal Code, which Post Office Box 2910 proscribes certain forms of gambling (RQ-0852-GA) Austin, Texas 78768-2910 Dear Representative Kuempel: You ask whether a certain activity that you describe "is considered 'gambling' within the scope of Texas law, including the Texas Constitution Article III, Section 47, Texas Penal Code [sections] 47.01-47.10, and Texas Occupations Code [chapters] 2001-2002."1 You tell us the activity is a "modification oftypical games played in office pools, such as squares games and bracket challenges, to be entirely for a charitable purpose." Request Letter at 1. You describe the activity as follows: The host will set up an independent 501(c)(3) to collect donations to charity. The host entity will either take no revenue from the total donation pool or only revenue sufficient to cover reasonable operational expenses associated with hosting the event in compliance with Internal Revenue Service rules for non-profit and charitable entities. The donations will be taken and distributed by means of a squares game. A squares game is generally understood to be a large grid where each square represents the predicted final score of a major sporting event, such as the Super Bowl. In purchasing a square, the purchaser will designate a charity, which must be a valid non-profit, charitable organization pursuant to the designations of the Internal Revenue Service. At the end of the event, whichever charity has the winning square will win the total money collected for the purchase of the squares. Should no one purchase the winning square, the funds will still go to charity in a method to be determined, but likely an equal division of funds between all potentially winning charities. IRequest Letter at 1 (available at http://www.texasattomeygeneral.gov). The Honorable Edmund Kuempel - Page 2 (GA-0804) Those people purchasing squares stand to have no gain from the contest, other than designating the charity to win the award. The purchasing system will not allow charities to purchase squares, nor would it allow the principals of charities to purchase squares. Therefore, the pool of donors and the pool of potential winners will be entirely bifurcated. Id at 1-2. We consider only the game activity as you describe it and limit this opinion accordingly. See Tex. Att'y Gen. Op. Nos. GA-0774 (2010) at 1, GA-0670 (2008) at 2, n.2, JC-0521 (2002) at 2, DM-42 (1991) at 1 (limiting analysis to issues discussed in the opinion request letter). The Texas Constitution, article III, section 47, directs the Legislature to prohibit lotteries and gift enterprises. See TEX. CONST. art. III, § 47(a). The Texas Supreme Court has declared that section 47 was intended to condemn all other schemes, even though they are not lotteries, that involve the lottery principle of chance. City of Wink v. Griffith Amusement Co., 100 S.W.2d 695, 701 (Tex. 1936). Article III, subsections 47(b), (d) & (e) provide limited exceptions from the general prohibition against gambling for charitable organizations to conduct bingo games and raffles and state operated lotteries. See TEx. CONST. art. III, § 47(b), (d)-(e). Occupations Code chapters 2001 and 2002, adopted under the limited exceptions in article III, section 47, provide the exclusive means by which a charitable organization can secure donations through an activity that constitutes gambling. See TEx. Occ. CODE ANN. ch. 2001 (West 2004 & Supp. 2010) (Bingo Enabling Act), ch. 2002 (Charitable Raffle Enabling Act); see also TEx. CONST. art. III, § 47(b), (d); cf Tex. Att'y Gen. Op. Nos. GA-0385 (2005) at 4 ("The fact that the conduct is for a charitable purpose is pertinent only to whether it may fall within one of the narrowly drawn defenses to chapter 47 gambling offenses."), JC-0482 (2002) at 4 (concluding in the contextofthe constitutional prohibition oflotteries that the characterization ofthe payment of money as a donation does not remove the element of consideration), JC-0480 (2002) at 1, 9 (stating that conduct not expressly authorized by either the Bingo Enabling Act or the Charitable Raffle Enabling Act would not fall within the defenses to gambling offenses in section 47.09, Penal Code). Because you affirmatively tell us that the squares game you describe is neither a raffle nor bingo encompassed by those two chapters, we analyze the game you describe under only chapter 47, Penal Code. Request Letter at 2 (stating that "this activity is neither a raffle nor bingo per" the Occupations Code). In accordance with article III, section 47 ofthe Texas Constitution, the Legislature prohibits a variety of gambling-related activities through chapter 47 of the Penal Code. See TEx. CONST. art. III, § 47 ("The Legislature shall pass laws prohibiting lotteries and gift enterprises .... "); Owens v. State, 19 S.W.3d 480, 483 (Tex. App.-Amarillo 2000, no pet.) (recognizing Legislature's adoption of chapter 47 pursuant to article III, section 47). Within chapter 47, sections 47.02 and 47.03 are potentially applicable to the game you describe. Section 47.02 defines the offense of gambling and provides that a person commits the offense if the person "makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest[.]" TEx. PENAL CODE ANN. § 47 .02(a)(1) (West 2003). Section 47.03 defines the offense of gambling promotion The Honorable Edmund Kuempel - Page 3 (GA-0804) and provides that "[a1person2 commits an offense if he intentionally or knowingly ... for gain, becomes a custodian of anything of value bet or offered to be bet." Id. § 47.03(a)(3) (footnote added). Sections 47.02 and 47.03 both require that there be a bet. See id. §§ 47.02(a)(1), .03(a)(3) (West 2003). A bet is "an agreement to win or lose something of value solely or partially by chance." Id. § 47.01(1). We thus consider whether the game about which you ask involves a "bet." As you describe the activity, the participant pays an amount of money to the host entity to purchase a square. Though there may be an agreement between the host entity and the participant that involves something of value, i.e., the amount to purchase the square, the agreement does not involve the thing of value being won or lost solely or partially by chance. To the extent the participant can be said to have "lost" the amount of money paid to participate in the event, the loss is not determined by chance but instead is determined by the participant's decision to participate. Moreover, irrespective of any element of chance, as you describe the activity, the participant does not stand to win anything. Accordingly, we do not believe the activity involves a bet. Absent a bet, we caunot conclude that the activity you describe implicates sections 47.02 and 47.03 of the Penal Code. 'Underthe Penal Code, the tenn '" [p lerson' means an individual, corporation, or association" and thus includes an entity such as a 50 I (c)(3) organization. TEX. PENAL CODE ANN. § 1.07(a)(38) (West Supp. 2010). The phrase "for gain" has been construed to include donations to a charity. See State v. Amvets Post No. 80, 541 S.W.2d 481, 483 (Tex. Civ. App.-Dallas 1976, no writ) ("Even if all the proceeds were contributed to charity, the game would still be an enterprise undertaken 'for gain.' A gain is no less a gain ifit is contributed to charity."); Tex. Att'y Gen. Op. No. JC- 0480 (2002) at 4 (defming phrase "for gain" to mean for "profit" or an "excess of receipts over expenditures" (citation omitted)); see also Tex. Att'y Gen. Op. No. GA-0385 (2005) at 2 (detennining under section 47.03 that a nonprofit organization is "a person" who acts "for gain"). Under section 47.03, the 501(c)(3) host entity you describe is a person who acts for gain. The Honorable Edmund Kuempel - Page 4 (GA-0804) SUMMARY A participant paying an amount of money to purchase a square in the game activity you describe does not make a bet under chapter 47 of the Texas Penal Code. Absent a bet, we cannot conclude that the activity you describe implicates sections 47.02 and 47.03 of the Penal Code. Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Charlotte M. Harper Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4400413/

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BEN RAY YODER, ) ) Appellant, ) ) v. ) Case No. 2D18-3515 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed May 24, 2019. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Sarasota County; Charles E. Roberts, Judge. Ben Ray Yoder, pro se. PER CURIAM. Affirmed. VILLANTI, MORRIS, and BLACK, JJ., Concur.

01-03-2023

05-24-2019

https://www.courtlistener.com/api/rest/v3/opinions/4142835/

COPY ) ?IonorableMortimer Brown Executive Secretary Teacher Retirement oyatem of Texae Austin, Texas Dear Sir: Opinion No.&35?7 Re: Dlstr?bz.ition of accumulated aontributlons OS Xrs. Uldred Baker 'young, a &eceased te'acher. In yoursletter of May 8, 1941, you submit orrt+~ taota and raquast our opinion in response to certain-quertiona arieing therouiulmti, as follower *l&o..IbildredBaker Young, a mentieror the Teacher Retirement Sy@em of Texae, died nrter hav- ing named her mother, Susan Alloe Beker, as the beneficiary to redaeive her aooumulated oont lbu- Mona in ths Teaoher Saving fund in uasa of hor doath.Mfore tietirbment. Mrs. Susan Alice Baker died before $he money could be paid to her. Ths Retirement Sj@tsm is now oontrontadwith the problem or how to dispose of ths money that would have been returned to Xrs. Susan Alloa Baker. *Aa the children of Nrs. Bakar state that no admlniotntor haa beon appolnted,the Teaoher Re- tlriunentayet= i8 rillln& to oooperate with the children in eettll~ with direct peymenta to the heirs if the System oan determine the manner In whioh the nonay 6hould.b. returned. At ths time of Mrs.'Bsker'8 death, sha was not married - her hurband having died 801&efltteen years prior to her death. The iallowing ohlldren were born to Mrs. Baker: Honorable Yortimer Brown, page 2 "Mrs. Ylldred.Bakor Toung, deoeased a. P.~Baker' D. A. Saber H. 0. Baker "Would the Teacher Retirement Syeten?be return- ing the money gro;:erlyto the various heirs if one- fourth of the money was paid to T. F. Young,,husband of Mildred Baker Young, deaeased, and one-fourth was paid to each of the three son87 If this 10 not the proylermanner in which the ffione:? stioulc! he returned, how should the nioneybe returned'?" Aa we understand your l~etter,3s. Baker iollowed 1~~s. Young in death. Sinoe Mrs. Baker was t&e beneficiary named by her daughter, upon the death of the latter suoh accumulated oontrlbutions beomw the property ot Mrs. Baker and desosnded to her helrn. Artlols SS70, Revised Clvll Status, provides la part as toZ.lowrr Where any parson, having title to any es- tate or inheritance, real, personal or mlxed,~ shall die Intestate, It shall descand and pass In parcenary to bls kindred, male and female, in the following oourae: “1. To his children and their desasndants. c . . . .)I from tha above It will be seen that MC. T.B. Toung ie not an hsir of Y&e. Susan Al%00 Bakar, and thOmBfOre would not be entitled to reoeire any part or auoh oontributions. If Mrs. Yaung died without i8aue, as your letter would seem to indicate, then C,P. Baker, D.A. Baker and H. 0. Baker would bs entitled to reodve suoh oontributions, share and aharr alike. It Mrs. Young was survived by a ohlld or ohlldren, thqn t&aid ohild or ohildrsn would reoeive one-fourth of suoh oontrlbutlons and C.P. Baker, D.A. Baker, and H*G. Baker would eaoh reorive one-fourth. Yours very truly ATTGRWXGENERAL OFT!CXAS GRS:db 5-l' s/ Glenn R. Lewis A. :.M:VEDVAY 20.1941 Af36ifitant E/ Grover Sellers AFFROVED: CFINT:?JCCX ITTEE BY B l'>'B Chairman

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127102/

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT GREEN EMERALD HOMES, LLC, ) ) Appellant, ) ) v. ) Case No. 2D16-2552 ) NATIONSTAR MORTGAGE, LLC, ) ) Appellee. ) ________________________________ ) Opinion filed February 17, 2017. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pasco County; Kimberly Sharpe Byrd, Judge. Brennan Grogan of Levine Law Group, Palm Beach Gardens, for Appellant. Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Akerman LLP, Fort Lauderdale; and Eric M. Levine of Akerman LLP, West Palm Beach, for Appellee. KELLY, Judge. In this foreclosure action, Green Emerald Homes, LLC, appeals from the nonfinal order denying its motion to quash service of process. Green Emerald argues that service was not accomplished because Nationstar Mortgage, LLC, failed to comply with the notice requirements in section 48.161(1), Florida Statutes (2014). We agree and reverse. Nationstar was unable to serve Green Emerald's registered agent and managing member. Consequently, Nationstar served the Florida Department of State with substitute service under section 605.0117(3), Florida Statutes (2014). Green Emerald filed a motion to quash service, contending that Nationstar was also required to mail the process through certified or registered mail, file the return receipt, and submit an affidavit of compliance, as required by section 48.161(1). In opposition, Nationstar claimed that newly enacted section 605.0117 provided an independent method of obtaining service on limited liability companies and compliance with chapter 48 was no longer required. The trial court agreed with Nationstar's argument and denied the motion to quash service. In prior years, service of process on a limited liability company was made pursuant to "chapter 48 or chapter 49, as if the limited liability company were a partnership." § 608.463(1)(a), Fla. Stat. (repealed 2015); see, e.g., Boatfloat LLC v. Golia, 915 So. 2d 288, 289 (Fla. 4th DCA 2005). "Substitute service on an LLC was not expressly authorized until the legislature enacted and amended various statutes effective January 1, 2014 and January 1, 2015." Jupiter House, LLC v. Deutsche Bank Nat'l Tr. Co., 198 So. 3d 1122, 1123 (Fla. 4th DCA 2016) (citing ch. 2013–180, §§ 3, 29, Laws of Fla.); see § 605.0117(3) ("If the process, notice, or demand cannot be served on a limited liability company . . . , the process, notice, or demand may be served on the department as an agent of the company."); see also § 48.062(3) (providing that if service of process cannot be completed on a registered agent, "service of process may -2- be effected by service upon the Secretary of State as agent of the limited liability company"). Under the new statute, "[s]ervice with process, notice, or a demand on the department may be made by delivering to and leaving with the department duplicate copies of the process, notice, or demand." § 605.0117(4). "Service is effectuated [for such purposes] on the date shown as received by the department." § 605.0117(5). However, "none of the newly enacted LLC provisions furnish a method to communicate the substitute service upon the Secretary to the defendant." Jupiter House, 198 So. 3d at 1124. Because of this omission in chapter 605, the provisions of chapter 48 must be applied where chapter 605 is silent on the notice requirements. Id. As the Fourth District held in Jupiter House, although section 605.0117 authorizes service on the Secretary of State, a plaintiff must still comply with the notice requirements in section 48.161(1). By failing to do so in this case, Nationstar did not effect valid service of process. Accordingly, we reverse the trial court's order denying Emerald Green's motion to quash service. Reversed. SILBERMAN and BLACK, JJ., Concur. -3-

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4126955/

Digitally signed by Reporter of Decisions Illinois Official Reports Reason: I attest to the accuracy and integrity of this document Appellate Court Date: 2017.01.24 08:43:26 -06'00' People v. Banks, 2016 IL App (1st) 131009 Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption DAVID BANKS, Defendant-Appellant. District & No. First District, Third Division Docket No. 1-13-1009 Filed November 9, 2016 Rehearing denied November 14, 2016 Decision Under Appeal from the Circuit Court of Cook County, No. 05-CR-17342; the Review Hon. Kevin M. Sheehan, Judge, presiding. Judgment Affirmed. Counsel on Michael J. Pelletier, Alan D. Goldberg, and Robert Hirschhorn, of Appeal State Appellate Defender’s Office, of Chicago, for appellant. Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, Amy M. Watroba, and Sheilah O’Grady-Krajniak, Assistant State’s Attorneys, of counsel), for the People. Panel PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Lavin and Cobbs concurred in the judgment and opinion. OPINION ¶1 On the morning of September 8, 1990, the Chicago fire department responded to a fire in the basement of a multiunit apartment building at 1058-1060 West Lawrence Avenue in Chicago. The bodies of a 55-year-old woman and a 79-year-old man and were discovered in the fire. The manner of death was determined to be homicide, and the fire was determined to have been caused by arson. A 12-year-old girl, T.C., reported having been raped and doused in fire accelerant by the offender in the basement but escaped to call for help. ¶2 Defendant David Banks was arrested after a 2005 “cold hit” in the DNA database. He was charged by indictment with 24 counts of first degree murder and one count of arson in regards to the double homicide and sexual assault. The indictments alleged that defendant murdered victims Irene Hedgpeth and Lawrence Soucy while committing the offenses of criminal sexual assault against T.C. and arson. A jury trial was held in 2013, after which the jury found defendant guilty of arson as well as the two murders. The trial court sentenced defendant to two terms of natural life imprisonment for the murders, to be served consecutively, and a term of 15 years’ imprisonment for arson, also to be served consecutively. On appeal, defendant contends (1) the trial court erred in admitting DNA evidence at trial; (2) he was prejudiced by the “misuse” of his prior criminal record at trial; (3) he was prejudiced by comments by a testifying police officer regarding his invocation of his right to remain silent and his request for counsel; and (4) he was deprived of the effective assistance of trial counsel for a series of alleged trial errors. For the following reasons, we affirm. ¶3 BACKGROUND1 ¶4 Defense counsel filed several motions prior to trial2 including motions asking to suppress defendant’s statement and motions relating to the introduction of DNA evidence at trial, asking to bar the introduction of other crimes evidence at trial, asking to be allowed further testing of the biological materials and databases for use at trial, and requesting greater latitude in the cross-examination of the State’s DNA expert. Relevant to this appeal, defendant specifically sought (1) a Frye hearing (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) regarding whether DNA testing without the original controls or blanks was a scientifically valid methodology, (2) to exclude the DNA evidence where some of the material was inadvertently lost during testing in the laboratory, and (3) a search of the national DNA index system “for actual 9-loci pair matches that actually exist in the databases for the 9-loci identified in this case,” and “for the frequency of each of the alleles identified in this case as they actually exist in the databases.” ¶5 After a hearing, the trial court denied the request for a Frye hearing regarding the DNA testing without the original blanks, stating: “Frye does not apply once determined that the scientific method is generally accepted” and noting that “[t]here is no Frye standard plus 1 This court provides an extensive background in order to give full consideration to the many fact-intensive issues defendant raises on appeal. 2 There was extensive motion practice as well as hearings in this case, much of which concerned the fact that the prosecution began as a capital case. As this is not germane to the issues at bar, this court will not concern itself with this portion of the case history. -2- reliability standard, no independent evaluation of the theory or the reliability once the general acceptance threshold has been met. Reliability comes from general acceptance.” The court explained that defendant’s arguments regarding the DNA testing “goes to the weight, not the admissibility under Frye,” and that defendant’s concerns could be addressed at trial through “vigorous cross-examination presentations of contrary evidence such as expert testimony.” It stated: “The Frye standard applies only if scientific principle and technique or test offered is new or novel.” ¶6 The court also held a hearing on defendant’s motion for relief in conjunction with destruction of DNA or related evidence. The court denied the motion, finding that the DNA, which was inadvertently spilled during laboratory testing, was not materially exculpatory evidence and that it was not destroyed in bad faith. Additionally, the court admonished defense counsel that use of the term “destroyed” was not appropriate, stating, “It’s spilled, right? We’re talking semantics here, something certainly wasn’t destroyed in a bad faith sense or somebody just took something and obliterated it. *** What we have here is something that’s spilled during a test requested by the parties.” ¶7 Defendant’s motion for a DNA database search was filed with the trial court on May 20, 2010. By that motion, defendant explained that he was arrested based on a “partial, 9 Loci DNA match to a buccal swab taken from him.” The motion also stated: “5. The Illinois State Police Forensic Scientist in this case, Cynara C. Anderson, opined that the statistical probabilities of such a match were 1 in 52 million Black, 1 in 390 billion White, or 1 in 200 billion Hispanic unrelated individuals at the 9 loci profiled. 6. However, the Forensic Scientist from the Illinois State Police printed a State Match Detail Report that indicates that the ‘Locus Match Stringency’ parameters were set at high, which nevertheless resulted in 2 matches, 1 at 10 Loci and 1 at 6 Loci; presumably the ‘10 Loci’ match is actually the 9 Loci match excluding the Amelogenin Loci (X,Y). It is not clear what the other 6 Loci match was. 7. Moreover, an Arizona database search of 65,493 specimens revealed 120 pairs of 9-loci matches; an Illinois database yielded 900 pairs of matches at 9 loci; and a Maryland study 32 pairs of 9-loci in a database of less than 30,000. Wherefore, the State’s theoretical statistical analysis, which lends relevancy and weight to the State’s DNA evidence is seriously in doubt considering actual DNA searches of real profiles that exist in actual DNA databases.” Defendant specifically requested the court to order the State Police to search the following databases: “a. offenders maintained under 730 ILCS 5/5-4-3(f); b. unsolved crimes maintained by state and local DNA databases by law enforcement agencies; and/or c. the National DNA index system” using the following formulas: “a. for actual 9-loci pair matches that actually exist in the databases; b. for the actual 9-loci identified in this case, but utilizing Low, Medium and High locus Match Stringency; and c. for the actual frequency of each of the alleles identified in this case as they actually exist in the databases.” This motion was held in abeyance. -3- ¶8 On July 19, 2012, defense counsel withdrew the DNA database search motion, explaining to the court: “THE COURT: Database search motion withdrawn? [PUBLIC DEFENDER CHRIS ANDERSON]: Yes, motion for DNA Database search. I was able to actually find—the FBI had actually done a CODIS allele frequency analysis for each of the databases, so I didn’t need it because I have it now. THE COURT: Okay. That database motion is withdrawn. [PUBLIC DEFENDER ANDERSON]: That issue is done. After further discussions with the lab, I realize that by entering the profile in this case that they are searching all additional cases in the CODIS database against that COPA [sic] any new ones put in so that in effect is being done anytime— THE COURT: I believe [Assistant State’s Attorney Mary Lacy] mentioned that on the last court date that they continually search during the pendency of the case. [PUBLIC DEFENDER ANDERSON]: Right—well, perpetually they search. Third the issue is the National DNA Search using the profile in this case for purposes of trial strategy, general strategy, we are not pursuing that issue, Judge. So all of these things that we requested have been resolved, so I’m asking leave to withdrawal [sic] that motion, Judge. THE COURT: Okay.” ¶9 Defendant also filed a motion to suppress his statement, as well as a supplemental motion to suppress statements. At the end of the hearing, the trial court made extensive findings of fact, after which it denied the motion, noting: “For the foregoing reasons, respectfully your motion to suppress statements is denied. The court specifically finds that the defendant was advised of his rights, that he waived his rights until he asked for an attorney when all questions ceased ***. He was never confronted with material misrepresentations. The statements, whatever they were obtained [sic] by the defendant, from the defendant, were not obtained as a result of physical or psychological or mental coercion. The court finds whatever statements that the defendant made were voluntarily of his own free will. And the first time the defendant invoked his right to attorney was to [the assistant State’s Attorney] after which questioning ceased. Respectfully, your motion to suppress statements is denied.” Also prior to trial, the State filed a motion in limine seeking to introduce evidence of a prior crime at trial, that is, a 1984 sexual assault, as relevant to the issues of defendant’s propensity to commit sexual attacks and to motive and intent, as two of the murder counts on trial were predicated on the alleged sexual assault of T.C. After hearing arguments from the parties, the court allowed evidence of the prior sexual assault as evidence of defendant’s propensity to commit sexual attacks, motive, and intent, as two of the murder counts on trial were predicated on the alleged sexual assault of T.C. Specifically, the court determined: “It is clear that in viewing the proof of other crimes sought to be admitted, it’s relevant to the issues of defendant’s propensity to commit sexual attacks and to motive and intent. The statute [and] case law mandates this Court to allow the People to present evidence of other crimes discussed above.” -4- ¶ 10 Defendant also moved to bar the use of the 1984 sexual assault case and a 1990 murder conviction for impeachment purposes should he testify. The State agreed not to use the 1984 sexual assault case for impeachment. The court then allowed evidence of the 1990 murder conviction “for the very limited purpose” of impeachment in the event defendant were to testify. ¶ 11 At trial, T.C. testified she was a 12-year-old sixth grader in September 1990. She lived in the second floor apartment at 1060 West Lawrence with her mother, stepfather, and two sisters. She had slept overnight at her father’s house a few blocks away and was returning to her own apartment at approximately 8:30 on the morning in question. Although she did not know how big she was at the time of the attack, she testified she was smaller at the time of the attack in 1990 than she was at the time of trial. At the time of trial, she was 4 feet, 11 inches tall and weighed 90 pounds. As she approached the back entrance to her building, a man grabbed her from behind and covered her mouth with his hand. He dragged her down to the basement apartment where she saw a woman and a man. She recognized the woman as Pat, the building manager, and the man as a resident of the building. Both of the victims had their hands tied and their mouths gagged. Pat was moaning. The man was on the floor, not moving. The offender hit and kicked T.C. He ordered her to remove her pants and underpants. He pulled them off of her after she resisted. He then stuck his finger and penis into her vagina. While this was happening, T.C. heard Pat say, “don’t hurt her, let her go.” The attacker responded, “shut up, I kill you.” ¶ 12 After sexually assaulting T.C., the assailant picked Pat up off of the floor and put her on a bed. Then he walked to the man, still on the floor, and kicked him. T.C. then watched as the assailant poured what looked and smelled like gasoline on both the woman and the man. He then returned to T.C., picked her up, and laid her on the floor near the bed. He soaked her pants and underpants in gasoline and ordered her to put them back on. When she refused, he put them on her. She then watched him rummage in his duffel bag and retrieve a bicycle chain lock. He put the chain around T.C.’s neck and choked her with it. She tried to fight and resist, but slipped in and out of consciousness. When she came back to consciousness, she was laying on the floor. She acted like she was dead and watched her assailant look for matches. He found the matches and lit a fire on the bed near Pat. T.C. continued to play dead as the room filled with smoke and fire, and she watched the attacker grab his duffel bag and leave through the front door. After he left, she got up, attempted unsuccessfully to rouse Pat and the man, and then escaped. She ran upstairs to her apartment, told her mother what happened, and they left the building. T.C. was taken to the hospital. ¶ 13 At trial, T.C. described her attacker as having long hair pulled back in a ponytail and wearing a sleeveless shirt. T.C. also described a big “greenish color” tattoo that “was looking like a dragon” on his arm. She remembered he was wearing a chain around his neck that held two credit card-sized cards. T.C. did not identify defendant at trial has her assailant. In 1991, she identified another man, Albert Chaney, as her assailant. Chaney was arrested at that time, but subsequently cleared by DNA evidence and released in 1993. ¶ 14 Joanne Vo, T.C.’s mother, testified she heard banging on her apartment door at approximately 11:15 a.m. on September 8, 1990, and opened the door to find T.C. crawling on the ground, her face black and red, and a line on her neck. T.C. smelled like gasoline and her clothes were wet and dirty. Vo took T.C. to the hospital. -5- ¶ 15 T.C. was examined at Children’s Memorial Hospital by Dr. Ramona Slupik. Dr. Slupik testified that T.C. had been severely traumatized. Her eyes were swollen, the whites of her eyes were red and had burst blood vessels, and she had bruise marks and a strangulation mark around her neck. Dr. Slupik testified that T.C. was “trembling, but she was coherent” during the examination, and was able to answer the doctor’s questions. T.C.’s genital area had swollen labia, a thin bloody discharge, and slightly dried white secretions on the outside of the hymen. In Dr. Slupik’s opinion, there was “convincing evidence of blunt force penetrating trauma,” or “penile penetration.” Dr. Slupik confirmed the presence of sperm under a microscope, took cultures to test for sexually transmitted diseases, and then collected DNA swabs from the oral cavity, vagina, and rectum, as well as fingernail scrapings for a rape kit. These items were each labeled individually, sealed, and sent to the crime lab. ¶ 16 The parties stipulated that nurse Mary Whiteford took the rape kit from Dr. Slupik and put it in hospital storage, that the kit was then retrieved by nurse Sandra Roy and given to Chicago police evidence technician Roy Fondren, who then stored it with the evidence and recovered property section of the police department. The parties stipulated that a proper chain of custody was maintained over the kit at all times. ¶ 17 Retired fire marshall Louis Outlaw testified that he responded to a fire alarm at the three-story apartment building at 1058-1060 West Lawrence on September 8, 1990. The fire was extinguished by the time he arrived, and he spoke with firefighters on the scene. Outlaw determined the fire was mainly contained to the basement apartment. He then entered the rear basement apartment and saw a male victim on the floor who appeared to have had his throat slashed and a female victim on a bed who was badly burned over her entire body. Outlaw determined an accelerant had been used to advance the fire, that the ignition source was a human action such as an open flame, and that someone had purposely set the fire. ¶ 18 Illinois State Police acting trace chemistry group supervisor Alan Osoba, who at the time of the fire worked as a criminalist or police chemist for the Chicago police department’s crime laboratory, testified he tested T.C.’s recovered clothing as well as four debris cans collected from the fire scene for accelerants. T.C.’s clothing and three of the four debris cans contained petroleum distillate residue such as diesel fuel or charcoal lighter fluid. ¶ 19 Retired Chicago police detective Wayne Johnson testified that he was working as a detective assigned to the violent crimes unit in September 1990. He arrived at the scene of the crime around 1:30 p.m. and went in to the basement apartment to process the crime scene. He then went to the hospital to interview T.C. He testified T.C. described her attacker as: “male, black approximately six feet tall, approximately 200 pounds with long hair worn in a ponytail, growth—beard growth on his face, a short sleeved shirt, white Nike gym shoes, and a sliver chain around his neck that displayed two cards that she compared to credit cards at the time.” She said he carried a tubular gray duffel bag. He testified that T.C. was traumatized, but that a few days later she was able to provide more detail about her attacker. At that time, T.C. said “she thought he had a tattoo on his upper arm that to her looked like a dragon.” She described it as light blue or faded blue green in color, but was unable to give great detail due to the lighting and the traumatic nature of the attack. ¶ 20 Dr. Edmund Donoghue, then the Cook County medical examiner, testified that he performed the autopsies of both Hedgpeth and Soucy. He determined that both victims died before the fire was set, Hedgpeth of strangulation and Soucy from blunt force trauma. He described Hedgpeth as a 55-year-old white female with burns over 100% of her body, -6- including full thickness burns. Hedgpeth also had internal injuries including fractures consistent with manual strangulation. Dr. Donoghue described Soucy as a 79-year-old white male with partial thickness burns on much of his body. Soucy had a 2-inch deep wound through his right eye, consistent with being stabbed with an ice-pick-like instrument. He also had numerous skull and rib fractures consistent with being stomped or kicked, as well as a laceration to his neck involving the jugular vein consistent with his neck being cut with a knife. ¶ 21 Forensic scientist Edgardo Jove testified that he worked at the Chicago police department crime lab from 1991 to 1996. He received the rape kit taken from T.C. for testing on July 20, 1993. The kit contained oral, rectal, and vaginal swabs and smears; microscopic slides; and fingernail samples. He examined the vaginal smears for the presence of sperm and tested the body fluids found on the vaginal swab. He then sent the samples for DNA testing to the Illinois State Police forensic lab in Springfield. Jove testified that he maintained a proper chain of custody over the items. ¶ 22 Dr. Elizabeth Benzinger testified as an expert in the field of forensic DNA analysis. Although by the time of trial she worked with the Ohio Bureau of Criminal Investigation, from 1990 to 1996 she worked at the Illinois State Police crime lab and was one of four individuals who set up the forensic DNA typing program from the Illinois State Police in Springfield. She testified that she received sealed items including T.C.’s vaginal swab and blood samples from T.C. and Albert Chaney pertaining to this case in October 1993. She described DNA to the jury as a “long string like molecule” that is “the blueprint of life.” She described its usefulness in forensic analysis as: “DNA is useful for forensic analysis because scientists believe that no two individuals have the exact same DNA except for identical twins. So we are able to look at the DNA from one person, their oral swab, their saliva, their blood, all the tissue of their body, their bones, their semen, all have the same DNA. So we can compare a sample from the blood or an oral swab from the mouth to DNA from a crime scene, such as blood or semen, and use that to determine if the individual could be the source of that crime scene sample.” ¶ 23 She described four steps to DNA tests: (1) extract the DNA from the item using a reagent that is “essentially high tech laundry detergent,” which helps get the DNA out of, for example, the shirt it may have been on; (2) solubilize the DNA, or get it into solution and remove the other parts of the cell, separating a sexual assault sample into a male sample and a female sample; (3) determine “how much DNA we have” and amplify the DNA; and (4) examine the different areas of the DNA that are known to be highly variable and make comparisons. She explained that DNA amplification is “essentially chemical Xeroxing” in order to improve the sensitivity of DNA tests. Dr. Benzinger explained that, in 1993, testing included using an RFLP method “that is responsible for the bar code-like patterns that we see on TV” that did not use the amplification and was not very sensitive, and also a method based on the amplification process known as DQ-Alpha. The DQ-Alpha test “examines some variation in the DNA on one of the chromosomes.” She said the DQ-Alpha test is “only one test compared to what we use today which is an array of tests.” ¶ 24 When Dr. Benzinger received the samples from T.C. and Chaney, she numbered T.C.’s blood standard 1, Chaney’s blood standard 2, and the vaginal swab 3. Dr. Benzinger testified that she then extracted T.C.’s and Chaney’s DNA from the blood samples. She also extracted -7- DNA from the vaginal swab. Dr. Benzinger ran controls and created a reagent blank during her testing. She explained the controls process: “Q. [ASSISTANT STATE’S ATTORNEY DAVID WEISS:] When you’re doing this test, do you work with any types or do you perform any types of control to determine whether or not you’ve done anything to contaminate or do anything to the sample? A. [DR. BENZINGER:] Yes, because of the sensitivity of these tests, we run controls to tell us whether we are introducing extraneous DNA and also whether our methods are working correctly. So the controls I used were samples that I worked with that I placed only reagents in, only the chemicals that I was using. And my expectation was that I should get no DNA type from them if they were not introducing DNA on their own. Q. Was that the result, no DNA? A. Yes.” ¶ 25 Dr. Benzinger obtained profiles using DQ-Alpha testifying from the blood standards of T.C. and Chaney, as well as from the vaginal swab. The profile from the vaginal swab did not match the profile from Chaney’s blood standard. This excluded him from having contributed to the vaginal sample, that is, he was not the source of the semen on the vaginal swab. Dr. Benzinger then followed the lab’s procedure: she dried the DNA she had extracted from the vaginal sample on a piece of filter paper, froze it to preserve it, and sealed it. She testified she maintained a proper chain of custody at all times during her testing. ¶ 26 On cross-examination, Dr. Benzinger agreed that DQ-Alpha testing has now been replaced by DNA testing known as short tandem repeat, or STR, testing. DQ-Alpha tests at one area of variation in a sample, while STR can test at 13 locations of a sample. In other words, DNA testing has improved over the years to be more sensitive. ¶ 27 Chicago police detective Thomas McIntyre was assigned to the cold case squad in 2002, when he began a file review of the murders of Hedgpeth and Soucy. After learning that the rape kit had been destroyed, he learned that DNA had been extracted from the kit samples. He sought out the DNA extracts. Detective McIntyre located the DNA extracts in February 2005 and submitted them for DNA analysis. Later that year, he received the name of an individual who had been identified in the FBI database from Anderson, who informed him she needed a confirmatory buccal swab. On June 29, 2005, Detective McIntyre obtained a warrant for a swab from defendant, and an evidence technician took a buccal swab from defendant and photographed the tattoo of green roses on his right arm on June 30, 2005. Detective McIntyre traveled to Peoria to arrest defendant and then transported defendant back to Chicago. ¶ 28 The parties stipulated that retired Chicago police evidence technician Kerry Watters would testify that she collected a buccal swab from defendant on June 30, 2005. She also photographed his arm and tattoo at that time. The buccal swab standard was subsequently submitted to the Illinois State Police crime lab for DNA analysis, and a proper chain of custody was maintained over the evidence at all times. ¶ 29 Illinois State Police forensic scientist Cynara Anderson testified as an expert in her chosen field. Defense counsel cross-examined her as to her qualifications, asking her if she had formal training in population statistics and DQ-Alpha testing. As to her qualifications, -8- she testified she had completed both a forensic biology training program and a DNA analysis training program, and had been previously qualified as an expert in both biology and DNA on numerous occasions. She admitted she does not have “formal training in DQ-Alpha,” and explained that population genetics was “one of our modules in our DNA training as well as I completed course work in my college education.” She opined that population genetics were “to a certain extent” one of her areas of expertise. She testified she had studied “about the extent of actual preference of DNA” as “they actually exist in the population,” and agreed she had studied statistics and population statistics. She agreed that the majority of her training and expertise “is with respect to DNA, not to statistics.” ¶ 30 Anderson testified that she received DNA samples of extracted DNA in the T.C. case in February 2005.3 Sample 1A was a DNA standard extracted from T.C., sample 2A was a DNA standard extracted from Chaney, and sample 3A was the female fraction (F1), sperm fraction (F2), and DNA extracted from the vaginal swab (F3). Anderson testified that, because the DNA was dried inside the tubes, she began by adding liquid to sample 1A, the standard from T.C., and sample 3A, the extractions from the vaginal swab. She also created a blank to monitor the analyses for any contamination. After creating the blank, she had five tubes altogether. She tested the blank tube, which should not contain any DNA, and did not receive a DNA result. This meant that she had not introduced any contamination throughout her analysis. Therefore, she began the process of amplification, or making copies of the DNA in order to have a sufficient amount to “get a decent DNA profile from the extracted DNA.” She transferred the DNA from T.C., F1, F2, and her blank to tubes and put them in a machine to be amplified. Anderson testified that, during the preparation of the amplification stage, she dropped the F2 tube (the sperm fraction from the vaginal swab) onto her exam paper. She was still able to put the required amount of DNA into the first tube for the 9-loci amplification, but was unsure if she had enough for the second tube for the other 4-loci amplification. She put the DNA into the two tubes and amplified it. After amplification, the samples, one 9-loci tube and one 4-loci tube, were ready to be put into another instrument in order to generate the DNA profiles. In the 9-loci tube, the non-sperm fraction (F1) generated a profile matching the standard from T.C., and the sperm fraction generated an unknown male profile. Anderson did not get any results from the 4-loci tube. She testified it is not uncommon to not get results on the 4-loci tube. ¶ 31 On May 23, 2005, Anderson entered the unknown male profile into the FBI database and got two possible matches. One of these possible matches was defendant along with his various aliases, and the other matched to a private laboratory. She telephoned the private laboratory and determined that they had made an error in uploading certain information such that, in the end, the second possible match was not a match. The nine loci matched to defendant. Anderson requested a “confirmatory standard” from the Chicago police so she could perform an analysis to confirm the hit. She received that confirmatory standard in September 2005, and extracted a DNA profile which matched the profile identified in the F2 sperm fraction taken from T.C.’s vaginal swab. 3 Anderson testified she first received the incorrect evidence package in July 2004. She looked at the package, saw that it was not what she needed, and sent it back. She received the correct package in February 2005 and proceeded to test the contents as described herein. -9- ¶ 32 Anderson testified that she then performed a statistical calculation of how rare the profile identified in the F2 sperm fraction would be in a given population. She testified: “A human DNA profile was identified in Exhibit 3A, which matches the DNA profile of [defendant]. This profile will be expected to occur in approximately 1 in 52 billion blacks, 1 in 390 billion white, or 1 in 200 billion Hispanic unrelated individuals at the nine loci I worked with.” ¶ 33 Anderson also testified that, after she entered the sperm fraction in the database, the DNA profile is “continually run as of now,” that every time somebody puts a profile in the database, it is run against the DNA in this case. Since the database hit on defendant’s profile in 2005, it has never hit to any other person or any other profile in the database. If it were to hit on another individual or profile, Anderson would be notified. ¶ 34 On cross-examination, Anderson explained her process for generating the probability statistics for the rarity of the DNA profile. She testified that there are 13 loci from which to test. The value at each loci has a frequency of occurrence, and there are two possibilities at each loci. The chances of the two values at each loci are added together and then multiplied for the next location. Anderson acknowledged on cross-examination that she was only able to determine the values at nine loci because she spilled the DNA, that she did not know the profile for the additional four loci, and that if any of the remaining four loci did not match defendant, he would be excluded as the offender. ¶ 35 Blake Willey, a former administrator at Somerset Nursing Home, located two blocks from the scene of the crime, testified that defendant worked at the nursing home from May 1990 to February 1991. During that time, nursing home personnel had to wear picture employee identification cards and carry time clock punch cards. The picture identification card was white and “about the size of a credit card.” He testified that some employees wore their identification on a chain around their neck. ¶ 36 Chicago police lieutenant Anthony Wojcik testified he was a sergeant in the cold case homicide investigation unit on June 30, 2005. He spoke with defendant that day in an interview room at the police station. After advising defendant of his rights, defendant indicated he understood them. Then Lieutenant Wojcik went over his rights a second time. He asked defendant if he understood he was under arrest for the murders of Hedgpeth and Soucy, as well as for the rape and attempted murder of a young girl, and for arson of the residential building at 1060 West Lawrence. Defendant said he understood that was why he was in custody. Defendant asked what was happening in the case. Lieutenant Wojcik told defendant that the detectives were just about finished with their investigation and had contacted the State’s Attorney’s office. He told defendant a State’s Attorney was on her way to the police station and would review the case with the detectives and determine whether charges should be brought against him. Wojcik testified, “I told him this investigation has shown without doubt that you’re the guy that committed those crimes that you’re under arrest for. I said I believe you’re going to be charged with those crimes.” Defendant asked what the statute of limitations for the crimes was, and Wojcik told him there was no statute of limitations on “murder related crime.” ¶ 37 Lieutenant Wojcik testified: “Well, he was quiet for a little while, then he just said I’m tired. He said I’m tired of denying that I know anything about this and then he stated—he said it’s these blackouts, man. He said I can’t control the blackouts. - 10 - *** He said, yes, throughout his life there would be periods of time where he would have these blackouts. When he had these blackouts, he said the others would take over. He said when the others took over he said I did f***d up things that he was then held responsible for and he said in regards to this incident there are things I do remember and some of it that he didn’t remember. *** I said, what do you mean by the others? He says that there are two individuals, that they were inside of him, and he said at times they would take over—they would take over his body. *** I asked him what happened *** in this incident [with the murders of Hedgpeth and Soucy]. He says—he said I blacked out and the others took over.” ¶ 38 According to Wojcik, defendant recalled that a day or two prior to the incident, he walked by a gas station and saw a black woman he knew drinking beer with Lawrence Soucy. The woman introduced Soucy to defendant, and defendant started drinking with them. At some point, Soucy told defendant he had some money in a can at his apartment. Eventually defendant and Soucy walked back to Soucy’s basement apartment together. Defendant returned to Soucy’s apartment a day or two later and started looking for the can of money. Soucy came in and asked defendant what he was doing, and a white woman entered the apartment and shouted at defendant to get out. Wojcik testified: “The next thing he said that he remembered was he was running from the rear of the building and the building was burning and it was on fire. He said he ran through an alley to get away from there, and then later he realized that his hair was frizzed. He said it was frizzed, and then he said it was singed from the flames in the heat. *** He said he went to a beauty salon in the neighborhood, and he had his hair trimmed and then he got a perm.” ¶ 39 Lieutenant Wojcik said he asked defendant if he knew the two individuals had been killed, asked him why his semen was in the young girl, and why he set the building on fire. He testified defendant responded: “He says when I blacked out he said the others must have made me do things then that I don’t remember.” ¶ 40 Lieutenant Wojcik testified defendant said he did not remember ever having seen or met T.C. Defendant confirmed he was employed at Somerset House and thought he was on duty or working when he went to Soucy’s apartment. Defendant also told Wojcik that he wore his ID cards around his neck, he wore his long hair back in a ponytail, and he had a tattoo on his arm. Defendant identified a photograph of the building at 1058-1060 West Lawrence as Soucy’s building. Lieutenant Wojcik then asked defendant if he would speak with the assistant State’s Attorney, and defendant said he would. ¶ 41 On cross-examination, defense counsel asked Lieutenant Wojcik why he did not request a court reporter to record defendant’s statement. Wojcik responded: “[B]ecause at a certain point the defendant asked for an attorney, so we didn’t get to that point where we would have called for a court reporter. - 11 - *** *** [I]t would have been—when I got done talking to him it was about 4:15. I want to say it was some time around a little bit after 5:00 o’clock or so when he asked for an attorney. When I was in there with the State’s Attorney was the first time he asked for an attorney.” Lieutenant Wojcik explained that it was not his job to call a court reporter, but rather that was the responsibility of the State’s Attorney. He said: “The State’s Attorney would make [the decision to call a court reporter] in consult with [defendant] if he was willing to do that, but while the State’s Attorney was speaking to [defendant] he requested an attorney. So at that time all conversation stops.” ¶ 42 The trial court then held a sidebar in chambers, and defense counsel asked for a mistrial, arguing that the witness repeatedly emphasized that defendant had requested an attorney. The trial court asked defense counsel why he did not ask for a sidebar earlier, and defense counsel replied, “Because I didn’t want to emphasize that he had brought it out.” The trial court denied the motion for a mistrial, saying “what prompted the part about the attorney is because you [defense counsel] asked him questions about why weren’t charges approved before the State’s Attorney got there,” and “the only logical answer he could say upon your continuing questioning is, well, because he asked for an attorney. It was not brought out volitiously [sic] by him. In my opinion it was brought out by your continuing questions for that area.” ¶ 43 Cross-examination continued, and defense counsel asked Lieutenant Wojcik a series of questions about what he did and did not do while questioning defendant. Specifically, defense counsel asked a series of questions regarding why Wojcik did not drive defendant up to Lawrence Avenue and drive around the neighborhood in order to locate the hair salon where he allegedly had his hair cut after fleeing the fire. Wojcik answered that he tried to find the salon, but did not drive defendant there to do so. Counsel again asked why, when defendant allegedly had said the salon was in the neighborhood but was unsure of the street it was on, Lieutenant Wojcik did not just drive him to Lawrence Avenue to find the salon. Wojcik answered: “Again, Counsel, I probably would have done that, but he asked for an attorney, which means at that point everything—any conversations I was having with him about the case had to stop, including putting him in a car and having him to point locations out.” ¶ 44 At the close of Wojcik’s cross-examination, defense counsel renewed the motion for a new trial, arguing that Lieutenant Wojcik had again mentioned defendant having asked for an attorney. The trial court denied the motion, responding: “The problem with this is the way you asked the question once it came out once the charges were approved upon [the assistant State’s Attorney] arriving there and it came out that he asked for an attorney and didn’t obviously want to talk to her without one, this was a natural response to a question about after he was through talking putting him in the car and taking him somewhere and having him find someone. - 12 - This is exactly what happens when you are not directing him to a particular time. You simply asked a question. I just wanted you to make a record. Your motion for a new trial is denied. This is the fourth time he stated he wanted an attorney.” ¶ 45 Assistant State’s Attorney Christa Bowden testified that she arrived at the police station around 3:00 p.m. on June 30, 2005. She was a trial supervisor in the felony review unit at the time. She spoke with defendant along with Lieutenant Wojcik. She introduced herself to defendant, advised him of his rights, and told him that she was an attorney but not his attorney. They talked for approximately 30 to 40 minutes. Assistant State’s Attorney Bowden testified that defendant acknowledged having talked with Lieutenant Wojcik, and she asked him to tell her what they had spoken about. She testified: “A. [ASSISTANT STATE’S ATTORNEY BOWDEN:] Well, I had asked him if he would tell me the things that he was talking to [Wojcik] about, and he told me that he remembered that he had been drinking—around the time of the incident he had been drinking with an older white guy and a black woman at a filling station and that he left the filling station with the older white guy, and the black woman didn’t come and that he and the older white guy went to a building. The next thing that he remembered after that was that he was running down an alley and ended up at a beauty parlor. Q. [ASSISTANT STATE’S ATTORNEY MARY JO MURTAUGH:] And did he also tell you that he believed that something weird had happened that day? A. Yes. He said as he was running down this alley he knew that something had happened, but the next thing he knew he was at a beauty parlor. After he said that [ ] he didn’t remember between going to the building with the older white guy and running down the alley thinking something weird had happened and ending up at the filling station, he said at that time that he was ready to die and he just wanted to get it over with. *** Q. Did David Banks tell you anything about when he seemed to get his life together that something happens? A. Right. So after he said this statement about just wanting to get it over with, that prompted an inquiry about what are you talking about. He said, well, every time he seems to get his life together and gets a job, gets an apartment, gets a woman, people go on and mess things up for him; and he knows that people mess things up for him because other people tell him that they do things that mess things up for him. *** He said he should be in prison so these things don’t happen.” When Assistant State’s Attorney Bowden asked defendant who these people were, he described them as being a person named Durell, who was a murderer, a person named Snow, who was 9 years old, and a 63-year-old Portuguese man “who was a pervert, who would screw anything, in his words, even little girls.” She testified that defendant said, “These three, Durell, Snow, and unnamed Portuguese would do things, and he would be the person that would have to take responsibility for those things.” She said defendant told her he wanted to tell the truth, that he did not dispute his DNA being at the crime scene, but instead - 13 - simply did not remember what happened before he was running down the alleyway towards the beauty parlor. ¶ 46 Defendant’s statement was neither reduced to writing nor recorded in any way. ¶ 47 The trial court then instructed the jury: “Ladies and gentlemen, in a moment evidence will be received that the Defendant has been involved in an incident other than those charged in the indictment before you. This evidence will be received on the issue of Defendant’s propensity. And may be considered by you only for that limited purpose.” ¶ 48 Then, G.R. testified regarding the sexual assault defendant committed against her on November 12, 1984. On that afternoon, G.R. was pushing her 11-month-old daughter in a stroller near the 5500 block of South Wabash Avenue in Chicago. Defendant crossed the street in front of her and stopped her. He put his hand in his pocket, pointed it at her and said, “Bitch don’t move; I have a gun.” G.R. begged for her life. Defendant directed her toward a secluded area down a gangway, under a back porch in a “little basement area,” and told her to remove her clothes. When she had one leg out of her pants, defendant noticed a man in a nearby yard. He told G.R. to get up. She got dressed and he instructed her to move. He took her into the basement of another apartment building. He told her to take her clothes off and he removed his own pants. He then forced his penis into G.R.’s mouth, put his mouth on her vagina, and had vaginal sex with her. Afterward, he apologized and offered to pay her not to tell anybody. He walked her home and helped her carry the child up the stairs in her stroller. G.R.’s sister, the sister’s boyfriend, and G.R.’s boyfriend were all in the apartment. Defendant sat down in the apartment while G.R. went into her bedroom with her boyfriend. She told her boyfriend defendant had just raped her. G.R. called the police, who came to the apartment and arrested defendant. ¶ 49 The State rested. Defendant asked for a directed verdict, which the court denied. ¶ 50 Defendant testified on his own behalf. He admitted having worked at Somerset House, but denied that he wore his identification cards on a chain around his neck. He denied having ever met Hedgpeth, Soucy, or T.C. He denied having ever been in the building at 1058-1060 West Lawrence Avenue. He denied having had anything to do with the crime. He admitted he spoke with Detective Wojcik and Assistant State’s Attorney Bowden, but denied having told them he was at all involved in this crime. He denied having told them he had blackouts, nor that there were people inside of him who made him do things. He admitted having worn his hair in a ponytail, but denied that his hair got frizzed or singed in the fire or that he went to a beauty salon in the neighborhood to get it fixed after the fire. He showed his tattoo to the jury. The tattoo, on his right arm, was of roses and a bare-chested woman. He explained that he got the tattoo in 1994 to cover up a previous tattoo. The previous tattoo, which he got in 1989, was of the letters “BGGS” with a pitchfork running through it, which was a symbol of the street gang to which he belonged. Defendant recalled that in September 1990, he lived with a woman named Darlene and took care of her children. He testified he told the detectives that, on the day of the crime, Darlene was in the hospital and he was babysitting her children on the south side of Chicago. ¶ 51 The defense rested. The State then entered a certified copy of defendant’s conviction for murder. The trial court advised the jury: - 14 - “Evidence of the Defendant’s previously [sic] conviction of an offense may be considered by you only as it may affect his believability as a witness, and must not be considered by you as evidence of his guilt of the offense with which he is charged.” ¶ 52 At the close of arguments by both parties, the trial court instructed the jury, in part: “[a]ny evidence that was received for a limited purpose should not be considered by you for any other purpose.” ¶ 53 The jury returned a verdict of guilty on all counts: intentional and knowing murder of Irene Hedgpeth and Lawrence Soucy, felony murder based on the offense of criminal sexual assault, felony murder based on the offense of arson, and arson. ¶ 54 Defense counsel filed a motion for a new trial, which the court denied. ¶ 55 At sentencing, the trial court merged the felony murder counts into the intentional and knowing murder counts. It also noted defendant’s prior conviction for murder and the sexual assault case. The trial court sentenced defendant to natural life without parole for each count of first degree murder, and a 14-year term of imprisonment for arson, to be served consecutively to the two natural life sentences. Defense counsel filed a motion to reconsider the sentences, which was denied. ¶ 56 Defendant appeals. ¶ 57 ANALYSIS ¶ 58 I. DNA Evidence ¶ 59 Defendant first challenges the admission of DNA evidence at trial, arguing that the case “rose and fell on the DNA evidence,” which evidence, he argues, should never have been admitted in the first place. He contends (1) there was an unexplained, inexcusable gap in the chain of custody of the DNA evidence between Dr. Benzinger and Anderson; (2) the trial court erred in not granting a Frye hearing as to whether Anderson’s methodology was accepted in the scientific community; (3) the trial court erred when it denied defense counsel’s motion for relief with regard to the spilled genetic material; and (4) the trial court erred in limiting the cross-examination of Anderson regarding studies on 9-loci matches. We address each argument in turn. ¶ 60 Initially, we disagree with defendant’s characterization of his trial as one which rested solely on DNA evidence. In his brief on appeal, defendant argues that “[t]his was, at all times, a DNA-driven case.” He reminds the court that the prosecutor in closing arguments repeated Anderson’s testimony that the semen recovered from T.C.’s vagina matched defendant’s DNA at 9 loci, which would be expected to occur in approximately 1 in 52 million Black individuals. He argues “this was a case which rose and fell on the DNA evidence. In fact, there was virtually no forensic evidence tying him to the two murders.” He says that, because this was such an old case and defendant only came to the attention of the police 15 years after the murders occurred based on a “cold hit” DNA match, “[w]ithout the DNA *** there is no case here.” ¶ 61 It is true the DNA profile generated in this case matched defendant’s profile when run through the FBI database in 2005. A confirmatory buccal swab was obtained from defendant at that time, then, which provided confirmation that defendant’s DNA matched the DNA evidence recovered in this case at 9 loci. However, in this court’s opinion, there was additional evidence presented at trial that also ties defendant to this crime. Most tellingly, - 15 - defendant provided an inculpatory statement to Lieutenant Wojcik and then to Assistant State’s Attorney Bowden in which he implicated himself in the crime. Although the statement was not memorialized in writing or in a recording, both Wojcik and Bowden testified to the statement in great detail. In his statement, defendant admitted to knowing victim Soucy. He described having met him days before the murder and visiting his apartment. He described how Soucy kept a can of money in his apartment and how, on the day of the murders, he returned to Soucy’s home to search for the can of money. His search was interrupted first by Soucy and then by Hedgpeth, who demanded he leave. Defendant told both Wojcik and Bowden that he then blacked out. The next thing he remembered, he said, was running down an alley away from the burning building, his long hair singed by fire. He also told both Wojcik and Bowden in great detail that individuals inside of him cause him to do bad things, saying the “others” inside him must have put his semen inside T.C. He told Lieutenant Wojcik that he wore his hair long and in a ponytail around the time of the murders, that he worked at Somerset House during that time, and that he wore his work identification cards on a chain around his neck. ¶ 62 Defendant’s statement was corroborated by former Somerset House administrator Blake Willey, who testified defendant worked at nearby Somerset House during the time of the murders, that employees were required to wear identification cards which were approximately the size of credit cards, and that many employees wore these cards around their necks. Defendant’s statement was further corroborated by T.C.’s testimony that her attacker was a black man with long hair pulled into a ponytail who wore a chain around his neck with two credit card-sized cards on it. Essentially, defendant confessed that he committed the crimes under the influence of the “others” inside of him. ¶ 63 For these reasons, we disagree with defendant’s representation that the case was based solely on DNA evidence, but instead find that the DNA was one piece of the evidence by which the jury found defendant guilty. ¶ 64 A. The Chain of Custody ¶ 65 Defendant first contends the circuit court erred in admitting the DNA evidence where there allegedly was a gap in the chain of custody regarding the DNA evidence between forensic scientists Dr. Elizabeth Benzinger and Cynara Anderson. Specifically, defendant argues that, where Dr. Benzinger testified she preserved the extracted DNA by putting it on a piece of filter paper which she then dried and froze, Anderson testified she received the extracted DNA evidence in “tubes.” On appeal, defendant argues that these descriptions do not match to such an extent that there was a complete breakdown in the chain of custody that should have resulted in the exclusion of any resulting DNA testing completed on those materials. We disagree. ¶ 66 As a threshold matter, we note that the State argues on appeal, and defendant apparently concedes,4 that he has forfeited this issue for purposes of appeal by failing to object to it at trial and by failing to raise it in his posttrial motion. See People v. Thompson, 238 Ill. 2d 598, 4 Although defendant does not specifically state that he failed to preserve this issue, he argues on appeal that we should review his complaint as plain error. He argues that “this is the kind of error that the Supreme Court has deemed cognizable under the plain error doctrine—there was a ‘complete breakdown’ in the required chain of custody. People v. Woods, 214 Ill. 2d 455, 471-72 (2005).” - 16 - 611-12 (2010) (“To preserve a claim for review, a defendant must both object at trial and include the alleged error in a written posttrial motion.” (citing People v. Enoch, 122 Ill. 2d 176, 186 (1988))). Nonetheless, defendant urges us to consider his claim under the plain error doctrine. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) (“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”); People v. Herron, 215 Ill. 2d 167, 186-87 (2005). ¶ 67 The plain error doctrine “bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved claims of error in specific circumstances.” Thompson, 238 Ill. 2d at 613. Specifically, the plain error doctrine permits “a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing Herron, 215 Ill. 2d at 186-87); see also Thompson, 238 Ill. 2d at 613. Under either prong of the plain error doctrine, the burden of persuasion remains on the defendant. People v. Lewis, 234 Ill. 2d 32, 43 (2009). ¶ 68 Our supreme court has said: “We reject the notion that a challenge to the State’s chain of custody is a question of the sufficiency of the evidence. A chain of custody is used to lay a proper foundation for the admission of evidence. Accordingly, a defendant’s assertion that the State has presented a deficient chain of custody for evidence is a claim that the State has failed to lay an adequate foundation for that evidence. See 2 J. Strong, McCormick on Evidence § 212, at 9 (5th ed. 1999). Thus, a challenge to the chain of custody is an evidentiary issue that is generally subject to waiver on review if not preserved by defendant’s making a specific objection at trial and including this specific claim in his or her posttrial motion.” Woods, 214 Ill. 2d at 471. Notwithstanding, our supreme court has recognized that a challenge to the State’s chain of custody can be reviewed for plain error in the rare case where there is a complete breakdown in the chain. People v. Alsup, 241 Ill. 2d 266, 277 (2011) (citing Woods, 214 Ill. 2d at 471-72). The Woods court provided an example for plain error review, saying, “in those rare instances where a complete breakdown in the chain of custody occurs—e.g., the inventory number or description of the recovered and tested items do not match—raising the probability that the evidence sought to be introduced at trial was not the same substance recovered from defendant, a challenge to the chain of custody may be brought under the plain error doctrine.” Woods, 214 Ill. 2d at 471-72. The court explained: “When there is a complete failure of proof, there is no link between the substance tested by the chemist and the substance recovered at the time of the defendant’s arrest. In turn, no link is established between the defendant and the substance. In such a case, a failure to present a sufficient chain of custody would lead to the conclusion that the State could not prove an element of the offense ***.” Woods, 214 Ill. 2d at 472. ¶ 69 When the State seeks to introduce an object into evidence, it must lay a proper foundation through either its identification by witnesses or through establishing a chain of possession. Woods, 214 Ill. 2d at 466. The character of the object the State seeks to introduce determines - 17 - which method to establish a foundation the State must employ. Woods, 214 Ill. 2d at 466. If an item is “readily identifiable and [has] unique characteristics, and its composition is not easily subject to change,” the party may elicit testimonial evidence showing that the item is the same item recovered and that it is in substantially the same condition as when it was recovered.” Woods, 214 Ill. 2d at 466. If the evidence is “not readily identifiable or may be susceptible to tampering, contamination or exchange” (Woods, 214 Ill. 2d at 467), the party must establish a sufficient chain of custody “that is sufficiently complete to make it improbable that the evidence has been subject to tampering or accidental substitution” (internal quotation marks omitted) (Alsup, 241 Ill. 2d at 274). Once the State has established this prima facie case, the burden shifts to the defendant to show actual evidence of tampering, alteration, or substitution. Alsup, 241 Ill. 2d at 274-75. Our supreme court has cautioned: “In the absence of such evidence [of tampering, alteration, or substitution] from defendant, a sufficiently complete chain of custody does not require that every person in the chain testify, nor must the State exclude every possibility of tampering or contamination. [Citation.] It is not erroneous to admit evidence even where the chain of custody has a missing link if there was testimony which sufficiently described the condition of the evidence when delivered which matched the description of the evidence when examined. [Citation.] At this point, deficiencies in the chain of custody go to the weight, not admissibility, of the evidence. [Citation.]” Alsup, 241 Ill. 2d at 274. ¶ 70 The admission of evidence at trial is a matter left to the discretion of the trial court, and the court’s decision on that point will not be disturbed absent an abuse of that discretion. People v. Pikes, 2013 IL 115171, ¶ 12. An abuse of discretion occurs when the ruling is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the trial court’s view. People v. Taylor, 2011 IL 110067, ¶ 27. ¶ 71 As noted, defendant failed to properly preserve this issue for appeal. He did not object to the foundation for the evidence at trial, nor did he raise the issue in his posttrial motion. Therefore, the issue is forfeited. See, e.g., Enoch, 122 Ill. 2d at 186. Our supreme court has noted that forfeiture in cases such as this is particularly appropriate because, where the defendant fails to object to the foundation of evidence at trial, the State misses its opportunity to cure any error. See Woods, 214 Ill. 2d at 470 (the application of the forfeiture rule “is particularly appropriate when a defendant argues that the State failed to lay the proper technical foundation for the admission of evidence” because the “lack of a timely and specific objection deprives the State of the opportunity to correct any deficiency in the foundational proof at the trial level”). Under the plain error rule, we consider whether any error has occurred at all. Lewis, 234 Ill. 2d at 43; People v. Wilson, 404 Ill. App. 3d 244, 247 (2010) (“There can be no plain error if there was no error at all ***.”). This requires a “substantive look” at the issue raised. People v. Johnson, 208 Ill. 2d 53, 64 (2003). We will therefore first review defendant’s claim to determine if there was any error before considering it under plain error. ¶ 72 Here, the chain of custody presented by the State at trial regarding the collected DNA evidence was sufficiently complete. Chicago police crime lab forensic scientist Jove testified he received the rape kit taken from T.C. in July 1993. The kit contained oral, rectal, and vaginal swabs and smears; microscopic slides; and fingernail samples. After performing his - 18 - examinations on the specimens, he sent the samples to the Illinois State Police forensic lab for DNA testing. He testified he maintained a proper chain of custody over the items. ¶ 73 Forensic scientist Dr. Benzinger testified at trial that she received blood reference samples from T.C. and Albert Chaney in October 1993. She specifically testified that the items were sealed when she received them. She numbered T.C.’s blood standard 1, Chaney’s blood standard 2, and the vaginal swab 3. She extracted DNA from the blood standards and the vaginal swab. She then dried the extracted DNA onto a piece of filter paper, froze it to preserve it, and sealed it. She specifically testified she maintained a proper chain of custody at all times during her testing. ¶ 74 Illinois State Police forensic scientist Anderson testified she received tubes with dried, extracted DNA inside them on February 16, 2005. 5 The extracted DNA she received matched the numbers provided by Dr. Benzinger: 1A was the extracted DNA from T.C., 2A was the extracted DNA from Chaney, and 3A was the extracted DNA from the vaginal swab. Anderson specifically described the evidence package she received: “At this time I received the tubes of extracted DNA that the prior DNA analyst had created. So there was our Exhibit 1A, which is extracted DNA from [T.C.], our Exhibit 2A which was reportedly extracted DNA from Albert Chaney, and Exhibit 3A, which contained the F1 which is the female fraction or the non-sperm fraction, the F2 which is the sperm fraction, and the F3 fraction of extracted DNA from the vaginal swab of [T.C.]” ¶ 75 Defendant’s argument that there was a “complete breakdown” in the chain of custody is unavailing where, through the above testimony, the State presented a sufficient foundation and chain of custody to show that the DNA extracts received by forensic scientist Anderson were the same DNA extracts tested and preserved by forensic scientist Dr. Benzinger. See, e.g., Alsup, 241 Ill. 2d at 274. Because the State has presented a prima facie case that the chain of custody was sufficiently complete to make it “improbable that the evidence has been subject to tampering or accidental substitution,” the burden shifts to defendant to show actual evidence of tampering, alteration, or substitution of the evidence. (Internal quotation marks omitted.) Alsup, 241 Ill. 2d at 274. The defendant fails to do so. In fact, the defense provided no evidence at trial that there was any tampering, exchange or contamination of the DNA material. Defendant, in fact, did not object in any way to the foundation of this evidence at trial. See, e.g., Woods, 214 Ill. 2d at 470 (the application of the forfeiture rule “is particularly appropriate when a defendant argues that the State failed to lay the proper technical foundation for the admission of evidence,” because the “lack of a timely and specific objection deprives the State of the opportunity to correct any deficiency in the foundational proof at the trial level”).6 Our review of the record does not show inconsistency in the 5 Defendant focuses on the fact that, on July 8, 2004, Anderson received the incorrect evidence package to test. Specifically, Anderson testified at trial that she initially received “a package, but it wasn’t the evidence I was looking for” and explained it was “Just some envelopes. They were marked as being swabs from [T.C.], Albert Chaney and [T.C.], but that was not what I was looking for.” She requested “different information” and received the package with “the tubes of extracted DNA that the prior DNA analyst had created” on February 16, 2005. In our opinion, this demonstrates Anderson’s attention to detail and does not in any way reflect negatively on her work. 6 This, in fact, is a prime example of the importance of a timely and specific objection when laying a proper technical foundation for the admission of evidence. Here, Benzinger testified she dried the - 19 - descriptions of the evidentiary material at issue, and the alleged discrepancy does not amount to a “complete breakdown” in the chain of custody. Once the State established the probability that the evidence was not compromised, and defendant failed to show actual evidence of tampering or substitution, deficiencies in the chain of custody go to the weight, not the admissibility, of the evidence. Alsup, 241 Ill. 2d at 275. We find no abuse of discretion in the trial court’s determination to allow the DNA evidence in at trial. See Pikes, 2013 IL 115171, ¶ 12. We therefore find no plain error here. See Wilson, 404 Ill. App. 3d at 247 (“There can be no plain error if there was no error at all ***.”). ¶ 76 B. No Frye Hearing ¶ 77 Defendant next contends that the trial court erred in denying his request for a Frye hearing regarding whether forensic scientist Anderson’s methodology was accepted in the scientific community. Specifically, defendant argues that he was entitled to a Frye hearing because the scientific protocols evolved between when his DNA was tested in 2005 and the time of trial in 2013. We disagree. ¶ 78 In Illinois, the admission of expert testimony is governed by the standards expressed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); In re Commitment of Simons, 213 Ill. 2d 523, 529 (2004). Under Frye, scientific evidence is only admissible at trial if the “methodology or scientific principle upon which the opinion is based is ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” In re Commitment of Simons, 213 Ill. 2d at 529-30 (quoting Frye, 293 F. at 1014). General acceptance of a methodology “does not require that the methodology *** be accepted by unanimity, consensus, or even a majority of experts.” In re Commitment of Simons, 213 Ill. 2d at 530; Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002), abrogated on other grounds by In re Commitment of Simons, 213 Ill. 2d at 530. The trial court will apply the Frye test only if the scientific principle, technique, or test offered by the expert to support his or her conclusion is new or novel. In re Marriage of Bates, 212 Ill. 2d 489, 519 (2004). Generally, a scientific technique is new or novel if it is original or striking or does not resemble something formerly known or used. Donaldson, 199 Ill. 2d at 79. Under Frye, the court considers the general acceptance of a scientific methodology, not the particular conclusions at issue in a particular case. People v. McKown, 226 Ill. 2d 245, 255 (2007). There is no “Frye-plus-reliability” test in Illinois, in which the court first determines if the technique or methodology is accepted and then considers whether it is reliable. People v. Nelson, 235 Ill. 2d 386, 431 (2009). ¶ 79 There is a dual standard of review regarding the admissibility of expert testimony. Abuse of discretion review applies when the question is whether “an expert scientific witness is qualified to testify in a subject area, and whether the proffered testimony is relevant in a extracted DNA onto a substrate, or a piece of filter paper, which she then froze to preserve. Benzinger also testified regarding the process of extracting DNA from a substrate by using what she described as a “high tech laundry detergent.” Anderson testified that she received tubes containing the “extracted DNA that the prior DNA analyst had created.” Had the evidence been challenged at trial, the parties could have clarified whether, for example, the tubes containing the extracted DNA actually contained the piece of filter paper onto which Benzinger had dried the extracted DNA. Because there was no objection at trial, there was no further exploration of the description of the received DNA evidence. - 20 - particular case.” In re Commitment of Simons, 213 Ill. 2d at 530-31. De novo review applies when this court must determine “whether a Frye hearing is required and, if so, whether the scientific technique at issue is generally accepted in the relevant scientific community.” In re Commitment of Simons, 213 Ill. 2d at 530-31. ¶ 80 Here, prior to trial, defendant filed a motion requesting a Frye hearing on the admissibility of the DNA evidence against him. By that motion he argued that, because the rape kit and the original blanks and controls made by Dr. Benzinger were no longer available, forensic scientist Anderson created new blanks and controls for testing. Defendant claims this subsequent testing by Anderson, though consistent with scientific protocol at the time of testing, was contrary to scientific protocol by the time of trial and, accordingly, was impermissible. In part, the motion alleged: “It has subsequently been learned that the Illinois State Crime Lab lost the controls or blanks each of the original 3 fractions of DNA. However, a new control or blank was manufactured and used. Such a method is no longer acceptable under current protocols of the lab. This is the reasons [sic] that the Lab had refused to test the 3rd Fraction of DNA. Testing was performed on the First [sic] two fractions under this not acceptable method of DNA testing. The analyst, Cynara Anderson, who performed that testing and used new blanks or controls has told Defense Counsel that she has no idea if it is generally accepted in the scientific community, as required by Frye, to use the results of the previous testing because the method used is not currently permitted as an acceptable Forensic DNA testing procedure. Additionally, the original vitullo kit (rape kit) has been lost or destroyed, so re-testing under generally accepted DNA testing procedures is not an option.” Defendant argues Anderson’s methodology was appropriate and accepted in 2005, but that the FBI standards changed in 2009 to include more stringent rules regarding testing procedures. ¶ 81 After a hearing on the motion, the trial court denied the request for a Frye hearing regarding the DNA testing without the original blanks, stating: “Frye does not apply once determined that the scientific method is generally accepted” and noting that “[t]here is no Frye standard plus reliability standard, no independent evaluation of the theory or the reliability once the general acceptance threshold has been met. Reliability comes from general acceptance.” The court further explained that defendant’s arguments regarding the DNA testing “goes to the weight, not the admissibility under Frye,” and that defendant’s concerns could be addressed at trial through “vigorous cross-examination presentations of contrary evidence such as expert testimony.” It stated, “[t]he Frye standard applies only if scientific principle and technique or test offered is new or novel.” ¶ 82 Although defendant argues on appeal that the DNA evidence should have been inadmissible because the methodology used by Anderson was outdated at the time of trial (but not at the time of testing), this argument is actually based on the trial court’s denial of defendant’s motion requesting a Frye hearing. On appeal, defendant does not challenge the trial court’s ruling and does not argue that the trial court abused its discretion in denying the motion for a Frye hearing. Defendant did not preserve this issue by objecting at trial or including it in his posttrial motion (Enoch, 122 Ill. 2d at 186), and he has not argued on appeal that we should consider it based on plain error (Herron, 215 Ill. 2d at 186-87). We therefore find this issue to be forfeited. - 21 - ¶ 83 Even if the issue was not forfeited, however, and we considered it under a plain error analysis, we would still find no error. See, e.g., Wilson, 404 Ill. App. 3d at 247 (“There can be no plain error if there was no error at all ***.”). A Frye hearing is limited to situations where the technique or test is new or novel, or, for example, where the scientific test does not resemble a formerly known or used test. See In re Marriage of Bates, 212 Ill. 2d at 519 (trial court will apply the Frye test only if the scientific principle, technique, or test offered by the expert to support his or her conclusion is new or novel); Donaldson, 199 Ill. 2d at 79 (generally, a scientific technique is new or novel if it is original or striking or does not resemble something formerly known or used). At the time she ran the test in 2005, Anderson followed all relevant protocols. We find no error in the trial court’s determination that no Frye hearing was required where the test and methodology used by Anderson was not new or novel. ¶ 84 C. DNA Exclusion Based on Inadvertent Laboratory Spillage ¶ 85 Next, defendant contends that the trial court erred when it denied his motion to exclude the DNA evidence where a portion of the DNA material was spilled during laboratory testing. He claims he was prejudiced because, had the evidence not been spilled, it is possible the subsequent test on the remaining four DNA loci may have excluded him. ¶ 86 Defendant filed a motion for relief in conjunction with destruction of DNA or related evidence, by which he sought, in pertinent part, to exclude the DNA evidence because of the spillage. The court denied the motion after a hearing, finding that the evidence was not materially exculpatory and that it was not destroyed in bad faith. Additionally, the court admonished defense counsel that the use of the term “destroyed” was inappropriate, noting that the evidence was not “destroyed in a bad faith sense or somebody just took something and obliterated it. *** What we have here is something that’s spilled during a test requested by the parties.” ¶ 87 As for the spill itself, forensic scientist Anderson described the spill at trial in the following manner: “A. [FORENSIC SCIENTIST ANDERSON:] There was an incident that occurred during the application stage, during the preparation of amplification stage. Q. [ASSISTANT STATE’S ATTORNEY WEISS:] What happened during the amplification stage? A. When it was time for me to take my DNA and put it into my tubes to amplify my F2 fraction, which is the sperm fraction of the vaginal swab, I dropped that tube of DNA onto my exam paper. So I was able to put the required amount of DNA into—there are two—so if I have a tube for F1, the DNA from my F1 tube will be split into two additional tubes for amplification. One tube will give me nine loci, and the other tube will give me four loci. So when I was preparing my samples to split them into their nine loci tube and four loci tube, I dropped my tube of DNA, and it spilled on the paper. So I did have some in my tube after some spilled out, so I was able to put what I needed into the tube for the nine loci, but I had an undetermined amount left over in that tube to put in the tube that would have given me four loci. So I wasn’t sure of my target, but I know I put in less than what I needed in that second tube. - 22 - Q. But you were able to obtain a test for the nine loci, correct? A. Yes. I had more than enough for what I needed for the nine loci tube. But I had an undetermined amount target for the four loci tube. Q. Just so we’re clear, all these fractions F1, F2, F3, that’s all coming from the sperm sample, correct? A. From the vaginal swab of [T.C.] Q. All coming from the vaginal swab? A. Yes. Q. And were there different samples or did you learn of different things that were in the vaginal swab? A. Yes, after amplification, the samples are ready to be put on another instrument that will result in me having a DNA profile. So after amplification, I set up that procedure and then I have a DNA profile. And it led to my non-sperm fraction having a profile matching [T.C.] And my sperm fraction having a profile of an unknown male profile. And then I also verified that my blank was clean. But the tube that was giving me four loci, it flat lined. I didn’t get anything. Q. But it’s not uncommon that you only have nine loci in cases, is it? A. It’s not uncommon. Sometimes you may only end up with nine loci, not because of just dropping a tube.” ¶ 88 Anderson acknowledged on cross-examination that she was only able to determine the values at nine loci because she spilled the DNA, that she did not know the profile for the additional four loci, and that if any of the remaining four loci did not match defendant, he would be excluded as the offender. Specifically, she said: “Q. [PUBLIC DEFENDER ANDERSON:] *** If any one of those [remaining four un-resulted loci] is different than David Banks, then you could say with scientific certainty that he is not the offender; is that correct? A. [FORENSIC SCIENTIST ANDERSON:] That’s correct. Q. But you don’t know what those are, correct? A. That’s correct. Q. In fact, you spilled that DNA on your table, correct? A. That’s correct.” ¶ 89 The State relies on Arizona v. Youngblood, 488 U.S. 51 (1988) (Stevens, J., concurring in the judgment, and Blackmun, J., dissenting, joined by Brennan and Marshall, JJ.), in support of its argument that a defendant must show that the evidence was destroyed in bad faith in order for relief. In Youngblood, the defendant was convicted of child molestation, sexual assault, and kidnapping. During the medical treatment of the victim, doctors collected evidence of the attack using a sexual assault kit, including samples of blood, saliva, and hair. These samples were refrigerated at the police station. The victim’s underwear and T-shirt, which contained small amounts of semen, were also collected by the police but not refrigerated or frozen. Youngblood, 488 U.S. at 52-53. Using the evidence from the sexual assault kit, a criminologist determined that sexual contact had occurred, but he did not perform any other tests. He replaced the kit in the refrigerator. Later, the criminologist was - 23 - unable to obtain conclusive results in testing the underwear and T-shirt due to the small quantity of semen present. Youngblood, 488 U.S. at 54. At trial, the defendant argued that the victim had erred in identifying him in a photographic lineup as the assailant. The trial court instructed the jury that, if they found that the State had destroyed or lost the evidence, they might “infer that the true fact is against the State’s interest.” (Internal quotation marks omitted.) Youngblood, 488 U.S. at 54. The jury found the defendant guilty, but the Arizona Court of Appeals reversed, finding a violation of due process where the loss of the evidence was material to the defense. Youngblood, 488 U.S. at 54. ¶ 90 The United States Supreme Court considered the extent to which the due process clause of the fourteenth amendment requires the State to preserve evidentiary material that might be useful to a criminal defendant. Considering the “ ‘area of constitutionally guaranteed access to evidence,’ ” the Youngblood court reversed, finding that the defendant was required to demonstrate bad faith on the part of the State in the destruction or loss of the evidence. Youngblood, 488 U.S. at 55 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). The Court found that the due process clause “required a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than it could have been subjected to tests, the results of which might have exonerated the defendant.” Youngblood, 488 U.S. at 57. The Court justified the difference in treatment between a situation in which the State fails to disclose to the defendant material, exculpatory evidence, and a situation where potentially exculpatory evidence is permanently lost, as necessary in order to avoid placing on the courts the “ ‘treacherous task of divining the import of materials whose contents are unknown and, very often, disputed’ ” (Youngblood, 488 U.S. at 58 (quoting California v. Trombetta, 467 U.S. 479, 486 (1984))) and placing on the police an absolute duty to retain and preserve material that might be of conceivable evidentiary significance in a particular prosecution. Youngblood, 488 U.S. at 58. The Youngblood Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Youngblood, 488 U.S. at 58. The Court characterized the failure of the police to refrigerate the clothing and to perform tests on the semen samples as negligent, at worst, and in the absence of bad faith, no violation of the due process clause occurred. Youngblood, 488 U.S. at 58. ¶ 91 In Illinois, our supreme court has held that there was no due process violation where there was no demonstration of bad faith by the State when the evidence in question—the defendant’s vehicle—was lost or destroyed before trial. People v. Sutherland, 223 Ill. 2d 187, 237 (2006). The Sutherland court, guided by Youngblood, held that the defendant “failed to offer anything, other than mere speculation, demonstrating bad faith by the State.” Sutherland, 223 Ill. 2d at 237. ¶ 92 Here, we find no error by the trial court in requiring a showing of bad faith by the defendant before it would exclude the DNA evidence. Where, as here, the evidence in question is not exculpatory, a defendant must show bad faith in failing to preserve the evidence. Youngblood, 488 U.S. at 58 (“unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law”). Defendant offers nothing but mere speculation to demonstrate bad faith by the State. In fact, there is no demonstration here of anything other than an inadvertent spill by a scientist who then was able to complete the 9-loci sample (also known - 24 - as the Pro-filer component) with a match to defendant, and attempted to complete the other 4-loci sample (also known as the Co-filer component), which ended with no results. This, as the trial court explained, was a mere accident and was absent of bad faith. Where defendant could not show that the spilled DNA evidence was materially exculpatory, and could not then fulfill his burden to show bad faith in the loss or destruction of the DNA evidence, the failure to preserve the evidence did not constitute a due process violation under Youngblood, and the exclusion of the evidence was not necessary. ¶ 93 We note here with some concern that defense counsel on appeal, who, as he should, argues vigorously in defense of defendant, goes beyond what appears to be the truth in this particular argument. In his opening brief, he argues that the State “botch[ed] the Co-Filer test” and this spill “consumed all the remnants [of the DNA sample] usable for testing.” This is belied by the record, however, which shows that on August 4, 2011, the trial court ordered additional DNA analysis on the DNA extract that remained from the vaginal swabs. ¶ 94 Additionally, we acknowledge defendant’s concern that this ruling puts him in a logically inconsistent, difficult position in which, to obtain a remedy for the absence of testing, he first must obtain the testing, or know and be able to demonstrate the outcome of the testing. While we recognize this concern, defendant does not offer this court any authority by which we should disregard the established authority discussed herein. Under Youngblood and Sutherland, defendant’s claim is unavailing. ¶ 95 We find that the trial court properly denied defendant’s motion to exclude the DNA evidence based on the loss of DNA material during testing. ¶ 96 D. Limiting the Questioning of the DNA Expert at Trial ¶ 97 Next, defendant claims the trial court erred when it limited the defense in its cross-examination of forensic scientist Anderson at trial. Specifically, defendant argues that the trial court should have allowed defense counsel to question Anderson regarding database searches done in Illinois and Arizona regarding a determination of how many 9-loci matches exist within an offender database. Defendant believes he merits a new trial where he was denied the ability to meaningfully challenge the scientific evidence presented by the State. ¶ 98 Initially, the State argues that, although defendant filed a motion for DNA testing prior to trial, he later withdrew that motion (as discussed in the background section, above). Therefore, the State claims that this motion is no longer in at issue. Defendant admits the motion was withdrawn when defense counsel “received what he believed was adequate data for his purposes.” Defendant, however, responds that the State’s analysis elevates form over substance where, as here, the issues at question were further dealt with during the trial. We agree with the State that defendant can no longer argue specific to the withdrawn motion, but also agree with defendant that the issues “were put back in play by the State” when the State sought at trial to bar cross-examination of its expert due to her unfamiliarity with specific studies on 9-loci match frequencies. ¶ 99 During trial but before the presentation of testimony by the forensic scientists, the State asked the court to preclude questions regarding searches done of the offender sections of the Arizona and Illinois databases where 9-loci matches were examined. The following colloquy occurred outside the presence of the jury: - 25 - “[ASSISTANT STATE’S ATTORNEY MARY LACY:] Judge, the third witness Cynara Anderson who is going to testify about DNA results in this case, counsel informs us he wants to ask the witness about studies done on an Arizona database, an Illinois database where nine loci matches were examined. She has no knowledge about such studies and the results of the studies. So we ask—aside which they’re irrelevant. So we would ask that that question not occur. THE COURT: [Public Defender] Anderson, when I sustained the objection previously, this can be on the record, you’re asking somebody something they have no knowledge of. *** I don’t know if [Anderson] is aware of the Arizona studies or the Illinois studies on nine loci, whether she has read them or not. But certainly if she is not aware and hasn’t read them, she can’t be asked about them. [PUBLIC DEFENDER ANDERSON:] I think what the State had talked to me about was that they didn’t want the substance of these studies coming out because she didn’t know about them. Obviously, I’m not going to bring out something that the witness is unaware of because it wouldn’t be in evidence. But I intend to ask, and I think I have a right to ask her, if she is aware of any studies about nine loci matches in the actual population, or if she looked into whether there are such studies. THE COURT: When you say studies, do you have [a] specific study you’re going to ask her about or are you asking about studies—just the general term studies? [PUBLIC DEFENDER ANDERSON:] In fact, there are three studies. There is Arizona, there is Illinois, which is a little surprising she is not aware of that one and— THE COURT: She’s not aware of Arizona and not aware of Illinois. [PUBLIC DEFENDER ANDERSON:] And there is Maryland. *** But the fact that she is holding herself out as an expert in DNA and matches in database and hasn’t even looked to see how many people actually match at nine, I think that is relevant that she hasn’t even looked. *** THE COURT: If she’s unaware of Illinois, Maryland and Arizona, those are the three studies you’re talking about, if she is unaware of something, how can you question her on it? [PUBLIC DEFENDER ANDERSON:] If she has even looked is the question. *** The State has told me, and I will accept their representation, that she doesn’t know about this. This goes to her ability to—this goes to her qualification as an expert. A person who is an expert in the field of DNA, forensic DNA who is testifying about a partial nine loci match who has made no effort to see what the results of that are in the actual population I think is relevant that the expert makes no efforts— - 26 - THE COURT: Let me ask you this. If you ask her if she has looked at these three studies and she says no, are you prepared to prove up those studies exist? *** Because we’re not going to leave a question hanging where someone didn’t look at something and they’re being held not knowing what those things say. You say you’re not bringing the results. So what is the jury going to get out of this? You’re setting up a straw person to knock them down. Have you looked at this study, this study, or this study? No, no, no. Then what are you going to argue? She doesn’t even look at studies. [PUBLIC DEFENDER ANDERSON:] Judge, it’s not a straw person. The fact of the matter is she is unaware of actual studies that exist. I’m not making this up. There are studies. I have a good faith basis for asking this. There are actual studies. THE COURT: If you want to ask her if she is aware of these studies and she can give an answer yes or no.” Ultimately, the court accepted defense counsel’s representations that he would simply ask Anderson if she was aware of the existence of the studies and, if she answered yes, then ask if she was aware of the results on 9-loci matches. The court specifically ruled that defense counsel could ask “whatever foundational questions you want to ask” about whether the expert was “aware” of the searches or “looked” at the searches. Defense counsel, however, did not ask Anderson the two questions the court would allow. ¶ 100 We first address the applicable standard of review. Defendant urges this court to employ a de novo standard, arguing that this is a review of a motion for forensic testing. The State responds that the proper standard is abuse of discretion, as the motion itself was withdrawn and the argument now applies only to the court’s ruling limiting the cross-examination of forensic scientist Anderson. We agree with the State. “Clearly, the scope and extent of cross-examination and re-cross-examination are within the discretion of the court.” Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 998 (2007) (citing People v. Kirchner, 194 Ill. 2d 502, 536 (2000)). “ ‘[C]ross-examination should be kept within fair and reasonable limits, and it is only in a case of clear abuse of such discretion, resulting in manifest prejudice to the defendant, that a reviewing court will interfere.’ [Citation.]” Adams, 369 Ill. App. 3d at 998. As we are reviewing the propriety of the court’s limiting the scope of cross-examination, we will apply an abuse of discretion standard. ¶ 101 Defendant’s argument here is based on the frequencies to which Anderson testified, that is, that defendant’s DNA would be expected to occur in 1 in 52 million black males. He concedes that the frequencies in this case were calculated using generally accepted methodology and acknowledges our supreme court’s decision in People v. Miller, 173 Ill. 2d 167 (1996), which first approved of the use of the statistical method (known as the product rule) which was used in this case. He argues, however, that the circuit court’s rulings, which “effectively barred inquiry into the questionability of 9-loci matches,” gave too much weight to the match. ¶ 102 To support his claim, defendant relies on People v. Wright, 2012 IL App (1st) 073106, to argue that the results of offender database searches call the reliability of the frequency calculations in this case into question. In Wright, a different division of this court discussed the merits of DNA analysis in court procedures. In Wright, the cold case DNA evidence - 27 - constituted essentially the sole evidence used to identify the defendant from a felony database as the perpetrator of a sexual assault where the victim could not identify her attacker. Wright, 2012 IL App (1st) 073106, ¶ 81. Addressing the trial court’s error in failing to order, pursuant to a section 116-5 (725 ILCS 5/116-5 (West 2006)) motion, a pretrial 9-loci analysis between his DNA and a male DNA profile obtained from the victim’s rectal swabs, the Wright court ultimately reversed and remanded for a new trial. Wright, 2012 IL App (1st) 073106, ¶ 132. ¶ 103 The Wright majority acknowledged the fact that they were not asked to determine whether the expert’s conclusion of a “match” based on only nine loci was correct but, instead, they had been asked to determine whether the trial court abused its discretion in denying the defense the ability to investigate and impeach that conclusion. Wright, 2012 IL App (1st) 073106, ¶ 86. The court stated: “The dangers of partial matches have been known for over a decade. For example, in a highly publicized English case, Raymond Easton was charged in 1999 with burglary after police had a ‘ “cold hit” ’ with his DNA in a database. Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brook. L. Rev. 13, 49-50 (2001); Allison Pari, Note, An International DNA Database: Balancing Hope, Privacy, and Scientific Error, 24 B.C. Int’l & Comp. L. Rev. 341, 368-69 (2001). His DNA ‘matched’ the DNA from the crime scene at six loci. Since British police estimated that there was only a 1 in 37 million chance that such a match would occur at random, he was charged with burglary. Mnookin, supra, at 50; Pari, supra, at 368-69. When Easton, who had advanced Parkinson’s disease, had an alibi, the police ran a test at more loci and discovered that his DNA did not match at all. Mnookin, supra, at 50; Pari, supra, at 368-69. The charges were, of course, dropped. Mnookin, supra, at 50; Pari, supra, at 368-69. As a result of the Arizona, Maryland and Illinois searches, some legal scholars and scientists have questioned whether the extraordinarily large figures used in court to estimate the probability of a nine-loci ‘match’ are ‘no better than alchemy.’ David H. Kaye, Trawling DNA Databases for Partial Matches: What Is the FBI Afraid Of?, 19 Cornell J.L. & Pub. Pol’y 145, 146 (2009); Strutin, supra, at 54 (after the Arizona, Maryland and Illinois searches, ‘academics and experts have added their voices in calling for access to the DNA databanks to test the assumptions of profile rarity’). For example, a Stanford mathematician has called these numbers ‘ “total nonsense” ’ and ‘ “a damned lie.” ’ Kaye, supra, at 148 (quoting Keith Devlin, Damned Lies, Mathematical Association of America (2006), available at http://www.maa.org/ devlin/devlin_10_06.html.). He has stated that admitting this testimony into court is ‘ “disgraceful,” ’ and that courts ‘ “may as well admit alchemy and astrology.” ’ Kaye, supra, at 147 (quoting Keith Devlin, Damned Lies, Mathematical Association of America (2006), available at http://www.maa.org/devlin/devlin_10_06.html.). Although the trial court in the case at bar was not presented with the results of the Maryland or Illinois searches, the trial court did have in front of it a report from the search of the Arizona database, which revealed 120 pairs of 9-loci ‘matches’ in a database of 65,493 offenders. Kaye, supra, at 154-55 (describing how the Arizona study was conducted and its results). As one legal scholar has asked, if the frequency ‘for a nine-locus match is anything like “one in 754 million for whites, and one in 561 - 28 - million for blacks” [as some DNA experts testify], how can it be that a database as small as [Arizona’s with] “a mere 65,493 entries” produces even one such match?’ Kaye, supra, at 155; Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 781 (2007) (‘recent evidence calls into question the accuracy of using the product rule to convey match probabilities’). We have not been asked to determine whether the expert’s conclusion of a ‘match’ based on only nine-loci was correct. We have been asked to determine whether the trial court abused its discretion in denying the defense the ability to investigate and impeach this conclusion. Considering that a nine-loci analysis was the primary identification evidence against defendant, the trial court abused its discretion by denying defendant’s motion. Cf. People v. Watson, 2012 IL App (2d) 091328, ¶ 25 (defense counsel was ineffective for failing to probe the statistical meaning of a seven-loci ‘match’ when plenty of arguments and evidence were available).” Wright, 2012 IL App (1st) 073106, ¶¶ 83-86. ¶ 104 A different division of this court disagreed with the holding in Wright and found it unpersuasive. See People v. Crawford, 2013 IL App (1st) 100310. The Crawford court considered, in part, the question of whether a defendant was denied the effective assistance of trial counsel where counsel failed to convey to the jury the significance of a partial DNA match. Crawford, 2013 IL App (1st) 100310, ¶ 123. The Crawford court found that the theories relied upon by the Wright majority regarding the significance of the offender database searches have been discredited. Specifically, the Crawford defendant argued, in part, that he was denied the effective assistance of trial counsel because counsel failed to cross-examine the DNA expert in such a way that the expert would “explain why the frequency of the evidentiary profile was not as unique as she suggested.” Crawford, 2013 IL App (1st) 100310, ¶ 128. The court held there was no ineffective assistance of counsel where, in part: “defendant’s complaints regarding the failure to argue with respect to an alleged search of the Illinois DNA database that revealed nearly 2,000 profiles that matched at nine loci has been discredited. As defendant’s own source explains, these database trawls seek all possible pairs in a database (rather than one specific nine-loci grouping), which result in a staggering number of comparisons. See David H. Kay, Trawling DNA Databases for Partial Matches: What Is the FBI Afraid of?, 19 Cornell J.L. & Pub. Pol’y 145, 157 (2009). For example, if the database for the state of Arizona contains 65,493 entries, a comparison search would produce over 2 billion distinct pairs. Id. A search for 9 loci or more out of 13 loci (or, 715 distinct combinations of 9 items out of 13) would produce 1.5 trillion ‘opportunities to find nine-locus matches’ within the Arizona database. Id. Applying the same methodology to defendant’s asserted claim of 220,456 profiles in the Illinois database would result in 24.3 billion distinct pairs and a corresponding 17.4 trillion opportunities to find 9-locus matches out of 13-loci. If, as defendant claims, there were ‘903 pairs of profiles matching at 9 loci,’ that probability would be vanishingly small when compared with 17.4 trillion possible pairs, and trial counsel’s argument as to this point would not have been of even arguable merit.” Crawford, 2013 IL App (1st) 100310, ¶ 133. - 29 - Because counsel could not be ineffective for making a “fruitless argument,” the Crawford court concluded that trial counsel could not have been ineffective for failing to hire an expert and develop an argument that the offender database searches impeached the statistics in that case. Crawford, 2013 IL App (1st) 100310, ¶ 133. ¶ 105 We disagree with defendant’s assertion that Wright is “precisely on point.” Specifically, the Wright majority opinion does not demand a trial court allow cross-examination of a DNA expert regarding a potential database search in all cases involving partial DNA profiles. Rather, in a fact-specific analysis, the Wright court held that, where the Wright defendant had fully preserved the issue for appeal, and where the expert had been provided the specific study in question for review prior to trial, and the State had already obtained a favorable ruling on the motion in limine on that specific issue, the trial court erred in “barring any questions about [the study]” (Wright, 2012 IL App (1st) 073106, ¶ 132). Here, in contrast, the State had not obtained a favorable ruling on the motion in limine, but instead, defense counsel had withdrawn the motion of its own accord, and, importantly, the trial court did not bar all questions about the study. Rather, as defendant concedes on appeal, the trial court specifically ruled that defense counsel could ask “whatever foundational questions you want to ask” about whether the expert was “aware” of the searches or “looked” at the searches. Defense counsel, however, failed to take advantage of this opportunity and did not ask the expert questions about the database searches. For these reasons, Wright does not offer assistance to the case at bar. ¶ 106 We find no abuse of discretion here, where the trial court properly limited the cross-examination of the DNA expert to subjects relevant to the case and to her expertise, and the DNA expert employed an approved statistical method when she calculated the DNA frequencies. ¶ 107 In summary, we find no error in the admission of DNA evidence at trial. ¶ 108 II. Other Crimes Evidence ¶ 109 Next, defendant contends he was deprived a fair trial where the court allowed the “misuse” of his prior criminal record. Specifically, defendant argues that the jury was misinformed as to the proper way to use evidence of prior convictions because the jury instructions provided them did not draw a distinction between a conviction adduced for impeachment purpose and one adduced for propensity purposes. To be clear, defendant does not contest the admission of the other crimes evidence at trial. Rather, defendant claims that the instructions provided to the jury in this case were both inadequate and incorrect in that they did not explicitly include the names of the offenses for which defendant was previously convicted. We disagree. ¶ 110 Initially, we note that defendant failed to preserve this issue for review where he neither objected at trial nor included this issue in his posttrial motion. See Thompson, 238 Ill. 2d at 611-12 (“To preserve a claim for review, a defendant must both object at trial and include the alleged error in a written posttrial motion.” (citing Enoch, 122 Ill. 2d at 186-87)). “Generally, a defendant forfeits review of any supposed jury instruction error if he does not object to the instruction or offer an alternative at trial and does not raise the issue in a posttrial motion.” People v. Downs, 2015 IL 117934, ¶ 13. This encourages a defendant to raise issues before the trial court, “thereby allowing the court to correct its errors before the instructions are given, and consequently precluding a defendant from obtaining a reversal through inaction.” - 30 - Downs, 2015 IL 117934, ¶ 13 (citing Piatkowski, 225 Ill. 2d at 564). However, “substantial defects” in criminal jury instructions are not waived by the failure to object “if the interests of justice require.” Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013). Rule 451(c) is coextensive with the plain error clause of Illinois Supreme Court Rule 615(a) and is construed identically. Piatkowski, 225 Ill. 2d at 564. As noted previously, the plain error doctrine allows a reviewing court to consider unpreserved error “when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565. Under the plain error rule, we consider whether any error has occurred at all. Lewis, 234 Ill. 2d at 43; Wilson, 404 Ill. App. 3d at 247 (“There can be no plain error if there was no error at all ***.”). This requires a “substantive look” at the issue raised. People v. Johnson, 208 Ill. 2d 53, 64 (2003). We will therefore first review defendant’s claim to determine if there was any error before considering it under plain error. ¶ 111 “The purpose of jury instructions is to provide the jury with the correct legal principles applicable to the evidence, so that the jury may reach a correct conclusion according to the law and the evidence.” People v. Bannister, 232 Ill. 2d 52, 81 (2008). It is sufficient if the instructions given to the jury, considered as a whole, fully and fairly announce the applicable law. Bannister, 232 Ill. 2d at 81; People v. Mohr, 228 Ill. 2d 53, 65 (2008) (On review, the question is whether the instructions, considered as a whole, fully and fairly announce the law applicable to the theories of the parties.). Illinois Supreme Court Rule 451(a) requires that, where a court in a criminal case determines that the jury should be instructed on a subject, and the Illinois Pattern Jury Instructions (IPI) contains an applicable instruction, then the IPI “ ‘shall’ be given unless the court determines it does not accurately state the law.” People v. Durr, 215 Ill. 2d 283, 301 (2005) (citing Ill. S. Ct. R. 451(a) (eff. July 1, 1997)). ¶ 112 A trial court’s decision regarding jury instructions and verdict forms is reviewed under an abuse of discretion standard. People v. Battle, 393 Ill. App. 3d 302, 313 (2009) (citing People v. Jones, 175 Ill. 2d 126, 131-32 (1997)). It is within the discretion of the trial court to determine the applicability of specific jury instructions. People v. Castillo, 188 Ill. 2d 536, 540 (1999). ¶ 113 Here, the trial court allowed the State to present evidence that defendant committed a sexual assault against G.R. in 1984 as relevant to defendant’s propensity to commit sexual attacks, motive, and intent. Prior to trial, the State filed a motion in limine seeking to introduce evidence of a prior crime at trial, that is, a 1984 sexual assault, as relevant to the issues of defendant’s propensity to commit sexual attacks and to motive and intent, as two of the murder counts on trial were predicated on the alleged sexual assault of T.C. After hearing arguments from the parties, the court allowed evidence of the prior sexual assault as evidence of defendant’s propensity to commit sexual attacks, motive, and intent, as two of the murder counts on trial were predicated on the alleged sexual assault of T.C. Specifically, the court determined: “It is clear that in viewing the proof of other crimes sought to be admitted, it’s relevant to the issues of defendant’s propensity to commit sexual attacks and to - 31 - motive and intent. The statute [and] case law mandates this Court to allow the People to present evidence of other crimes discussed above.” ¶ 114 During trial and prior to presenting the testimony of G.R., the trial court instructed the jury: “Ladies and gentlemen, in a moment evidence will be received that the Defendant has been involved in an incident other than those charged in the indictment before you. This evidence will be received on the issue of Defendant’s propensity. And may be considered by you only for that limited purpose.” ¶ 115 The court also allowed evidence of the 1990 murder conviction “for the very limited purpose” of impeachment in the event defendant were to testify. Specifically, after defendant testified, the State entered a certified copy of defendant’s conviction for murder. The trial court advised the jury: “Evidence of the Defendant’s previously [sic] conviction of an offense may be considered by you only as it may affect his believability as a witness, and must not be considered by you as evidence of his guilt of the offense with which he is charged.” ¶ 116 At the close of trial, the court instructed the jury regarding the presumption of innocence. It then instructed the jury, in pertinent part: “Any evidence that was received for a limited purpose should not be considered by you for any other purpose. *** Evidence of a defendant’s previous conviction of an offense may be considered by you only as it may affect his believability as a witness and must not be considered by you as evidence of his guilt of the offense with which he is charged. Evidence has been received that the Defendant has been involved in an offense other than those charged in the indictment. This evidence has been received on the issue of the Defendant’s propensity and may be considered by you only for that limited purpose. It is for you to determine what weight should be given to this evidence on the issue of propensity.” ¶ 117 The jury instructions with which defendant is concerned are Illinois Pattern Jury Instructions, Criminal, Nos. 3.13, 3.14 (4th ed. 2000) (hereinafter, IPI Criminal 4th). IPI Criminal 4th No. 3.13 states: “Evidence of a defendant’s previous conviction of an offense may be considered by you only as it may affect his believability as a witness and must not be considered by you as evidence of his guilt of the offense with which he is charged.” IPI Criminal 4th No. 3.13. There is no blank in IPI Criminal 4th No. 3.13 to insert the name of the offense of which the defendant was previously convicted. ¶ 118 IPI Criminal 4th No. 3.14 states: [1] Evidence has been received that the defendant[s] [(has) (have)] been involved in [(any offense) (offenses) (conduct)] other than [(that) (those)] charged in the [(indictment) (information) (complaint)]. - 32 - [2] This evidence has been received on the issue[s] of the [(defendant’s) (defendants’)] [(identification) (presence) (intent) (motive) (design) (knowledge) (_________)] and may be considered by you only for that limited purpose. [3] It is for you to determine [whether the defendant[s] [(was) (were)] involved in [(that) (those)] [(offense) (offenses) (conduct)] and, if so,] what weight should be given to this evidence on the issue[s] of ________.” (Emphases added.) IPI Criminal 4th No. 3.14. ¶ 119 As given, IPI Criminal 4th No. 3.14 states: Evidence has been received that the defendant has been involved in an offense other than those charged in the indictment. This evidence has been received on the issue of defendant’s propensity and may be considered by you only for that limited purpose. It is for you to determine what weight should be given to this evidence on the issue of propensity. Like IPI Criminal 4th No. 3.13, IPI Criminal 4th No. 3.14 does not have a blank in which parties or the court can insert the name of the offense in which the defendant was involved. ¶ 120 Here, each instruction given the jury was taken from the IPI, and each accurately stated the law. Accordingly, the instructions comported with Illinois Supreme Court Rule 451(a), which requires that, where a court in a criminal case determines that the jury should be instructed on a subject, and the IPI contains and applicable instruction, then the IPI “ “shall’ be given unless the court determines it does not accurately state the law.” Durr, 215 Ill. 2d at 301 (citing Ill. S. Ct. R. 451(a) (eff. July 1, 1997)). In addition, the oral instructions given by the court at the close of the case matched the IPI. Moreover, as noted above, the court repeatedly informed the jury that the other crimes were being admitted for limited purposes. Specifically, the court told the jury immediately prior to G.R.’s testimony that her testimony was received only on the issue of defendant’s propensity, and, when the State introduced a certified copy of defendant’s prior murder conviction, the court informed the jury that the evidence was to be considered only as it may “affect [defendant’s] believability as a witness, and must not be considered by you as evidence of his guilt of the offense with which he is charged.” These jurors, who were properly instructed by the trial court, are presumed to follow their instructions. See, e.g., People v. Wilmington, 2013 IL 112938, ¶ 49 (“Absent some indication to the contrary, we must presume that jurors follow the law as set forth in the instructions given them.”). ¶ 121 We find no error here, where, when considered as a whole, the jury instructions in this case fully and accurately informed the jury of the applicable law, and the court carefully instructed the jury throughout the trial and at the close of trial that the other crimes evidence was to be considered for particular, limited purposes. ¶ 122 Defendant also contends he was denied the effective assistance of trial counsel where his counsel did not tender alternative instructions to the jury. Specifically, defendant claims counsel should have tendered modified other crimes instructions that specifically identified defendant’s previous crimes and the purpose for which each was allowed into evidence. Defendant urges that the proper instructions would have been: - 33 - “Evidence of a Defendant’s previous conviction on the offense of murder may be considered by you only as it may affect his believability as a witness and must not be considered by you as evidence of his guilt of the offenses with which he is charged.” And: “Evidence has been received that the Defendant has been involved in a prior sexual assault. This evidence has been received on the issue of Defendant’s propensity and may be considered by you only for that limited purpose. It is for you to determine what weight should be given to this evidence on the issue of propensity.” ¶ 123 Every defendant has a constitutional right to the effective assistance of counsel. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Claims of ineffective assistance of counsel are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland). To establish a claim of ineffective assistance of counsel, a defendant must show that his attorney’s representation fell below an objective standard of reasonableness and that he was prejudiced by this deficient performance. Strickland, 466 U.S. at 687-88; Albanese, 104 Ill. 2d 504. Failure to make the requisite showing of either deficient performance or sufficient prejudice defeats the claim. People v. Palmer, 162 Ill. 2d 465, 475-76 (1994). To satisfy the first prong, a defendant must overcome the presumption that contested conduct which might be considered trial strategy is generally immune from claims of ineffective assistance of counsel. People v. Martinez, 342 Ill. App. 3d 849, 859 (2003). To establish prejudice, a defendant must show there is a reasonable probability that, but for counsel’s insufficient performance, the result of the proceeding would have been different. People v. Easley, 192 Ill. 2d 307, 317 (2000). Specifically, the defendant must show that counsel’s deficient performance rendered the result of the proceeding unreliable or fundamentally unfair. Easley, 192 Ill. 2d at 317-18. ¶ 124 Defendant’s claim in this regard fails because, as noted above, he was not prejudiced as a result of the jury not receiving modified instructions. In addition, defendant’s claim fails because he is unable to overcome the presumption that the contested conduct was not sound trial strategy, where counsel could have reasonably made the sound strategic determination not to focus the jury’s attention on defendant’s prior crimes. See People v. Johnson, 368 Ill. App. 3d 1146, 1161 (2006) (Defendant was unable to show his trial counsel was ineffective where counsel failed to request a limiting instruction for other-crimes evidence because “[c]ounsel may have made a tactical decision not to request such an instruction to avoid unduly emphasizing the other-crimes evidence.”). ¶ 125 III. Defendant’s Invocation of His Right to Remain Silent and His Request for Counsel ¶ 126 Next, defendant contends the trial court erred in denying his motion for a mistrial based on Lieutenant Wojcik’s testimony on cross-examination that all questioning of defendant ceased when defendant asked for a lawyer. Defendant contends this error “places an impermissible cost on the exercise of constitutional rights, and severely prejudices [defendant’s exercise of his rights] and the provision of a fair trial.” We disagree. ¶ 127 The record in this matter reveals that, after defendant was provided with his Miranda rights, defendant made an oral statement regarding the crimes. Although he did not admit in - 34 - this statement that he was the perpetrator of the crimes, he admitted to familiarity with the apartment complex and the murder victim Soucy, admitted he worked in the nearby area, and admitted he was in Soucy’s apartment when he got angry and “blacked out,” only awaking mentally as he was fleeing the burning building, with his hair singed from fire. This statement was presented by Lieutenant Wojcik and Assistant State’s Attorney Bowden at trial as an inculpatory statement. Defendant subsequently declined to memorialize that statement when he asked for an attorney. ¶ 128 On cross-examination at trial, defense counsel asked Lieutenant Wojcik why he did not request a court reporter to record defendant’s statement. Wojcik responded: “[B]ecause at a certain point the defendant asked for an attorney, so we didn’t get to that point where we would have called for a court reporter. *** *** [I]t would have been—when I got done talking to him it was about 4:15. I want to say it was some time around a little bit after 5:00 o’clock or so when he asked for an attorney. When I was in there with the State’s Attorney was the first time he asked for an attorney.” Lieutenant Wojcik explained that it was not his job to call a court reporter, but rather that was the responsibility of the State’s Attorney. He said: “The State’s Attorney would make [the decision to call a court reporter] in consult with [defendant] if he was willing to do that, but while the State’s Attorney was speaking to [defendant] he requested an attorney. So at that time all conversation stops.” ¶ 129 The trial court then held a sidebar in chambers, and defense counsel asked for a mistrial, arguing that the witness repeatedly emphasized that defendant had requested an attorney. The trial court asked defense counsel why he did not ask for a sidebar earlier, and defense counsel replied, “Because I didn’t want to emphasize that he had brought it out.” The trial court denied the motion for a mistrial, saying “what prompted the part about the attorney is because you [defense counsel] asked him questions about why weren’t charges approved before the State’s Attorney got there,” and “the only logical answer he could say upon your continuing questioning is, well, because he asked for an attorney. It was not brought out volitiously [sic] by him. In my opinion it was brought out by your continuing questions for that area.” ¶ 130 Cross-examination continued, and defense counsel asked Lieutenant Wojcik a series of questions about what he did and did not do while questioning defendant. Specifically, defense counsel asked a series of questions regarding why Wojcik did not drive defendant up to Lawrence Avenue and drive around the neighborhood in order to locate the hair salon where he allegedly had his hair cut after fleeing the fire. Wojcik answered that he tried to find the salon, but did not drive defendant there to do so. Counsel again asked why, when defendant allegedly had said the salon was in the neighborhood but was unsure of the street it was on, Lieutenant Wojcik did not just drive him to Lawrence Avenue to find the salon. Wojcik answered: “Again, Counsel, I probably would have done that, but he asked for an attorney, which means at that point everything—any conversations I was having with him - 35 - about the case had to stop, including putting him in a car and having him to point locations out.” ¶ 131 At the close of Wojcik’s cross-examination, defense counsel renewed the motion for a new trial, arguing that Lieutenant Wojcik had again mentioned defendant having asked for an attorney. The trial court denied the motion, responding: “The problem with this is the way you asked the question once it came out once the charges were approved upon [the assistant State’s Attorney] arriving there and it came out that he asked for an attorney and didn’t obviously want to talk to her without one, this was a natural response to a question about after he was through talking putting him in the car and taking him somewhere and having him find someone. This is exactly what happens when you are not directing him to a particular time. You simply asked a question. I just wanted you to make a record. Your motion for a new trial is denied. This is the fourth time he stated he wanted an attorney.” ¶ 132 Under Doyle v. Ohio, 426 U.S. 610, 619 (1976), it is error to comment on a defendant’s post-arrest silence or his request for counsel. Doyle, 426 U.S. at 619. However, “ ‘Doyle applies only when a defendant invokes his right to remain silent.’ ” People v. Velez, 388 Ill. App. 3d 493, 508 (2009) (quoting People v. Patterson, 217 Ill. 2d 407, 445 (2005)). In Illinois, once a defendant makes a post-Miranda oral statement, the introduction of evidence that the defendant subsequently refused to memorialize that statement does not necessarily violate the fifth amendment or conflict with the Doyle opinion. See, e.g., People v. Christiansen, 116 Ill. 2d 96, 120 (1987) (recognizing that where a defendant fails to remain silent after being apprised of his right to do so and instead makes oral statements, the defendant has relinquished his rights under the fifth amendment and cannot claim that testimony indicating he was unwilling to subsequently memorialize his oral statements violated his right to remain silent); People v. Ruiz, 132 Ill. 2d 1, 16 (1989) (under Christiansen, the State is allowed “to introduce, in its case in chief, evidence that a defendant made an oral statement but refused to provide a written statement, on the theory that the defendant did not exercise his right to silence”); People v. Lindgren, 111 Ill. App. 3d 112, 117 (1982) (“It is not error to elicit a complete recitation of police procedure, even if the recitation includes reference to a defendant’s exercise of his constitutional rights, so long as the recitation is not argued to be indicative of guilt.”). ¶ 133 Here, the evidence in question was not adduced in order to establish defendant’s guilt, but was adduced in response to questioning as to why defendant’s statement was not memorialized, as well as in regards to police procedure (e.g., why the officers did not take defendant to the area of the crime and look for the hair salon in order to confirm defendant’s statement). Aside from the cross-examination of Lieutenant Wojcik, there was no further mention of defendant’s request for counsel, and the State did not reference the testimony in its closing arguments. We find no error in the cross-examination testimony here. ¶ 134 Moreover, where we find no error in this cross-examination testimony, it follows that defendant’s argument that he was denied the effective assistance of counsel where counsel directed the cross-examination that brought out the comments regarding defendant’s invocation of his fifth amendment rights also fails. Palmer, 162 Ill. 2d at 475-76 (failure to make the requisite showing of either deficient performance or sufficient prejudice defeats the - 36 - claim). ¶ 135 IV. Ineffective Assistance of Trial Counsel ¶ 136 Finally, defendant contends he was denied the effective assistance of trial counsel where counsel allegedly made a series of errors regarding the DNA evidence at trial. Defendant claims he was prejudiced where counsel should have (1) thoroughly challenged forensic scientist Anderson regarding the DNA spillage, (2) recognized and then explored the alleged chain of custody violation, (3) asked the allowed two questions regarding the 9-loci database searches, and (4) specifically requested the trial court follow the Wright decision. Defendant argues he merits a retrial where the combination of the above errors denied him a fair trial. We disagree. ¶ 137 As noted above, to establish a claim of ineffective assistance of counsel, a defendant must show that his attorney’s representation fell below an objective standard of reasonableness and that he was prejudiced by this deficient performance. Strickland, 466 U.S. at 687-88; Albanese, 104 Ill. 2d 504. Failure to make the requisite showing of either deficient performance or sufficient prejudice defeats the claim. Palmer, 162 Ill. 2d at 475-76. To satisfy the first prong, a defendant must overcome the presumption that contested conduct which might be considered trial strategy is generally immune from claims of ineffective assistance of counsel. Martinez, 342 Ill. App. 3d at 859. To establish prejudice, a defendant must show there is a reasonable probability that, but for counsel’s insufficient performance, the result of the proceeding would have been different. Easley, 192 Ill. 2d at 317. To do so, the defendant must show that counsel’s deficient performance rendered the result of the proceeding unreliable or fundamentally unfair. Easley, 192 Ill. 2d at 317-18. ¶ 138 As to defendant’s first claim, that he was denied the effective assistance of counsel where counsel did not sufficiently challenge forensic scientist Anderson regarding the DNA spillage, we disagree that counsel was ineffective where, even if counsel’s performance were deficient, defendant would still be unable to show resulting prejudice. See, e.g., Palmer, 162 Ill. 2d at 475-76 (failure to make the requisite showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim). Our review of the record shows that trial counsel vigorously challenged Anderson’s testing and results, as well as the spillage of the DNA material. For example, after the State brought out on direct examination that the spill occurred, defense counsel elicited testimony on cross-examination that Anderson was only able to determine the values at nine loci because she spilled the DNA, that she did not know the profile for the additional four loci, and that if any of the remaining four loci did not match defendant, he would be excluded as the offender: “Q. [PUBLIC DEFENDER ANDERSON:] *** If any one of those [remaining four un-resulted loci] is different than David Banks, then you could say with scientific certainty that he is not the offender; is that correct? A. [FORENSIC SCIENTIST ANDERSON:] That’s correct. Q. But you don’t know what those are, correct? A. That’s correct. Q. In fact, you spilled that DNA on your table, correct? A. That’s correct.” - 37 - ¶ 139 Defense counsel also thoroughly questioned Anderson regarding her education and qualifications, eliciting testimony during her qualification as an expert regarding her training in population genetics and DQ-Alpha testing. Counsel then argued in closing that Anderson was not sufficiently trained in statistics. Additionally, counsel emphasized in closing argument that the full profile was not known because of the spillage, telling the jury: “That they’ve proven [their] case when their expert spills the rapist DNA, and they don’t have a full profile and it’s because of what they did that they don’t have it.” Defense counsel in this case vigorously cross-examined Anderson regarding her background, experience, qualifications, and the spill itself. Defendant cannot show a reasonable probability that further cross-examination regarding the spill would have changed the result at trial. See Easley, 192 Ill. 2d at 317 (to establish prejudice, a defendant must show there is a reasonable probability that, but for counsel’s insufficient performance, the result of the proceeding would have been different). Defendant’s attempt to show that he was denied the effective assistance of counsel fails. ¶ 140 Defendant’s argument that he was denied a fair trial where counsel failed to sufficiently challenge the chain of custody also fails because, as we have determined inter alia, there was no breakdown in the chain of custody. Defense counsel, therefore, was not ineffective for not challenging the chain of custody of the DNA extracts where there was no breakdown in the chain of custody. ¶ 141 Defendant’s claim that he was denied a fair trial where trial counsel should have asked forensic scientist Anderson the two allowed questions regarding the Arizona and Illinois database searches also fails for lack of resulting prejudice. As noted above, the trial court heard arguments from the parties regarding whether or not Anderson could be examined regarding the database searches. Ultimately, the court ruled that defense counsel could only ask Anderson two questions regarding the studies of database searches: whether she was aware of the studies’ existence and, if so, whether she was familiar with their contents. The court expressly ruled that the substance of the searches would not be admissible. Defendant now claims that trial counsel should have asked the two allowed questions and then called its own expert, Donald Parker, who works in the Illinois State Police forensic sciences command DNA indexing laboratory, as a witness to testify about the results of the search of the Illinois offender database. Defendant, as noted above, concedes that the frequencies in this case were calculated using generally accepted methodology, and acknowledges our supreme court’s decision in Miller, 173 Ill. 2d 167, which first approved of the use of the statistical method (known as the product rule), which was used in this case. Even if Parker had been called to testify in this case, he would have been limited to reciting the results of the searches; he would not have been able to testify that those search results in any way called into question the DNA frequencies testified to by Anderson in this case because the DNA results in this case were calculated in accordance with generally accepted methodology. Defendant’s ineffective assistance argument fails where he is unable to show resulting prejudice. ¶ 142 Finally, defendant’s argument that trial counsel was ineffective where, “had defense counsel simply asked the circuit court to comply with this court’s decision in Wright, the result would necessarily have changed,” also is unavailing where counsel did, in fact, ask the - 38 - court to follow Wright. For example, in his May 20, 2010, motion for DNA database search, defense counsel stated, in part: “8. Wherefore, defendant requests the following DNA database searches pursuant to 725 ILCS 5/116-5 and People v. Wright, 2010 Ill. App. LEXUS 245 (Ill. App. 1st Dist., 2010) (reversible error for trial court failing to grant defendant’s motion for a DNA Database Search in a 9 loci match case) ***.” The State filed a response to that motion, and defense counsel filed a reply in which he again cited Wright and asked the court to follow it. Counsel is not ineffective for failing to “simply ask” the court to comply with a particular case when the record clearly shows that trial counsel did precisely that. Defendant, therefore, cannot show resulting prejudice, and his ineffective assistance of counsel argument is unavailing. ¶ 143 CONCLUSION ¶ 144 For all of the foregoing reasons, the decision of the circuit court of Cook County is affirmed. ¶ 145 Affirmed. - 39 -

01-03-2023

02-16-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142703/

OFFICE OF THE A’TTOENEY GENERAL OF TEXAS AUSTIN Honorable W. A. Davis state Registrar Texas State Boa33 of Health Austin, Texas mar Sirs OpinLon Ho. O-3655 Ret 8tatur of fee8 reoeived by a ja8tioe of th4 poaos, oom- pensated on a fee barnis, wh e nlorvlng am local Rbg- irtrar of Vital gtstfetfoe. Your reoent request for en opinion fmu thim depart- mont has been reoelved and oonaldered. We quote from your re- quert 1 “me opinlom rendered by the Attorney Oen- oral in the past relative to the fees to be aol- leeted for birth and death oertificotes by th4 Jueticee of *ho Peeoe have varied to nuch an extant that there la oonstdemble aonfusfon. “The former State Auditor recured an opinion go. O-419 which is directly oontradiotory to pre- vious opinions rendered. "I will be glad to have you advise me with ihxvmue to that opinion aa coon as poaelble." We find In examining the queetion submitted in your request that thie department has previously Ned on the meme. xn a letter oplnlon to Bonorabls Tom C. 'KN, dated August 11, 1938, thin department held that feee colleoted by a Juatlae of the Peaoe, oompensated on a foe baeis, for aotfng ae Registrar of Vital Statlatloe are fees of office and aocountable an Such. A oopy of that opinion la being enoloeed for your InPomMJ.on. Honorable I?. A. i3mvim,Page 2 This department in Opinion 80. O-419 followed the hold- iag in the opinion to Honorable Ton 0. King and zw,fflnmed that fess of office aollaated by a Oustice of the Peaoe, aoting am g008l Registrar of Vital stmtimticm, aoqpenmatedon a fernbasis, are ferns of office and should be aoaountad for am muoh. A copy OS Opinion Ho. O-419 ia being enolomed for your lnformmtion. We have oarsfully exmalned the brief attsehed to your reqwmt. Ye regret that we are unabla to aonour in the oonolu- mlonm therein expressed. Your8 ve~truly ATTORERY inmRAL OF TRKAS ~JJ&JJv+~ &rold JloOraoken Ammimtant HmrR3 APF'RC'JT!TJUN 23, 1941 EsmsuRRs

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142727/

Honorable H. D. Stringer County Attorney Hall Cbunty Memphis, Texas Dear Sir: Opinion no. O-3633 Re: Does the State or a defendant have the right to subpoena and attach out of county witnesses in a misdemeanor case? This is to acknowledge receipt of your recent letter asking our opinion as stated in the above question. While we have made a careful study of the ques- tion, in the 1Fght of the statutes and the case cited by you, we are unable to find any authority authorizing the use of a subpoena or attachment for out of county witnesses in misdemeanor cases. In the case of Cotbren v. State, 139 Tex. Cr. R. 644, 141 S.W. (2d) 594, cited in your letter of June 7th, the appellant was convicted in the county court of San Saba County on a misdemeanor charge and assessed a fine. ou motion for rehearing appellant insisted that error was committed in the refusal of a continuance because of an absent witness. We quote from Judge Grave's opinion on the motion for rehearing: "Appellant's request for a continuance was denied, as well as his request to have a sub- poena issued for such witness, the trial court stating that he did not think such was necessary. Nowhere did appellant state what he expected to prove by the son of the State's witness, and it is evident from the record that he did not know, as he only found out that such witness was present at the alleged sale when the agent so testified. It was also shown that the witness was not in the county at the time of the trial, Honorable Il.D. Stringer, page 2 but was supposed to be In Corpus Christi, and therefore not amenable to a subpoena Issued out of the county court." (Emphasis ours) As stated above, we have been unable to find any other expressions of the Court of Criminal Appeals relative to process for witnesses in misdemeanor cases in counties outside the county of prosecution. The rule that such pro- cess is unavailable, however, seems to be generally recog- nized. That the Legislature of this State recognizes such rule is evident from the insertion of Section 5 In the present so-called "Rot Check Law." Such sectlon requlres process to be Issued and served "In the County or out of the ." provides that such process shall "ha the same ?EP b n ing force and effect as though the offensrb eing prose- cuted were a felony;" and further declares: "and all officers issuing ana serving such process In or out of the county where- in the prosecution is pendinR. and all witnesses from within or without the county wherein the uroseoutlon is pendlng, shall be compensated in like manner as though the offense were a felony in grade." (Emphasis ours). See General Laws, 46th Legislature, p. 246; Art. 567b, Vernon's Annotated Penal Code, pocket supplement, Sec. 5. In vFew of the above expressions by the Court of Crlmlnal Appeals and the Legislature, we are impelled to adhere to the opinions heretofore rendered by this Depart- ment that the question as stated should be answered in the negative. Yours very truly APPROVED JUN 14, 1941 ATTORNEY GERERAL OF TEXRS /s/ Grover Sellers FIRST ASSISTANT BY /S/ ATTORNEY GENERAL Benjamin Woodall Assistant BW:db/mjs APPROVED OPINION coMMITTEE BY BWB Chairman

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127082/

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 02/17/2017 09:09 AM CST - 852 - Nebraska Supreme Court A dvance Sheets 295 Nebraska R eports HARRING v. GRESS Cite as 295 Neb. 852 M arcia M. H arring, appellant, v. Janis J. Gress and Fredrick Gress, Copersonal R epresentatives of the Estate of Darin J. Gress, deceased, appellees. ___ N.W.2d ___ Filed February 17, 2017. No. S-16-362.  1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to dismiss is reviewed de novo.  2. Courts: Justiciable Issues. Ripeness is a justiciability doctrine that courts consider in determining whether they may properly decide a controversy.  3. Courts. The fundamental principle of ripeness is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreement based on contingent future events that may not occur at all or may not occur as anticipated. Appeal from the District Court for Thayer County: Vicky L. Johnson, Judge. Reversed and remanded for further proceedings. Daniel L. Werner, P.C., L.L.O., for appellant. Sheri Burkholder, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., for appellees. Heavican, C.J., Wright, Miller-Lerman, Cassel, and Stacy, JJ. Heavican, C.J. INTRODUCTION Marcia M. Harring filed suit in the district court seeking the allowance of an unliquidated claim against the decedent’s - 853 - Nebraska Supreme Court A dvance Sheets 295 Nebraska R eports HARRING v. GRESS Cite as 295 Neb. 852 estate and the imposition of a lien against real property owned by the estate or, in the alternative, a trust, constructive or oth- erwise, to secure payment of that claim, as well as judgment for attorney fees and costs. The estate’s motion to dismiss was granted, and Marcia appeals. We reverse, and remand for further proceedings. BACKGROUND Marcia was previously married to the decedent, Darin J. Gress. Justin Gress, son of Marcia and Darin, was born in 2000. Marcia and Darin were divorced in 2009. That decree pro- vided in part: “12. Pursuant to the stipulation of the parties in regard to Justin’s funds, the Court approves creation of a joint account requiring the signatures of both parties for dis- bursement for college expenses. Any savings held in the name of Justin and not used for his education shall be transferred to him when he reaches his age of majority or becomes otherwise emancipated. “13. Pursuant to the stipulation of the parties, Darin and Marcia are ordered to equally pay for Justin’s rea- sonable secondary educational expenses not otherwise covered by his savings accounts. Such expenses include tuition, books, and housing.” Darin died on May 15, 2015, and his estate is being pro- bated in the Thayer County Court. Janis J. Gress and Fredrick Gress are the copersonal representatives of the estate; Justin is an heir at law. On August 4, 2015, Marcia filed a claim with Darin’s estate on Justin’s behalf. The claim sought one-half of Justin’s rea- sonable secondary educational expenses not otherwise covered by his savings accounts, due upon incurring such expenses. The claim indicated that it was contingent and unliquidated. This claim was disallowed by the estate. Marcia filed suit in the district court against the estate, seek- ing that the court order the claim filed on August 4, 2015, be - 854 - Nebraska Supreme Court A dvance Sheets 295 Nebraska R eports HARRING v. GRESS Cite as 295 Neb. 852 “allowed,” and further that the court confirm the lien of the court’s judgement against real property owned by the estate. Marcia also filed a second cause of action against Janis and Fredrick, arguing that they owed a fiduciary duty to the estate to pay all lawful claims and that this duty was breached when the claim was disallowed. Marcia sought to impose a construc- tive trust on the assets of the estate. The estate filed a motion to dismiss, which was granted. In dismissing the action, the district court found that the issue was not ripe for resolution because it was not possible to know the amount of “‘reasonable’” educational expenses. The district court also noted that Justin is a beneficiary of Darin’s estate and that if the trustee failed to pay expenses as provided by Darin’s instructions, Justin would have a cause of action against the trustee. Thus, “[a]s there is already a trust in exis- tence with the obligation to pay Justin’s college expenses, there is no reason to create a constructive trust to do the exact same thing Marcia requests.” Marcia appeals. ASSIGNMENTS OF ERROR Marcia assigns that the district court erred in (1) finding that Justin was a beneficiary of Darin’s estate and entitled to one-third of Darin’s net estate; (2) determining that under the terms of the trust, the trustee is required to pay the educa- tional expenses of the minor children and Justin would have a cause of action against the trustee for the failure to pay such expenses; and (3) determining that the unliquidated and contingent nature of the claim resulted in its being unfit for judicial resolution. STANDARD OF REVIEW [1] A district court’s grant of a motion to dismiss is reviewed de novo.1  1 Litherland v. Jurgens, 291 Neb. 775, 869 N.W.2d 92 (2015). - 855 - Nebraska Supreme Court A dvance Sheets 295 Nebraska R eports HARRING v. GRESS Cite as 295 Neb. 852 ANALYSIS On appeal, Marcia makes several arguments, but all are in support of her primary contention that the district court erred in dismissing her suit. Marcia’s suit is based upon her claim against Darin’s estate. Some background is helpful to understand this process. Neb. Rev. Stat. § 30-2486 (Reissue 2016) provides for the presentation of claims against an estate: (1) The claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court. The claim is deemed presented on the filing of the claim with the court. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the pre- sentation made. (2) The claimant may commence a proceeding against the personal representative in any court which has sub- ject matter jurisdiction and the personal representative may be subjected to jurisdiction, to obtain payment of his or her claim against the estate, but the commence- ment of the proceeding must occur within the time lim- ited for presenting the claim. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his or her death. (3) If a claim is presented under subsection (1), no proceeding thereon may be commenced more than sixty days after the personal representative has mailed a notice of disallowance; but, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the sixty-day period, or to avoid injustice the court, on - 856 - Nebraska Supreme Court A dvance Sheets 295 Nebraska R eports HARRING v. GRESS Cite as 295 Neb. 852 petition, may order an extension of the sixty-day period, but in no event shall the extension run beyond the appli- cable statute of limitations. Neb. Rev. Stat. § 30-2485 (Reissue 2016) provides: (a) All claims against a decedent’s estate which arose before the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliq- uidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows: (1) Within two months after the date of the first publi- cation of notice to creditors if notice is given in compli- ance with sections 25-520.01 and 30-2483 . . . . (2) Within three years after the decedent’s death if notice to creditors has not been given in compliance with sections 25-520.01 and 30-2483. (b) All claims, other than for costs and expenses of administration as defined in section 30-2487, against a decedent’s estate which arise at or after the death of the decedent, including claims of the state and any subdivi- sion thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on con- tract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devi- sees of the decedent, unless presented as follows: (1) A claim based on a contract with the personal rep- resentative, within four months after performance by the personal representative is due; (2) Any other claim, within four months after it arises. (c) Nothing in this section affects or prevents: (1) Any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate; or - 857 - Nebraska Supreme Court A dvance Sheets 295 Nebraska R eports HARRING v. GRESS Cite as 295 Neb. 852 (2) To the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he or she is protected by liability insurance. Neb. Rev. Stat. § 30-2492 (Reissue 2016) sets forth the procedure to follow in the case of unliquidated or contin- gent claims: (a) If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class. (b) In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may pro- vide for payment as follows: (1) if the claimant consents, he may be paid the pres- ent or agreed value of the claim, taking any uncertainty into account; (2) arrangement for future payment, or possible pay- ment, on the happening of the contingency or on liqui- dation may be made by creating a trust, giving a mort- gage, obtaining a bond or security from a distributee, or otherwise. [2,3] The basis of the district court’s decision was that Marcia’s claim was not ripe. Ripeness is a justiciability doctrine that courts con- sider in determining whether they may properly decide a controversy.2 The fundamental principle of ripeness is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreements based on contingent future events that may not occur at all or may not occur as anticipated.3  2 Shepard v. Houston, 289 Neb. 399, 407, 855 N.W.2d 559, 566 (2014).  3 Id. - 858 - Nebraska Supreme Court A dvance Sheets 295 Nebraska R eports HARRING v. GRESS Cite as 295 Neb. 852 Specifically, the district court noted: [I]t would appear that additional factual development is necessary. First, one does not know whether sufficient savings were provided under the Decree’s provisions. One does not know the amount of “reasonable” educational expenses. Whether Justin qualifies for student financial aid is unknown. The amount of Justin’s share of the estate is unknown. Finally, and most importantly, it appears there are no post-secondary expenses yet incurred. Marcia’s claim recognized this by acknowledging that her claim was contingent and unliquidated. Given these unknowns, the issue is not yet fit for judicial resolution. We agree with the district court that there are a great number of unknowns in this case. Indeed, Marcia acknowledges that her claim was contingent and unliquidated. But the unknowns presented by this case are insufficient, on the facts and situa- tion presented, to make Marcia’s suit not ripe. Sections 30-2485 and 30-2492 plainly allow for such a claim. Sections 30-2485 and 30-2486 require Marcia to make this claim now; given the limitations on the filing of claims, a claim made after resolution of the various unknowns would be untimely and barred. We therefore reverse the district court’s dismissal and remand the cause for further proceedings. Because we are reviewing the grant of a motion to dismiss, for all relevant purposes, our record is limited to the pleadings filed in this case. Having reviewed those pleadings, we note that to the extent the district court and parties focus on an obli- gation to provide for Justin’s college educational expenses, the divorce decree, at least as set forth in the pleadings, does not provide for payment of such expenses. CONCLUSION We conclude that Marcia’s action was ripe. We accordingly reverse, and remand for further proceedings. R eversed and remanded for further proceedings. K elch and Funke, JJ., not participating.

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4288754/

Fourth Court of Appeals San Antonio, Texas June 19, 2018 No. 04-18-00348-CV ANDERSON-JENKINS SIGNATURE HOMES, LTD. and Anderson-Jenkins Signature Homes GP, LLC, Appellants v. Benjamin Randolph ALLEN, III and Kelley P. Allen, Appellees From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 17-148 Honorable Bill R. Palmer, Judge Presiding ORDER This is an accelerated appeal in which the clerk’s record was due June 4, 2018. On June 5, 2018, the district clerk filed a notification of late record, requesting an extension of time to file the record on or before June 22, 2018. After consideration, we GRANT the district clerk’s request and ORDER the district clerk to file the clerk’s record on or before June 22, 2018. _________________________________ Marialyn Barnard, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of June, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court

01-03-2023

06-26-2018

https://www.courtlistener.com/api/rest/v3/opinions/4125027/

KEN PAXTON ATTORNEY GENERAL OF TEXAS September 28, 2015 The Texas Constitution and sections 402.042 and 402.043 of the Government Code grant the attorney general authority to issue attorney general opinions. An attorney general opinion is a written interpretation of existing law. The development of an attorney general opinion is an involved and thorough process involving many layers of comprehensive review. Attorney general opinions do not necessarily reflect the attorney general's personal views, nor does the attorney general in any way "rule" on what the law should say. As have those that have come before it, this administration strives to craft opinions with the greatest level of legal accuracy and without any hint of impropriety. By its very nature, the. attorney general opinion process invites a variety of legal issues to be brought before our office for analysis and review. The questions asked are outside the scope of this office's control, and some of the questions to be addressed may raise actual or perceived conflicts of interest" for the Attorney General and his staff. Consistent with applicable statutes and rules, staff members involved in the opinion process must recuse themselves from matters in which there may exist an actual or perceived conflict of interest. Accordingly, pursuant to section 402.001 of the Government Code, I delegate my signature authority in the attorney general opinion process to the First Assistant Attorney General, Charles E. Roy, for those opinions in which I may have an actual or perceived conflict of interest or in which my involvement gives even the appearance of impropriety. Any such opinion signed by the First Assistant under this delegation carries the full force of an attorney general opinion. Very truly yours, ~?~ KEN PAXTON Attorney General of Texas September 28, 2015 The Honorable Shane Britton Brown County Attorney 200 South Broadway Brownwood, Texas 76801 Dear Mr. Britton: In the process of reviewing this matter, this office concludes there could be an actual or perceived conflict of interest such that the Attorney General has recused himself from any participation in the matter. Accordingly, pursuant to Government Code section 402.001 and the authority delegation issued by the Attorney General on September 28, 2015, the First Assistant Attorney General will sign this opinion. Any such recusal is intended to go beyond the letter and spirit of the governing law and rules in order to avoid even the appearance of impropriety and to demonstrate our ongoing commitment to the highest ethical standards. Very truly yours, c~~ First Assistant Attorney General CER:ac KEN PAXTON ATTORNEY GENERAL OF TEXAS September 28, 2015 The Honorable Shane Britton Opinion No. KP-0037 Brown County Attorney 200 South Broadway Re: Authority of a county to reimburse a Brownwood, Texas 76801 county commissioner for legal costs related to defending against criminal allegations for which the commissioner was found not guilty (RQ-0018-KP) Dear Mr. Britton: You tell us that a Brown County commissioner was indicted for a criminal offense but was found not guilty after a jury trial. 1 The commissioner is now asking the county for reimbursement of his legal costs. See Request Letter at 1. On behalf of the county auditor, you inquire whether, under section 157.901 of the Local Government Code or the common law, Brown County (the "County") may reimburse the commissioner for the legal expenses he incurred in his defense. See id. We consider section 157.901 and the common law in turn. Section 157.901 of the Local Government Code provides that (a) A county official or employee sued by an entity, other than the county with which the official or employee serves, for an action arising from the performance of public duty is entitled to be represented by the district attorney of the district in which the county is located, the county attorney, or both. (b) If additional counsel is neGessary or proper in the case of an official or employee provided legal counsel under Subsection (a) or if it reasonably appears that the act complained of may form the basis for the filing of a criminal charge against the official or employee, the official or employee is entitled to have the commissioners court of the county employ and pay private counsel. TEX. Loe. Gov'T ~ODE ANN. § 157.901(a)-(b) (West 2008). A Texas court of appeals has determined that "[s]ection 157.901 does not impose a duty on counties to provide counsel to county officials and employees charged with criminal offenses." White v. Eastland Cnty., 12 S.W.3d 97, 1 See Letter from Honorable Shane Britton, Brown Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Mar. 16, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Shane Britton - Page 2 (KP-0037) 102 (Tex. App.-Eastland 1999, no pet.) (construing section 157.901 's statutory predecessors). The White court determined that subsection (b)' s phrase, "if it reasonably appears that the act complained of may form the basis for the filing of a criminal charge against the official or employee," referred back to the instituted civil "suit" mentioned in subsection (a). Id. at 102 & n.4. The court explained that the phrase did not "create an independent basis of authority to furnish legal assistance at public expense," and to construe it otherwise would be contrary to the purpose of the statute. Id. at 102 (quoting Tex. Att'y Gen. Op. No. JM-755 (1987) at 4). The court held that section 157.901 imposes no duty on a county to provide or pay for costs that an officer or· employee incurs in defense of criminal charges. Id.; see also Tex. Att'y Gen. Op. Nos. GA-0523 (2007) at 2-3, JC-0294 (2000) at 4, JM-755 (1987) at 3-5. While the statute imposes no duty on a county to provide or pay for criminal representation of its officers or employees, this office has consistently recognized that the common law may allow a county discretion to do so in certain instances. See Tex. Att'y Gen. Op. Nos. GA-0523 (2007) at 3--4, JC-0047 (1999) at 3. Prior attorney general opinions have concluded that a public expenditure for an officer's or employee's legal expenses, incurred to defend against an action premised upon an on-the-job act or omission, does not as a matter of law contravene the spending of public funds limitations in the Texas Constitution. See Tex. Att'y Gen. Op. No. JM-755 (1987) at 4 (describing section 157.901 's predecessor statute and common-law rule as belonging to a "narrow class of the laws which permits public funds to be spent for the indirect private benefit of certain persons because an important public interest predominates"); see also Tex. Att'y Gen. Op. No. LA-24 (1973) at 2-3. Such a public expenditure, however, is limited to situations where the legitimate interests of the [political subdivisions]-and not just the personal interests of the officers or employees-require the assertion of a vigorous legal defense on behalf of the public interest. [A political subdivision] may not use public funds when the principal interest to be defended is a purely private one. Tex. Att'y Gen. Op. No. JC-0047 (1999) at 2-3. A two-part test requires a political subdivision to "determine that the suit involved a public interest requiring a vigorous defense, or, conversely, that paying [the] legal fees serves a public, not merely the officer's or employee's private, interest." Tex. Att'y Gen. Op. Nos. JC-0047 (1999) at 3, DM-488 (1998) at 2. The politic.al subdivision must also determine that the "officer or employee committed the alleged act or omission that was the basis of the lawsuit while acting in good faith and within the scope of official duties." Tex. Att'y Gen. Op. No. JC-0047 (1999) at 3; see also Tex. Att'y Gen. Op. Nos. GA-0104 (2003) at 4, DM-488 (1998) at 3, L0-98-103, at 3. Such a determination is a fact question for the County to decide in the first instance, subject to judicial review. Tex. Att'y Gen. Op. No. GA-0104 (2003) at 4; see Tex. Att'y Gen. Op. No. GA-0380 (2005) at 3--4 (citing Comm 'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1977) (noting standard by which to invoke a district court's supervisory jurisdiction over a commissioners court)). Previous attorney general opinions considering the payment of an officer's or employee's legal expenses applied the same standard whether the matter was civil or criminal. See Tex. Att'y Gen. Op. No. JC-0294 (2000) at 4 ("When questions about paying attorney's fees in criminalcases The Honorable Shane Britton - Page 3 (KP-0037) have arisen, this office has in the past assumed that the standards applicable in civil lawsuits are equally relevant to criminal cases."). Early recitations of the common-law rule included the idea that the propriety of such an expense "is not made dependent upon the outcome of the litigation, but upon the bona tides of the governing body's motives." Tex. Att'y Gen. Op. Nos. JC-0047 (1999) at 2, L0-98-103, at 2, JM-755 (1987) at 2. But in Opinion JC-0294, this office determined it was likely that a "Texas court would hold ... that there is no public interest in defending a guilty official from prosecution." Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9; see also City of Del Rio v. Lowe, 111 S.W.2d 1208, 1219-20 (Tex. Civ. App.-San Antonio 1937) (recognizing there is no public purpose in city commission paying legal fees for city officers charged with crimes), rev'd on other grounds, 122 S.W.2d 191 (Tex. 1938). Opinion JC-0294 advised that a political subdivision must defer its decision to pay an official or employee's legal expenses "until after disposition of the charges."2 Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9 (overruling DM-488's statement that the outcome of the criminal case is not relevant to the decision to reimburse the of~cer for his attorney's fees in defending against a criminal charge). As the commissioner has been found not guilty on the criminal charges, the County may reimburse his legal expenses upon finding that the payment is primarily for a county purpose and not merely for the commissioner's personal interest and the prosecution was for actions taken by the commissioner that were within the scope of his official duties. See generally Tex. Att'y Gen. Op. No. JC-004 7 (1999) at 3 (stating that "the common-law rule is permissive-it does not require the political subdivision to provide counsel"). 2 Early attorney general opinions determined that a political subdivision had no authority to reimburse an officer or employee for legal expenses the officer or employee incurred, but more recent opinions have concluded that the "common law permits the [political subdivision] to reimburse the [officer's] legal expenses" upon finding the expenditure satisfied the two-part standard discussed above. Tex. Att'y Gen. Op. No. DM-488 (1998) at 2--4 (overruling Opinion DM-107 (1992) and several letter opinions to the extent of their inconsistency, and affirming Opinions MW-252 (1980) and M-736 (1970)). The Honorable Shane Britton - Page 4 (KP-0037) SUMMARY Under the common law, the Brown County Commissioners Court has discretion to reimburse the legal expenses incurred by a county commissioner in the defense of a criminal matter for which he was found not guilty. The County must find that the expenditure is primarily for a . county purpose and not merely for the commissioner's personal interest and that the prosecution was for actions taken by the commissioner that were within the scope of his official duties. Very truly yours, CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee CHARLOTTE M. HARPER Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4143426/

I@. J. H. Raaco, Ereoutive Head Liyeatock Sanitary Commissionof Tsxaa 2002 W.T. Waggonar Building Fort Worth, Texas Opinion No. O-2945 Deer Sir: Re: Authority of dapartmenthead to grant state raployea 12 day8 paid vaoatlon beginning approximatelythree month8 after the beginningof the fiscal ysar. We have your letter of Deormbsr 2, 1940, in #whichyou aek our opinion upon the following question: ;’; “L ; ? *One of our state employersorante ;i to take a 12 daya 'paidvacation at ,j this time. The employee rraeivsd bene- ,:/P rit of hie waation ror the rlacal year that ended August 31, 1940. Will It b6 ,; ! permiaaibleto grant him a full annua$ ,il : paid,vacation at this time - approximate- 1 $ ly three months after the beginningof “, .,A the present flaoal gear?” ,b i,’ The general rider appended to Senate Bill “‘No. 427, Aota 46th Legislature (the current biennial :/!-appropriationact)provldea: "Departmentemployeesshall, without deduation in salary, reoeive not exaesd- ing 12 days vacation,exclusive of Sundays and legal holidays, on which Stats orrlcea I are-closed,for each State Piacal yaar, such vaaation period to be mutually agrasd upon by the head of each departmentwith his employeea,.provided,that employees belonging to'the Texas National Guard may have their vaoation at t&a time of the meeting of the annual enaampment. Pro- ’ , A  660 Mr. J. H. Rasoo, page 2 vided, that no employee for whom a salary ia hereby appropriated, shall receive com- pensation while on vacation unless he or she has been an employee of the department ror not lass than six calendar months pre- ceding the vacation period.” In our ~opinion, it will be permissible to grant a State employee a full annual paid vacation at any time within the fiscal year, provided that the em- ployee has bean an employee of the department for not less than six calendar months preceding the vaoation period. The statute does not expressly require that the six oalendar months preoeding the vacation period be in the aame fiscal year as the vacation period, and we do not believe that such requirement should be implied. If it were requisite that each employee be employed in the same department for six calendar months preceding the va- . cation period in the same fieoal year, then neceeearily all vaaation oarioda would have to fall between Maroh 1 and September 1 of each/year. Thla might ad~veraely af- fect the efficiency of the work of some departments, whoas heaviest work may rall in the spring and Bummer montha. The intention of the Legislature evidently waa to allow the department head an& h$a employees discretion in determining when vacation’agrioda should be taken, provided that no paid vacation should be al- lowed until the employee has been in the employ of the aame department for at least six months preosding such vacation period and that not more than 12 days paid vaoationba allowed in any fiaoal year. Yours very truly ATTORNETGENERALOF TEXM J-PH:LW ATTORm GENERALOF TEXAS &IS OPINION CONSIDEBEDAND APPROVEDIN LIZKITED CONFERENCE

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127074/

IN THE SUPREME COURT OF IOWA No. 15–1922 Filed February 17, 2017 WELLMARK, INC. d/b/a WELLMARK BLUE CROSS AND BLUE SHIELD OF IOWA, an Iowa Corporation, and WELLMARK HEALTH PLAN OF IOWA, INC., an Iowa Corporation, Plaintiffs, vs. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant. Certiorari to the Iowa District Court for Polk County, Arthur E. Gamble, Chief Judge. Defendant health insurer petitioned for writ of certiorari challenging district court rulings allowing chiropractors to proceed with an antitrust rule-of-reason claim after procedendo issued from decision affirming summary judgment dismissing this civil action with prejudice. WRIT SUSTAINED. Ryan G. Koopmans, Hayward L. Draper, and John T. Clendenin (until withdrawal) of Nyemaster Goode, P.C., Des Moines, for plaintiffs. Glenn L. Norris of Hawkins & Norris, P.C., Des Moines, Steven P. Wandro of Wandro & Associates, P.C., Des Moines, and Harley C. Erbe of Erbe Law Firm, Des Moines, for defendant. 2 WATERMAN, Justice. When is a case over? We have decided two prior appeals in this civil action: Mueller v. Wellmark, Inc., 818 N.W.2d 244, 267 (Iowa 2012) (reversing summary judgment in part) (Mueller I), and Mueller v. Wellmark, Inc., 861 N.W.2d 563, 575 (Iowa 2015) (affirming summary judgment dismissing the fourth amended petition) (Mueller II). After procedendo issued in Mueller II, the plaintiffs persuaded the district court to proceed with an antitrust claim they had previously stipulated was not included in their fourth amended petition. We granted the defendant’s petition for a writ of certiorari and now clarify what we thought was clear before—that Mueller II ended this civil action. I. Background Facts and Proceedings. A. Procedural History Through Mueller II. This civil action commenced in December 2007 when Steven A. Mueller, a doctor of chiropractic, filed a breach-of-contract claim against Wellmark over a $17,376 billing dispute. Mueller I, 818 N.W.2d at 247–48. In May 2008, Mueller, joined by Bradley J. Brown, D.C.; Mark A. Kruse, D.C.; Kevin D. Miller, D.C.; and Larry E. Phipps, D.C., filed an amended petition asserting claims on behalf of a putative “class of Iowa-licensed doctors of chiropractic” who “have billed for services provided to patients enrolled in Wellmark health insurance plans.” Id. at 248. Plaintiffs alleged Wellmark discriminatorily fixed prices for services performed by chiropractors at rates lower than those paid to medical doctors and doctors of osteopathic medicine. Id. at 247. Their amended petition alleged violations of Iowa insurance regulatory statutes, the Iowa Competition Law (Iowa Code chapter 553), and a national class-action settlement. See id. at 249–50. The district court, without certifying this 3 case as a class action, granted Wellmark’s motions to dismiss and for summary judgment. Id. at 250, 252. Plaintiffs appealed. Id. at 253. We affirmed the dismissal of claims brought under the insurance statutes, holding they created no private right to sue. Id. at 258. We also affirmed summary judgment dismissing claims that Wellmark breached the national settlement in Love v. Blue Cross Blue Shield Ass’n, No. 03–21296–CIV (S.D. Fla. Apr. 19, 2008). Id. at 264–65. But we reversed the district court’s summary judgment dismissing antitrust claims against Wellmark based on the state-action exemption in Iowa Code section 553.6(4) (2009). Id. at 263– 64. We remanded the case for further proceedings on plaintiffs’ claims under the Iowa Competition Act. Id. at 264, 267. Meanwhile, plaintiffs, joined by other doctors of chiropractic, commenced an administrative action in the Iowa Insurance Division to litigate the violations of the insurance regulatory statutes. 1 District court proceedings resumed in this civil action after our remand in Mueller I. See Mueller II, 861 N.W.2d at 566. On December 31, 2012, Wellmark moved to dismiss or stay this civil action pending the insurance commissioner’s decision in the related administrative action. Wellmark argued the commissioner had primary jurisdiction because the regulator was better suited to analyze the complex antitrust allegations and effects on insurance markets. Wellmark contended the commissioner’s decision may “moot” or “narrow” the issues. Plaintiffs resisted, arguing there was no need to await the 1The insurance commissioner ultimately decided that case in Wellmark’s favor, and the district court affirmed on the plaintiffs’ petition for judicial review. Abbas v. Iowa Ins. Div., No. CVCV048885 (Iowa Dist. Ct. for Polk Cty. June 24, 2015). Plaintiffs’ appeal was submitted to our court on January 18, 2017. Abbas v. Iowa Ins. Div., No. 15–1248 (Iowa filed Jan. 18, 2017). 4 commissioner’s decision because their amended petition alleged “per se” violations of the Iowa Competition Act that did not require the regulator’s expert analysis of the Iowa health insurance market. Under a per se violation, an agreement is “so plainly anticompetitive that no elaborate study of the industry is needed to establish . . . illegality.” Id. at 568 (quoting Texaco Inc. v. Dagher, 547 U.S. 1, 5, 126 S. Ct. 1276, 1279, 164 L. Ed. 2d 1, 7 (2006)). By contrast, a rule-of-reason claim “requires plaintiffs to demonstrate that a particular arrangement ‘is in fact unreasonable and anticompetitive before it will be found unlawful.’ ” Id. (quoting Dagher, 547 U.S. at 5, 126 S. Ct. at 1279, 164 L. Ed. 2d at 7). In a rule-of-reason analysis, the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition, taking into account a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint’s history, nature, and effect [on the market.] State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S. Ct. 275, 279, 139 L. Ed. 2d 199, 206 (1997). Plaintiffs specifically argued that because their amended petition alleged per se violations, the commissioner was not better suited to resolve the dispute. Wellmark responded by inviting plaintiffs to stipulate that their pleadings included no rule-of-reason claim: If Plaintiffs will indeed stipulate that their case be strictly limited to a claim of per se price fixing, that might indeed moot out this motion and we could go right to summary judgment. But the allegations contained in Plaintiffs’ Fourth Amended and Substituted Petition . . . are not so limited, and that’s the pleading now before this Court . . . . Wellmark sought a stipulation stating, a. Plaintiffs hereby dismiss, with prejudice, all claims except any price-fixing claims that rise to a per se violation of the Iowa Competition Act; and 5 b. Wellmark, in turn, withdraws its pending motion to dismiss or stay. At the hearing on Wellmark’s motion, the district court expressed an inclination to stay the proceedings. Plaintiffs rejected Wellmark’s proposed stipulation but, to avoid the stay, agreed to limit their petition to per se violations. They stipulated accordingly, Pursuant to discussions with the Court and Defendants’ counsel during the telephone hearing held on February 22, 2013, on Defendant’s Motion to Dismiss or Stay and Defendants’ Supplement to Motion to Dismiss, Plaintiffs hereby agree and stipulate that the only violation of Iowa Code § 553.4 alleged in the Fourth Amended and Substituted Petition for Damages . . . constitute per se violations of the Iowa Competition Act. Plaintiffs’ allegations exclude a contention that a rule of reason analysis is applicable to the violation of Iowa Code § 553.4 alleged in the Fourth Amended and Substituted Petition. (Emphasis added.) No party asked the court to notify putative class members of this stipulation. No class had been certified, and no motion for class certification had been filed. On March 4, the district court noted that based on plaintiffs’ stipulation, “Defendants have advised the Court . . . the motions to dismiss or stay do not need a ruling” and “the Court considers the motions withdrawn without prejudice.” Wellmark moved for summary judgment on plaintiffs’ “remaining claims.” Plaintiffs resisted based in part on rule-of-reason arguments. At the hearing on the motion for summary judgment, the district court sought clarification whether the rule-of-reason claim was in or out of this case: THE COURT: Mr. Norris, the one thing I wanted to ask you about is: In your resistance you’ve got a fairly long section that talks about rule of reason. I don’t understand that with the stipulation. MR. NORRIS: All right. I was talking about the idea that this disposes of the entire case. All I was showing is that we could establish the elements of a rule of reason. 6 THE COURT: But you stipulated that this is not a rule of reason case. MR. NORRIS: Well, but I can certainly ask to amend. THE COURT: Well, I don’t think you can after your stipulation. That was the whole point of the stipulation and why we didn’t rule on the motion to dismiss. .... MR. NORRIS: By the stipulation I made was that we believed that what we were talking about was a per se violation of the antitrust laws. THE COURT: And that’s the only claim that I have at this point. MR. NORRIS: Well, yeah. Plaintiffs did not move to amend the petition, and no other party moved to intervene. On November 5, the district court ruled that Wellmark committed no per se violation of the antitrust laws. The order concluded, “[T]he defendants’ Motion for Summary Judgement is GRANTED.” The order further provided, While the plaintiffs stipulated they are not asserting the rule of reason here, they argue Wellmark’s price-fixing violates the Iowa Competition Law under a rule of reason analysis. Because the plaintiffs stipulated Wellmark only committed a per se antitrust violation, this Court does not consider the rule of reason here. This court offers no opinion on any potential future claim that Wellmark’s actions violate Iowa Competition Law under a rule of reason analysis. Plaintiffs filed a notice of appeal “on behalf of themselves and those like situated . . . from the final order entered in this case on November 5, 2013 and from all adverse rulings and orders therein.” We unanimously affirmed the district court’s ruling granting summary judgment. Mueller II, 861 N.W.2d at 575. We carefully limited the breadth of our holding for purposes of stare decisis: We are not today foreclosing a rule of reason claim against Wellmark if it were shown that the anticompetitive consequences of its practices exceeded their procompetitive 7 benefits. We simply uphold the district court’s ruling that Wellmark’s arrangements with self-insured employers and out-of-state BCBS licensees are not subject to the per se rule. Because the plaintiffs by stipulation limited themselves to a per se claim, we affirm the district court’s grant of summary judgment. Id. at 574–75 (footnote omitted). We meant that we were not foreclosing such a rule-of-reason claim by other plaintiffs in a new lawsuit. 2 We did not remand this civil action for any purpose. Procedendo issued on April 22, 2015. B. Procedural History After Mueller II. On June 19, plaintiffs asked the district court to set a “pretrial scheduling conference to establish” whether “additional Iowa chiropractors who are or would be members of the proposed class . . . can or should be added” and “a schedule for determining Plaintiff’s Motion for Leave to File a Fifth Amended and Substituted Petition for Damages.” Wellmark resisted, asserting the summary judgment affirmed by our court “was the end of the case.” Wellmark argued, “Just as a plaintiff could not amend their pleading after a jury found against them and the Iowa Supreme Court affirmed that judgment, plaintiffs cannot file an amended complaint after the grant and affirmance of summary judgment.” On November 6, the district court, with a different judge presiding, granted plaintiffs’ request for a scheduling conference, ruling that “this case is not over.” The district court stated, Both the district court’s summary judgment and the Supreme Court’s opinion preserved the plaintiffs’ rule-of- 2On October 5, 2015, another civil action was filed by these plaintiffs together with other Iowa chiropractors alleging rule-of-reason antitrust claims against Wellmark. Chicoine v. Wellmark, Inc., No. CVCV050638 (Iowa Dist. Ct. for Polk Cty. filed Oct. 5, 2015). The district court stayed that case based on overlapping claims in pending federal multidistrict litigation, and the plaintiffs’ appeal of that stay (No. 16–0364) was submitted to our court on January 19, 2017. 8 reason claim. Neither court ordered that plaintiffs’ rule-of- reason claim could not be filed as an amendment to their petition in this class action lawsuit. Neither court ordered that plaintiffs’ rule-of-reason claim had to be filed in a new action with a lookback period under the statute of limitations. The district court’s summary judgment, which was affirmed by the Supreme Court, simply stated the Court offers no opinion on any potential future claim under the rule-of reason analysis. The district court opined plaintiffs had not “dismissed” their rule-of- reason analysis, they had deferred filing their rule-of-reason claim due to the pendency of a contested case proceeding before the Insurance Commissioner. Plaintiffs merely stipulated that their Fourth Amended Petition only stated a per se claim so that the case could move forward. The district court found both that plaintiffs’ stipulation was not binding on the class and that the district court had not followed the class-action rules governing dismissals. This civil action, however, had never been certified as a class action. On November 16, Wellmark filed a petition for a writ of certiorari. Meanwhile, the district court issued an order requiring plaintiffs to “immediately file their Motion for Leave to File a Fifth Amended and Substituted petition for damages.” On December 9, plaintiffs filed their motion for leave to file the fifth amended petition. The same day, we granted certiorari and stayed further proceedings at the district court. II. Standard of Review. Under a writ of certiorari, we review a district court’s order for correction of errors at law. State Pub. Def. v. Iowa Dist. Ct., 886 N.W.2d 595, 598 (Iowa 2016). A writ of certiorari lies when a lower court “has exceeded its jurisdiction or otherwise has acted illegally.” Id. (quoting State Pub. Def. v. Iowa Dist. Ct., 747 N.W.2d 218, 220 (Iowa 2008)). “Illegality exists when the court’s findings lack substantial evidentiary 9 support, or when the court has not properly applied the law.” Id. (quoting State Pub. Def., 747 N.W.2d at 220). III. Analysis. We must decide whether the district court’s summary judgment, and our subsequent decision affirming that judgment, ended this civil action such that a rule-of-reason claim against Wellmark can only be pursued in a separate lawsuit. These chiropractors argue, and the district court agreed, that a rule-of-reason analysis survived summary judgment and may now be litigated in this action. They point to language in the summary judgment ruling and Mueller II disclaiming adjudication of a rule-of-reason claim, and rely on restrictions for dismissing a class action without notice to putative class members. See Iowa R. Civ. P. 1.271. We hold no precertification notice to putative class members was required for plaintiffs to stipulate that their fourth amended petition omitted a rule-of-reason claim, and the summary judgment affirmed on appeal ended this civil action. Accordingly, the district court erred by allowing this case to proceed. A basic rule of finality is dispositive here: “In the absence of a remand or procedendo directing further proceedings in the trial court, the jurisdiction of the district court terminates both as to the parties and the subject matter when a district court judgment has been affirmed.” Franzen v. Deere & Co., 409 N.W.2d 672, 674 (Iowa 1987). Eligius Franzen filed a product-liability action against Deere & Company for personal injuries he suffered while using a forage wagon it manufactured. Id. at 673. The district court granted Deere’s motion to dismiss based on the statute of limitations. Id. We reversed and remanded the case to allow the Franzens to litigate the discovery rule exception. Id. Following remand and discovery, the district court 10 granted Deere’s motion for summary judgment, and we affirmed. Id. More than a month later, Deere filed an application for attorney fees. Id. In the third appeal, we concluded the district court was “without authority to consider the application, because it lost jurisdiction of this particular case once the final judgment had been affirmed without remand in Franzen II.” Id. We explained, Ordinarily the authority of the district court to decide substantive issues in a particular case terminates when a final judgment is entered and postjudgment motions have been resolved. A final judgment, one that conclusively determines the rights of the parties and finally decides the controversy, creates a right of appeal and also removes from the district court the power or authority to return the parties to their original positions. Id. at 674. Although the district court “retains jurisdiction during and after appeal from its final judgment to enforce the judgment itself,” it “does not have the authority to revisit and decide differently issues already concluded by that judgment.” Id.; see also Reis v. Iowa Dist. Ct., 787 N.W.2d 61, 66 (Iowa 2010) (noting the general rule that “a district court’s jurisdiction ends with dismissal of the pending case” except to enforce orders remaining in effect); Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 658 (Iowa 1995) (“[O]ur rules of appellate procedure provide for restoration of jurisdiction to the district court in only two circumstances: upon the . . . dismissal [of the appeal] or upon the appellate court’s order for limited remand.”); Hearity v. Bd. of Supervisors, 437 N.W.2d 907, 908–09 (1989) (“[O]nce an appellate court had rendered its decision and docketed its mandate affirming the district court’s judgment the district court is without jurisdiction to consider motions for sanctions . . . .”); Dunton v. McCook, 120 Iowa 444, 447 94 N.W. 942, 943 (1903) (“[Judgment] was affirmed in this court . . . , and petition for rehearing 11 denied . . . . That ended the suit. Thereafter it was pending in neither court.”). As we have long recognized, this rule of finality avoids endless litigation: The judgment of the lower court had been entered of record, and, when affirmed, was in full force and effect, without further action thereon. Not a thing remained for the trial court to do; nor was he directed to take further action in the matter. The original action was, therefore, at an end, so far, at least, as the district court was concerned, and the defendants had no right to then file a cross petition. If the position contended for by appellants were tenable, there would be no end to a cause of action. If a cross petition may be filed and new parties brought in one week after final determination by decree, it might, under some circumstances, be permitted one, two, or three years thereafter. Steel v. Long, 84 N.W. 677, 678 (Iowa 1900) (emphasis added). In Mueller II, we affirmed the district court’s summary judgment without any remand. 861 N.W.2d at 575. That summary judgment dismissed plaintiffs’ fourth amended petition with prejudice. See id. After procedendo issued, the district court lacked the power to consider plaintiffs’ motion to set a pretrial conference or to allow the fifth amended petition. Our statement in Mueller II declining to foreclose the possibility of a rule-of-reason claim merely defined the breadth of our holding for purposes of stare decisis as to claims filed by different plaintiffs in a separate lawsuit. See id. at 574–75. Neither the district court nor our court effectively reserved the rule-of-reason analysis for further litigation by these plaintiffs within this civil action. Our class-action rules do not permit these chiropractors to evade the finality of the summary judgment in Mueller II. This civil action was filed as a putative class action but had not been certified. See Iowa R. Civ. P. 1.262(1) (directing court to “determine whether or not the action is to be maintained as a class action and by order certify or refuse to 12 certify it as a class action”). It is well-settled that a summary judgment dismissing the claims of the named plaintiffs terminates the civil action and renders moot the question whether to certify the case as a class action. See Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 278 n.5 (Iowa 2009) (noting that if the district court had entered summary judgment “before class certification proceedings,” the defendants “would have been out of th[e] case before [incurring] the cost of the class certification proceedings”); Neb. Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124, 130–31 (Iowa 1984) (affirming summary judgment on claims by named plaintiffs without class certification); see also William B. Rubenstein, Newberg on Class Actions § 7:10 (5th ed.), Westlaw (database updated Dec. 2016) (“If the defendant prevails on the summary judgment motion, in most circumstances, the court will be relieved of the need to rule on the issue of class certification.”); cf. Hammond v. Fla. Asset Fin. Corp., 695 N.W.2d 1, 8 (Iowa 2005) (affirming dismissal of defendant for lack of personal jurisdiction and rejecting named plaintiffs’ argument jurisdiction was supported by claims of putative class members, noting “there has been no determination that a class exists or that the action may proceed as a class action”). 3 3Because of similarities between the Iowa and federal class-action rules, we may look to federal decisions for guidance. See Lucas v. Pioneer, Inc., 256 N.W.2d 167, 172 (Iowa 1977). It is well established under federal law that the district court may grant a dispositive motion against the named plaintiffs without deciding class certification. See, e.g., J & R Mktg., SEP v. Gen. Motors Corp., 549 F.3d 384, 390 (6th Cir. 2008) (“If it is found, prior to class certification, that the named plaintiffs’ individual claims are without merit, then dismissal is proper.”); Greenlee County v. United States, 487 F.3d 871, 880 (Fed. Cir. 2007) (“[W]e have repeatedly found on appeal that issues related to class certification were moot in light of our resolution against the plaintiff of a motion to dismiss or for summary judgment.”); McNulty v. Fed. Hous. Fin. Agency, 954 F. Supp. 2d 294, 303 (M.D. Pa. 2013) (“The court’s finding that the plaintiff’s complaint fails to state a claim upon which [relief] can be granted . . . effectively moots the question of whether to certify the action as a class action.”); Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 960, 974 (E.D. Mich. 2008) (stating 13 Because no class had been certified, Wellmark acknowledges putative class members in this civil action are not bound by the summary judgment under principles of res judicata. See Neb. Innkeepers, Inc., 345 N.W.2d at 130–31 (“Our holding, however, only applies to the named plaintiffs because the record does not show the court had yet certified this as a class action . . . .”). 4 Plaintiffs, represented by experienced counsel, stipulated they were only pursuing a per se action. “Stipulations must be binding.” Standard Fire Ins. Co. v. Knowles, 568 U.S. ___, ___, 133 S. Ct. 1345, 1348, 185 L. Ed. 2d 439, 443 (2013). 5 A named plaintiff’s stipulation made before class certification, however, does not “speak for those he purports to represent.” Id. at ___, 133 S. Ct. at 1349, 185 L. Ed. 2d at 444. In ___________________________ summary judgment had effect of mooting class certification), rev’d on other grounds sub nom. Schuette v. Coal. to Defend Affirmative Action, 572 U.S. ___, 134 S. Ct. 1623, 188 L. Ed. 2d 613 (2014. 4See also Schwarzschild v. Tse, 69 F.3d 293, 297 (9th Cir. 1995) (holding that when defendants moved for summary judgment prior to certification, they “waived their right to have [class] notice given and to obtain a judgment that was binding upon the class”); Postow v. OBA Fed. Sav. & Loan Ass’n, 627 F.2d 1370, 1382 (D.C. Cir. 1980) (noting when defendants move for summary judgment prior to certification they “assume the risk that a judgment in their favor will not protect them from subsequent suits by other potential class members” (quoting Haas v. Pittsburgh Nat’l Bank, 381 F. Supp. 801, 806 (W.D. Pa. 1974), aff’d in part and rev’d in part, 526 F.2d 1083 (3d Cir. 1975)). 5Plaintiffs’ stipulation that their pleadings included no rule-of-reason claim had its intended effect of inducing Wellmark to withdraw its motion to stay, thereby allowing plaintiffs to avoid a possible stay order. We will not second-guess that strategic decision by experienced lawyers. But it would be unfair to allow plaintiffs to retract their stipulation after they got what they wanted from it. And it would prejudice Wellmark to allow plaintiffs to prolong this case by belatedly adding the rule-of-reason claim they stipulated out of the case. We have applied the doctrine of judicial estoppel to prevent a party from taking inconsistent positions in litigation. See Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 573–75 (Iowa 2006) (concluding employer estopped from denying liability in workers’ compensation claim when it admitted liability in a prior proceeding to control the care provided); Wilson v. Liberty Mut. Grp., 666 N.W.2d 163, 167 (Iowa 2003) (employee who alleged “a bona fide dispute” to obtain approval of workers’ compensation claim was estopped from pursing bad-faith claim against insurer). 14 Knowles, the named plaintiff, to keep his claim in state court by avoiding federal subject matter jurisdiction under the Class Action Fairness Act, stipulated before class certification that he, and the class he sought to represent, would not seek aggregate damages exceeding $5 million. Id. at ___, 133 S. Ct. at 1347, 185 L. Ed. 2d at 442. The Court concluded his stipulation did not bind putative class members because “a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified.” Id. at ___, 133 S. Ct. at 1349, 185 L. Ed. 2d at 444; see also Smith v. Bayer Corp., 564 U.S. 299, 315, 131 S. Ct. 2368, 2380, 180 L. Ed. 2d 341, 354 (2011) (“Neither a proposed class action nor a rejected class action may bind nonparties.”). A “nonnamed class member is [not] a party to the class-action litigation before the class is certified.” Smith, 564 U.S. at 313, 131 S. Ct. at 2379, 180 L. Ed. 2d at 353 (emphasis added). The Knowles Court held, “Because his precertification stipulation does not bind anyone but himself, Knowles has not reduced the value of the putative class members’ claims.” Knowles, 568 U.S. at ___, 133 S. Ct. at 1349, 185 L. Ed. 2d at 444 (emphasis added). Similarly, the precertification stipulation by the named-plaintiff chiropractors withdrawing their rule-of-reason claim did not bind anyone but themselves. See id. The district court properly relied on the stipulation in granting summary judgment dismissing the named plaintiffs’ civil action. The stipulation was not binding on putative class members who could and did file a separate lawsuit to pursue a rule-of- reason claim. We conclude the district court could properly enter summary judgment without notifying putative class members. Our governing rule provides, 15 1.271(1) Unless certification has been refused under rule 1.262, a class action, without the approval of the court after hearing, may not be: a. Dismissed voluntarily. b. Dismissed involuntarily without an adjudication on the merits. c. Compromised. 1.271(2) If the court has certified the action under rule 1.262, notice of hearing on the proposed dismissal or compromise shall be given to all members of the class in a manner the court directs. If the court has not ruled on certification, notice of hearing on the proposed dismissal or compromise may be ordered by the court which shall specify the persons to be notified and the manner in which notice is to be given. Iowa R. Civ. P. 1.271(1)–(2) (emphasis added). Rule 1.271(2) makes clear that precertification notice was not required here—rather, the court “may” give notice. Id. The word “may” is permissive when juxtaposed with the directory word “shall” in the immediately preceding sentence. See State v. Klawonn, 609 N.W.2d 515, 521 (Iowa 2000) (stating “may” can be interpreted as “shall” only when context evinces that intent). Under the circumstances of this case, we hold that the district court had no obligation to notify putative class members of the pending motion for summary judgment or the named plaintiffs’ stipulation abandoning a rule-of-reason claim. Neither due process nor rule 1.271(2) required notice to other chiropractors who are not bound by the summary judgment. The district court erred in concluding otherwise. 6 6Our conclusion is consistent with federal class-action law. “Federal rule of civil procedure 23(e) concerning approval of class action settlements is somewhat analogous to Iowa rule of civil procedure [1.271].” City of Dubuque v. Iowa Trust, 587 N.W.2d 216, 221 (Iowa 1998). We have looked to federal authority for guidance in the dismissal and settlement of certified class actions. Id. at 220, 222 (approving settlement of certified class action). Federal rule 23(e) was amended in 2003 to limit mandatory notice of dismissals to certified class actions: (e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily 16 This case is over. Litigation between Iowa chiropractors and Wellmark continues in other civil actions. We express no opinion on the merits of the other cases. IV. Disposition. For the reasons explained above, the district court had no power to proceed with a rule-of-reason claim after procedendo issued in Mueller II. ___________________________ dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise: (1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. Fed. R. Civ. P. 23(e)(1) (emphasis added). As the drafters explained, the purpose of the 2003 amendment was to remove the requirement of precertification notice to putative class members: Rule 23(e)(1)(A) resolves the ambiguity in former Rule 23(e)’s reference to dismissal or compromise of “a class action.” That language could be—and at times was—read to require court approval of settlements with putative class representatives that resolved only individual claims. See Manual for Complex Litigation Third, § 30.41. The new rule requires approval only if the claims, issues, or defenses of a certified class are resolved by a settlement, voluntary dismissal, or compromise. Fed. R. Civ. P. 23(e)(1) advisory committee’s note to 2003 amendments. Some federal courts have continued to favor notifying putative class members of proposed dismissals without class certification under circumstances not presented here. “Case law addressing pre-certification notice generally takes a flexible approach framed by two guiding principles: (1) the lack of collusion or bad faith, and (2) the existence of any reasonable reliance [of] putative class members.” Griffith v. Javitch, Block & Rathbone, LLP, 241 F.R.D. 600, 602 (S.D. Ohio 2007); see also In re Conagra Foods, Inc., CV 11–05379 MMM (AGRx), 2014 WL 12579572, *6 (C.D. Cal. 2014) (allowing voluntary dismissal without notice to putative class members and stating, “[a]bsent any indication that these plaintiffs actually appended class allegations in an attempt to get favorable individual settlements, there is no reason to require notice . . . as a deterrent to hypothetical abusive plaintiffs” (emphasis omitted) (quoting Diaz v. Trust Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 1989))). Plaintiffs’ counsel vigorously litigated this case without any settlement or hint of collusion with Wellmark. And any concern that putative class members relied on this civil action is ameliorated by the fact the same plaintiffs’ counsel have already filed Chicoine, another pending putative class action of Iowa chiropractors asserting rule-of-reason claims against Wellmark. See Iowa R. Civ. P. 1.277 (“The statute of limitations is tolled for all class members upon the commencement of an action asserting a class action.”). Any dispute over tolling or res judicata would be addressed in that case. 17 This civil action between the named parties had ended. Accordingly, we sustain the writ of certiorari. WRIT SUSTAINED. All justices concur except Appel, J., who takes no part.

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125054/

KEN PAXTON ATTORNEY GENERAL OF TEXAS March 9, 2015 The Honorable Abelino Reyna Opinion No. KP-0010 McLennan County Criminal District Attorney 219 North 6th Street, Suite 200 Re: Programs to which jurors may donate Waco, Texas 76701 their juror reimbursement under subsection 61.003(a)(4) of the Government Code (RQ-1224-GA) Dear Mr. Reyna: You ask whether subsection 61.003(a)(4) of the Government Code restricts the programs allowed to be considered by jurors for donation of jury reimbursements to only juror counseling programs.' Section 61.003 authorizes programs to which a juror may donate the juror's daily reimbursement. See TEX. Gov'T CODE ANN.§ 61.003(a) (West 2013). Subsections (a)(l)-(3) list specific categories of funds and services to which a juror's donation is permitted. See id. § 61.003(a)(l) (crime victims), (2) (child welfare and protective services), (3) (shelter and services to victims of family violence). Subsection 61.003(a)(4) provides that a juror may donate his or her daily reimbursement to any other program approved by the commissioners court of the county, including a program established under Article 56.04(f), Code of Criminal Procedure, that offers psychological counseling to jurors in criminal cases involving graphic evidence or testimony. Id. § 6 l.003(a)(4). -You assert the language of the provision is ambiguous because of the final comma, and you question whether the phrase "that offers psychological counseling to jurors in criminal cases involving graphic evidence or testimony" modifies "a program established under Article 56.04(f), Code of Criminal Procedure" or "any other program approved by the commissioners court of the county." Request Letter at 1. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013). '"Legislative intent is best revealed in legislative language."' In re Office of Att'y Gen., 422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding) (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 1 See Letter from Honorable Abelino Reyna, McLennan Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Sept. 22, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Abelino Reyna - Page 2 (KP-0010) 2009)). Statutory words and phrases "shall be read in context and construed according to the rules of grammar and common usage." TEX. Gov'T CODE ANN. § 311.0ll(a) (West 2013). Relevant to the structure of subsection 61.003(a)(4), the doctrine of the last antecedent provides that "a qualifying phrase in a statute . . . must be confined to the words and phrases immediately preceding it to which it may, without impairing the meaning of the sentence, be applied." Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000); accord In re Guardianship of Finley, 220 S.W.3d 608, 615 (Tex. App.-Texarkana 2007, no pet.). "Such words, phrases, and clauses are not to be construed as extending to or modifying others which are more remote." Jn re Guardianship of Finley, 220 S. W .3d at 615 (quotation marks omitted). The exception to the doctrine is that when "several words are followed by a clause which is as much as applicable to the first and other words as to the last, the clause should be read as applicable to all." Id. (quotation marks omitted). Under this doctrine, the phrase "that offers psychological counseling to jurors in criminal cases involving graphic evidence or testimony" should be construed to modify only the immediately preceding phrase "a program established under Article 56.04(f), Code of Criminal Procedure" and not as a limitation on the first phrase "any other program approved by the commissioners court of the county" for several reasons. TEX. Gov'T CODE ANN. § 61.003(a)(4) (West 2013). First, the fact that article 56.04(f) authorizes a commissioners court to authorize a program identical to that which is described in the last phrase suggests that the last phrase describes the program identified in the immediately preceding phrase and is not as directly applicable to the first phrase. TEX. CODE CRIM. PROC. ANN. art. 56.04(f) (West Supp. 2014). Second, the final comma acts in conjunction with the immediately preceding comma to identify and separate the referenced statutory code from the article number and the descriptive phrase. The two commas setting off "Code of Criminal Procedure" are merely a preferred method of referring to article 56.04(f) of the Code of Criminal Procedure. See TEX. LEGISLATIVE COUNCIL DRAFTING MANUAL § 7.61 (Aug. 2014) at 120 (providing examples of citations for Texas Codes, all of which show the particular code set off with commas). 2 The language of subsection 61.003(a)(4) supports this construction in its use of the term "including." TEX. Gov'T CODE ANN. § 61.003(a)(4) (West 2013). The Code Construction Act informs us the term "including" is typically a term of "enlargement." Id. § 311.005(13). The use of the term here indicates that the entire phrase after "any other program approved by the commissioners court" is intended to be one of enlargement or expansion. Id. § 61.003(a)(4). Moreover, a construction of the last phrase as the only program that could be approved for juror donation would essentially render the first phrase meaningless because under such a construction the commissioners court would not have the authority to approve "any other program." Id. Courts will avoid construing a statute in a way that renders its language meaningless. See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284-85 (Tex. 1999); see also Tex. Workers' Comp. Ins. Fund v. Del Indus. Inc., 35 S.W.3d 591, 593 (Tex. 2000) (acknowledging presumption that "each sentence, clause and word [in a statute] is to be given effect ifreasonable and possible" (quotation marks omitted)). If the Legislature intended the only program that could be approved by the commissioners court to be a juror psychological counseling 2 Available at http://www.tlc.state.tx.us. The Honorable Abelino Reyna - Page 3 (KP-0010) program, it could have drafted its 2007 amendment of subsection 61.003(a)(4) to achieve that result by deleting the authority for a commissioners court to approve "any other program." It did not do so. See Act of May 25, 2007, 80th Leg., R.S., ch. 1378, § 5, 2007 Tex. Gen. Laws 4713, 4715. Instead, the Legislature retained the language giving the commissioners court authority to choose "any other program" and added authority to allow donations to a juror counseling program. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (relying on the principle of statutory construction that the Legislature knows how to enact law effectuating its intent). Our construction gives effect to all of the language in subsection 61.003(a)(4). For these reasons, we conclude that subsection 61.003(a)(4) of the Government Code does not limit the donation of juror reimbursements to only juror counseling programs. The Honorable Abelino Reyna - Page 4 (KP-0010) SUMMARY Subsection 61.003(a)(4) of the Government Code does not limit the donation of juror reimbursements to only juror counseling programs. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee CHARLOTTE M. HARPER Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127398/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General ------------------------------ : OPINION : : of : No. 87-102 : JOHN K. VAN DE KAMP : JUNE 2, 1987 : RODNEY O. LILYQUIST : Deputy Attorney General : : ----------------------------------------------------------------- THE HONORABLE GEORGE DEUKMEJIAN, GOVERNOR OF CALIFORNIA, has requested an opinion on the following questions: 1. Is the disclosure duty of a designated government employee specified in Health and Safety Code section 25180.7 applicable with respect to information obtained prior to January 1, 1987? 2. What information and knowledge must a designated government employee have in order to be subject to the disclosure duty specified in Health and Safety Code section 25180.7? 3. What must be proved to sustain a criminal conviction for the failure to disclose information required by Health and Safety Code section 25180.7? CONCLUSIONS 1. The disclosure duty of a government employee specified in Health and Safety Code section 25180.7 is inapplicable with respect to information obtained prior to January 1, 1987. 2. The information and knowledge a designated government employee must have in order to be subject to the disclosure duty specified in Health and Safety Code section 25180.7 are information that an illegal discharge of a hazardous waste has occurred or is threatened in the geographical area of his jurisdiction and the knowledge that it is likely to cause substantial injury to the public health or safety. 3. Proof beyond a reasonable doubt that the designated government employee knowingly and intentionally failed to disclose the information required by Health and Safety Code section 25180.7 must be established in order to sustain a criminal conviction. ANALYSIS On November 4, 1986, the voters of California approved the Safe Drinking Water and Toxic Enforcement Act of 1986 ("Act"). This initiative measure, Proposition 65, amended and added sections to the Health and Safety Code1 concerning the discharge of hazardous waste. Among the added statutory provisions was section 25180.7: "(a) Within the meaning of this section, a 'designated government employee' is any person defined as a 'designated employee' by Government Code Section 82019, as amended. "(b) Any designated government employee who obtains information in the course of his official duties revealing the illegal discharge or threatened illegal discharge of a hazardous waste within the geographical area of his jurisdiction and who knows that such discharge or threatened discharge is likely to cause substantial injury to the public health or safety must, within seventy-two hours, disclose such information to the local Board of Supervisors and to the local health officer. No disclosure of information is required under this subdivision when otherwise prohibited by law, or when law enforcement personnel have determined that such disclosure would adversely affect an ongoing criminal investigation, or when the information is already general public knowledge within the locality affected by the discharge or threatened discharge. "(c) Any designated government employee who knowingly and intentionally fails to disclose information required to be disclosed under subdivision (b) shall, upon conviction, be punished by imprisonment in the county jail for not more than one year or by imprisonment in state prison for not more than three years. The court may also impose upon the person a fine of not less than five thousand dollars ($5,000) or more than twenty-five thousand dollars ($25,000). The felony conviction for violation of this section shall require forfeiture of government employment within thirty days of conviction. "(d) Any local health officer who receives information pursuant to subdivision (b) shall take appropriate action to notify local news media and shall make such information available to the public without delay." We are asked whether this statute is applicable with respect to information obtained 1 All statutory references hereafter to the Health and Safety Code are by section number only. 2. 87-102 prior to January 1, 1987, what information and knowledge is necessary to establish the disclosure duty, and what must be proved to sustain a criminal conviction. 1. Information Obtained Prior to January 1, 1987 Statutes added by an initiative measure are normally effective the day after the election. (Cal. Const., art. 2, § 10.) The measure may, however, provide for a different effective date. Here, Proposition 65 provided: "This initiative shall take effect on January 1, 1987." (Cal. Ballot Pamp., Gen. Elect. (Nov. 4, 1986) p. 63.) It is clear that the disclosure duty of section 25180.7 did not arise until the initiative's effective date, January 1, 1987. (See Northgate Partnership v. City of Sacramento (1984) 155 Cal. App. 3d 65, 68-69; National Independent Business Alliance v. City of Beverly Hills (1982) 128 Cal. App. 3d 13, 21; Pugh v. City of Sacramento (1981) 119 Cal. App. 3d 485, 491; Kehrlein v. City of Oakland (1981) 116 Cal. App. 3d 332, 340.) As such, section 25180.7 is neither "retroactive" with respect to the disclosure duty nor an ex post facto law making punishable what was not criminal at the time of performance. (See People v. Weidert (1985) 39 Cal. 3d 836, 849; In re Jackson (1985) 39 Cal. 3d 464, 469; In re La Day (1985) 177 Cal. App. 3d 461, 463.) The issue remains, however, whether the duty to disclose that began January 1, 1987, arose with respect to information obtained prior to the effective date of section 25180.7. In answering this question, we may rely upon several well-established principles of statutory construction. A statute is to be interpreted by giving the words "their ordinary and generally accepted meaning." (People v. Castro (1985) 38 Cal. 3d 301, 310; accord People v. Craft (1986) 41 Cal. 3d 554, 560.) Rules of grammatical construction are to be followed. (See County of Los Angeles v. Graves (1930) 210 Cal. 21, 26; Addison v. Department of Motor Vehicles (1977) 69 Cal. App. 3d 486, 496 People v. One Chrysler Coupe (1941) 48 Cal. App. 2d 546, 549.) If possible, a sensible and practical approach is to be taken. (Valley Circle Estate v. VTN Consolidated, Inc. (1983) 33 Cal. 3d 604, 608-609; California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal. 3d 836, 844; Fields v. Eu (1976) 18 Cal. 3d 322, 328.) Statutes are to be interpreted so that they are internally consistent with the various parts harmonized and reconciled. (Moore v. Panish (1982) 32 Cal. 3d 535, 541; People v. Black (1982) 32 Cal. 3d 1, 5; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal. 3d 222, 230.) Returning to the language of subdivision (b) of section 25180.7, we find the following six elements of the duty to disclose: (1) Any designated government employee, 2 (2) who 2 A "designated government employee" is a "designated employee" as defined in Government Code section 82019. ( § 25180.7, subd. (a).) The Government Code provision states: "'Designated employee' means any officer, employer, member, or consultant of any [state or local government] agency whose position with the agency: 3. 87-102 obtains information in the course of his official duties,(3) revealing the illegal discharge or threatened illegal discharge of a hazardous waste, 3 (4) within the geographical area of his "(a) Is exempt from the state civil service system by virtue of subdivision (a), (c), (d), (e), (f), (g), or (m) of Section 4 of Article VII of the Constitution, unless the position is elective or solely secretarial, clerical, or manual. "(b) Is elective, other than an elective state office. "(c) Is designated in a Conflict of Interest Code because the position entails the making or participation in the making of decisions which may foreseeably have a material effect on any financial interest. "(d) Is involved as a state employee at other than a clerical or ministerial level in the functions of negotiating or signing any contract awarded through competitive bidding, in making decisions in conjunction with the competitive bidding process, or in negotiating, signing, or making decisions on contracts executed pursuant to Section 10122 of the Public Contract Code. "'Designated employee' does not include an elected state officer, any unsalaried member of any board or commission which serves a solely advisory function, any public official specified in Section 87200, and also does not include any unsalaried member of a nonregulatory committee, section, commission, or other such entity of the State Bar of California." Government Code section 87200 provides: "This article is applicable to elected state officers, judges and commissioners of courts of the judicial branch of government, members of the Public Utilities Commission, members of the State Energy Resources Conservation and Development Commission, members of the board of supervisors, district attorneys, county counsels, and chief administrative officers of counties, mayors, city managers, city attorneys, chief administrative officers and members of city councils of cities, and to candidates for any of these offices at any election." 3 Section 25117 provides: "'Hazardous waste' means a waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics either: "(a) Cause, or significantly contribute to an increase inmortality or an increase in serious irreversible, or incapacitating reversible, illness. 4. 87-102 jurisdiction, (5) and who knows that such discharge or threatened discharge is likely to cause substantial injury to the public health or safety, (6) must, within seventy-two hours, disclose such information to the local Board of Supervisors and to the local health officer. "Obtains" commonly means "to gain or attain possession or disposal of usually by some planned action or method." (Webster's New Internat. Dict. (3d ed. 1971), p. 1559.) "Obtains" is in the present tense, indicating present time or action as distinguished from the past tense ("obtained") and past perfect tense ("had obtained"). Moreover, to comply with the statutory duty, the employee is required to make disclosure within 72 hours of obtaining the information with the requisite knowledge. Such a time limitation does not suggest that the information may be 10, 20, or 30 years out of date. All the words of the statute, including "obtains," "revealing," "knows," "is," and "within seventy-two hours," are consistent with the determination that the information be obtained on and after January 1, 1987, for the statute to apply. We thus believe that with respect to whether section 25180.7 applies to information obtained prior to January 1, 1987, the statute is plain and unambiguous; the answer is "no." In such circumstances we do not add words to the statute so as "(b) Pose a substantial present or potential hazard to human health or environment when improperly treated, stored transported, or disposed of, or otherwise managed. Unless expressly provided otherwise, the term 'hazardous waste' shall be understood to also include extremely hazardous waste." Section 25122 provides: "'Waste' means either of the following: "(a) Any material for which no use or reuse is intended and which is to be discarded. "(b) Any recyclable material [defined in section 25122.5]." Section 25115 provides: "'Extremely hazardous waste' means any hazardous waste or mixture of hazardous wastes which, if human exposure should occur, may likely result in death, disabling personal injury or serious illness caused by the hazardous waste or mixture of hazardous wastes because of its quantity, concentration, or chemical characteristics." "Hazardous waste" is distinguishable from "hazardous substances" and "hazardous material." (See § 25501.) 5. 87-102 to cover prior periods. (See People v. Boyd (1979) 24 Cal. 3d 286, 294; Great Lakes Properties v. City of El Segundo (1977) 19 Cal. 3d 152, 155; Solberg v. Superior Court (1977) 19 Cal. 3d 182, 198.) Nothing in the ballot pamphlet proposing the adoption of section 25180.7 suggests a different conclusion. In answer to the first question, therefore, we conclude that the disclosure duty of a designated government employee specified in section 25180.7 is inapplicable with respect to information obtained prior to January 1, 1987. 2. Information and Knowledge The second question asks what information and knowledge a designated government employee must have to be subject to the disclosure requirements of section 25180.7. Section 25180.7 requires both "information" of some things and "knowledge" of other things to trigger the disclosure requirement. The employee must obtain information which reveals "the illegal discharge or threatened illegal discharge of a hazardous waste within the geographical area of his jurisdiction" and must know that "such discharge or threatened discharge is likely to cause substantial injury to the public health or safety." Both the requisite information and the requisite knowledge must exist in the mind of the employee before the duty to disclose arises. The second element of the disclosure requirement speaks of one "who obtains information." Webster's Third New International Dictionary (Webster) defines information as: "something received or obtained through informing: as a: knowledge communicated by others or obtained from investigation, study or instruction b: knowledge of a particular event or situation : intelligence, news, advices (latest information from the battle front) (securing information about conditions in the upper atmosphere) (information bureau) c: facts or figures ready for communication or use as distinguished from those incorporated in a formally organized branch of knowledge : data (reliable source of information)." Webster's New World Dictionary (2d College Ed.1982) observes that: "Information applies to facts that are gathered in any way, as by reading, observation, hearsay, etc. and does not necessarily connote validity [inaccurate information]". Thus information is that which a person obtains by personal perceptions or from others which makes him or her aware of a particular event or situation. Information may be accurate or false. It is the data the mind receives about an event or situation. Applying this definition to Section 25180.7's information requirement, we note first that it is only information which the employee obtains "in the course of his official duties" that can trigger the disclosure requirement. This simply means that the information is obtained by the employee when he or she is on duty and not during off duty hours, vacation or other absences. It does not 6. 87-102 require that there be a law, regulation or order that the employee obtain the information or do something with it. The employee must "obtain" the information. We have already noted that Webster defines obtain: "to gain or attain possession or disposal of usually by some planned action or method." In the context of section 25180.7 we think that obtain refers to mental awareness of the information rather than physical possession of any physical record of the information. Next we note that the information must "reveal" certain things. Webster defines reveal as "to open up to view: show plainly and clearly." The thing which the information must reveal is the discharge of a hazardous waste or the threatened discharge of a hazardous waste. Further the information must reveal that such discharge is both "illegal" and located within the geographical area of the employee's jurisdiction. Section 25180.7 requires that there be a "discharge," actual or threatened, of a hazardous waste. Discharge is not defined by the statute. Webster defines discharge as a "release from confinement." In the context of section 25180.7 we think discharge refers to a release of the hazardous waste from a place of safe confinement into an environment where it may cause harm to humans. Finally, the information must reveal that the discharge or threatened discharge of the hazardous waste is "illegal." This means that the illegality of the discharge must be revealed by the information obtained by the designated government employee. To sum up, the information required by section 25180.7 to give rise to a duty to report must make a designated governmental employee aware, while he or she is on duty, of the discharge or threatened discharge of a hazardous waste within the geographical area of the employee's jurisdiction which discharge is illegal. The more difficult question concerns the knowledge element of section 25180.7, subdivision (b). To "know" the existence of a fact is "to have perception, cognition, or understanding of" or "to recognize the quality of, see clearly the character of, discern." (Webster's, supra, p. 1252; see People v. Calban (1976) 65 Cal. App. 3d 578, 584; 1 Witkin, Cal. Crimes (1985 Supp.) § 58, p. 84.) Here, the employee must know of the likelihood of substantial injury. The statute does not state, for example, that the employee "should have known" of such probability or had "reasonable suspicion" thereof. How does one "know" the existence of a fact as a practical matter? One leading authority on criminal law has observed: "'Absolute knowledge can be had of very few things,' said the Massachusetts court, and the philosopher might add 'if any.' For most practical purposes 'knowledge' is 'not confined to what we have personally observed or to what we have evolved by our own cognitive faculties.' Even within the domain of the law itself the 7. 87-102 word is not always employed with exactly the same signification. Suppose a man has been told that a certain bill of exchange is a forgery and he believes the statement to be true. Does he have knowledge of this? Obviously not if the purpose of the inquiry is to determine whether he is qualified to take the witness stand and swear that the instrument is false; but if he passes the bill as genuine he will be uttering a forged instrument with 'knowledge' of the forgery if his belief is correct. The need, therefore, is to search for the state of mind, or states of mind, which the courts have spoken of as 'knowledge' for the purpose of a particular case." (Perkins, Criminal Law (2d ed. 1969), p. 775, fns. omitted.) Other textbook writers have stated: "Much of the difficulty involved in ascertaining what, if any, state of mind, is required for a particular crime lies in the ambiguous meaning of the particular word or phrase used. Even 'knowingly' is not entirely clear: for instance, does one know a fact (e.g., that property is stolen) when he is 95% sure of it but not completely certain?" (1 La Fave & Scott, Substantive Criminal Law (1986) § 3.4, p. 299.) Knowledge may be attained either directly or indirectly. (Perkins, supra, p. 775.) Here the knowledge of the likelihood of substantial injury may be based in part upon experience or education received years previously. We find no limitation upon the source of the knowledge specified in section 25180.7, subdivision (b). Because of the knowledge requirement, one in receipt of false or erroneous information or one who has insufficient indication of reliability for the information received would not be required by section 25180.7 to disclose. In answer to the second question, therefore, we conclude that the information and knowledge a designated government employee must have in order to be subject to the disclosure duty specified in section 25180.7 are the receipt of information that an illegal discharge of a hazardous waste has occurred or is threatened in the geographical area of his jurisdiction and the knowledge that it is likely to cause substantial injury to the public health or safety.4 3. Proof of a Criminal Act Subdivision (c) of section 25180.7 provides for a fine of $5,000 to $25,000, imprisonment in county jail for up to one year or in state prison for up to three years, and forfeiture of government employment for a felony conviction of "knowingly and intentionally fail[ing] to 4 The employee must, of course, also determine whether the exemptions from disclosure contained in the statute would be applicable. The language of the statutory exemptions is beyond the scope of this opinion. 8. 87-102 disclose information required to be disclosed under subdivision (b)." As is often stated, "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship (1970) 397 U.S. 358, 369; accord Sandstorm v. Montana (1979) 442 U.S. 510, 520; People v. Dillon (1983) 34 Cal. 3d 441, 472; People v. Harris (1985) 165 Cal. App. 3d 1246, 1263.) This constitutional principle is codified in Penal Code section 1096: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: 'It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.'" Subdivision (c) of section 25180.7 contains three essential elements in specifying the criminal conduct: (1) Any designated government employee, (2) who knowingly and intentionally (3) fails to disclose information required under subdivision (b) of the statute. The first element describes the subject, the second gives the intent, and the third specifies the act (of omission). Although "knowingly" is not defined in the Act, we believe that a court would apply the Penal Code definition of "knowingly" when construing the elements of a section 25180.7 criminal violation. Penal Code section 7 provides in part: "The word 'knowingly' imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such act or omission." As stated in People v. Daniel (1953) 118 Cal. App. 2d 340, 343, "'[K]nowingly' signifies knowledge of the existence of a fact or facts. . . . It has no reference to knowledge of the law." (See CALJIC No. 1.21 (1979 Rev.); People v. Calban, supra, 65 Cal. App. 3d 578, 584-585; Webster's, supra, p. 1252; 1 Witkin, supra, § 58, pp. 62-63.)5 5 One of the facts that must be obtained under subdivision (b) of section 25180.7 is that the discharge or threatened discharge be "illegal." It is not required, however, that the employee know his failure to disclose is illegal under subdivision (c) of the statute. 9. 87-102 "Intentionally" may be described as to act in a purposeful manner, with deliberateness and design. (Webster's, supra, p. 1176.) "'Intentionally' means done with intention of purpose, intended, designed." (People v. Cloward (1961) 196 Cal.App.2 669, 672; see People v. McCree (1954) 128 Cal. App. 2d 196, 202.) "Knowingly" and "intentionally" are distinguishable: "A person may lack knowledge and yet act intentionally or deliberately as where a person does an act through mistake or unawareness of fact as where a person makes a representation such as would constitute a basis for a charge of obtaining property by false pretenses, without knowledge of its falsity and under an honest belief that it is true or might intentionally pull the trigger of a firearm believing that it was not loaded. On the other hand a person may have knowledge of a fact but, inadvertently, may perform an act intentionally but inadvertently, not intending the act which he in fact performs as where a person, though knowing that one of the bills in his wallet is counterfeit, inadvertently pays it out while honestly intending to use a good bill." (Fricke & Alarcon, California Criminal Law (11th ed. 1977) pp. 31- 32.) Use of the words "knowingly and intentionally" in section 25180.7 precludes a conviction where the failure to disclose is accidental or due to misfortune (see Pen. Code, § 26; United States v. Murdock (1933) 290 U.S. 389, 394; People v. Calban, supra, 65 Cal. App. 3d 578, 584; Perkins, supra, p. 780), due to inattention, inadvertence, or forgetfulness (see Morrisette v. United States (1952) 342 U.S. 246, 270; People v. Peabody (1945) 46 Cal. App. 3d 43, 49; Perkins, supra, pp. 592, 782; 1 Witkin, supra, § 67, p. 71), due to negligence (see Pen. Code, §§ 7, 26; Morrisette v. United States, supra, 342 U.S. 246, 255; United States v. Murdock, supra, 290 U.S. 389, 394-395; People v. Peabody, supra, 46 Cal. App. 3d 43, 46; Perkins, supra, p. 780; 1 La Fave & Scott, supra, §§ 3.3, 3.5, pp. 290, 314; 1 Witkin, supra, § 65, pp. 69-70; Erwin, Millman, Monroe, Sevilla & Tarlow, Cal. Criminal Defense Practice (1986) § 140.02, p. 140-13, hereafter "Erwin"), due to ignorance or mistake of fact (see Pen. Code, § 26; Morrisette v. United States, supra, 342 U.S. 246, 270-271; Perkins, supra, pp. 772-779, 785-786, 935, 939; 1 La Fave & Scott, supra, § 5.3, pp. 289-290, 307, 315), due to coercion (see Pen. Code, § 26; United States v. Murdock, supra, 290 U.S. 389, 394, Perkins, supra, pp. 949-961; 1 La Fave & Scott, supra, § 5.3, pp. 614-627; 1 Witkin, supra, § 155, p. 149), based on "strict liability" or "vicarious liability" (see Perkins, supra, pp. 784-789, 812-816; 1 La Fave & Scott, supra, §§ 3.8, 3.9, pp. 340-360; 1 Witkin, supra, § 62, p. 66-67; Erwin, supra, § 140.02, p. 140-14); or due to ignorance or mistake of law other than the terms of section 25180.7 (see Perkins, supra, pp. 935-938; 1 La Fave & Scott, supra, § 3.5, p. 315). Ignorance or mistake of law with respect to the provisions of section 25180.7 would not be a defense to the criminal charge. (See Morissette v. United States, supra, 342 U.S. 246, 271; People v. Snyder (1982) 32 Cal. 3d 590; 592-593; People v. Calban, supra, 65 Cal. App. 3d 578, 585; Perkins, supra, pp. 935-938; 1 La Fave & Scott, supra, § 3.3, pp. 289-291.) It must be recognized that "intentionally" is seldom used in criminal statutes and that "intent" and "knowledge" convey complex and esoteric concepts; artificial distinctions have lead 10. 87-102 to considerable confusion in this area of criminal law. (See Morissette v. United States, supra, 342 U.S. 246, 264-265; People v. Beaugez (1965) 232 Cal. App. 2d 650, 658, fn. 3; Perkins, supra, p. 778; 1 La Fave & Scott, supra, § 3.4, pp. 297-299; Erwin, supra, § 140.02, p. 140-11; 2 Witkin, supra, § 874, p. 820; Wasserstrom, Strict Liability in Criminal Law (1960) 12 Stan.L.Rev. 731; Roth, General versus Specific Intent; A Time for Terminological Understanding in California (1979) 7 Pepperdine L. Rev. 67.) While the foregoing analysis is thus necessarily general, the applicable rule concerning the interpretation of penal statutes is: "The defendant is entitled to the benefit of every reasonable doubt . . . as to the true interpretation of words or the construction of language used in a statute." (In re Tartar (1959) 52 Cal. 2d 250, 256-257; accord People v. Craft, supra, 41 Cal. 3d 554, 560; People v. Davis (1981) 29 Cal. 3d 814, 818.) Finally, we note the fact that circumstantial evidence and any reasonable inferences drawn from such evidence may be used to prove the elements of the offense described in section 25180.7, including the element of knowledge. (See People v. Williams (1971) 5 Cal. 3d 211, 215; People v. Bynum (1971) 4 Cal. 3d 589, 599; People v. Mosher (1969) 1 Cal. 3d 379, 395; People v. Patino (1979) 95 Cal. App. 3d 11, 27.) Where, however, evidence offered to establish an element of a crime consists principally of circumstantial evidence, "'the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.'" (People v. Bender (1945) 27 Cal. 2d 164, 175; accord People v. Salas (1976) 58 Cal. App. 3d 460, 472.) In answer to the third question, therefore, we conclude that proof beyond a reasonable doubt that the designated government employee knowingly and intentionally failed to disclose the information required by section 25180.7 must be established in order to sustain a criminal conviction. ***** 11. 87-102

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4149952/

Motion Granted; Order filed February 23, 2017 In The Fourteenth Court of Appeals ____________ NO. 14-17-00067-CV ____________ OCCIDENTAL ENERGY MARKETING, INC., Appellant V. WEST TEXAS LPG PIPELINE L.P., Appellee On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2014-73375 ORDER The parties filed a joint motion to include in camera documents in the clerk’s record in this appeal. According to the motion, the trial court entered a stipulated protective order that permitted the parties to designate certain materials as confidential. These documents were required to be filed electronically with the confidential portions redacted. The parties request that this court permit the parties to submit unredacted copies of these documents to the clerk of the court for inclusion in the appellate record. The motion is granted.  The parties are directed to make an electronic record of the unredacted documents on a compact disc and label the disc with this court’s cause number and the notation that the documents are to be included in the clerk’s record as in camera documents. The parties are directed to hand-deliver the compact disc to this court for inclusion in the record. The clerk of this court will maintain the disc for review by the court in camera. PER CURIAM Panel consists of Chief Justice Frost and Justices Donovan and Wise.

01-03-2023

03-03-2017

https://www.courtlistener.com/api/rest/v3/opinions/4111616/

IN THE SUPREME COURT, STATE OF WYOMING 2016 WY 126 OCTOBER TERM, A.D. 2016 December 28, 2016 CITY OF TORRINGTON, a Wyoming municipal corporation, Appellant (Petitioner), v. S-16-0107 LEROY P. SMITH, Z & W MILL INC., RUSSELL ZIMMER, TORRINGTON CONSERVATIVE CITIZENS, a Wyoming corporation, and WYOMING PUBLIC SERVICE COMMISSION, Appellees (Respondents). Appeal from the District Court of Goshen County The Honorable Steven K. Sharpe, Judge Representing Appellant: James A. Eddington, Jones & Eddington Law Offices, Torrington, Wyoming. Representing Appellee Public Service Commission: Peter K. Michael, Wyoming Attorney General; John G. Knepper, Chief Deputy Attorney General; Ryan T. Schelhaas, Division Deputy Attorney General; Karl D. Anderson, Senior Assistant Attorney General; Michael M. Robinson, Senior Assistant Attorney General. Argument by Mr. Robinson. Representing Appellees Leroy P. Smith, Z & W Mill Inc, Russell Zimmer, and Torrington Conservative Citizens: No appearance. Before BURKE, C.J., and HILL, DAVIS, and FOX, JJ, and Donnell, D.J. NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume. FOX, Justice. [¶1] The City of Torrington (the City) sought judgment declaring that it has the authority to set rates for electricity it provides to customers outside its corporate limits, and that it has broad discretion to utilize revenues from the provision of electricity for other City expenses. The district court determined that the Public Service Commission (PSC) has the exclusive jurisdiction to set rates for electricity provided by municipalities to customers outside the municipality’s limits and declined to rule on the question of the City’s expenditure of electricity revenues, holding that there was no justiciable controversy regarding that issue. We affirm. ISSUES [¶2] 1. Does the Public Service Commission have the exclusive jurisdiction to set rates for electricity provided to customers outside the municipality’s limits? 2. Is there a justiciable controversy regarding the City’s use of revenues from the sale of electricity? FACTS [¶3] The City owns and operates an electric utility that provides electrical service to approximately 3,500 customers. Twenty-three percent of those customers are outside the City limits. [¶4] The City sued Appellees Leroy P. Smith, Z & W Mill Inc., Russell Zimmer, and Torrington Conservative Citizens (collectively, the Citizens Group), seeking judgment declaring that it was authorized to set rates for electrical services it provided to customers outside the City limits, and that it had discretion to use revenue from the sale of electrical services for other City expenses. The Citizens Group moved to dismiss the action, arguing that the City had not presented a justiciable controversy. The district court denied the motion and ordered that the PSC be joined in the action [¶5] On cross motions for summary judgment, the City claimed that the laws authorizing municipalities to enact ordinances and enter into contracts to provide electricity outside municipal limits, Wyo. Stat. Ann. §§ 15-7-201, 15-7-203, and 15-7- 204(a)(iii) (LexisNexis 2015), grant it the power to set rates for all of its customers, whether in or out of its municipal borders. The PSC claimed that the power to set rates outside municipal borders is exclusively vested in the PSC pursuant to Wyo. Stat. Ann. §§ 37-1-101(a)(vi)(C) and (H)(II) (LexisNexis 2015). The district court found that the PSC “has jurisdiction over the rates and aspects of the City’s electric utility service provided to customers outside the City’s corporate limits . . . .” The district court also concluded that there was not a justiciable controversy between the City and the Citizens 1 Group and declined to rule on the question of whether the City was properly utilizing revenues from the sale of electricity. The City timely filed this appeal. STANDARD OF REVIEW [¶6] We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court’s ruling. In re Estate of Meyer, 2016 WY 6, ¶ 15, 367 P.3d 629, 634 (Wyo. 2016); Mont. Food, LLC v. Todosijevic, 2015 WY 26, ¶ 10, 344 P.3d 751, 754-55 (Wyo. 2015). Interpretation of statutory language is a question of law, which we also review de novo. Best v. Best, 2015 WY 133, ¶ 8, 357 P.3d 1149, 1151 (Wyo. 2015). DISCUSSION I. Does the Public Service Commission have the exclusive jurisdiction to set rates for electricity provided to customers outside the municipality’s limits? [¶7] The district court concluded that “the PSC has the authority to review and establish just and reasonable rates for all the City’s electric utility services provided to customers outside of the City’s corporate limits.” The City asserts on appeal that the district court erred as a matter of law, and it contends that Wyo. Stat. Ann. §§ 15-7-201 (allowing a city to enter into contracts to provide electricity to customers outside corporate limits), 15-7-203 (ratifying contracts for supply of electricity outside corporate limits), and 15-7-204(a)(iii) (granting a city the power to enact ordinances “providing for the rates to be charged customers of electric current”) give the City the authority to set electric utility rates for its customers outside the City’s corporate limits. The PSC argues that statutory language granting it “general and exclusive power to regulate and supervise” public utilities in Wyoming, Wyo. Stat. Ann. § 37-2-112 (LexisNexis 2015), and excluding only services provided within city limits from that grant, Wyo. Stat. Ann. § 37-1-101(a)(vi)(H)(II), vest it with the exclusive jurisdiction to set those rates. In interpreting statutes, this Court must endeavor to find the reasonable intent of the drafters. We begin by examining the ordinary and obvious meaning of the words employed according to their arrangement and connection. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and need not invoke our longstanding rules of statutory construction. Best, 2015 WY 133, ¶ 8, 357 P.3d at 1151-52 (citations omitted). “All statutes must be construed in pari materia; and in ascertaining the meaning of a given law, all statutes relating to the same subject or hav[ing] the same general purpose must be considered and 2 construed in harmony.” Thunderbasin Land, Livestock & Inv. Co. v. Cty. of Laramie Cty., 5 P.3d 774, 779 (Wyo. 2000); see also In re Estate of Meyer, 2016 WY 6, ¶ 21, 367 P.3d at 636; Wyo. Cmty. Coll. Comm’n, 2001 WY 86, ¶ 16, 31 P.3d 1242, 1249 (Wyo. 2001). “Moreover, we strive to avoid an interpretation that produces an absurd result, or that renders a portion of the statute meaningless.” Seherr-Thoss v. Teton Cty. Bd. of Cty. Comm’rs, 2014 WY 82, ¶ 19, 329 P.3d 936, 945 (Wyo. 2014) (citations omitted); see also Powder River Basin Res. Council v. Wyo. Oil & Gas Conservation Comm’n, 2014 WY 37, ¶ 42, 320 P.3d 222, 234 (Wyo. 2014). [¶8] Wyo. Stat Ann. § 37-2-112 grants the PSC the “general and exclusive power to regulate and supervise every public utility within the state . . . .” The parties do not dispute that the City is a “public utility” because it “owns, operates, leases, controls . . . [any] plant, property or facility for the generation, transmission, distribution, sale or furnishing to or for the public of electricity for light, heat or power . . . .” Wyo. Stat. Ann. § 37-1-101(a)(vi)(C). [¶9] In reviewing PSC rate-setting decisions, we have explained that “PSC is required to give paramount consideration to the public interest in exercising its statutory powers to regulate and supervise public utilities. The desires of the utility are secondary.” PacifiCorp v. Pub. Serv. Comm’n of Wyo., 2004 WY 164, ¶ 13, 103 P.3d 862, 867-68 (Wyo. 2004) (citations omitted). Rates shall be “just and reasonable,” Wyo. Stat. Ann. § 37-3-101 (LexisNexis 2015), and the PSC is empowered to determine whether rates meet this requirement. See Wyo. Stat. Ann. § 37-2-121 (LexisNexis 2015). The rationale underlying this grant of power to the PSC, and utility regulation in general, is known as the “regulatory compact.” In general, the compact is a theoretical agreement between the utilities and the state in which, as a quid pro quo for being granted a monopoly in a geographical area for the provision of a particular good or service, the utility is subject to regulation by the state to ensure that it is prudently investing its revenues in order to provide the best and most efficient service possible to the consumer. In exchange, the utility is allowed to earn a fair rate of return on its rate base. PacifiCorp, 2004 WY 164, ¶ 28, 103 P.3d at 871 (citations omitted); see also 64 Am. Jur. 2d Public Utilities § 16 (2011). [¶10] The Wyoming legislature carved out a limited exception to the PSC’s “general and exclusive power to regulate and supervise” utilities for “public utilities owned and operated by a municipality of the state of Wyoming, except as to that portion of a municipality owned and operated public utility, if any, as may extend services outside the corporate limits of a municipality . . . .” Wyo. Stat. Ann. § 37-1-101(a)(vi)(H)(II) 3 (emphasis added). The legislature’s intent is clear. The PSC has general and exclusive power to regulate utility services, except to the limited extent that a municipality provides such services to customers within its corporate limits. The City argues that “if the parties agree to rates in a contract, there is no need for the PSC to review, approve, regulate or supervise [the City] and its customers.” This may be true with respect to those customers who reside within the City limits, and who have the opportunity to influence municipal decisions, such as setting rates for utility services, when they cast their ballot. However, customers outside the City limits have no means to influence municipal decisions because they have no vote in municipal elections. As the PSC points out, “[w]ithout regulatory oversight from the [PSC], municipalities could subsidize their residents’ rates through increased rates on non-residents’ services.” [¶11] “The purpose of the authority of the PSC is to secure to the public all the advantages of competition in obtaining fair rates and good service and to protect the public from its disadvantages.” In re Rule Radiophone Serv., Inc., 621 P.2d 241, 246 (Wyo. 1980). The PSC serves that purpose for the customers outside the City, while the voters take on that function for those services provided within the City limits. Our reading of the statutes is consistent with our language in Tri-County Electric Association, Inc. v. City of Gillette, 584 P.2d 995, 1003 (Wyo. 1978), where we stated: At no time in the statutory history of municipal ownership and operation of an electric utility has a Wyoming city or town had authority to grant or deny the right to any utility to serve areas outside its corporate limits. That jurisdiction has been and still is solely vested in the P.S.C. [¶12] The City argues that several provisions in Title 15, granting powers to cities and towns, trump the regulatory scheme governing utilities. The City first relies upon Wyo. Stat. Ann. § 15-7-201, which provides that a city “may . . . supply electric current to persons . . . outside the corporate limits and enter into the necessary contracts upon the terms and under any rules and regulations as agreed upon by the parties.” The City claims that section 201 permits it to provide electrical service to customers outside the corporate limits pursuant to contract and that the terms it refers to include the amount it will charge for the electricity provided. We agree that the plain language of § 15-7-201 grants the City the authority to provide services to customers and to enter into contracts regarding that service. But the statute is silent as to the City’s authority to set rates. [¶13] Coffinberry v. Town of Thermopolis, 2008 WY 43, 183 P.3d 1136 (Wyo. 2008), upon which the City relies, does not provide support for the City’s position that power to set the rate it charges non-residents is implied by the grant of authority in § 15-7-201. The issue there was whether a municipality had statutory authority to hold a property owner liable for water, sewer, and sanitation service fees that were unpaid by his tenants. Id. at ¶ 2, 183 P.3d at 1137. The property owner had argued that the town could not 4 charge him unpaid utility fees because the relevant statutes did not specifically provide cities with the authority to charge “property owners” with service fees; instead, they used words such as “user,” “consumer,” and “inhabitant.” Id. at ¶ 9, 183 P.3d at 1139. In rejecting the property owner’s argument, we recognized that “the powers of a municipality are not necessarily limited to those expressly conferred but that a municipality may also exercise powers fairly and necessarily implied from the grant contained in the statute or constitutional provision.” Id. at ¶ 7, 183 P.3d at 1139 (emphasis omitted) (citing Coulter v. City of Rawlins, 662 P.2d 888, 894-95 (Wyo. 1983)). [¶14] The City asks us to conclude, as we did in Coffinberry, that “the long-recognized principle that statutory authority granted to cities and towns carries with it necessarily implied powers to carry out the purposes of the grant[,]” 2008 WY 43, ¶ 10, 183 P.3d at 1139-40, in this case, the power to set rates for electricity. The distinction between Coffinberry and the case at bar is that here there is a statute that unambiguously confers to the PSC the power to set rates for electricity used by customers outside a municipality. In Coffinberry, there was no analogous statute. We decline the City’s invitation to find an implicit power in § 15-7-201 when elsewhere the Wyoming statutes unambiguously grant the power to the PSC. See, e.g., Lance Oil & Gas Co. v. Wyo. Dep’t of Revenue, 2004 WY 156, ¶ 14, 101 P.3d 899, 903-04 (Wyo. 2004) (even assuming statute is ambiguous, result would be reached in light of other statutes relating to the same subject). Applying our rules of statutory construction to give effect to § 15-7-201, as well as to the statutes granting the PSC authority to regulate utilities, we hold that the City’s authority to enter into contracts regarding its supply of electricity outside the City limits does not override the PSC’s authority to set the rates for that service. [¶15] The argument that Wyo. Stat. Ann. § 15-7-204(a)(iii) specifically grants the City the power to set rates for its electricity customers also fails. That statute authorizes municipalities to “[e]nact ordinances . . . and establish rules and regulations . . . providing for the rates to be charged consumers of electric current either for lights, power or other purposes and for their collection.” Id. Again, we must read this provision in harmony with other provisions and, if possible, interpret statutes so as not to render any language meaningless. Seherr-Thoss, 2014 WY 82, ¶ 19, 329 P.3d at 945 (“[W]e strive to avoid an interpretation that produces an absurd result, or that renders a portion of the statute meaningless.”). The authority to “enact ordinances” that “provid[e] for the rates” does not explicitly grant power to the City to establish those rates. That power is granted to the City for customers within the City limits by Wyo. Stat. Ann. § 37-1-101(a)(vi)(H)(II), which excludes municipalities from the PSC’s jurisdiction; but that power is reserved to the PSC for customers outside the City limits. Id.; see supra ¶ 10. Any other reading of these two statutes would render Wyo. Stat. Ann. § 37-1-101(a)(vi)(H)(II) meaningless.1 1 Although not raised by the parties, we note that Wyo. Const. art. 13, §1(b) provides: 5 [¶16] The City next claims that Wyo. Stat. Ann. § 15-7-203 prohibits Title 37 from interfering with the City’s “specific statutory authority to contract and set rates for customers outside of its corporate limits.” (Emphasis in original.) The statute provides: Existing contracts ratified. Any contracts entered into by any city or town for supplying electric current outside its corporate limits are ratified and confirmed as valid and binding contracts, any other act or law to the contrary notwithstanding. Wyo. Stat. Ann. § 15-7-203. The City claims that it derives the “specific statutory authority to . . . set rates” from § 15-7-204(a)(iii). As we concluded above, that statute does not grant the City authority to set rates outside the municipal limits. See supra ¶ 15. Reading the statutes in pari materia, we conclude that the legislature granted the City the authority to provide electricity to customers outside the City limits via Wyo. Stat. Ann. § 15-7-201, but reserved the authority to determine an appropriate rate for the service provided outside the City limits to the PSC in Wyo. Stat Ann. §§ 37-2-112, 37-1-101(a)(vi)(C) and (a)(vi)(H)(II). The language of Wyo. Stat. Ann. § 37-1- 101(a)(vi)(H)(II) unambiguously grants the PSC exclusive regulatory power over all municipally-owned public utility services provided to customers outside the municipality’s corporate limits. [¶17] Wyo. Stat. Ann. §§ 15-7-201, 15-7-203, and 15-7-204, do not grant the City power to establish rates for those services. The district court did not err as a matter of law when it concluded that only the PSC has the authority to establish rates for municipal electricity customers located outside the City. II. Is there a justiciable controversy regarding the City’s use of revenues from the sale of electricity? [¶18] The City sought a declaration that Wyoming statutes authorize the City to transfer funds from its electrical department to other departments. The Citizens Group responded, alleging that there was no justiciable controversy between the parties, and the district court agreed. All cities and towns are hereby empowered to determine their local affairs and government as established by ordinance passed by the governing body, subject to referendum when prescribed by the legislature, and further subject only to statutes uniformly applicable to all cities and towns . . . . Title 37 establishes uniformly applicable utility regulation laws that are applicable to cities and towns, and thus the City’s authority to enact ordinances providing for rates is “subject to” those statutes. 6 [¶19] On appeal, the City argues that there is a justiciable controversy because, in the past, members of the Citizens Group have asked the county attorney to enforce the statutes in question and because the statutes directly affect the operation of the City. The Citizens Group did not respond. [¶20] The purpose of the Uniform Declaratory Judgments Act “is to settle and to afford relief from uncertainty and insecurity with respect to legal relations, and [it] is to be liberally construed and administered.” Wyo. Stat. Ann. § 1-37-114 (LexisNexis 2015).2 However, the Act does not create jurisdiction where it does not otherwise exist. Best, 2015 WY 133, ¶ 19, 357 P.3d at 1153-54; William F. West Ranch, LLC v. Tyrrell, 2009 WY 62, ¶ 11, 206 P.3d 722, 726 (Wyo. 2009). The elements to establish a justiciable controversy under the Uniform Declaratory Judgments Act are: 1. The parties have existing and genuine, as distinguished from theoretical, rights or interests. 2. The controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical or academic conclusion. 3. It must be a controversy the judicial determination of which will have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest, or, wanting these qualities to be of such great and overriding public moment as to constitute the legal equivalent of all of them. 4. The proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to engender a thorough research and analysis of the major issues. 2 The Uniform Declaratory Judgments Act, Wyo. Stat. Ann. §§ 1-37-101 through 1-37-115 (LexisNexis 2015) provides that: Any person . . . whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise, may have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations. Wyo. Stat. Ann. § 1-37-103. 7 Maxfield v. State, 2013 WY 14, ¶ 14, 294 P.3d 895, 899 (Wyo. 2013) (citing Carnahan v. Lewis, 2012 WY 45, ¶ 17, 273 P.3d 1065, 1071 (Wyo. 2012); Brimmer v. Thomson, 521 P.2d 574, 578 (Wyo. 1974)). “The difference between an abstract question [that is nonjusticiable] and a controversy contemplated by the Uniform Declaratory Judgments Act is one of degree . . . .” Cranston v. Thomson, 530 P.2d 726, 729 (Wyo. 1975). “Basically, the problem in each case is whether the facts alleged under all the circumstances show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the declaratory judgment.” William F. West Ranch, 2009 WY 62, ¶ 30, 206 P.3d at 733 (citing Cranston, 530 P.2d at 729; Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 959-960, 22 L. Ed. 2d 113 (1969)). [¶21] In William F. West Ranch, the plaintiffs sought declaratory judgment, claiming that the State was not regulating the production of water associated with coal bed methane extraction in compliance with Wyoming’s constitution or statutes, resulting in damage to their property. 2009 WY 62, ¶ 6, 206 P.3d at 725. This Court determined that the plaintiffs had sufficiently alleged that they had an interest which had been harmed, satisfying the first element of the Brimmer test: their property was affected by coal bed methane water. Id. at ¶ 25, 206 P.3d at 731. However, the facts did not satisfy the second element of the Brimmer test in that the plaintiffs did not show that the relief sought would remedy the situation. Id. at ¶ 26, 206 P.3d at 731-32. We concluded that because the relief sought by the plaintiffs was theoretical and would not have an immediate and real effect on them, they had not presented a justiciable controversy. Id. at ¶ 30, 206 P.3d at 733. [¶22] The City contends that its situation is similar to the situation in BJ Hough, LLC v. City of Cheyenne, 2012 WY 140, 287 P.3d 761 (Wyo. 2012). In Hough, the City of Cheyenne adopted an ordinance annexing certain property. Id. at ¶ 3, 287 P.3d at 763. Owners of properties surrounding the annexed parcel challenged the validity of that ordinance, seeking a declaratory judgment. Id. at ¶ 4, 287 P.3d at 764. Without applying the Brimmer factors, we determined that, while the landowners had no standing under the annexation statutes which granted owners of the annexed territory a right of appeal to the district court, id. at ¶ 11, 287 P.3d at 765, the adjacent landowners did have standing under the Uniform Declaratory Judgments Act to challenge the validity of the ordinance annexing the land at issue. Id. at ¶ 13, 287 P.3d at 766. We held that “the Declaratory Judgment[s] Act is specifically designed to bring an action challenging the constitutionality or validity of local laws or ordinances.” Id. at ¶ 12, 287 P.3d at 765 (citations omitted). [¶23] Our examination of the allegations contained in the City’s petition reveals that the City’s situation is not analogous to the situations in Hough or even William F. West Ranch. In those cases, the citizens brought declaratory judgment actions to challenge the government’s specific conduct. The Declaratory Judgments Act does not grant the 8 authority for the government to challenge citizens’ readings of the law just because a citizen may take issue with the government’s interpretation of that law in a public meeting or elsewhere. [¶24] The first Brimmer requirement requires that the “parties hav[e] existing and genuine, as distinguished from theoretical, rights or interests.” Brimmer, 521 P.2d at 578. While the City may desire court ratification of its method of allocating proceeds from its sale of electricity, the City has not alleged a tangible interest that has been harmed; nor has the City established that the Citizens Group has anything other than a “theoretical” interest. If the City’s assertion that the Citizens Group has “taken positions contrary to [the City] regarding the statutes at issue” qualified as an “existing and genuine” interest, there would be no end to declaratory judgment actions by governmental entities. [¶25] Brimmer’s second prong requires that the “controversy must be one upon which the judgment of the court may effectively operate.” Id., 521 P.2d at 578. We have explained that “[t]he first two elements of the Brimmer test are inextricably linked: if a plaintiff fails to allege that an interest has been harmed, a judicial decision cannot remedy a nonexistent harm.” Vill. Rd. Coalition v. Teton Cty. Hous. Auth., 2013 WY 38, ¶ 16, 298 P.3d 163, 169 (Wyo. 2013). Because the City has alleged no harm, the courts could fashion no remedy. There is no controversy the judicial determination of which would have the effect of a final judgment; and these proceedings are “a mere disputation,” thus, the third and fourth Brimmer prongs are also not satisfied. We agree with the district court’s conclusion that the City has failed to assert a justiciable controversy, and any decision on the City’s spending of electrical revenues would be advisory. CONCLUSION [¶26] Wyoming Statutes §§ 37-1-101(a)(vi)(C) and (H)(II) clearly and unambiguously grant the PSC the exclusive power to set rates for electricity provided to customers outside the City corporate limits. The City has not established that there is a justiciable controversy between the City and the Citizens Group, as required pursuant to the Uniform Declaratory Judgments Act, and therefore the district court correctly declined to rule on the question of whether the City was properly utilizing funds it obtained from the sale of electricity. Affirmed. 9

01-03-2023

12-28-2016

https://www.courtlistener.com/api/rest/v3/opinions/4288708/

Fourth Court of Appeals San Antonio, Texas June 22, 2018 No. 04-18-00103-CV WESTWIND HOMES d/b/a Westwind Development, G.P.-Laredo, LLC, and Centerpoint Energy Resources Corp, Appellants v. Fernando RAMIREZ and Minerva Ramirez, Appellees From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2015CVT003262-D4 Honorable Oscar J. Hale, Jr., Judge Presiding ORDER On May 15, 2018, this court abated this appeal to allow the parties to mediate. On June 18, 2018, the mediator filed a letter in this court stating the parties did not reach a resolution during mediation; however, the mediator further stated he did not believe the negotiations are at an impasse. This appeal is REINSTATED on the docket of this court. Pending before the court is the court reporter’s notification of late record. Appellants are ORDERED to file a written advisory in this court no later than ten days from the date of this order providing the status of the parties’ negotiations and advising the court as to whether the parties request additional time to negotiate or whether the court should set a deadline for the filing of the reporter’s record. _________________________________ Rebeca C. Martinez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 22nd day of June, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court

01-03-2023

06-26-2018

https://www.courtlistener.com/api/rest/v3/opinions/4289025/

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 8 WAL 2018 : Respondent : : Petition for Allowance of Appeal from : the Order of the Superior Court v. : : : BLAISE P. TUNSTALL, : : Petitioner : ORDER PER CURIAM AND NOW, this 27th day of June, 2018, the Petition for Allowance of Appeal is DENIED.

01-03-2023

06-27-2018

https://www.courtlistener.com/api/rest/v3/opinions/4397471/

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT FEDNEL DAVID, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D18-2689 [May 16, 2019] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No. 2016CF008106AMB. Carey Haughwout, Public Defender, and Jeffrey Anderson, Assistant Public Defender, West Palm Beach, for appellant. Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Affirmed. GERBER, C.J., MAY and CONNER, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.

01-03-2023

05-16-2019

https://www.courtlistener.com/api/rest/v3/opinions/4125032/

KEN PAXTON ATTORNEY GENERAL OF TEXAS August 10, 2015 The Honorable Anna D. Hord Opinion No. KP-0032 Hockley County Attorney 802 Houston, Suite 211 Re: Whether an independent school district Levelland, Texas 79336 police chief may simultaneously serve as a constable in the precinct in which the school district is located (RQ-0012-KP) Dear Ms. Hord: You tell us that the school district chief of police has submitted his name to the county commissioners court for appointment to a vacant constable position for the precinct that serves the school district. 1 Concerned that the two positions might be incompatible, you ask whether the chief of police of an independent school district may simultaneously hold the office of constable in the precinct in which the school district is located. Request Letter at 1. Incompatibility of office derives from the Texas Constitution and the common law. Article XVI, section 40 of the Texas Constitution provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." TEX. CONST. art. XVI, § 40. This prohibition applies if both positions are civil offices that are entitled to an emolument. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). An emolument is "a. pecuniary profit, gain, or advantage." Id. We presume that both positions about which you ask are compensated, so we consider the nature of the two positions. For purposes of article XVI, section 40, a "civil office" is a "public office." See Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ . App.-Beaumont 1966, writ refd n.r.e.) ("We see no difference in the meaning of public office and civil office."); see also Tex. Att'y Gen. Op. Nos. GA-0214 (2004) at 2, JM-480 (1986) at 1, MW-415 (1981) at 1-2. A public officer is one upon whom "any sovereign function of the government" has been conferred "to be exercised by him for the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). The A/dine analysis involves a determination of whether the actions and decisions of the officer are subject to the control of others, and whether the employment may be terminated at will by a superior body: It cannot be said that an officer 1 See Letter from Honorable Anna D. Hord, Hockley Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at I (Feb. 9, 2015), https://texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Anna D. Hord - Page 2 (KP-0032) subject to such control exercises authority "largely independent of the control of others." Id. at 583; see also Tex. Att'y Gen. Op. Nos. GA-0688 (2009) at 2, GA-0393 (2006) at 3. Relevant here, opinions from this office have already addressed the nature of both of the positions about which you ask. We have consistently determined that the office of constable is a public office within the scope of article XVI, section 40. See Tex. Att'y Gen. Op. Nos. GA-0540 (2007) at 2, GA-0402 (2006) at 1. Moreover, we have previously determined that the office of a school district police chief is not a public office to which article XVI, section 40 applies because the school district police chief answers to, and is subject to the control of, the school board and the superintendent. See Tex. Att'y Gen. Op. No. GA-0688 (2009) at 2; TEX. Eouc. CODE ANN. § 37.081(a), (e), (f) (West Supp. 2014) (detailing that the scope of a peace officer's duties are established by the independent school district's board of trustees and providing that that chief of police "shall be accountable to the superintendent and shall report to the superintendent"); see also Tex. Att'y Gen. Op. No. DM-212 (1993) at 2, 5. Accordingly, a school district police chief is not prohibited by the constitution from simultaneously holding the office of constable in the precinct in which the school district is located. The common-law doctrine of incompatibility has three aspects: self-appointment, self- employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-1083 (2014) at 2. Because neither office involved here hires, employs, or supervises the other, the dispositive issue involves the conflicting-loyalties aspect. See Tex. Att'y Gen. Op. No. GA-0688 (2009) at 1. Yet, as with article XVI, section 40, conflicting-loyalties incompatibility applies only when the two positions are both officers under the Aldine analysis. See Tex. Att'y Gen. Op. No. GA-0393 (2006) at 3. The fact that a school district chief of police is not a public officer warrants the same conclusion with respect to conflicting-loyalties incompatibility: The school district police chief is not prohibited from simultaneously serving as a constable in the school district's precinct. 2 2As a practical matter, the commissioners court, in appointing this individual to fill the constable vacancy, must determine whether the duties the individual must perform as a school district's police chief will impact his or her ability to adequately serve as constable. See generally Tex. Att'y Gen. Op. No. GA-0569 (2007) at 3. The Honorable Anna D. Hord - Page 3 (KP-0032) SUMMARY Neither the Texas Constitution nor the common-law doctrine of incompatibility prohibits an independent school district police chief from simultaneously serving as a constable in the precinct in which the school district is located. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee CHARLOTTE M. HARPER Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125033/

KEN PAXTON ATTORNEY GENERAL OF TEXAS August 10, 2015 The Honorable Susan Hawk Opinion No. KP-0031 Dallas County District Attorney Frank Crowley Courts Building Re: Duty of a county to provide legal 133 North Riverfront Boulevard, LB 19 representation for a former county employee Dallas, Texas 75207-4399 under subsections 157.901(a) and (b) of the Local Government Code (RQ-0011-KP) Dear Ms. Hawk: You state that a former detention service officer has asked Dallas County "to employ and pay for private legal counsel to represent him in a civil suit" in federal court based on allegations that the officer had an "improper sexual relationship with an inmate of the Dallas County Jail" while employed by the county. 1 You further state that the alleged misconduct is the basis of a pending criminal charge in state court that your office has brought against the officer. Request Letter at 1. You ask whether "the Dallas County Commissioners Court [has] a legal duty to employ and pay for private legal counsel to represent the [detention service officer] in the civil suit under [Texas Local Government Code subsections] 157.901(a) and (b)[.]" Id. 2 Subsections 157.90l(a) and (b) provide: (a) A county official or employee sued by any entity, other than the county with which the official or employee serves, for an action arising from the performance of public duty is entitled to be represented by the district attorney of the district in which the county is located, the county attorney, or both. (b) If additional counsel is necessary or proper in the case of an official or employee provided legal counsel under Subsection (a) or if it reasonably appears that the act complained of may form the basis for the filing of a criminal charge against the official or employee, the official or employee is entitled to have the 1 Letter from Honorable Susan Hawk, Dallas Cnty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at I (Feb. 10, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2 Your question is about a commissioners court's duty to provide legal representation under section 157.901 of the Texas Local Government Code, not its discretionary authority to employ private counsel. The Honorable Susan Hawk - Page 2 (KP-0031) comm1ss1oners court of the county employ and pay private counsel. TEX. Loe. Gov'T CODE ANN. § 157.901(a)-(b) (West 2008). A county's duty to provide private legal counsel is addressed in subsection (b). See id.§ 157.901(b). Subsection (b) expressly refers to subsection (a) and, therefore, subsections (a) and (b) must be construed together. White v. Eastland Cnty., 12 S.W.3d 97, 101-02 (Tex. App.-Eastland 1999, no pet.). When a district or county attorney is providing representation in a suit described in subsection (a), subsection (b) may require the county to provide additional private counsel. TEX. Loe. Gov'T CODE ANN. § 157 .901 (b) (West 2008). Also, in an apparent attempt to avoid conflicts of interest, subsection (b) may require a county to provide private counsel when "it reasonably appears that the act complained of may form the basis for the filing of a criminal charge." Id. The "act complained of' refers to the acts that serve as the basis of a suit described in subsection (a). See id.; White, 12 S.W.3d at 102. Consequently, in either circumstance, subsection 157.901(b) requires a commissioners court to provide private counsel only when a county official or employee has been "sued . . . for an action arising from the performance of public duty." TEX. Loe. Gov'T CODE ANN. § 157.901(a) (West 2008). 3 Because the duty to employ or pay for legal representation in subsection 157.901(b) is placed on the commissioners court, it is the commissioners court that must determine, in the first instance and subject to judicial review, whether a suit against an official or employee "aris[es] from the performance of public duty" such that the county is required to employ and pay private counsel. Id. § 157.90l(b). No judicial opinion of which we are aware, however, states how a commissioners court is to determine whether a particular suit involves "an action arising from the performance of public duty." A prior opinion of this office addressing the predecessor statute to section 157.901 explained that the "suits must concern events occurring during the course of the public servant's performance of public duties within the scope of the authority of the public office or position." Tex. Att'y Gen. Op. No. JM-755 (1987) at 5 (construing former Revised Civil Statute article 332c). 4 While the provision was reworded in a non-substantive recodification, the phrase "arising from" in section 157.901(a) as it is currently written plainly requires a legal nexus between the "action" that is the basis of the suit and the public servant's "performance of public duty." 3 You characterize the detention service officer's employment status as "former," although you do not state when his employment ended. Request Letter at 1. Section 157.901 expressly applies only to a "county official or employee sued ... for an action arising from the performance of public duty." TEX. Loe. Gov'T CODE ANN. § 157.901(a) (West 2008). Although no judicial opinion has construed whether section 157.901 would apply to a former employee, it is unlikely that a court would allow a county to avoid its duty to fund representation of an official or employee because the official or employee was terminated or resigned after the action that serves as the basis of the suit occurred. 4 Former article 332c of the Revised Civil Statutes stated that a county was required to provide representation in a suit against a county official or employee "if the suit involves any act of the official or employee while in the performance of public duties." Act of May 30, 1977, 65th Leg., R.S., ch. 414, § 2, 1977 Tex. Gen. Laws 1116, 1116 (repealed 1987). The Honorable Susan Hawk - Page 3 (KP-0031) TEX. Loe. Gov'T CODE ANN. § 157.901(a) (West 2008). 5 A court is not likely to construe an "action arising from the performance of public duty" as including a claim for injury caused by a public servant acting wholly outside the course and scope of the servant's public position. See In re Reed, 137 S.W.3d 676, 679-80 (Tex. App.-San Antonio 2004, orig. proceeding) (stating that district attorney had no duty under section 157.901 to represent a justice of the peace in a civil proceeding based on an indecent exposure charge, because it was undisputed that the charge did not "afis[e] out of the performance of public duty"). 6 Moreover, a statute may not grant authority or impose a duty that the Texas Constitution prohibits. See Tex. Mun. League lntergov 'ti Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 3 81 (Tex. 2002). Thus, section 157.901 must be construed in light of any applicable constitutional limitations. City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex. 2009). Article III, section 52(a) of the Texas Constitution prohibits the Legislature from authorizing a county to gratuitously grant public funds for private purposes. TEX. CONST. art. III, § 52(a). Prior opinions of this office explain that a county or other political entity cannot constitutionally pay to provide private legal representation of its officials or employees unless the entity's governing body determines that the payment serves a legitimate interest of the entity, not merely the private interest of the official or employee. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0104 (2003) at 3; JC-0294 (2000) at 2-3; DM-488 (1998) at 2-3. Thus, section 157.901, when read in light of article III, section 52(a) of the Texas Constitution, does not require a commissioners court to pay for private legal representation of a county official or employee in a particular case when such payment does not serve a legitimate interest of the county. Whether paying public funds to provide a county official or employee with private legal representation will serve the legitimate interests of the county "is always a question of fact that must await the good faith determination of the governing body of the county ... in light of all relevant facts." Tex. Att'y Gen. Op. No. JM-1276 (1990) at 11. In sum, section 157.901 of the Local Government Code does not require a commissioners court to employ private counsel-to provide legal representation for a county official or employee unless the official or employee has been sued for an "action arising from the performance of public duty," and the commissioners court determines in good faith that such representation serves a legitimate interest of the county, not merely the private interest of the individual. 5 See LeLeaux v. Hamshire-Fannett Jndep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) (construing the phrase "aris[ing] from" in the Texas Tort Claims Act's waiver for injury arising from certain acts as requiring a nexus between the injury and the act); TD!ndus., Inc. v. Rivera, 339 S.W.3d 749, 754 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (examining pleadings to determine if a negligence claim "aris[ es] out of the provision of professional services" under subsection I 001.003( c) of the Occupations Code). 6 Cf Tex. & Pac. Ry. Co. v. Hagen/oh, 247 S.W.2d 236, 239 (Tex. 1952) ("It is not ordinarily within the scope ofa servant's authority to commit an assault on a third person."). The Honorable Susan Hawk - Page 4 (KP-0031) SUMMARY Section 157.901 of the Local Government Code does not require a commissioners court to employ private counsel to provide legal representation for a county official or employee unless the official or employee has been sued for an "action arising from the performance of public duty," and the commissioners court determines in good faith that such representation serves a legitimate interest of the county, not merely the private interests of the individual. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. HILL Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125285/

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 16 CA 16-00858 PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ. MALLORY C. EHLERS, PLAINTIFF-APPELLANT, V MEMORANDUM AND ORDER WILLIAM A. BYRNES, ALL ERECTION AND CRANE RENTAL CORP., DEFENDANTS-RESPONDENTS, ET AL., DEFENDANT. CHIACCHIA & FLEMING, LLP, HAMBURG (LISA POCH OF COUNSEL), FOR PLAINTIFF-APPELLANT. CARTAFALSA, SLATTERY, TURPIN & LENOFF, LLP, BUFFALO (BRIAN P. MINEHAN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. Appeal from an order of the Supreme Court, Erie County (Matthew J. Murphy, III, A.J.), entered July 14, 2015. The order granted the motion of defendants William A. Byrnes and All Erection and Crane Rental Corp. for summary judgment dismissing the complaint against them. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this action to recover damages for injuries allegedly sustained by plaintiff in an automobile accident, plaintiff appeals from an order granting the motion of William A. Byrnes and All Erection and Crane Rental Corp. (defendants) for summary judgment dismissing the complaint against them on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) under the categories alleged by plaintiff, i.e., the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories. We affirm. Contrary to plaintiff’s contention, we conclude that defendants met their initial burden with respect to the permanent consequential limitation and significant limitation of use categories by submitting the affirmed report of a physician who, upon examining plaintiff at defendants’ request, opined, inter alia, that plaintiff sustained a self-limiting cervicothoracic strain from which she would have recovered in a few weeks after the accident and that plaintiff’s other symptoms and complaints were related to a preexisting degenerative condition not caused by the accident (see Roll v Gavitt, 77 AD3d 1412, 1412). We agree with plaintiff that Supreme Court erred in declining to consider unsworn medical reports submitted in opposition to -2- 16 CA 16-00858 defendants’ motion, inasmuch as they were referenced and relied upon by defendants’ examining physician and thus were properly before the court (see Brown v Achy, 9 AD3d 30, 32). Nonetheless, upon our review and consideration of those reports and the entire record, we conclude that none of plaintiff’s submissions raises a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). To the extent that the opinion of plaintiff’s primary care physician that the accident triggered, aggravated, and/or exacerbated certain preexisting conditions is responsive to defendants’ prima facie showing of entitlement to judgment on these two categories, we conclude that the primary care physician’s opinion, even when read in combination with other records and reports, “failed to provide any basis for determining the extent of any exacerbation of plaintiff’s prior injuries” (Brand v Evangelista, 103 AD3d 539, 540; see Howard v Espinosa, 70 AD3d 1091, 1093-1094; Nowak v Breen, 55 AD3d 1186, 1188). Defendants also made a prima facie showing of the lack of a viable 90/180-day claim by relying on the aforementioned report of their examining physician and plaintiff’s deposition testimony that she returned to work after missing one day following the accident, missed about eight weeks from work after returning, and was not directed by her physicians to restrict her activities for the requisite period of time (see Reyes v Se Park, 127 AD3d 459, 461). In opposition, plaintiff failed to raise a triable issue of fact (see generally Zuckerman, 49 NY2d at 562). In light of the acknowledgment in plaintiff’s reply brief that prior to the accident she had received treatment for upper-back and neck pain, we need not address plaintiff’s contention that the court engaged in improper credibility assessment in the context of a summary judgment motion by comparing her deposition testimony to her chiropractic treatment records. Entered: February 10, 2017 Frances E. Cafarell Clerk of the Court

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125039/

KEN PAXTON ATTORNEY GENERAL OF TEXAS June 28, 2015 The Honorable Dan Patrick Opinion No. KP-0025 Lieutenant Governor of Texas Post Office Box 12068 Re: Rights of government officials involved Austin, Texas 78711-2068 with issuing same-sex marriage licenses and conducting same-sex wedding ceremonies (RQ-0031-KP) Dear Governor Patrick: On June 26, the United States Supreme Court held in Obergefell v. Hodges that there is now a constitutional right to same-sex marriage. No. 14-566 (2015). A federal district court for the Western District of Texas has now enjoined the State from enforcing Texas laws that define marriage as exclusively a union between one man and one woman. Before these events occurred, you asked whether-in the event the Texas definition of marriage is overturned-government officials such as employees of county clerks, justices of the peace, and judges may refuse to issue same-sex marriage licenses or conduct same-sex marriage ceremonies if doing so would violate their sincerely held religious beliefs. 1 In recognizing a constitutional right to same-sex marriage, the Supreme Court acknowledged the continuing vitality of the religious liberties people continue to possess. Id., slip op. at 27 ("[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."). In recognizing a new constitutional right in 2015, the Supreme Court did not diminish, overrule, or call into question the rights of religious liberty that formed the first freedom in the Bill of Rights in 1791. This newly minted federal constitutional right to same-sex marriage can and should peaceably coexist with longstanding constitutional and stah1tory rights, including the rights to free exercise of religion and freedom of speech. This opinion concludes: • County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses. The strength of any such claim depends on the particular facts of each case. 'Letter from Honorable Dan Patrick, Lt. Gov., to Honorable Ken Paxton, Tex. Att'y Gen. at I (June 25, 2015), https://www.texasattorneygeneral.gov/opiniou/requests-for-opinion-rqs. Post Office Box 12548, Austin, Texas 78711-2548 • (512) 463-2100 • \VW\V.texasattorncygcneral.gov The Honorable Dan Patrick - Page 2 (KP-0025) • Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive means of the government ensuring the ceremonies occur. The strength of any such claim depends on the particular facts of each case. I. County Clerks and Their Employees Marriage licenses in Texas are issued by county clerks, and one may obtain a marriage license from any county clerk regardless of where the applicant resides. See TEX. FAM. CODE ANN. § 2.00I(a) (West 2006) ("A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state."). The Family Code provides that the "county clerk shall ... execute the clerk's certificate on the application" if the application complies with the statutory requirements. Id. § 2.008(a). But the county clerk may delegate this duty to others. Under the Local Government Code, a deputy clerk "may perform all official acts that the county clerk may perform." TEX. Loe. Gov'T CODE ANN. § 82.005 (West 2008). Thus, under state law, a county clerk may delegate duties to deputy clerks, and deputy clerks have the authority but not the mandatory duty to perform the acts of the county clerk. 2 With this background in mind, the question is whether a clerk or a clerk's employees may refuse to issue a same-sex marriage license if doing so would violate their sincerely held religious beliefs. Such a question necessarily involves a variety of rights. The Supreme Court has now declared a right under the Fourteenth Amendment for same-sex couples to be married on the same terms as accorded to couples of the opposite sex. County clerks· and their employees possess constitutional and statutory rights protecting their freedom of religion. 3 And employees possess rights under state and federal law to be free from employment discrimination on the basis of religion. 4 The statutory rights protecting freedom ofreligion are known as the Religious Freedom 'County clerks that fail to comply with the man"iage license statute are subject to a fine of up to $500. TEX. FAM. CODE ANN.§ 2.102 (West 2006). 3 See U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ....");TEX. CONST. art. I, § 6 ("All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences.... No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion ...."); 42 U.S.C. § 2000bb-l(b) (2012) (only allowing a government to substantially burden a person's religious exercise if the burden is the least restrictive means of furthering a compelling governmental interest); TEX. C1v. PRAC. & REM. CODE ANN.§ 11 O.OOJ(b) (West 2011) (same). 4 See 42 U.S.C. §§ 2000e-2(a), (m) (2012) (making it unlawful for an employer to discriminate against any individual with respect to his religion); TEX. LAB. CODE ANN.§ 21.051(West2015) (same). Those laws exclude elected officials such as county clerks, justices of the peace, and judges from the definitions of"employee." 42 U.S.C. The Honorable Dan Patrick - Page 3 (KP-0025) Restoration Acts and require the government to use the least restrictive means to further a compelling government interest when substantially burdening a person's free exercise of religion. 5 Employment discrimination laws further provide that an employer must make a reasonable accommodation for an individual's religious beliefs or exercise so long as the accommodation does not impose an undue hardship on the employer. 6 A county clerk has a statutory right to delegate a duty to a deputy clerk, including the issuance of same-sex matTiage licenses that would violate the county clerk's sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government's least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license. See Slater v. Douglas Cnty., 743 F. Supp. 2d 1188, 1192-95 (D. Or. 2010) (refusing to grant summary judgment to a county that only offered to reassign an employee of a county clerk who refused on religious grounds to issue same-sex domestic partnership registrations rather than accommodating her request to not issue the registrations). Importantly, the strength of any claim under employment laws or the Religious Freedom Restoration Acts depends on the particular facts of each case. Courts have balanced similar competing rights in other contexts, and I believe they would likely do so here. 7 See, e.g., Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172, 1188-93 (W.D. Wash. 2012) (holding that a state law mandating the issuance of drugs violated pharmacists' religious beliefs, and that refusing to issue the drugs and referring to another pharmacist was a sufficient practice); Brady v. Dean, 790 A.2d 428, 435 (Vt. 2001) (holding that a town clerk appointing an § 2000e-2(f) (2012); TEX. LAB. CODE ANN. § 21.002(7) (West 2015). But the constitutional protections and the Religious Freedom Restoration Acts have no such exemption. 5 See supra note 3. 6 42 U.S.C. § 2000e(j) (2012) ("The term 'religion' includes all aspects ofreligious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."); TEX. LAB. CODE ANN.§ 21.108 (West 2015) ("A provision in this chapter referring to discrimination because of religion or on the basis of religion applies to discrimination because of or on the basis of any aspect of religious observance, practice, or belief, unless an employer demonstrates that the employer is unable reasonably to accommodate the religious observance or practice of an employee or applicant without undue hardship to the conduct of the employer's business."). 'Clerks and deputy clerks alike must take an oath of office. TEX. Loe. GOV'T CODE ANN. §§ 82.00l(d), .005(b) (West 2008). And the oath requires the official to swear to "preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God." TEX. CONST. art. XVI, § I. This oath does not change the above analysis because these officials are swearing to defend the same laws that both protect the newly- created constitutional right to same-sex marriage as well as the right to religious freedom. It would be curious indeed for an oath that ends with "so help me God" to mandate that the oath-taker set aside those very beliefs. The Honorable Dan Patrick - Page 4 (KP-0025) assistant clerk to issue same-sex marriage licenses did not impose a substantial burden on the town clerk's religious beliefs). Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution. If instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk "shall" issue marriage licenses to conforming applications. TEX. FAM. CODE ANN.§ 2.008(a) (West 2006). A court must balance this statutory duty against the clerk's constitutional rights as well as statutory rights under the Religious Freedom Restoration Acts. Second, a court must also weigh the constitutional right of the applicant to obtain a same-sex marriage license. Such a factually specific inquiry is beyond the scope of what this opinion can answer. In short, county clerks and their employees retain religious freedoms that may provide for certain accommodations of their religious objections to issuing same-sex marriage licenses--or issuing licenses at all, but the strength of any particular accommodation claim depends upon the facts. II. Justices of the Peace and Judges Texas law authorizes the following persons to conduct a marriage ceremony: (1) a licensed or ordained Christian minister or priest; (2) a Jewish rabbi; (3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony; (4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile comis, retired justice or judge of those courts, justice of the peace, retired justice of the peace, judge of a municipal court, retired judge of a municipal court, or judge or magistrate of a federal court of this state; and (5) a retired judge or magistrate of a federal court of this state. TEX. FAM. CODE ANN. § 2.202(a) (West Supp. 2014). These individuals are permitted to perform any marriage ceremony, but nothing in Texas law requires them to do so. The Family Code The Honorable Dan Patrick - Page 5 (KP-0025) provides that, "[ o]n receiving an unexpired marriage license, an authorized person may conduct the marriage ceremony as provided by this subchapter." Id. § 2.203(a) (emphasis added). The only statutory restriction on their authority is that they are "prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married." Id.§ 2.205(a) (West 2006) (emphasis added). Two aspects of this legal arrangement bear discussing. First, justices of the peace and judges are joined on the list of those authorized to conduct marriage ceremonies by four other types of persons not employed by state or local government. Second, as previous Attorney General opinions have demonstrated, judges and justices of the peace have no mandatory duty to conduct any wedding ceremony: "Although the Family Code authorizes justices of the peace and county judges, among others, to conduct a marriage ceremony, they are not required to exercise that authority .... " 8 Tex. Att'y Gen. Op. No. GA-145 (2004) at 6 (citation omitted); see also Tex. Att'y Gen. Op. Nos. DM-397 (1996) at 1, JM-22 (1983) at 1, S-70 (1953) at 1. 9 So long as other authorized individuals are willing to conduct same-sex wedding ceremonies, these statutory provisions demonstrate the practical reality that a refusal by a religiously objecting justice of the peace or judge cannot prevent a same-sex couple from participating in a wedding ceremony contemplated by state law. Under the Religious Freedom Restoration Acts, justices of the peace and judges may claim that the government forcing them to conduct a same-sex wedding ceremony over their religious objection, when other authorized individuals have no objection, is not the least restrictive means of the government ensuring that the ceremonies occur, assuming that is compelling governmental interest. Again, the strength of any such claim depends on the particular facts. 10 8 Under this second fact, justices of the peace and judges would be statutorily permitted to not conduct any wedding ceremonies. 9 These opinions built on the Texas Supreme Court's principle that an official may keep a fee they charge that is not part of their mandatmy official duty ofoffice. See, e.g., Moore v. Sheppard, 192 S.W.2d 559, 560 (Tex. 1946) ("The general principle prohibiting public officials from charging fees for the performance of their official duties does not prohibit them from charging for their services for acts that they are under no obligation, under the law, to perform."). 0 'Justices of the peace and judges likewise take an oath ofoffice. But as explained in footnote 7, supra, this does not necessarily obviate their religious freedom in this context. The Honorable Dan Patrick - Page 6 (KP-0025) SUMMARY County clerks and their employees retain religious freedoms that may provide accommodation of their religious objections to issuing same-sex marriage licenses. Justices of the peace and judges also may claim that the government forcing them to conduct same- sex wedding ceremonies over their religious objections, particularly when other authorized individuals have no objection to conducting such ceremonies, is not the least restrictive means of furthering any compelling governmental interest in ensuring that such ceremonies occur. Importantly, the strength of any particular religious- accommodation claim depends on the particular facts of each case. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125040/

KEN PAXTON ATTORNEY GENERAL OF TEXAS June 9, 2015 The Honorable Kevin P. Eltife Opinion No. KP-0024 Chair, Committee on Business and Commerce Texas State Senate Re: Construction of section 1304.1581 of the Post Office Box 12068 Occupations Code, governing cancellations Austin, Texas 78711-2068 and refunds of service contracts (RQ-0001-KP) Dear Senator Eltife: You ask about the cancellation and refund of a service contract. 1 Chapter 1304 of the Occupations Code governs the administration of service contracts, through which a service provider and a consumer enter into an agreement for the repair, replacement, or maintenance of a product, or for payment to repair, replace, or maintain a product for a specified period of time. See generally TEX. Occ. CODE ANN.§§ 1304.001-.205 (West 2012 & Supp. 2014) (Service Contract Regulatory Act). Section 1304.1581 governs the cancellation of such an agreement by the consumer and the refund to which he or she is entitled. Id § 1304.1581 (West 2012). Subsection 1304.1581(b)(l), applicable to cancellations within thirty days of purchase, states that a provider "shall refund to the service contract holder or credit to the account of the service contract holder the full purchase price of the contract, decreased by the amount of any claims 'paid under the contract." Id § 1304.1581(b)(l). Likewise, subsection 1304.1581(c)(l), applicable to cancellations made thirty-one or more days after purchase, states that a provider "shall refund to the service contract holder or credit to the account of the service contract holder the prorated purchase price of the contract ... decreased by the amount of any claims paid under the contract." Id. § 1304.1581(c)(l). 2 Finally, subsection 1_304.158l(d) states that "[a] provider may allow a service 1 See Letter from Honorable Kevin P. Eltife, Chair, Senate Comm. on Bus. & Commerce, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Dec. 30, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2 Section 1304.159 governs the refund process when the cancellation is made by the service provider, stating similarly in subsection (c) that a consumer "whose contract is canceled by the provider ... is entitled to a prorated refund of the purchase price ... decreased by the amount of any claims paid under the contract." TEX. Occ. CODE ANN.§ 1304.159(c)(West 2012). The Honorable Kevin P. Eltife - Page 2 (KP-0024) ' contract holder to cancel a service contract on other terms included in the contract, provided the terms do not conflict with this section." Id. § 1304.158l(d). You tell us that a vehicle service contract provider amended its form agreement to specify that the amount of any previously paid claims would be deducted from funds returned to the consumer upon cancellation, in conformity with section 1304.1581, but was asked to remove such terms by a dealership through which the service contract would be sold. 3 Request Letter at 1. You ask us "to clarify whether a service contract provider has the discretion to not deduct the amount of any paid claims before issuing a refund" or whether a provider must "reduce a refund by the amount of claims paid. " 4 Id. at 2. In construing a statute, a court's "primary objective is to ascertain the Legislature's intent," which a court does, "if possible, through the words the Legislature selected." Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51(Tex.2014). In addition, a court "derive[s] the Legislature's intent from the statute as a whole, not by reading individual provisions in isolation." Id. Section 1304.1581 expressly provides that a service provider "shall refund" either the full purchase price or a prorated purchase price-depending on the time of cancellation-"decreased by the amount of any claims paid under the contract." TEX. Occ. CODE ANN.§ 1304.1581(b)-(c) (West 2012). The word "shall" is generally recognized as a mandatory provision "creating a duty or obligation." Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); see also TEX. Gov'T CODE ANN. § 311.016(2) (West 2013) (providing that "shall" establishes "a duty"). The Texas Department of Licensing and Regulation (the "Department"), which is authorized to administer and enforce chapter 1304, takes the position that the word "shall" in subsections 1304.158l(b) and (c) "is tied to the refund, whether full or prorated, and is not tied to the deduction of claims paid." 5 The Department reasons that, because subsection 1304.158l(d) specifically allows for cancellation pursuant to other contract terms, another contract provision allowing for a refund with no deduction for claims already paid "would not ... be in conflict with Section 1304.1581." Dep't Brief at 6. Instead, the Department maintains that section 1304.1581, when "read as a whole ... establish[ es] a 'floor' or a minimum set of consumer protections for service contract holders." Id. at 1. 3 Briefing received from a third-party administrator of vehicle service contracts states that the administrator was "notified by two of its dealership customers" that the dealership's captive lender would no longer "approve the vehicle service contract because it included language that decreased the customer's refund proceeds by the amount of' previously paid claims. Brief from Mr. Christopher Wall, Gen. Counsel, Apex Prot., Inc. at 1 (Jan. 16, 2015) (on file with Op. Comm.). "[A]s a result the vehicle service contracts could no longer be financed on the captive lender' s retail installment contracts." Id. 4 Although your question concerns the underlying authority of the service provider and not the terms of the service contract, we note that a service contract "must ... state the terms and restrictions governing cancellation of the contract by the provider or the service contract holder before the expiration date of the contract." TEX. Occ. CODE ANN.§ 1304.156(a)(4) (West 2012). In addition, "[a] provider . .. may not, in the provider's service contracts . . . deliberately omit a material statement if the omission would be considered misleading." Id.§ 1304.16l(a)(2). 5 Brieffrom Mr. William H. Kuntz, Jr. , Exec. Dir., Tex. Dep't of Licensing & Regulation at 5 (Jan. 27, 2015) (on file with Op. Comm.) ("Dep't Brief'); see also TEX. Occ. CODE ANN. §§ 1304.051, 1304.201-.202 (West 2012) (authorizing the executive director of the Department to determine compliance with chapter 1304, impose disciplinary action, and seek injunctive relief and civil penalties). The Honorable Kevin P. Eltife - Page 3 (KP-0024) A court construing statutory language will assume that the Legislature has chosen the language "deliberately and purposefully." Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014). Like a court, "[w]e must not interpret the statute 'in a manner that renders any part of the statute meaningless or superfluous."' Id. (citing Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008)). The Department's construction of subsections 1304.1581(b) and (c) disregards the express language of the clause "decreased by the amount of any claims paid under the contract," which can only modify the words "full purchase price." TEX. Occ. CODE ANN.§ 1304.1581(b)-(c) (West 2012); see In re Readyone Indus., Inc., 394 S.W.3d 689, 693 (Tex. App.-El Paso 2012, orig. proceeding) (explaining the last antecedent rule, in which a qualifying phrase in a statute modifies "the words and phrases immediately preceding it to which it may, without impairing the meaning of the sentence, be applied"). We find no statutory language to suggest that the Legislature intended for this deduction from the refund amount to be discretionary. By including this language, the Legislature has unambiguously specified the amount that a service provider "shall" refund. A contract term providing for a refund amount that deviates from the amount set by the Legislature is thus contrary to the statute. Accordingly, even if the statutory language were ambiguous, we would not defer to the Department's interpretation. See R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624-25 (Tex. 2011) (stating that an agency's construction of a statute is entitled to serious consideration only if it "does not conflict with the statute's language"); TracFone Wireless, Inc. v. Comm 'non State Emergency Commc 'ns, 397 S.W.3d 173, 182 (Tex. 2013) (explaining that deference to an agency's interpretation is appropriate only when a statute is ambiguous). The Department questions the public policy of an interpretation that "require[ s] providers to deduct claims paid from refunds to consumers, even if the providers do not want to deduct claims." Dep't Brief at 7. As the Texas Supreme Court has stated, however, the task in statutory construction "is to effectuate the Legislature's expressed intent" and "not to impose our personal policy choices or 'to second-guess the policy choices that inform our statutes or to weigh the effectiveness of their results."' Ritchie v. Rupe, 443 S.W.3d 856, 866 (Tex. 2014) (quoting Iliff v. Iliff, 339 S.W.3d 74, 79 (Tex. 2011)). Moreover, the Legislature's stipulation that any other terms governing cancellation in a service contract may "not conflict with [section 1304.1581 ]," TEX. Occ. CODE ANN.§ 1304.158l(d) (West2012), does not mean that a service contract provider could not "offer additional cancellation and refund rights to its service contracts holders, which exceed those provided for in the statute." Dep't Brief at 6. It simply cannot do so in a manner that conflicts with section 1304.1581. Guided by the plain language of the statute, a court would likely conclude that section 13 04 .15 81 does not authorize a service provider to issue a service contract refund that does not deduct the amount of any claims previously paid under the contract. The Honorable Kevin P. Eltife - Page 4 (KP-0024) SUMMARY A court would likely conclude that section 1304.1581 of the Occupations Code does not authorize a service provider to issue a service contract refund that does not deduct the amount of any claims previously paid under the contract. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee BECKY P. CASARES Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127438/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General ---------------------------- : OPINION : : of : No. 88-202 : JOHN K. VAN DE KAMP : MAY 5, 1988 Attorney General : : ANTHONY S. DaVIGO : Deputy Attorney General : : ---------------------------------------------------------- THE HONORABLE BURT MARGOLIN, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question: Is the retail installment sale of an off-highway motor vehicle subject to the Unruh Act (Civ. Code, § 1801 et seq.) or the Rees-Levering Motor Vehicle Sales and Finance Act (Civ. Code, § 2981 et seq.)? CONCLUSION The retail installment sale of an off-highway motor vehicle which is required to be registered or identified under the Vehicle Code, is subject to the Rees-Levering Motor Vehicle Sales and Finance Act. The retail installment sale of an off-highway motor vehicle which is exempt from registration or identification is subject to the Unruh Act. ANALYSIS The Unruh Act, commencing with section 1801 of the Civil Code, governs the provisions of and imposes restrictions upon retail installment contracts for goods or services. (Cf. Fox v. Federated Department Stores, Inc. (1979) 94 Cal. App. 3d 867; Crestwood Lumber Co. v. Citizens Sav. and Loan Assn. (1978) 83 Cal. App. 3d 819.) The Rees-Levering Motor Vehicle Sales and Finance Act, commencing with section 2981 of the Civil Code, governs the provisions of conditional sales contracts for the sale of motor vehicles. (Cf. Hernandez v. Atlantic Finance Co. of Los Angeles (1980) 105 Cal. App. 3d 65, 69; Dixon Mobile Homes, Inc. v. Walters (1975) 48 Cal. App. 3d 964, 972.) We are asked whether the Unruh Act or the Rees-Levering Act governs the retail installment sale of an off-highway motor vehicle (OHMV). For purposes of the Unruh Act, the term "goods" is defined as follows (Civ. Code, § 1802.1). "'Goods' means tangible chattels bought for use primarily for personal, family or household purposes, including certificates or coupons exchangeable for such goods, and including goods which, at the time of the sale or subsequently are to be so affixed to real property as to become a part of such real property whether or not severable therefrom, but does not include any vehicle required to be registered under the Vehicle Code, nor any goods sold or leased with such a vehicle if sold under a contract governed by Section 2982 or leased under a contract governed by Section 2985.7. . . ." (Emphasis added.) For purposes of the Rees-Levering Act, the term "motor vehicle" is defined as follows (Civ. Code, § 2981, subd. (k)): "'Motor vehicle' means any vehicle required to be registered under the Vehicle Code which is bought for use primarily for personal or family purposes, and does not mean any vehicle which is bought for use primarily for business or commercial purposes or a mobilehome, as defined in Section 18008 of the Health and Safety Code which is sold on or after July 1, 1981. . . ." (Emphasis added.) Hence, whether the retail installment sale of a motor vehicle is to be governed by one Act or the other depends on whether it is required to be registered under the Vehicle Code. Of course, the definition of "motor vehicle" did not, at the time of its enactment (Stats. 1961, ch. 1626, § 4),include OHMVs not driven, moved, or left standing upon a highway, since registration was not then required for such vehicles. (See Veh. Code, § 4000 as it then provided (Stats. 1960, 1st Ex. Sess., ch. 23, § 2); and cf. Ryan v. Mike-Ron Corp. (1964) 226 Cal.App.2d. 71, 77.) The definition does, however, include any motor vehicle then or thereafter required to be registered as the result of amendatory legislation, even though such motor vehicle may fall within a different class or category than those previously required to be registered. In this regard, the primary rule of statutory construction is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal. 3d 247, 256; Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal. 3d 152, 163; Select Base Materials v. Board of Equal. (1959) 51 Cal. 2d 640, 645.) That is done at the outset by examining the words of the statute themselves. (People v. Craft (1986) 41 Cal. 3d 554, 560; People v. Belleci (1979) 24 Cal. 3d 879, 884; People v. Knowles (1950) 35 Cal. 2d 175, 182.) Returning to Civil Code section 2981, subdivision (k), the term "motor Vehicle" includes "any vehicle required to be registered . . .," except as otherwise provided. The use of the indefinite adjective "any" indicates that the application is without restriction or limitation. (Emmolo v. Southern Pacific Co. (1949) 91 Cal. App. 2d 87, 92; 64 Ops.Cal.Atty.Gen. 192, 202 (1981); 62 2. 88-202 Ops.Cal.Atty.Gen. 394, 395-396; 20 Ops.Cal.Atty.Gen. 31, 33 (1952).) Nor does the fact that registration may now be required of a different class or category of motor vehicle impair the definitional scope. (Cf. Estate of Woodward (1964) 230 Cal. App. 2d 113, 119, citing 2 Sutherland, Statutory Construction (3d ed.), § 5109, pp. 509-510.) Consequently, the term "motor vehicle" would include OHMVs provided, as discussed below, that such vehicles are required to be registered. Section 40001 provides for the registration of motor vehicles: "(a) (1) No person shall drive, move, or leave standing upon a highway, or in an offstreet public parking facility, any motor vehicle, trailer, semitrailer, pole or pipe dolly, logging dolly, or auxiliary dolly unless it is registered and the appropriate fees have been paid under this code, except that an off-highway motor vehicle which displays an identification plate or device issued by the department pursuant to Section 38010 may be driven, moved, or left standing in an offstreet public parking facility without being registered or paying registration fees. ". . . . . . . . . . . . . . . . . . . . . ."2 (Emphasis added.) Section 38010 provides: "(a) Except as otherwise provided in subdivision (b), every motor vehicle specified in Section 38012, which is not registered under this code because it is to be operated or used exclusively off the highways, except as provided in this division, shall be issued and display an identification plate or device issued by the department. ". . . . . . . . . . . . . . . . . . . . . ."3 Section 38012 provides: "(a) As used in this division, 'off-highway motor vehicle subject to identification' means a motor vehicle subject to the provisions of subdivision (a) of Section 38010. 1 Hereafter, all section references are to the Vehicle Code. 2 Section 4000, subdivision (a), does not apply to OHMVs operated pursuant to sections 38025 pertaining to the crossing of highways, and 38026.5 pertaining to the use of connecting links to OHMV recreational use areas. (§ 4000, subd. (c).) 3 Subdivision (b) contains numerous specialized exemptions including but not limited to wheelchairs, forklift trucks, firefighting and logging vehicles, implements of husbandry, and certain vintage motorcycles, commercial vehicles, and organized racing vehicles. 3. 88-202 "(b) As used in this division, 'off-highway motor vehicle' includes, but is not limited to, the following: "(1) Any motorcycle or motor-driven cycle, except for any motorcycle which is eligible for a special transportation identification device issued pursuant to Section 38088. "(2) Any snowmobile or other vehicle designed to travel over snow or ice, as defined in Section 557. "(3) Any motor vehicle commonly referred to as a sand buggy, dune buggy, or all- terrain vehicle. "(4) Any motor vehicle commonly referred to as a jeep."4 Section 38020 provides: "Except as otherwise provided in this division, no person shall operate, transport, or leave standing any off-highway motor vehicle subject to identification under this code which is not registered under the provisions of Division 3 (commencing with Section 4000), unless it is identified under the provisions of this chapter. A violation of this section is an infraction. This section shall not apply to the operation, transportation, or leaving standing of an off-highway vehicle pursuant to a valid special permit."5 (Emphases added.) It is sufficient for our purposes to observe that an OHMV is either required to be registered (§ 4000) or identified (§§ 38010 & 38020), or is exempt from registration and from 4 Section 38006 provides: "As used in this division, an 'off-highway motor vehicle' is any of the following: "(a) A motor vehicle subject to the provisions of subdivision (a) of Section 38010. "(b) A motor vehicle registered under Section 4000, when such motor vehicle is operated on land to which this division has application. "(c) A motor vehicle owned or operated by a nonresident of this state, whether or not such motor vehicle is identified or registered in a foreign jurisdiction, when such motor vehicle is operated on lands to which this division has application." 5 Section 38021 provides for the issuance of a special permit to a manufacturer, dealer, or distributor owning or possessing an OHMV. Section 38087 provides for the issuance of a special permit to a manufacturer, dealer, or distributor operating or using an OHMV for the purpose of delivery, demonstration, or display. 4. 88-202 identification (e.g., § 38010, subd. (b)(1)). Those OHMVs which are exempt are not "required to be registered under the Vehicle Code," and are "goods" the retail installment sale of which are subject to the Unruh Act. Those which are required to be registered are subject to the Rees-Levering Act. The question remains as to those OHMVs which are not registered and are required to be identified. Section 38013 provides: "Unless otherwise provided, the terms 'identification' and 'identification certificate' shall have the same meaning as the terms 'registration' and 'registration card,' respectively, as used in Division 3 (commencing with Section 4000)." The term "identification" is the equivalent of "registration." This section, enacted as part of chapter 2 of the Chappie-Z'berg Off-Highway Motor Vehicle Law of 1971, entitled "Registration of Off- Highway Vehicles . . ." (Stats. 1971, ch. 1816, § 9), is general in its terms and unlimited in its application, "[u]nless otherwise provided . . . ." Neither Unruh nor Rees-Levering, both of which were enacted prior to the Off-Highway Motor Vehicle Law, contain any contrary provision. Thus, it follows that the references in Unruh and Rees-Levering to "vehicles required to be registered" include vehicles required to be identified. Moreover, the words "required to be registered under the Vehicle Code" as used in the Unruh Act and in the Rees-Levering Act include, in light of their essential equivalence of procedure and purpose, both the registration of motor vehicles (§ 4000 et seq.) and the identification of OHMVs (§ 38000 et seq.). In this regard, we have compared the respective procedures relating inter alia to initial application (§ 4150, 38040), certification of ownership (§§ 4451, 38076), and attachment of plates and devices (§§ 5200, 38170), and have found them closely parallel. Indeed, numerous provisions pertaining to registration, e.g., transfer of title and procedures relating to lost, stolen, or altered plates, are directly incorporated into the OHMV identification law. (§§ 38195, 38100.) 5. 88-202 Consequently, the Rees-Levering Act may not be rationally deemed less applicable to vehicles required to be identified than to vehicles required to be registered simply by virtue of the distinction in terminology. Hence, it is concluded that the retail installment sale of an OHMV which is required to be registered or identified is subject to the Rees-Levering Act. ***** 6. 88-202

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4288748/

Fourth Court of Appeals San Antonio, Texas June 19, 2018 No. 04-18-00227-CR Michael Casey FORAN, Appellant v. The STATE of Texas, Appellee From the County Court at Law No. 11, Bexar County, Texas Trial Court No. 518258 Honorable Tommy Stolhandske, Judge Presiding ORDER Appellant has filed a motion for extension of time to file his brief in appeal number 04- 18-00277-CR. We DENY AS MOOT the requested extension based on our order of June 18, 2018. Pursuant to our June 18, 2018 order, and at appellant’s request, we consolidated appeal numbers 04-18-00227-CR and 04-18-00230-CR. In the order, we noted that although the brief in appeal number 04-18-00227-CR was due June 18, 2018, the brief in appeal number 04-18- 00230-CR was due July 9, 2018. Accordingly, as a result of the consolidation, we ordered the brief in the consolidated matter to be filed in this court on or before July 9, 2018. Thus, per the June 18, 2018 order, appellant’s request for an extension of time to file a brief in appeal number 04-18-00227-CR is moot. The consolidated brief in appeal numbers 04-18-00227-CR and 04-18-00230-CR is due in this court on or before July 9, 2018. We order the clerk of this court to serve a copy of this order on all counsel. _________________________________ Marialyn Barnard, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of June, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court

01-03-2023

06-26-2018

https://www.courtlistener.com/api/rest/v3/opinions/4125043/

KEN PAXTON ATTORNEY GENERAL OF TEXAS May 12, 2015 Mr. Wallace Hall Opinion No. KP-0021 Member, Board of Regents The University of Texas System Re: Authority of the University of Texas Ashbel Smith Hall, Suite 820 System Board of Regents to prohibit a regent 201 West 7th Street from accessing records in the possession of Austin, Texas 78701 the University (RQ-0020-KP) Dear Mr. Hall: You ask two questions related to the authority of the University of Texas System ("the System") Board of Regents ("the Board") and the Chancellor of the System to prohibit a regent from obtaining documents in the possession of the University. 1 Before we address these substantive questions, we must address a procedural question raised by the System and the Board. The System and the Board suggest that "[a]n individual Regent is not authorized to seek an opinion of the Attorney General in his official capacity without the consent of the Board." System Brief at 2. In subsection 402.042(b) of the Government Code, the Legislature has authorized specific individuals who may request an opinion from the attorney general, including, among others: "(1) the governor; (2) the head of a department of state government; (3) a head or board of a penal institution; (4) a head or board of an eleemosynary institution; ( 5) the head of a state board; [and] (6) a regent or trustee of a state educational institution." TEX. Gov'T CODE ANN. § 402.042(b) (West 2013). Pursuant to this language, in most instances a single member that is not the head of a multi-member board is not authorized to seek an opinion of the attorney general individually. The plain language of subsection 402.042(b)(6), however, does not create such limitations with regard to state educational institutions. 2 See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 1 See Letter from Bill Aleshire, Counsel to Wallace Hall, Regent, Univ. of Tex. Sys., to Honorable Ken Paxton, Tex. Att'y Gen. at I (Apr. 20, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion- rqs. After the System and the Board suggested that a regent may not ask for an attorney general opinion through private counsel, you submitted an identical letter directly requesting the opinion in your capacity as a regent. Letter from Wallace L. Hall, Regent, Univ. of Tex. Sys., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 6, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). See Letter from Daniel H. Sharphom, Vice Chancellor and Gen. Counsel, Univ. of Tex. Sys., and Francie A. Frederick, Gen. Counsel to the Bd. of Regents, Univ. of Tex. Sys., to Honorable Ken Paxton, Tex. Att'y Gen. at 2-3 (May 4, 2015) (on file with the Op. Comm.) ("System Brief'). 2 The System and the Board contend that a prior version of the statute allowed only "the heads of boards" of various institutions including "regents and trustees of State education institutions." System Brief at 3-4. However, Mr. Wallace Hall - Page 2 (KP-0021) 507 (Tex. 2012) ("The plain language of a statute is the surest guide to the Legislature's intent."). That the Legislature limited the authority to request opinions to the heads of other entities suggests that it knew how and could have done so with regard to regents of educational institutions if that was its intent. See Zanchi v. Lane, 408 S.W.3d 373, 380 (Tex. 2013) (holding that the Legislature demonstrated that it knew how to require service of a document to mirror service by citation because it had done so in article 59.04 of the Code of Criminal Procedure but not in the Medical Liability Act). Thus, under the plain language of subsection 402.042(b)(6), any individual who serves as "a regent or trustee of a state educational institution" is authorized to request an attorney general opinion. TEX. Gov'T CODE ANN.§ 402.042(b)(6) (West 2013). You explain that as a member of the System's Board, you have concerns about the System's student admissions practices, and you have requested records and working papers the System holds of an independent investigation related to the same. Request Letter at 1. You advise that to date, none of the records have been provided. Id. at 2. You first ask whether the Board has "authority to prohibit, by rule or otherwise, a regent from obtaining access to and copies of records in the possession of the University that the regent believes are necessary to review to fulfill his duties as a regent." Id. at 1. You emphasize that you are asking about access by "a regent in his official capacity," distinguishing such access from a request made as a member of the public under the Public Information Act. Id. at 3; see Tex. Att'y Gen. Op. No. JM-119 (1983) at 2 ("when a trustee ... , acting in his official capacity, requests information maintained by the district, he is not a member of the 'public' for purposes of the Open Records Act"). Thus, we look to law outside of the Public Information Act to answer your questions. The government of the System "is vested in a board of nine regents appointed by the governor with the advice and consent of the senate. The board may provide for the administration, organization, and names of the institutions and entities in The University of Texas System in such a way as will achieve the maximum operating efficiency of such institutions and entities." TEX. EDUC. CODE ANN. § 65.11 (West 2002). Furthermore, the Board is charged with setting "campus admission standards consistent with the role and mission of the institution and considering the admission standards of similar institutions nationwide having a similar role and mission." Id. § 51.352(d)(4) (West 2012). The Board "has authority to promulgate and enforce such other rules and regulations for the operation, control, and management of [the System] as the board may deem either necessary or desirable." Id.§ 65.31(c) (West 2002). Pursuant to that authority, the Board has promulgated rules concerning access to information by members of the Board. 3 Relevant to your inquiry, Board Rules provide that "Members of the Board of Regents are to be provided access to such information as in their individual judgments will enable them to fulfill their duties and responsibilities as the Texas Supreme Court construes codified changes intended to be nonsubstantive according to their plain terms. See, e.g., Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex. 1999) ("We are compelled to conclude that when, as here, specific provisions of a 'nonsubstantive' codification and the code as a whole are direct, unambiguous, and cannot be reconciled with prior law, the codification rather than the prior, repealed statute must be given effect."). 3 See The Univ. of Tex. Sys., Rules and Regulations of the Bd. of Regents, https://www.utsystem.edu/board- of-regents/rules ("Board Rules"). Mr. Wallace Hall - Page 3 (KP-0021) Regents of the U.T. System." Board Rule 10101 § 3.1 (emphasis added). Board Rule 10801, section 5.4 outlines a specific process by which a member of the Board or the Chancellor may request information. The rule begins with a statement that the process "is not intended nor will it be implemented to prevent a member of the Board ... from access to information or data that the Board member . . . deems is necessary to fulfill his or her official duties and responsibilities." Board Rule 10801 § 5.4.1. The rule further provides: Within 5 business days of the receipt of a Regent's information request, the Chancellor's Office will provide the requesting Regent with an estimated date for delivery or production. . . . In the rare circumstance when there are concerns about a Regent's request, the matter will be discussed with the Regent . . . . If concerns about a request for information or data are unresolved following discussion with the Regent, the matter will be presented to the Board as quickly as possible .... For the purpose of a Board vote on this issue, the vote of any two or more Regents in support of the request is sufficient to direct that the request will be filled without delay. Board Rule 10801 § 5.4.5. Rules adopted by a university system's board of regents in the exercise of the board's delegated authority have the force and effect of law. See Foley v. Benedict, 55 S.W.2d 805, 808 (Tex. 1932) (orig. proceeding) (stating that rules of the board "are of the same force as would be a like enactment of the Legislature"). Courts will not interfere with rules of a board of regents of a university in the absence of a clear showing of arbitrary action or abuse of discretion. Id at 808- 09. The rules of a board of regents of a university system, however, may not be contrary to the constitution or statutes. See R.R. Comm 'n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992) (stating that a state agency's rules must be consistent with state law). The Legislature has not expressly conferred upon regents the right to access documents in possession of a university. However, "[e]ach member of a governing board has the legal responsibilities of a fiduciary in the management of funds under the control of institutions subject to the board's control and management." TEX. Eouc. CODE ANN. § 51.352(e) (West 2012); see also Board Rule 10101 § 3.1 (requiring regents to become "knowledgeable in some detail regarding the operations, management, finances, and effectiveness of the academic, research and public service programs of the U.T. System"). That the Legislature has charged the regents with administration of the System, including its admissions process, and has imposed fiduciary obligations upon the regents individually necessarily implies that regents may have access to System information and records. Cf Chavco Inv. Co. v. Pybus, 613 S.W.2d 806, 810 (Tex. App.- Houston [14th Dist.] 1981, writ ref d n.r.e.) (holding that a director of a corporation has a right to inspect the corporate books and records). While we have found no Texas court decisions directly addressing the issue in the context of university regents, Texas attorneys general have consistently concluded that "a member of a governing body has an inherent right of access to the records of that body when requested in the member's official capacity and for the member's performance of official duties." Tex. Att'y Gen. Mr. Wallace Hall - Page 4 (KP-0021) Op. Nos. GA-0138 (2004) at 3, JC-0283 (2000) at 3-4, JC-0120 (1999) at 3, JM-119 (1983) at 3. In addressing a request for audit information by a member of the board of trustees of a community college district, this office explained that "a member of that board has an inherent right of access to such records, at least when he requests them in his official capacity." Tex. Att'y Gen. Op. No. JM-119 (1983) at 3. The chancellor in that situation claimed that, as custodian ofrecords, he could decline to furnish to any requestor records that he determined were protected by law. Id. at 1. Contrary to that claim, this office explained that a chancellor's ability "to prevent a district trustee from obtaining those records ... would create an anomalous situation in which a district employee could prevent such trustee from discharging his official duties." Id. at 3. Access to records is a necessary part of a board member's fulfillment of his or her duties. While a governmental body may adopt reasonable procedures with regard to the timing, copying, and process for review of records, a "governmental body cannot adopt a policy that prevents a member of the body from performing the duties of office." Tex. Att'y Gen. Op. No. JC-0120 (1999) at 3; see Tex. Att'y Gen. L0-93-069, at 5 ("we believe the legislature would have expressly authorized the board to adopt rules limiting the board members' access to the board's personnel or investigative records if it had intended the board by majority vote to limit an individual member's access to those records"). The Board's own rules acknowledge this principle by providing regents "access to such information as in their individual judgments will enable them to fulfill their duties and responsibilities as Regents of the U. T. System." Board Rule 10101 § 3 .1 (emphasis added). Thus, unless a state or federal law requires otherwise, a court would likely conclude that the Board may not prohibit an individual regent from obtaining access to records in the possession of the System that the regent believes are necessary to fulfill his duties as a regent. Your second question asks whether the Chancellor has authority "to prohibit the regent from having access to or obtaining copies of records that the regent believes are necessary to review to fulfill his duties as a regent." Request Letter at 1. You explain that the System has in the past withheld some of the information you have requested because the documents included student records that the Chancellor has determined are protected under the Family Educational Rights and Privacy Act ("FERPA"). Id. at 2. Although an assessment ofFERPA's application to a given set ofrecords is beyond the scope of this opinion,4 we note that FERPA also provides that "nothing in [FERP A] shall be construed to prohibit State and local education officials from having access to student or other records which may be necessary in connection with the audit and evaluation of any federally or State supported education program." 5 20 U.S.C.A. § 1232g(b)(5) (West 2010). 4See Letter from LeRoy S. Rooker, Dir., Family Policy Compliance Office, U.S. Dep't of Educ., to Katherine M. Cary, Chief, Open Records Div., Office of the Tex. Att'y Gen. at 3-4 (July 25, 2006) (on file with the Op. Comm.) (stating that the Office of the Attorney General is not generally authorized to obtain and review specific documents to determine the applicability ofFERPA). 5 To the extent that some of the requested documents involve student records protected under FERPA, FERPA requires that "any data collected by [state educational authorities] shall be protected in a manner which will Mr. Wallace Hall - Page 5 (KP-0021) SUMMARY Unless a state or federal law requires otherwise, a court would likely conclude that the Board of Regents of the University of Texas System may not prohibit an individual regent from obtaining access to records in the possession of the University that are necessary to fulfill his duties as a regent. A court would likely conclude that the Family Educational Rights and Privacy Act does not allow a university to withhold student records from state or local education officials that are necessary in connection with an audit and evaluation of a state supported education program. Very truly yours, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee Assistant Attorney General not permit the personal identification of students and their parents by other than those officials, and such personally identifiable data shall be destroyed when no longer needed for such audit, evaluation, and enforcement of Federal legal requirements." 20 U.S.C.A. § 1232g(b)(3) (2010).

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4155440/

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 369 CA 16-01489 PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ. JOHN PESTILLO, CLAIMANT-RESPONDENT, V ORDER COUNTY OF MONROE, RESPONDENT-APPELLANT, ET AL., RESPONDENT. MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (MATTHEW D. BROWN OF COUNSEL), FOR RESPONDENT-APPELLANT. WILLIAM MATTAR, P.C., WILLIAMSVILLE (JOHN ABEEL OF COUNSEL), FOR CLAIMANT-RESPONDENT. Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered December 8, 2015. The order, insofar as appealed from, granted the application of claimant for leave to serve a late notice of claim on respondent County of Monroe. Now, upon reading and filing the stipulation of discontinuance signed by the attorneys for the parties on January 13, 2017, It is hereby ORDERED that said appeal is unanimously dismissed without costs upon stipulation. Entered: March 24, 2017 Frances E. Cafarell Clerk of the Court

01-03-2023

03-24-2017

https://www.courtlistener.com/api/rest/v3/opinions/4128429/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT May 5, 2008 The Honorable Jeff Wentworth Opinion No. GA-0622 Chair, Jurisprudence Committee Texas State Senate Re: Whether persons operating or participating in Post Office Box 12068 a pilot needle- and syringe-exchange program Austin, Texas 78711-2068 authorized for Bexar County by Government Code section 531.0972 may be prosecuted for possessing drug paraphernalia under Health and Safety Code section 481.125 (RQ-0630-GA) Dear Senator Wentworth: You ask: whether the public health and Medicaid evaluation pilot program authorized by law under Section 531.0972 of the Government Code, effective September 1, 2007, ... now enables participants ofthe pilot program . . . to carry out the mission of the program and the Legislature's intent of preventing the spread of HIV, hepatitis Band C, and other infectious and communicable diseases, without subjecting these persons to criminal prosecution or the threat of criminal prosecution in Texas under the Controlled Substances Act of the Health and Safety Code. 1 See TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp. 2007); TEX. HEALTH & SAFETY CODE ANN. § 481.125 (Vernon 2003). You ask specifically whether persons participating in the Bexar County pilot program-"those associated with its operations and those whom it would serve"-may be prosecuted for possessing drug paraphernalia under the Texas Controlled Substances Act, Health and Safety Code section 481.125. Request Letter, supra note 1, at 1; see ide at 1-2. Government Code section 531.0972 was adopted in 2007 as part of Senate Bill 10, to which you refer as the "Omnibus Medicaid Bill." See Act of May 27, 2007, 80th Leg., R.S., ch. 268, § 5, 2007 Tex. Gen. Laws 500, 504; Request Letter, supra note 1, at 1. Section 531.0972 expressly 1See Letter from Honorable JeffWentworth, Chair, Jurisprudence Committee, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas, at 1-2 (Sept. 26,2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter]. The Honorable Jeff Wentworth - Page 2 (GA-0622) permits the Texas Health and Human Services Commission (the "Commission") to guide Bexar County's local health authority2 in establishing a disease-prevention pilot program-which may include a needle- and syringe-exchange program: The commission may provide guidance to the local health authority of Bexar County in establishing a pilot program funded by the county to prevent the spread of HIV, hepatitis B, hepatitis C, and other infectious and communicable diseases. The program may include a disease control program that provides for the anonymous exchange of used hypodermic needles and syringes. TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp. 2007) (emphasis added); see also ide § 531.001(2) (Vernon 2004) (defining "commission"). You question whether, should Bexar County elect to include such a needle- and syringe- exchange program as a component ofits disease-prevention pilot program, those distributing as well as those accepting and using the needles and syringes may be prosecuted under the Texas Controlled Substances Act. See Request Letter, supra note 1, at 1-2; TEX. HEALTH & SAFETY CODE ANN. § 481.00 1 (Vernon 2003) (titled Texas Controlled Substances Act); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(5) (Vernon Supp. 2007) (defining "controlled substance"). Under the Texas Controlled Substances Act, the possession or delivery of drug paraphernalia, which includes "a hypodermic syringe, needle, or other object used or intended for use in parenterally injecting a controlled substance into the human body," is a criminal offense: (a) A person commits an offense if the person knowingly or intentionally uses or possesses _with intent to use drug paraphernalia ... to inject ... into the human body a controlled substance in violation of this chapter. (b) A person commits an offense ifthe person knowingly or intentionally delivers, possesses with intent to deliver, or manufactures with intent to deliver drug paraphernalia knowing that the person who receives or who is intended to receive the drug paraphernalia intends that it be used ... to inject ... into the human body a controlled substance in violation of this chapter. (c) A person commits an offense if the person commits an offense under Subsection (b), is 18 years of age or older, and the person who receives or who is intended to receive the drug paraphernalia is younger than 18 years of age and at least three years younger than the actor. 2Throughout this opinion, we refer to Bexar County's local health authority simply as Bexar County. The Honorable Jeff Wentworth - Page 3 (GA-0622) (d) An offense under Subsection (a) IS a Class C misdemeanor. (e) An offense under Subsection (b) is a Class A misdemeanor, unless it is shown on the trial of a defendant that the defendant has previously been convicted under Subsection (b) or (c), in which event the offense is punishable by confinement in jail for a term of not more than one year or less than 90 days. (f) An offense under Subsection (c) is a state jail felony. TEX. HEALTH & SAFETY CODE ANN. § 481.125 (Vernon 2003); ide § 481.002(17)(K) (Vernon Supp. 2007) (defining "drug paraphernalia" to include a hypodermic needle); see also ide § 481.002(8), (38) (defining "deliver" and "possession"). You suggest that Government Code section 531.0972 on its face clearly and unambiguously creates an exception to the Texas Controlled Substances Act such that individuals participating in a Bexar County program may not be subject to prosecution under section 481.125. See Request Letter, supra note 1, at 6. In the alternative, you suggest that, to the extent Government Code section 531.0972 is ambiguous on its face, the legislative intent behind the section requires us to construe it to create an exception to the Texas Controlled Substances Act. See id.; see also TEX. GOV'T CODE ANN. § 311.023(3) (Vernon 2005) (authorizing a court to consider a statute's legislative history "whether or not the statute is considered ambiguous on its face"). As an additional alternative, you suggest that, to the extent Government Code section 531.0972 and the Texas Controlled Substances Act are inconsistent, section 531.0972 creates a specific exception to the more general Texas Controlled Substances Act. See Request Letter, supra note 1, at 6; see also TEX. GOV'T CODE ANN. § 311.026(b) (Vernon 2005) (directing that where a general provision and a special or local provision conflict irreconcilably, "the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail"). First, we address your argument that Government Code section 531.0972 is inconsistent with the Texas Controlled Substances Act. See Request Letter, supra note 1, at 6. We do not agree that the provisions are inconsistent. On its face, the disease-prevention pilot program merely allows-it does not require-Bexar County to implement a needle- and syringe-exchange program. The County may, possibly assisted by advice from the Commission, implement a program to prevent the spread of certain infectious and communicable diseases. TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp.2007). That program may, in tum, include a needle- and syringe-exchange program. Id. Or it may not. See ide ·The word "may" denotes discretion not to do something. Id. § 311.016(1) (Vernon 2005) (stating that the word "'[m]ay' creates discretionary authority or grants permission or a power"). Because the pilot program statute merely allows a pilot component that includes a needle- and syringe-exchange program, it is not-on its face-inconsistent with the Texas Controlled Substances Act. The Honorable IeffWentworth - Page 4 (GA-0622) Similarly, because the statutes at issue are not inconsistent, we cannot agree that the mere allowance ofa needle- and syringe-exchange program as part 6fthe disease-prevention pilot program makes section 531.0972 a "clear and unambiguous" exception to Health and Safety Code section 481.125 such that individuals participating in a Bexar County program may not be subject to prosecution under the Texas Controlled Substances Act. See Request Letter, supra note 1,at 6. While Government Code section 531.0972 allows the establishment in Bexar County of a needle- and syringe-exchange program as part of a pilot program to prevent the spread of certain infectious or communicable diseases, nothing in Government Code chapter 531 or in the Texas Controlled Substances Act expressly excepts from prosecution under the Texas Controlled Substances Act those participating in a needle- and syringe-exchange program established under Government Code section 531.0972. See generally TEX. GOV'T CODE ANN. §§ 531.001-.604 (Vernon 2004 & Supp. 2007) (providing for the Health and Human Services Commission); TEX. HEALTH & SAFETY CODE ANN. §§ 481.001-.314 (Vernon 2003 & Supp. 2007) ("Texas Controlled Substances Act"). In other words, neither code provision addresses the other in any fashion. Finally, we must reject the proposition that Government Code section 531.0972 is ambiguous on its face. Rather, on its face, the provision simply permits the Commission to guide Bexar County's local health authority in establishing a pilot program-which may include a needle- and syringe-exchange component-to prevent the spread of certain diseases. TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp. 2007). Both Government Code section 531.0972 and the Texas Controlled Substances Act are clear and not in conflict or inconsistent. Only if Bexar County elects to include a needle- and syringe- exchange program as part of its disease prevention pilot program is there any potential conflict between these provisions. In that event, we are faced with two possible constructions of section 531.0972: One interpretation is to conclude that, because the Legislature did not except participants in the needle and syringe component ofthe program from the possibility ofprosecution under section 481.125, they are subject to the possibility of such prosecution. The alternative is to conclude that, because the Legislature should not be presumed to have authorized the establishment of a portion of a disease-prevention program that is effectively illegal under the Texas Controlled Substances Act, section 531.0972 creates a special exception from the possibility of prosecution that applies to individuals participating in the pilot program. To interpret the statute, we apply established rules of statutory construction. In construing a statute, a court seeks to ascertain and effectuate the Legislature's intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003); State ex reI. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (citing TEX. GOV'T CODE ANN. § 312.005 (Vernon 1998)). A court looks first to the plain meaning of a statute's words. Bd. ofAdjustment v. Wende, 92 S.W.3d 424,430 (Tex. 2002); see also Fleming Foods ofTex. , Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (stating that statutes should not be construed to mean something other than what their plain words say unless there is an obvious error such as a typographical one or if construing a statute according to its plain meaning would lead to an absurd result); State v. Cowsert, 207 S.W.3d 347, 350 (Tex. Crim. App. 2006) (stating that a court focuses attention on a statute's literal text and tries to discern the fair, objective meaning of that text at the The Honorable Jeff Wentworth - Page 5 (GA-0622) time of its enactment) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). More significantly here, a court must presume that the Legislature adopted an enact~ent "with complete knowledge of the existing law and with reference to it." Acker v. Tex. Water Comm 'n, 790 S.W.2d 299,301 (Tex. 1990) (citing McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1942)). And a court must presume that the Legislature chose every word of a statute for a purpose and excluded every word that has been excluded for a purpose. Laidlaw Waste Sys. (Dallas), Inc. v. City ofWilmer, 904 S.W.2d 656, 659 (Tex. 1995) (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)). Given that we must presume that the Legislature adopted Government Code section 531.0972 with complete knowledge ofthe existence ofthe Texas Controlled Substances Act, we must presume that it was aware of the possibility of criminal prosecution for participants in a needle- and syringe- exchange program. Yet the Legislature did not provide any language excepting participants in Bexar County's needle- and syringe-exchange program" from criminal prosecution under the Texas Controlled Substances Act or any other Texas statute. We understand your argument that the Legislature intended to create such an exception. Nevertheless, nothing in the plain language of section 531.0972 establishes that exception. See generally TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp. 2007) (establishing pilot program). Nothing in the plain language of the Texas Controlled Substances Act does so either. See generally TEX. HEALTH & SAFETY CODE ANN. §§ 481.00 1-.314 (Vernon 2003 & Supp. 2007) ("Texas Controlled Substances Act"). It is not within this office's normal province "to indulge in acts of legislation." Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 562 (Tex. App.-Tyler 2007, pet. denied) ("it is not within the judicial province to indulge in acts of legislation"); cf Sanchez v. State, 182 S.W.3d 34, 41 (Tex. App.-San Antonio 2005) (stating that a court cannot assume the legislative prerogative by rewriting a statute), aff'd, 209 S.W.3d 117 (Tex. Crim. App. 2006). Instead, we must take the statutes as we find them and allow the Legislature, if it wishes, to remedy any alleged defects. Cf Canal Ins. Co., 238 S.W.3d at 562 (stating that it is not for the courts to remedy defects or supply deficiencies in laws). Moreover, we find several instances in which the Legislature has adopted express exceptions to the Texas Controlled Substances Act. For example, the Legislature has expressly stated that "[t]he provisions of [the Texas Controlled Substances Act] relating to the possession and distribution of peyote do not apply to the use of peyote by a member of the Native American Church in bona fide religious ceremonies of the church." TEX. HEALTH & SAFETY CODE ANN. § 481.111(a) (Vernon 2003). Similarly, the Legislature has expressly excepted from specified provisions of the Texas Controlled Substances Act a person who· "possesses or delivers ... drug paraphernalia to be used to introduce tetrahydrocannabinols or their derivatives into the human body, for use in a federally approved therapeutic research program." Id. § 481.111 (c). And section 481.062 lists a number of persons who may possess a controlled substance without violating the Texas Controlled Substances Act, including an agent of a registered manufacturer, distributor, or dispenser of the controlled substance "acting in the usual course of business or employment"; "the ultimate user or a person in possession of the controlled substance under" a lawful physician's order; and a law-enforcement officer who is lawfully engaged in enforcing controlled-substance laws. Id. § 481.062(a)(I), (3), (4); see also ide § 481.033 (excluding certain substances from the application of the Texas Controlled Substances Act); ide § 481.062(a)(2), (5), (b) (exempting other specific persons from the Texas The Honorable Jeff Wentworth - Page 6 (GA-0622) Controlled Substances Act and authorizing the director of the Texas Department of Public Safety to, by rule, waive registration requirements in certain circumstances); id § 481.0621(a) (excepting from subchapter C of the Texas Controlled Substances Act "an educational or research program of a school district or a public or private institution ofhigher education"); ide § 481.065 (exempting the use of controlled substances used in medical research that is authorized by the Commissioner); ide §§ 481.071, .072 (regarding the dispensation of controlled substances for valid medical purposes); ide §§ 481.077(b), .124(f) (Vernon Supp. 2007) (allowing the director of the Texas Department of Public Safety to exempt chemical precursors from the requirements of these sections if the director determines that the precursors would not be dangerous or used in the illicit manufacture of drugs); ide § 481.111 (b), (d) (Vernon 2003) (exempting from specified provisions of the Texas Controlled Substances Act the possession of denatured sodium pentobarbital by personnel ofa humane society or an animal control agency and the use of anabolic steroids administered to livestock or poultry); cf ide §§ 481.122(b) (Vernon 2003), .123(a) (Vernon Supp. 2007) (creating affirmative defenses to prosecution for a violation of the Texas Controlled Substances Act in certain circumstances). The presence of these express exceptions to the Texas Controlled Substances Act indicates that the Legislature knows how to create such an exception when it wishes to do so. It did not, however, choose to create an exception here. See Office ofAtty Gen. v. Lee, 92 S.W.3d 526, 529 (Tex. 2002) ("every word excluded from a statute must ... be presumed to have been excluded for a purpose") (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)); see also Cameron, 618 S.W.2d at 540 (stating that if the Legislature intended for a particular statute to impose certain restrictions, the Legislature could have done so; the fact that the Legislature did not do so suggests that it intended not to do so). In enacting section 531.0972, the Legislature allowed the implementation of a pilot disease- prevention program that, in tum, allows Bexar County to be advised by the Commission and allows Bexar County to create a needle- and syringe-exchange program as part ofits disease prevention pilot program. In contrast to other statutory provisions excepting certain possession and distribution of controlled substances from prosecution under the Texas Controlled Substances Act, the Legislature remained silent as to any such exception under Bexar County's pilot program. In light ofthe express exceptions to the Texas Controlled Substances Act and the fact that the disease prevention pilot program may be implemented without including a needle- and syringe-exchange program, we do not construe the Legislature's silence as intent to except the needle- and syringe-exchange component, if any, from prosecution. Additionally, while you suggest that an exception from prosecution under the Texas Controlled Substances Act is required to give effect to the language of section 531.0972 allowing a needle- and syringe-exchange program as part ofa disease-prevention program, such an exception is not required in order to allow the needle- and syringe-exchange component to proceed. First, the lack of an express exception from criminal prosecution does not foreclose the Commission's authority to provide guidance to Bexar County in the establishment of a needle- and syringe- exchange component as part of its disease-prevention pilot program. Second, assuming that after such guidance Bexar County includes the exchange program as part of its disease prevention program, the possibility remains that prosecutorial discretion may be exercised in evaluating the facts and evidence of possession of drug paraphernalia to determine whether a criminal violation of the The Honorable Jeff Wentworth - Page 7 (GA-0622) Texas Controlled Substances Act has occurred. See Hardwick v. Doolittle, 558 F.2d 292, 301 (5th eire 1977) (recognizing "a broad ambit to prosecutorial discretion"); United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (indicating that a prosecutor has discretion to determine "whether a prosecution shall be commenced or maintained" and that courts are not to interfere with a prosecutor's free exercise of discretion); see also TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon 2005) ("It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done."). Third, participants who reasonably believe their conduct is "required or authorized to assist a public servant in the performance of his official duty" may raise that justification in any prosecution brought against them. TEX. PENAL CODE ANN. § 9.21(a), (d)(2) (Vernon 2003). It also should be noted that even if Government Code section 531.0972 were construed as an exception to prosecution under the Texas Controlled Substances Act, participants in a needle- and syringe-exchange program could possibly be subject to prosecution under other laws. By way of example only, if an adult participant in such an exchange program conspires to dispense a needle or syringe to a minor who is at least three years younger than the adult, the adult may be prosecuted for criminal conspiracy. See ide § 15.02 (stating that a person criminally conspires if with intent to commit a felony he agrees to commit a felony and performs an overt act in pursuance of the agreement); see also TEX. HEALTH & SAFETY CODE ANN. § 481.125(c) (stating that an adult commits a felony who dispenses drug paraphernalia to a person under 18 and at least three years younger than tlte adult). Further, under the Federal Controlled Substances Act, it is illegal to sell, transport, import, or export drug paraphernalia. 21 U.S.C. § 863(a) (2000); see also ide § 863(d) (defining "drug paraphernalia" as equipment of any kind designed or intended to be used for injecting controlled substances into the human body). If two or more participants in a needle- and syringe-exchange program distribute drug paraphernalia, their actions may constitute federal criminal conspiracy. See 18 U.S.C. § 371 (2000). If a participant in the exchange attempted or conspired to distribute drug paraphernalia, his actions may also constitute a crime under the Federal Controlled Substances Act. See 21 U.S.C. § 846 (2000). We thus conclude that neither Government Code section 531.0972 nor the Texas Controlled Substances Act excepts from prosecution persons who possess drug paraphernalia while participating in a pilot needle- and syringe-exchange program authorized for Bexar County. Participants in the program may, in the discretion of the prosecutor, be prosecuted under the Texas Controlled Substances Act. The Honorable Jeff Wentworth - Page 8 (GA-0622) SUMMARY In May of2007, the Legislature authorized a pilot program in Bexar County "to prevent the spread ofHIV, hepatitis B, hepatitis C, and other infectious and communicable diseases." TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp. 2007). The legislation provided that the Health and Human Services Commission "may provide guidance" to Bexar County in establishing such a program. Id. (emphasis added). The statute also allowed Bexar County to include in its pilot program a needle- and syringe-exchange program. See ide The Texas Controlled Substances Act provides that possession or delivery of drug paraphernalia-including "a hypodermic syringe, needle, or other object used or intended for use in parenterally injecting a controlled substance into the human body"-is an offense that subjects a person to criminal prosecution. TEX. HEALTH & SAFETY CODE ANN. § 481.002(17)(K) (Vernon Supp.2007). Because a needle and syringe exchange is an optional component of Bexar County's pilot disease-prevention program, the program need not include a needle- and syringe-exchange component. If Bexar County's pilot disease-prevention program does not include a needle and syringe exchange, a person would not be subject to prosecution under section 481.125 of the Health & Safety Code for participating in the program. If, however, Bexar County elects to include such a needle- and syringe-exchange program as part of this overall disease-prevention program, the participants in that program appear to be subject to prosecution under the Texas Controlled Substances Act because the Legislature did not except them from such prosecution. In contrast to the Bexar County pilot-program statute, the Legislature has, in numerous statutes, adopted express language that excludes certain activities from criminal prosecution under the Texas Controlled Substances Act. Because the Legislature has expressly demonstrated its ability and willingness to exclude otherwise criminal acts from prosecution under the Texas Controlled Substances Act-but did not do so here-this office can neither assume nor legislate such an intent. Additionally, even if the participants are not subject to prosecution under the Texas Controlled Substances Act, participants may face criminal charges under other Texas or federal statutes. The Honorable Jeff Wentworth - Page 9 (GA-0622) Finally, any decision to prosecute program participants is a matter of prosecutorial discretion. KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4288753/

Fourth Court of Appeals San Antonio, Texas June 19, 2018 No. 04-18-00023-CR Casey Lane DAWSON, Appellant v. The STATE of Texas, Appellee From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CR-16-0000128 Honorable M. Rex Emerson, Judge Presiding ORDER The State’s motion for extension of time to file its brief is GRANTED. The State’s brief is due on August 2, 2018. _________________________________ Karen Angelini, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of June, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court

01-03-2023

06-26-2018

https://www.courtlistener.com/api/rest/v3/opinions/4127139/

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0114n.06 Case No. 16-1004 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 17, 2017 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN SENECCA FREEMAN, ) DISTRICT OF MICHIGAN ) Defendant-Appellant. ) OPINION BEFORE: GIBBONS, ROGERS, and McKEAGUE, Circuit Judges. McKEAGUE, Circuit Judge. Senecca Freeman dealt heroin mixed with fentanyl—a synthetic opioid 50 to 100 times more powerful than morphine.1 After a customer’s girlfriend fatally overdosed on this concoction, police discovered Freeman’s operation. A five-count indictment on gun and drug charges followed. The Government then offered Freeman a deal. He could plead guilty to a single firearms charge while conceding that his earlier convictions qualified him for a minimum 15-year sentence under the Armed Career Criminal Act—rather than the firearm offense’s usual 10-year maximum. In exchange, the Government would drop the remaining charges. If Freeman rejected the deal, the Government would try to supersede the 1 NIDA (2016). Fentanyl. Retrieved January 9, 2017, from https://www.drugabuse.gov/drugs- abuse/fentanyl. Case No. 16-1004, United States v. Freeman indictment with a charge of distribution resulting in death—an offense carrying a minimum sentence of life. Freeman took the deal. Per the agreement, the parties could litigate at sentencing the propriety of any departure from the guidelines range. The Government moved for a departure citing a provision, U.S.S.G. § 5K2.1, that allows for an increased sentence when a death results. The district court, finding Freeman at least knew his product to be highly potent and dangerous, granted this departure to account for the overdose victim’s death. Ultimately, Freeman was sentenced to over 22 years in prison. On appeal, Freeman challenges his sentence on two grounds. First, he asserts that his attorney misadvised him that Michigan’s unarmed-robbery statute constituted a “violent felony” under the ACCA and thereby qualified him for that statute’s 15-year minimum sentence. Thus, he maintains that his Sixth Amendment right to effective assistance of counsel was violated. Second, although he concedes that the Government could seek an upward departure, he believes the district court erred in granting one. For the following reasons, the first challenge was premature and the second challenge was waived. I Both parties ask us to address Freeman’s ineffective assistance of counsel claim—or IAC claim as it is commonly called—on the merits, but we decline their invitation. As a general rule, we refuse to hear such claims on direct appeal. See, e.g., United States v. Bradley, 400 F.3d 459, 461–62 (6th Cir. 2005). This policy results from the mismatch between the information needed to adjudicate an IAC claim and the record typically generated at the district court. See id. To prevail on an IAC claim, a defendant must show: (1) “that counsel’s representation fell below an objective standard of reasonableness”; and (2) that the defendant suffered “prejudice” from the -2- Case No. 16-1004, United States v. Freeman deficient performance. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Trial court proceedings, however, focus on different questions—like the defendant’s guilt, innocence, or degree of culpability. Often, the record reveals little about counsel’s strategic thinking or advice to the client. See Massaro v. United States, 538 U.S. 500, 504–05 (2003). Thus, we may “have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel’s alternatives were even worse.” Id. at 505. This case presents no exception. Freeman faults how trial counsel resolved an open question: whether Michigan’s unarmed-robbery statute counted as a “violent felony” under the ACCA. Even if we accepted a necessary premise in Freeman’s IAC claim—that counsel erred in resolving this question—that counsel performed deficiently does not inevitably follow. If the answer to the underlying legal question were clear, counsel’s simply getting it wrong would, of course, be deficient performance. Cf. Padilla v. Kentucky, 559 U.S. 356, 368 (2010) (holding that counsel performed deficiently by failing to advise defendant on the consequences from his guilty plea where the applicable statute was “succinct, clear, and explicit”). But when the law lacks clarity, counsel’s duty becomes harder to define. See id. at 369. And counsel lacked a clear answer in this case. He advised Freeman just weeks after the Supreme Court limited what offenses could qualify as “violent felonies” under the ACCA, and thus could contribute to making Freeman eligible for its minimum sentence. See Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Perhaps, as Freeman asserts, Michigan’s statute no longer counts toward making him eligible for an enhancement. But counsel’s failure to predict how the law will develop does not necessarily make him ineffective. See Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 288 (6th Cir. 2010) (collecting cases); States v. Davies, 394 F.3d 182, 190–91 (3d Cir. 2005) (holding that counsel did not perform deficiently by failing -3- Case No. 16-1004, United States v. Freeman to challenge a conviction using a Commerce Clause argument that succeeded in a later case); cf. Lafler v. Cooper, 566 U.S. 156, 174 (2012) (“[A]n erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance.”). After all, at least one court has agreed with counsel’s take on Michigan’s statute. See United States v. Lamb, 638 F. App’x 575, 576 (8th Cir. 2016), cert. granted, judgment vacated, 2016 WL 4399374 (2016). Without knowing how counsel prepared, or how he advised Freeman on the possible risks related to litigating this issue, we decline to determine whether counsel performed deficiently or whether the offense is a violent felony. II Freeman presents his second challenge—that the district court impermissibly granted an upward departure—in a manner that bleeds together conceptually distinct arguments. They may be split into a few contentions, however. First, he claims that the district court improperly considered “relevant conduct,” as defined by U.S.S.G. § 1B1.3, when departing upward to account for the overdose death under § 5K2.1. Second, he says that the court neglected to make a mens rea finding required by that departure provision. Finally, he argues a point that he concedes this court’s precedent forecloses: that the district court violated his Fifth and Sixth Amendment rights by establishing his dismissed and uncharged conduct under a preponderance- of-the-evidence standard. We find these arguments unconvincing, but we do not address the merits here because Freeman waived these challenges. In his plea agreement, Freeman waived “all rights to appeal or collaterally attack his conviction, sentence, or any other matter related to this prosecution.” R. 22, Plea Agreement, PID 47. Further, he agreed that the district court could consider “uncharged, relevant conduct” and “dismissed counts” in determining the “propriety of any -4- Case No. 16-1004, United States v. Freeman departure from the sentencing guidelines.” Id. at PID 44–45. His arguments—based primarily on the district court’s consideration of uncharged conduct—are unambiguously covered by the waiver. We enforce appellate waivers according to their terms. United States v. Toth, 668 F.3d 374, 377–78 (6th Cir. 2012). Given this broad language, these challenges are presumptively covered by the waiver unless Freeman can channel them into one of the waiver’s enumerated exceptions. So Freeman argues that the challenges fit into an exception for claims that his “sentence was based on an unconstitutional factor, such as race, religion, national origin, or gender.” R. 22, PID 47. His argument that his burden-of-proof challenge falls within this unconstitutional-factor exception proceeds in two steps. First, he notes that the court considered his uncharged conduct as a “factor.” And, he believes, the court unconstitutionally established the conduct by a mere preponderance of the evidence. Thus, he concludes, the court considered an “unconstitutional factor.” As to his other departure-related challenges, he merely asserts that, especially where a departure provision requires some specified intent, a court’s departure decision implicates “constitutional considerations.” Perhaps sensing some weakness in these interpretive moves, Freeman suggests that— even if we find his reading of the provision wanting—the unconstitutional-factor exception is at least ambiguous. In particular, he notes that the exception uses the phrase “such as,” which means the list that follows—“race, religion, national origin, or gender”—must be non- exhaustive. If the list is non-exhaustive, he says, ambiguity necessarily exists as to what it might include. Because we apply a contra-proferentem-like rule that ambiguities must be resolved against the Government, see, e.g., United States v. Bowman, 634 F.3d 357, 360–61 (6th Cir.2011), Freeman asserts that we must read the exception to cover his claims. -5- Case No. 16-1004, United States v. Freeman But a quasi-tiebreaker like contra proferentem only comes into play when the court confronts two reasonable interpretations of a provision. See Restatement (Second) of Contracts § 206 (1981). Freeman’s contention that the unconstitutional-factor exception reaches his arguments is simply untenable. The “such as” language that Freeman cites, rather than introducing any ambiguity favorable to him, actually clarifies what “unconstitutional factor” means: one’s membership in a protected class. The list forecloses the argument that his uncharged conduct is an “unconstitutional factor” contemplated by the provision. Moreover, Freeman’s challenge is not even to the court’s consideration of his conduct as a “factor” per se. Rather, he challenges how the court evaluated that factor—that is, the standard used to establish his conduct and how the court applied a departure provision to it. This court has rejected similar attempts to reframe arguments related to the sentencing process as unconstitutional-factor arguments. See United States v. Mizori, 604 F. App’x 413, 417 (6th Cir. 2015); United States v. Lash, 584 F. App’x 285, 286 (6th Cir. 2014). The same result applies in this case. For the foregoing reasons, we affirm. -6-

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127140/

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0112n.06 Case No. 14-5380 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 17, 2017 JOE EDWARD WEBB, ) DEBORAH S. HUNT, Clerk ) Petitioner-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE MIDDLE DISTRICT OF UNITED STATES of AMERICA, ) TENNESSEE ) Respondent-Appellee. ) ) Before: COLE, Chief Judge; BATCHELDER and COOK, Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. The petitioner appeals the district court’s judgment dismissing his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Because the district court was correct in its determination that the petition was untimely, we AFFIRM. I. On January 15, 2010, Joe Webb entered guilty pleas to two counts of conspiracy to distribute cocaine and one count of attempting to possess with intent to distribute over 500 grams of cocaine. Webb had retained counsel, Edward DeWerff, and entered into a plea agreement in which he waived his right to appeal any sentence within the guidelines range. The presentence report (PSR) established Webb’s guideline range at 262 to 327 months in prison (due to a career offender adjustment), with a 240 month statutory mandatory minimum. The district court sentenced Webb on January 7, 2011, and though affirming the PSR’s calculated range, found that range excessive and instead sentenced Webb to 240 months for the conspiracy convictions and another 240 months for the attempt conviction, to run concurrently. Webb did not appeal. No. 14-5380, Webb v. United States On April 17, 2012—almost 15 months later—Webb filed a § 2255 motion to vacate, set aside, or correct his sentence, claiming that he received ineffective assistance of counsel during plea negotiations and sentencing because DeWerff had failed to recognize, argue, and/or preserve the applicability of the forthcoming Fair Sentencing Act amendments, which would have lowered the statutory mandatory minimum from 240 months to 120 months. Webb’s theory was that the district court would have imposed a sentence lower than 240 months if it had known that the statutory mandatory minimum was 120 rather than 240 months. The government moved to dismiss Webb’s § 2255 petition because it was untimely, coming almost three months after the January 21, 2012 deadline. Webb sought equitable tolling, arguing ineffective assistance of counsel based on his claim that he had instructed attorney DeWerff to file the appeal but DeWerff had neglected to do so, while falsely assuring Webb that the appeal had been filed. Given this dispute of material fact, the district court ordered a magistrate judge to conduct an evidentiary hearing to determine whether Webb had truly instructed DeWerff to file the appeal or had otherwise expressed a desire for an appeal. Following a hearing at which both Webb and DeWerff testified, the magistrate judge determined that Webb had not asked DeWerff to file an appeal. In finding Webb not credible, the magistrate judge cited his observation of Webb while testifying, Webb’s lying to the prosecutor previously, and the inconsistencies in Webb’s testimony. The magistrate judge found it “unbelievable” and “simply inconceivable” that Webb would have had three or four telephone conversations with DeWerff—conversations Webb admitted to having—without ever asking about the status of his appeal. Moreover, Webb asserted in his § 2255 motion that he had instructed DeWerff to appeal the “prior convictions issue” (underlying the career offender enhancement), but at the hearing said he had wanted to appeal the Fair Sentencing Act issue and had not discussed appealing the prior-convictions issue; but then changed his testimony when 2 No. 14-5380, Webb v. United States challenged and said that he had asked DeWerff to appeal the prior-convictions issue. Webb also conceded that he had a copy of his docket report in August 2011 and was aware then that DeWerff had filed no appeal, but had not questioned DeWerff about it.1 Webb tried to bolster his recollection of his claim that he had instructed DeWerff to appeal by tying it to his associated memory that he had given this instruction immediately after his sentencing and because the sentencing judge had said he had 10 days to appeal, and he insisted on this story repeatedly. But the judge had actually said 14 days, as demonstrated by the transcript. Furthermore, the magistrate judge found that DeWerff was credible. In his report, beyond finding that Webb did not actually instruct DeWerff to appeal, the magistrate judge opined on two other issues. First, he rejected Webb’s argument based on Roe v. Flores-Ortega, 528 U.S. 470 (2000)—i.e., that DeWerff was ineffective because he failed his duty to consult with Webb about an appeal, a duty which arose even if Webb had not expressly asked for any appeal—by finding that argument beyond the scope of the district court’s narrow instruction and inapposite because Flores-Ortega applied to a defendant who had not waived any of his appeal rights as Webb had done. The magistrate judge also noted that, to obtain equitable tolling, Webb had to prove that despite his diligence “some extraordinary circumstance” prevented his timely filing, but that Webb had shown neither diligence, given that “he knew in August 2011, when he reviewed his docket sheet, that an appeal had not been filed, but he did nothing about it until April 2012,” nor that “any extraordinary circumstance [] stood in his way of making a timely claim in this case.” Based on all of this, the magistrate judge found the filing untimely and recommended that the district court grant the motion to dismiss. 1 In August 2011, Webb had possession of his docket report and was concerned that certain entries revealed his cooperation with the government. Because the docket was publicly available, he feared reprisal if that cooperation were discovered. Webb contacted DeWerff and asked him to have those entries removed or redacted. Webb testified that he could read that docket report and understood from it that no appeal had been filed, and that he had not asked DeWerff about an appeal at that time or the absence of any appeal entry on that docket report. 3 No. 14-5380, Webb v. United States In his objection to the magistrate judge’s report, Webb essentially conceded that he had not really instructed DeWerff to appeal, and instead pressed the Flores-Ortega argument: that DeWerff was obliged to consult with him anyway but had failed to do so. In rejecting this argument, the district court explained that Flores-Ortega, 528 U.S. at 480, applies when there is objective evidence that a reasonable defendant would want to appeal or subjective evidence that the particular defendant demonstrated a desire to appeal. According to the court, however, Webb could prove neither, given that he had obtained and agreed to a favorable plea agreement containing an appeal waiver, and afterwards had spoken with DeWerff on at least three occasions prior to the expiration of the limitations period without ever mentioning any appeal. The district court dismissed Webb’s § 2255 as untimely and denied any certificate of appealability (COA). R. 45. When Webb moved for reconsideration, the court said: When a district court has denied a habeas corpus petition on procedural grounds without reaching the petitioner’s underlying constitutional claims, a certificate of appealability will issue only if the petitioner can show (1) that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and (2) that jurists of reason would find it debatable whether the procedural ruling was correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, [Webb’s] petition was clearly filed well beyond the expiration of the one year limitation period applicable to § 2255 habeas corpus actions. [Webb] failed to establish that a tolling of the limitation period would be appropriate in this instance. Therefore, reasonable jurists would not find the untimeliness of this action debatable. R. 51 (4/2/14) (first emphasis added). The district court thus expressly avoided the merits. Webb applied to this court for a COA and a single judge denied it, holding that “jurists of reason could not disagree . . . that Webb’s § 2255 motion is time barred”: First, the facts supporting Webb’s claims—i.e., the advice that his attorney gave him at the plea stage and the attorney’s failure to consult with him about an appeal—were indisputably known to Webb at the time that his conviction became final. Under the plain text of § 2255 and our precedent, whether Webb knew, or should have known, that those facts might support a legal claim is irrelevant. Second, Webb’s attorney’s failure to consult with him about an appeal in no way impeded the timely filing of a § 2255 motion. Thus, reasonable jurists 4 No. 14-5380, Webb v. United States could not debate the district court’s determination that the one-year limitations period ran from the date that Webb’s conviction became final, and not from some later date under 28 U.S.C. § 2255(f)(2) or (4). Finally, reasonable jurists could not debate the district court’s refusal to apply equitable tolling. Webb has not shown that he pursued his rights diligently and that [an] extraordinary circumstance prevented him from filing a timely § 2255 motion. Again, the attorney’s failure to consult with Webb about an appeal was no barrier to [Webb’s] timely filing under § 2255. R. 52 (citations omitted; paragraph break inserted). But Webb petitioned for rehearing and a three-judge panel reversed that single-judge decision and granted the COA in a succinct, two-paragraph order: Joe Edward Webb petitions for rehearing en banc of this court’s order … denying his application for a [COA]. The petition was initially referred to this panel, on which the original deciding judge does not sit. The petition was then circulated to all active members of the court, none of whom requested a vote on the suggestion for an en banc rehearing. Therefore, en banc rehearing is denied. However, the panel further reviewed the petition for rehearing and grants the petition to rehear the matter and grants Webb a [COA] on the issues of [1] whether Webb’s attorney failed to consult with him about the advantages and disadvantages of taking an appeal and [2] whether Webb is entitled either to ‘statutory tolling’ under 28 U.S.C. § 2255(f)(2) or (4) or to equitable tolling. R. 53. The first thing that bears mention is that the first issue is not actually at issue here, given that DeWerff frankly admitted (and the district court expressly found) that he did not consult with Webb about any appeal. Moreover, the district court expressly chose to avoid any merits aspect and instead dismissed the case solely on the procedural untimeliness. II. Webb’s original story was that he had expressly told DeWerff to appeal, DeWerff promised to do so, and Webb was unaware until way too late that DeWerff had not appealed. But that story was not true; at least, the magistrate judge found that it was not true. Thus, Webb now accuses DeWerff of the exact opposite: Webb now claims that he never instructed DeWerff to file the appeal because DeWerff actually warned him that he could not appeal and prevented him from appealing. See Webb’s Apt. Br. at 3 (“lawyer indicated [Webb] could not appeal”); at 5 No. 14-5380, Webb v. United States 4 (Webb “was hamstrung by his lawyer’s misadvice”); at 13 (“DeWerff essentially told Webb he could not appeal”); at 19 (DeWerff “created the false impression that Webb had no right to appeal at all”); at 25 (“the upshot of DeWerff’s advice was simply: You cannot appeal”). So one might ask, if this new story is true, why did Webb fabricate the prior express-instruction-and- promise story? And given that this new story emerges as a result of district court’s rejecting the first story as a fabrication, why would anyone believe this story either? The transcript not only demonstrates that the sentencing judge clearly told Webb that he could appeal, but that Webb clearly understood, believed, and remembered that offer, and made it (and his misremembered 10-day time limit) a central part of his express-instruction-and-promise story. So, to use the magistrate judge’s phraseology, it appears “unbelievable” and “simply inconceivable” that Webb thought he could not appeal. In any event, Webb’s basic theory or argument for tolling the § 2255 deadline is that: “he should be allowed to raise his Flores-Ortega claim late because in order to recognize that claim existed he had to overcome the ignorance that he wrongfully suffered due to the Flores-Ortega violation itself [i.e., DeWerff’s “misadvice”]. To overcome that ignorance and recognize that violation, he needed two things: (1) his file, so he could know and recall the precise facts of his case; and (2) awareness that the FSA issue existed and was viable, including in the Sixth Circuit.” Webb’s Apt. Reply Br. at 7. But Webb did not need his file to pursue this theory. Webb’s theory relies on two particular “facts”: (1) that DeWerff led him to believe that he could not appeal and (2) that DeWerff did not consult with him about an appeal. These are not facts from DeWerff’s file; Webb would have been fully aware of these two facts on January 21, 2011, the day that his 14 days for filing a direct appeal expired and the one-year AEDPA limitation period began. It is highly unlikely that these “precise facts” would have been in DeWerff’s file. 6 No. 14-5380, Webb v. United States Webb’s second contention is that he needed to know he had a viable legal claim (i.e., “needed … awareness that the FSA issue existed and was viable … in the Sixth Circuit”). But a petitioner’s ignorance of a legal claim does not toll the § 2255 deadline. See Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (“The ‘due diligence’ clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered.” (emphasis added)); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (amended Jan. 22, 2001) (“Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.”); Brooks v. McKee, 307 F. Supp. 2d 902, 905-06 (E.D. Mich. 2004) (“Additionally, the AEDPA’s limitations period begins to run when the petitioner knows or through due diligence could have discovered the important facts for the claim, not when the petitioner recognizes the facts’ legal significance.”); Redmond v. Jackson, 295 F. Supp. 2d 767, 771 (E.D. Mich. 2003) (“Also, under § 2244(d)(1)(D), the time under the limitations period begins to run [] when a petitioner knows, or through due diligence, could have discovered, the important facts for his claims, not when the petitioner recognizes the legal significance of the facts.”). Consequently, Webb’s core argument is both contrary to the pertinent facts of this case and unsupported by the established law. Nonetheless, Webb relies on this argument to seek tolling under three possible bases: 28 U.S.C. § 2255(f)(4), 28 U.S.C. § 2255(f)(2), and/or common law equitable tolling. Under 28 U.S.C. § 2255(f)(4), “[t]he limitation period shall run from . . . the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” Webb argues that, pursuant to this provision, the starting date for his § 2255 should be either (1) the date the Supreme Court granted certiorari in Dorsey v. United States, 132 S. Ct. 2321 (2012) (clarifying that the FSA applied to defendants such as Webb, 7 No. 14-5380, Webb v. United States sentenced after its enactment even if they were convicted before), or (2) the date Webb got the file from DeWerff. But the “new information” to be gleaned from Dorsey was merely that he had a viable legal claim, which—as explained above—is not a basis for tolling. And the only “new information” to be gleaned from DeWerff’s file was extraneous or irrelevant to the pertinent facts supporting his Flores-Ortega claim. Webb cannot satisfy § 2255(f)(4). Webb relies on DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), in which the sentencing judge failed to tell defendant DiCenzi that he could appeal and, apparently, his defense counsel didn’t tell him either, so nobody told him and—according to his claim—he was unaware until a public defender told him some two years later. Here, the sentencing judge clearly told Webb about his right to appeal and Webb clearly understood, believed, and remembered. Consequently, in DiCenzi, we remanded DiCenzi’s claim for the district court to determine whether he had acted with diligence to discover his right to appeal; here, the district court and magistrate judge have already had a full hearing and determined that Webb did not act with the necessary diligence. DiCenzi is inapposite. Webb’s second proposed basis is 28 U.S.C. § 2255(f)(2), which says “[t]he limitation period shall run from ... the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action.” Webb contends that the “governmental action” that prevented him from making his § 2255 motion on time was DeWerff’s Flores-Ortega violation and relies on Waldron v. Jackson, 348 F. Supp. 2d 877, 884 (N. D. Ohio 2004), saying its “logic supports th[at] conclusion.” Webb’s Apt. Br. at 45. In Waldron, a § 2254 case, a court-appointed appellate counsel missed the appeal deadline but did not tell defendant Waldron, who only discovered the error when the Ohio appellate court dismissed his appeal as untimely some four months later. A public defender then 8 No. 14-5380, Webb v. United States sought to file a delayed appeal but the motion was denied; moved for reconsideration, which was denied; and appealed both denials to the Ohio Supreme Court, which declined to hear the appeal. Over three years passed while Waldron pursued that delayed appeal. Following the Ohio Supreme Court’s final ruling, Waldron filed his § 2254 and the government moved to dismiss it as untimely because delayed appeals do not toll the AEDPA clock. But the district court held that Waldron’s appellate counsel’s ineffectiveness was an impediment that prevented the timely filing of his § 2254 because Waldron “could not have brought this habeas action until the claim contained in the petition had first been presented to and exhausted in state court, including the filing of a delayed appeal.” Waldron, 348 F. Supp. 2d at 884. Even if that analysis is proper, the distinction is noteworthy: this is a § 2255, in which Webb did not have to first exhaust his claim, so DeWerff’s ineffectiveness did not prevent Webb from filing the § 2255 earlier. Moreover, Waldron acknowledges that “Section 2244(d)(1)(B) requires a causal relationship between the unconstitutional state action [i.e., ineffective assistance imputed to the state] and [the petitioner’s] being prevented from filing the petition.” Id. at 583 (relying on Winkfield v. Bagley, 66 F. App’x 578, 583 (6th Cir. 2003) (“[The petitioner] has not alleged that [his attorney] erroneously informed him that he had no federal remedies. No connection has been established between [the attorney]’s ineffective assistance and [the petitioner]’s ability to file a federal habeas petition.”)); see also Miller v. Cason, 49 F. App’x 495, 497 (6th Cir. 2002) (finding that even a court’s failure to advise a petitioner of his appellate rights at sentencing is not a state-created impediment that prevented him from filing his federal habeas petition). But Webb cannot show a causal relationship—such as in Waldron—that would connect DeWerff’s ineffectiveness with his own failure to timely file his § 2255 motion, because there is none. Finally, Webb’s third basis is common law equitable tolling. “Equitable tolling allows courts to review time-barred habeas petitions provided that a litigant’s failure to meet a legally- 9 No. 14-5380, Webb v. United States mandated deadline unavoidably arose from circumstances beyond that litigant’s control.” Keeling v. Warden, 673 F.3d 452, 462 (6th Cir. 2012) (quotation marks and citations omitted). “[The] habeas petitioner must establish: (1) that he has diligently pursued his rights; and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. (quotation marks and citations omitted). As we have already established, Webb cannot show that he diligently pursued his rights or that some “extraordinary circumstance” prevented his timely filing of his § 2255. Also, as we clarified in Keeling: “pro se status and lack of knowledge of the law are not sufficient to constitute an extraordinary circumstance and to excuse his late filing.” Id. at 464. The district court was correct. There was no reason to toll the running of the limitations period. III. For the foregoing reasons, we AFFIRM the judgment of the district court. 10 No. 14-5380, Webb v. United States COLE, Chief Judge, concurring in part and dissenting in part. I respectfully disagree with the majority to the extent it finds that Webb lacks a claim under Roe v. Flores-Ortega, 528 U.S. 470 (2000). The question is not, as the majority writes, whether Webb knew that he could appeal his sentence at all. Maj. Op. 6. It is whether a rational defendant in Webb’s circumstances would have wanted to appeal the sentence. Flores-Ortega, 528 U.S. at 480. No rational defendant would have passed up the chance to reduce his sentence by half under the Fair Sentencing Act (“FSA”). So, Webb’s counsel should have consulted with him about an FSA-based appeal. See id. (“courts must take into account all the information counsel knew or should have known,” including relevant statutory changes). Counsel’s failure to do so constitutes a claim under Flores-Ortega. But I agree that Webb’s motion to vacate his sentence under 28 U.S.C. § 2255 was untimely for the reasons discussed by the majority. Webb’s strongest argument concerns § 2255(f)(4), under which the filing period runs from “the date on which the facts supporting the claim . . . could have been discovered through the exercise of due diligence.” We have clarified that § 2255(f)(4) is “directed at the discovery of new facts, not newly-discovered law.” Phillips v. United States, 734 F.3d 573, 580 (6th Cir. 2013). What enabled Webb to bring his Flores- Ortega claim was the knowledge that he was entitled to a reduced sentence under the FSA, that is, awareness of the law governing his position. See Dorsey v. United States 132 S. Ct. 2321, 2331 (2012); Gilliam v. United States, 753 F. Supp. 2d 683, 691 (W.D. Mich. 2010). Webb possessed the facts supporting that claim, e.g., the drug quantities for which he was convicted, as early as sentencing. Thus, § 2255(f)(4) does not apply to him. 11

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127149/

United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-1317 ___________________________ In re: Diwan, L.L.C. lllllllllllllllllllllDebtor ------------------------------ Diwan, L.L.C. lllllllllllllllllllllAppellant v. Maha-Vishnu Corporation; United States Trustee lllllllllllllllllllllAppellees ____________ Appeal from United States District Court for the Southern District of Iowa - Davenport ____________ Submitted: November 16, 2016 Filed: February 17, 2017 ____________ Before COLLOTON, BEAM, and GRUENDER, Circuit Judges. ____________ BEAM, Circuit Judge. Diwan, LLC appeals the district court's1 affirmance of the dismissal of Diwan's small business Chapter 11 bankruptcy. We affirm. I. BACKGROUND The involved set of facts surrounding Diwan's bankruptcy proceedings are set out in In re Diwan, L.L.C., No. 12-00424-als11, 2013 WL 8351981, at *1-3 (Bankr. S.D. Iowa July 16, 2013), as well as in the district court's order on appeal, and will be reproduced here only as necessary. Diwan owned two gas stations in Davenport, Iowa. Its sole owner and manager, Ranbir Thakur, formed Thakur LLC, which entered into a sales contract with Maha-Vishnu Corp. (MVC) to purchase a motel. (We refer to Thakur personally as "Ranbir" and his company as "Thakur LLC.") The sales contract was secured in part by a personal guarantee from Ranbir. As collateral for the guarantee, Ranbir pledged a mortgage on one of Diwan's gas stations (the "Spring Street property"). Thakur LLC defaulted on the sales contract and in 2012 MVC foreclosed and purchased the motel at a sheriff's sale for $1.00. MVC failed to redeem an outstanding tax debt on the motel, and a Tax Sale Deed was issued to a third party. Also in 2012, the Iowa Court of Appeals affirmed a deficiency judgment awarded to MVC against Ranbir and Thakur LLC for $667,067.91. Diwan filed for Chapter 11 bankruptcy in February 2012 and in June MVC filed a proof of claim for $677,130.41. Diwan objected to the claim and filed a Chapter 11 plan subordinating MVC's claim to all creditors and releasing the mortgage on the Spring Street property. MVC and other creditors objected to the plan. After a confirmation hearing, MVC amended the claim to $688,231.45, of which $612,879 was secured by the mortgage on the Spring Street property, leaving an unsecured 1 The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, affirming the Honorable Anita L. Shodeen, United States Bankruptcy Judge for the Southern District of Iowa. -2- claim for $75,352.45.2 The bankruptcy court equitably subordinated $458,119 of MVC's secured claim to all creditor claims, due to an inflated sale price for the motel and the $1.00 bid.3 Diwan filed modified plans in April, August, and December of 2014, each prioritizing the subordinated portion of MVC's claim behind Ranbir's equity interest in Diwan. In a February 2015 bench ruling, the bankruptcy court rejected Diwan's argument that MVC's entire claim should be disallowed under the U.C.C. and common-law doctrines of impairment of collateral. It sustained MVC's objections to the plan's proposed interest rate and to feasibility, and it concluded that Diwan's latest plan in any event would fail the best-interest-of-the-creditors test. The bankruptcy court denied confirmation of the plan and granted the Trustee's motion to dismiss. On appeal, the district court affirmed. It rejected Diwan's impairment-of-collateral argument and also found that the bankruptcy court presented alternate, independent grounds sufficient for denying confirmation and dismissing the case. II. DISCUSSION Diwan appeals the district court's affirmance, arguing that the bankruptcy court erred in overruling its objection to MVC's claim on the basis of impairment of collateral, in denying confirmation, and in dismissing its Chapter 11 case. Like the district court, we review the bankruptcy court's factual findings for clear error, its legal conclusions de novo, and issues committed to its sound discretion for an abuse of that discretion. Zahn v. Fink (In re Zahn), 526 F.3d 1140, 1142 (8th Cir. 2008). 2 It is not clear from the record on appeal why Diwan is liable for the undersecured portion of MVC's claim against Ranbir and Thakur LLC, but no party disputes the matter. 3 The court found that Magan Patel, an owner of MVC, had used a cultural position of authority over Ranbir to engage in inequitable conduct. -3- "Although the district court's conclusions about the bankruptcy court's decision may carry some persuasive weight, our appellate review of the bankruptcy court's decision is independent of the district court's opinion." United States v. Foust (In re Foust), 52 F.3d 766, 768 (8th Cir. 1995).4 Under the Bankruptcy Code, a debtor's Chapter 11 plan may only be confirmed, inter alia, if any holder of an impaired claim or interest either accepts the plan or receives no less than he would under a Chapter 7 liquidation (the best-interest-of-the- creditors test), 11 U.S.C. § 1129(a)(7)(A), and so long as confirmation does not lead to unproposed liquidation or further reorganization by the debtor or successor (feasibility), id. § 1129(a)(11). Further, impaired classes of claims must vote to accept the debtor's plan (balloting), id. §§ 1129(a)(8), 1129(a)(10), 1126, and creditors holding at least one half the number and two thirds the amount of claims in a class must accept the plan in order for the class to accept the plan, id. § 1126(c). Diwan's briefing again primarily focuses on its impairment-of-collateral argument. It also argues that it has not waived the issues of the bankruptcy court's other reasons for denial of confirmation and dismissal and that those issues are "intertwined" with the impairment-of-collateral issue. It points to the statement in the bankruptcy court's bench ruling that because Diwan's objection to MVC's claim "is integral to the outcome of confirmation, it will be addressed first." Diwan also points to the bankruptcy court's observation, after denying confirmation and in determining whether it ought to dismiss the case, that "[i]t does appear to the Court that some of the other issues related to balloting may never be resolved due to the size of Maha- Vishnu's claim. It appears unlikely, if not impossible, for Diwan to obtain confirmation of its plan over the continued objections by Maha-Vishnu." The Trustee 4 This passage allows us to quickly dispense with one of Diwan's arguments: that the district court improperly made factual findings and credibility determinations. We are reviewing the bankruptcy court's decision directly and affirm without relying on the contested portions of the district court's order. -4- and MVC argue that the bankruptcy court's decision may be affirmed on the alternate grounds without considering the impairment-of-collateral issue. The first question, then, is whether the bankruptcy court's grounds for denial of confirmation were predicated on the allowance of MVC's claim, and whether any ground not so predicated was sufficient for denial of confirmation of Diwan's plan. It is fairly clear that if MVC's claim was eliminated in its entirety, the problems with Diwan's plan as to balloting and the best-interest-of-the-creditors test would have no longer presented an obstacle to confirmation. But as we read the bankruptcy court's ruling, Diwan's plan would still have failed to meet the requirements of feasibility. The bankruptcy court, using the monthly operating report for December 2014, found that Diwan would only have had $457 to make planned payments. Diwan does not challenge this finding on appeal. Further, Diwan's projected cash-flow statement used an amount for expenses based on the bottom end of its historical range of costs of goods sold, which had fluctuated as much as $5,000 higher. The bankruptcy court stated, "Factoring in this [$5,000] difference, however, could substantially affect the available cash flow for both the business operations and planned payments." These figures indicate that Diwan might not be able in some months to meet its operating expenses, let alone make plan payments to its creditors. Even without payments on MVC's claim, Diwan's plan called eventually for monthly payments of roughly $2,100 on impaired claims and Trustee's fees. Add to this the bankruptcy court's unchallenged conclusion that the plan's 5% interest rate should have been 6.25%. Thus, it appears to us that the bankruptcy court's feasibility concerns would have existed even had Diwan succeeded on its impairment-of-collateral argument. The second issue is whether the bankruptcy court abused its discretion in dismissing the plan for cause as defined in 11 U.S.C. § 1112(b)(4)(A). The bankruptcy court may dismiss a case if there is a "substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation." Id. Putting the balloting issue aside, the bankruptcy court noted in choosing to -5- dismiss, "Primarily, the issue arises as to feasibility." We think the cash flow problem identified by the bankruptcy court is alone sufficient to support the bankruptcy court's dismissal. See In re Schriock Constr., Inc., 167 B.R. 569, 576 (Bankr. D.N.D. 1994) ("The concept of rehabilitation necessarily hinges upon establishing a cash flow from which current obligations can be satisfied."). Feasibility would be all the more difficult in light of the increased interest rate. The bankruptcy court noted that Diwan's case had been pending for three years, and its failure to present a confirmable plan imposed substantial and continuing losses on its creditors "with regard to the continuing operating expenses that it will incur as it moves forward and the creditors continue to be stayed from obtaining payment." Thus, even giving Diwan the benefit of the impairment-of-collateral issue, we find a sufficient basis in the record to defer to the bankruptcy court's "broad discretion" in determining whether a Chapter 11 case should be dismissed. Loop Corp. v. United States Trustee, 379 F.3d 511, 515 (8th Cir. 2004). III. CONCLUSION For the foregoing reasons, we affirm. ______________________________ -6-

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127163/

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 17 2017, 8:50 am court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case. ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Carlos I. Carillo Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA In the Matter of: February 17, 2017 L.G. (Minor Child), Child in Court of Appeals Case No. 79A05-1607-JC-1558 Need of Services, Appeal from the Tippecanoe and Superior Court M.S. (Mother) & C.G. (Father), The Honorable Faith A. Graham, Appellants-Respondents, Judge Trial Court Cause No. v. 79D03-1511-JC-252 The Indiana Department of Child Services, Appellee-Petitioner Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 1 of 12 Baker, Judge. [1] M.S. (Mother) and C.G. (Father) appeal the trial court’s order finding their child, L.G. (Child), to be a child in need of services (CHINS). Parents argue that there is insufficient evidence supporting the CHINS adjudication. They also argue that the trial court erred by denying their request for in-home placement during the CHINS case. Finding sufficient evidence and no error, we affirm. Facts [2] Mother and Father are parents to two children: Child, born in March 2014, and B.G. (Sibling). Child had marijuana in her system at the time of her birth and, at the time the Department of Child Services (DCS) became involved with the family, appeared noticeably thin and small for her age. [3] Sibling was born in March 2015. She was born three weeks prematurely and had marijuana in her system at the time of her birth. When the hospital released her after her birth, Sibling weighed six pounds. Nearly eight months later, at the time of her death, she weighed eleven pounds. [4] On Monday, November 16, 2015, DCS received a report alleging that Sibling had died while in Parents’ care and that Parents had neglected Child and Sibling. Parents stated that Sibling had died late Saturday evening or early Sunday morning, but they did not seek medical care for Sibling and did not take her body to the hospital until the morning of Monday, November 16. DCS Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 2 of 12 removed Child from Parents’ care and custody that same day and placed her in foster care. [5] A DCS investigator observed Sibling’s body at the hospital. Her body appeared very small for her age and underweight, and her head appeared larger than her body. Her stomach appeared bloated, her skin looked loose, and she did not have body fat. The FCM opined that Sibling was malnourished and dehydrated. [6] Dr. Griggs, the coroner who performed Sibling’s autopsy, testified that the body was underdeveloped, poorly nourished, dehydrated, and appeared younger than seven months old. Her condition “would certainly have alerted I think a reasonable person . . . .” Tr. p. 34. He testified that medical records indicated that Sibling had last seen a physician in early May 2015 and had missed her six- month well child checkup. [7] Dr. Griggs stated that the cause of death appeared to be asphyxia, possibly positional asphyxia (caused by a child’s position while sleeping or covered with clothes, fluffy pillows, or bed clothes). The coroner further testified that because Sibling “was under developed and malnourished possibly you know would make her more likely to succumb to asphyxia . . . .” Id. at 49-50. In other words, her weakened condition due to dehydration and malnutrition increased her “risk generally” of succumbing to a “secondary medical problem[]” such as asphyxia. Id. at 50. Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 3 of 12 [8] On November 18, 2015, DCS filed a petition alleging Child to be a CHINS. The trial court held a factfinding hearing on January 7 and February 15, 2016. On March 14, 2016, the trial court denied Parents’ motion to return Child to their care, ordering Child to remain in foster care. On May 17, 2016, the trial court issued its order finding Child to be a CHINS, and on June 21, 2016, the trial court issued a dispositional decree ordering Parents to participate in reunification services and ordering Child to remain in foster care. Parents now appeal. Discussion and Decision I. CHINS Finding A. Standard of Review [9] Parents first argue that there is insufficient evidence supporting the trial court’s order finding Child to be a CHINS. Our Supreme Court has explained the nature of a CHINS proceeding and appellate review of a CHINS finding as follows: A CHINS proceeding is a civil action; thus, “the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code.” In re N.R., 919 N.E.2d 102, 105 (Ind. 2010). We neither reweigh the evidence nor judge the credibility of the witnesses. Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider only the evidence that supports the trial court’s decision and reasonable inferences drawn therefrom. Id. We reverse only upon a showing that the decision of the trial court was clearly erroneous. Id. Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 4 of 12 There are three elements DCS must prove for a juvenile court to adjudicate a child a CHINS. DCS must first prove the child is under the age of eighteen; DCS must prove one of eleven different statutory circumstances exist that would make the child a CHINS; and finally, in all cases, DCS must prove the child needs care, treatment, or rehabilitation that he or she is not receiving and that he or she is unlikely to be provided or accepted without the coercive intervention of the court. In re N.E., 919 N.E.2d at 105. In re K.D., 962 N.E.2d 1249, 1253–54 (Ind. 2012) (footnote omitted). [10] Here, DCS alleged that the child was CHINS pursuant to Indiana Code section 31-34-1-1, which provides as follows: A child is a child in need of services if before the child becomes eighteen (18) years of age: (1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and (2) the child needs care, treatment, or rehabilitation that: (A) the child is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court. Our Supreme Court has interpreted this provision to require “three basic elements: that the parent’s actions or inactions have seriously endangered the child, that the child’s needs are unmet, and (perhaps most critically) that those Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 5 of 12 needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). In this case, Parents do not challenge the trial court’s factual findings. Therefore, our only task is to determine whether the findings support the CHINS adjudication. In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002). B. Sufficiency [11] In relevant part, the trial court found as follows: 4. [The DCS assessor] described [Sibling’s] body as follows: (1) very small for her age, (2) underweight, (3) her head disproportionately larger than her body, (4) sunken eyes, (5) her skin already becoming a different color, (6) her body starting to lose rigor, (7) a flat spot on the back of her head with hair falling out, (8) her stomach bloated, (9) her skin appeared loose, and (10) there appeared to be no body fat. *** 7. Dr. Griggs noted physical observations indicate [Sibling] was underdeveloped, poorly nourished, and dehydrated with wasting muscle and a fatty, widened facial appearance. 8. Dr. Griggs noted that evidence of dehydration and the condition of the lower intestine indicates [Sibling] had been fed within two (2) to three (3) days prior to death. *** Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 6 of 12 10. Dr. Griggs opined that [Sibling’s] condition could be the result of growth retardation due to poor feeding or due to poor care suggesting that a review of medical records would provide necessary insight. *** 14. Dr. Griggs stated [Sibling’s] condition at the time of death should have alerted a reasonably prudent caregiver that something was wrong. *** 19. [Child] also tested positive for marijuana at birth. 20. [Child] is a noticeably thin child who is generally physically healthy and normally socialized for her age. *** 22. . . . Mother reported [Sibling] died over the weekend either late Saturday night or early Sunday morning. . . . Mother provided no explanation for the failure to call 911 for emergency medical assistance or the delay in transporting [Sibling] to the hospital other than wanting to spend more time with [Sibling] before she was taken away. *** 27. [Sibling], who was in the care of the parents, is now deceased. 28. A criminal investigation is pending. Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 7 of 12 29. Neither parent sought immediate medical treatment for [Sibling] after discovering that [Sibling] was not breathing. 30. Further, the parents failed to report [Sibling’s] death or transport [Sibling] to the hospital for a period of at least twenty-four (24) hours up to two and one-half (2 ½) days. 31. The manner of [Sibling’s] death remains unknown. 32. The Court is not required to wait until [Child] suffers a similar harm before intervening. Appellants’ App. Vol. II p. 76-78. [12] Parents focus their argument on the fact that there is no evidence in the record establishing that Child (as opposed to Sibling) had been neglected or abused by Parents. Essentially, they contend that Sibling’s death was accidental, they were not at fault, and Sibling’s death should not be the basis for Child’s CHINS adjudication. The trial court found that, while the precise cause of Sibling’s death is unknown, the evidence established that she was severely malnourished and dehydrated and that her condition should have caused a reasonable caregiver to know that something was wrong. Parents, however, did not seek medical care for Sibling, missing a regular checkup for the premature and underdeveloped infant and failing to call 911 when they noticed she was not breathing. Nearly eight months after her birth, she weighed just eleven pounds. And as Dr. Griggs testified, because Parents had failed to provide proper nutrition and hydration to Sibling, she was more susceptible to asphyxiation because of her severely weakened condition. Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 8 of 12 [13] Parents direct our attention to two cases that are readily distinguishable from the case before us. In In re T.H., this Court reversed a CHINS adjudication that stemmed from the fact that the father had an unsecured firearm in the home. 856 N.E.2d 1247, 1249 (Ind. Ct. App. 2006). At the time of the CHINS adjudication, the firearm issue had been rectified and was therefore an improper basis for a CHINS adjudication. Id. at 1251. In R.S. v. Indiana Department of Child Services, we reversed a CHINS adjudication that was based solely on a mother’s prior care of her former children, to whom the juvenile court had previously terminated the mother’s parental rights. 987 N.E.2d 155, 157 (Ind. Ct. App. 2013). We found that the mother’s past actions in those regards were not applicable to her subsequently born child because those conditions no longer existed. Id. at 159. [14] Here, in contrast, we cannot say that the issue of Sibling’s death had been “rectified,” or no longer existed, at the time of the CHINS adjudication. The death of a child cannot so easily be swept under the rug and left in the past. Parents are facing an ongoing criminal investigation as a result of Sibling’s death. Moreover, the trial court reasonably concluded that Parents’ neglect of Sibling places Child at an ongoing risk of harm. Therefore, we are not persuaded by the above, strikingly different, cases. [15] Whether or not Sibling’s death was intentional, the trial court’s findings readily support a conclusion that she was neglected by Parents and that their neglect at least played a role in her death. Given this conclusion, it was eminently reasonable for the trial court to conclude that Child is at serious risk of harm Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 9 of 12 and is in need of coercive state intervention to safeguard her health and well- being. It is well established that a trial court considering a CHINS petition does not have to wait until a tragedy occurs to intervene. E.g., In re A.H., 913 N.E.2d 303, 305 (Ind. Ct. App. 2009). Here, the trial court did not err by adjudicating Child to be a CHINS to avoid another tragedy occurring in this family. [16] Parents’ remaining arguments amount to requests that we reweigh evidence and re-assess witness credibility, which we decline to do. We find the evidence sufficient to support the order finding Child to be a CHINS. II. Placement [17] Finally, Parents argue that the trial court erred by denying their repeated requests that Child be placed in their care and custody during the course of the CHINS case. When the trial court enters a dispositional decree following a CHINS adjudication, it has many available options, including an order authorizing that the child be removed from her parents’ care and custody and placed in another home. Ind. Code § 31-34-20-1(a)(3). In considering the contents of the dispositional decree, the trial court must abide by the following statute: If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that: (1) is: (A) in the least restrictive (most family like) and most appropriate setting available; and Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 10 of 12 (B) close to the parents’ home, consistent with the best interest and special needs of the child; (2) least interferes with family autonomy; (3) is least disruptive of family life; (4) imposes the least restraint on the freedom of the child and the child’s parent, guardian, or custodian; and (5) provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian. I.C. § 31-34-19-6. By virtue of its ability to determine placement of the child, the trial court has exclusive jurisdiction over custody decisions until the parties are either discharged or the cause is transferred. E.R. v. Marion Cnty. Office of Family & Children, 729 N.E.2d 1052, 1060 (Ind. Ct. App. 2000). The trial court must review the placement decision at least once every six months. I.C. § 31- 34-21-2. Placement decisions are continuing in nature, subject to change while the CHINS proceedings are pending, and do not finally determine placement of the child. E.R., 729 N.E.2d at 1059-60. The trial court’s formal determinations regarding placement are reviewable by this Court.1 Id. at 1060. [18] Here, as noted above, at the time of Sibling’s death, she was extremely dehydrated and malnourished. Her condition was such that a normal caregiver 1 It may be the case that to perfect an appeal of a CHINS court’s placement decisions, a parent is required to bring an interlocutory appeal. E.R., 729 N.E.2d at 1060. Notwithstanding the fact that the case at hand is not a perfected interlocutory appeal, we will address the important issue of placement. Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 11 of 12 would have known something was wrong, but Parents not only missed a regular well child checkup, they also failed to seek medical attention when they realized she was not breathing. They then waited at least twenty-four hours before taking her to the hospital. [19] The trial court found, correctly, that it was “not required to wait until [Child] suffers a similar harm before intervening.” Appellants’ App. Vol. II p. 78. Both DCS and the Court Appointed Special Advocate supported Child’s continuing placement outside of Parents’ care and custody because of the circumstances of Sibling’s death and the ongoing criminal investigation. Indiana Code section 31-34-19-6 makes the best interest of the child the trial court’s paramount consideration in determining placement. In this case, the trial court found that Child’s best interests will be best served with out-of-home placement; but it also ordered increased supervised visits occurring in Parents’ home and daily monitoring, followed by a trial home visit and eventual placement back in the home if all is going well. Given the evidence in the record, we cannot say that the trial court erred by determining that it was in Child’s best interests to be placed outside of Parents’ care and custody until the situation can be further assessed and monitored. [20] The judgment of the trial court is affirmed. Mathias, J., and Pyle, J., concur. Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017 Page 12 of 12

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4128464/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT January 22, 2008 Mr. Thomas A. Davis, Jr., Director Opinion No. GA-0598 Texas Department of Public Safety Post Office Box 4087 Re: Whether section 521.032, Transportation Code, Austin, Texas 78773-0001 which permits the Department of Public Safety to issue an enhanced driver's license or personal identification certificate for the purpose of crossing the border between Texas and Mexico conflicts with federal law (RQ-0610-GA) Dear Mr. Davis: Enacted by the Eightieth Legislature as part ofa homeland security measure, section 521.032 of the Transportation Code authorizes the Texas Department of Public Safety (the "Department") to "issue an enhanced driver's license or personal identification certificate for the purposes of crossing the border between [Texas] and Mexico." TEX. TRANSP. CODE ANN. § 521.032 (Vernon Supp.2007). You ask whether section 521.032 conflicts with current federal law. 1 I. Section 521.032, Texas Transportation Code Section 521.032 authorizes the Department to issue an enhanced driver's license that can be used to cross the border between Texas and Mexico. See ide Section 521.032 provides that an enhanced driver's license or personal identification certificate may be issued to "an applicant who provides ... proof of United States citizenship, identity, and state residency." Id. The section also requires biometric identifiers of applicants as well as security measures to protect information included in the enhanced driver's license or personal identification certificate. See ide § 521.032(b) (requiring one-to-many biometric matching system2 and limiting use of same), (c) (requiring reasonable security measures for privacy and protection against unauthorized disclosure and lSee Letter from Mr. Thomas A. Davis, Jr., Director, Texas Department of Public Safety, to Honorable Greg Abbott, Attorney General of Texas, at 1-3 (July 26, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter]. 2See TEX. GOV'T CODE ANN. § 560.001(1) (Vernon 2004) (defining "biometric identifier" as a "retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry"). Mr. Thomas A. Davis, Jr. - Page 2 (GA-0598) requiring encryption of any included radio frequency identification chips3). Section 521.032 authorizes the Department to adopt rules necessary to implement the section. See ide § 521.032(d). And it requires the Department to monitor technological innovations related to security and to amend its rules as appropriate to protect the privacy of individuals holding an enhanced driver's license or personal identification certificate. See ide Section 521.032 authorizes the Department to "enter into a memorandum of understanding with any federal agency for the purposes of facilitating the crossing ofthe border between this state and Mexico." Id § 521.032(f). Section 521.032 further authorizes the Department to "enter into an agreement with Mexico, to the extent permitted by federal law, to implement a border crossing initiative authorized by this section." Id. II. Federal Preemption You ask whether section 521.032 conflicts with current federallaw. 4 See Request Letter, - supra note 1, at 3. The issuance of driver's licenses has typically been a function of the individual states. See State v. Wilder, 67 P.3d 839, 841 (Idaho Ct. App. 2003) (stating that driver's license requirement is legitimate exercise ofstate's police power); see also, e.g., TEX. TRANSP. CODE ANN. § 521.021 (Vernon 2007) (requiring state-issued driver's license to operate motor vehicle on highway in state); ALA. CODE § 32-6-1 (a) (2007) (same); CAL. VEH. CODE § 125 OO(a) (2007) (same); DEL. CODE ANN. tit. 21, § 2701(a) (2007) (same); IDAHO CODE ANN. § 49.301 (2007) (same). But to the extent an enhanced driver's license issued under section 521.032 would permit a United States citizen to cross the border between Texas and Mexico, the section intersects with federal authority over the nation's borders. See United States v. Glasser, 750 F.2d 1197, 1201 (3rd Cir. 1984) ("It cannot be questioned that Congress has plenary power to police the borders of the United States.") (citing United States v. 12200-Ft. Reels ofFilm, 413 U.S. 123 (1973)). And under the Supremacy Clause of the United States Constitution, state law that conflicts with federal law is preempted and without effect. U.S. CONST. art. VI, cl. 2; Marylandv. Louisiana, 451 U.S. 725, 745-46 (1981); see La. Pub. Servo Comm 'n v. Fed. Commc 'ns Comm 'n, 476 U.S. 355,369 (1986) (stating that "a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation"). There are three ways in which a state law may be preempted. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992); Delta Air Lines v. Black, 116 S.W.3d 745, 748 (Tex. 2003). Federal law may expressly preempt state law. Cipollone, 505 U.S. at 516. Federal law may impliedly 3See Leighton Tech. LLC v. Oberthur Card Sys., S.A., 358 F. Supp. 2d 361,364 (S.D.N.Y. 2005) (describing radio frequency identification (RFID) technology as the "basis for the so'-called 'smart card,' a plastic card that includes an electronic element (such as a computer chip) and a reader, and that is used in numerous common applications including security swipe cards, credit/debit cards, mass transit access, toll collection (EZ-Pass), and government identification"). 4In presenting your question, you provide information and argument with respect to only federal passport requirements, and thus, we limit our analysis to such requirements. See Request Letter, supra note 1, at 1-3 (discussing provisions of federal passport law and the Western Hemisphere Travel Initiative). Mr. Thomas A. Davis, Jr. - Page 3 (GA-0598) preempt state law if the scope of the federal statute or regulations indicates that Congress intended to occupy the field exclusively. Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). Federal law may also impliedly preempt state law when there is an actual conflict between the federal and state law such that "it is 'impossible for a private party to comply with both federal and state requirements,' or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. (quoting English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990)). III. Federal Passport Requirements Current federal law requires that a United States citizen have a valid United States passport to "depart from or enter, or attempt to depart from or enter, the United States." Immigration and Nationality Act § 215, 8 U.S.C.A. § 1185(b) (West 2005 & Supp. 2007); Passport Requirement and Exceptions, 22 C.F.R. § 53.1(a) (2007). Exceptions to the passport requirement for United States citizens, contained in the Department of State regulations, currently provide that a United States citizen may enter and depart the United States without a passport: (b) When entering from or departing to a foreign port or place within the Western Hemisphere, excluding Cuba, by land or sea; or (f) When the u.S. citizen bears another document, or combination of documents, that the Secretary of Homeland Security has determined under Section 7209(b) ofPub. L. 108-458 (8 U.S.C. 1185 note) to be sufficient to denote identity and citizenship; .... Passport Requirement and Exceptions, 22 C.F.R. § 53.2(b), (f) (2007). The passport requirement exceptions are being revised in a joint Department of Homeland Security (the "DHS") and Department of State (the "DOS") two-stage rulemaking. 5 This two-stage joint DHS and DOS plan is described as the Western Hemisphere Travel Initiative, or WHTI. 6 Under the first stage, effective January 23, 2007, United States citizens arriving into or departing from the United States at an air port-of-entry must have a valid United States passport. See Passport SSee generally Documents Required for Travelers Arriving in the United States at Air and Sea Ports-of Entry From Within the Western Hemisphere, 71 Fed. Reg. 46,155 (proposed Aug. 11, 2006); Documents Required for Travelers Departing From or Arriving in the United States at Air Ports-of-Entry From Within the Western Hemisphere, 71 Fed. Reg. 68,412·(Nov. 24,2006); Documents Required for Travelers Departing From or Arriving in the United States at Sea and Land Ports-of-Entry From Within the Western Hemisphere, 72 Fed. Reg. 35,088 (proposed June 26, 2007). 6See 71 Fed. Reg. 46,155, 46,157 (proposed Aug. 11, 2006); 72 Fed. Reg. 35,088, 35,090 (proposed June 26, 2007). Mr. Thomas A. Davis, Jr. - Page 4 (GA-0598) Requirement and Exceptions, 22 C.F.R. § 53.2(b) (exception for only land and sea).7 And under the second stage expected to be final in the summer of2008, United States citizens traveling to or from the United States by land or sea ports-of-entry from countries within the Western Hemisphere will also be required to possess a valid United States passport. 8 The two-stage joint DHS and DOS rulemaking under WHTI, however, is anticipated to leave in place the current passport requirement exception that permits entry into and departure from the United States [w]hen the U.S. citizen bears another document, or combination of documents, that the Secretary of Homeland Security has determined under Section 7209(b) of Pub. L. 108-458 (8 U.S.C. 1185 note) to be sufficient to denote identity and citizenship[.] Id. § 53.2(f).9 The referenced section 7209(b) of Public Law 108-458 (hereinafter ,,'section 7209(b)"), codified as a note accompanying section 8 U.S.C. § 1185, requires the Secretary of Homeland Security and the Secretary of State to develop and implement a plan as expeditiously as possible to require a passport or other document, or combination of documents, deemed by the Secretary of Homeland Security to be sufficient to denote identity and citizenship, for all travel into the United States by United States citizens; .... 8 U.S.C.A. § 1185 note (West Supp. 2007) (Intelligence Reform and Terrorism Prevention Act of 2004) (emphasis added).lO Section 7209(b) further requires, among other things, certification from the Secretary of Homeland Security and the Secretary of State regarding the signing ofa memorandum ofagreement to initiate a pilot program with not less than one State to determine if an enhanced driver's license, which is machine-readable and tamper proof, not valid for certification of citizenship for any purpose other than admission into the United States from Canada or Mexico, and issued by such State to an individual, may permit the individual to use the driver's license 7See also 71 Fed. Reg. 68,412, 68,414 (Nov. 24,2006). 8See 72 Fed. Reg. 35,088, 35,096 (proposed June 26, 2007) (to be codified at 53.2(b)(2)) (providing limited exception for passport requirement for United States citizens departing and entering the United States aboard pleasure cruise ship). 9See also 72 Fed. Reg. 35,088,35,116 (proposed June 26, 2007) (to be codified at 22 C.F.R. § 53.2(f)). lOpub. L. No. 108-458, Title VII, § 7209, Dec. 17,2004,118 Stat. 3823, as amended by Pub. L. 109-295, Title V, § 546, Oct. 4, 2006, 120 Stat. 1383; and Pub. L. 110-53, Title VII, § 723, Aug. 3,2007, 121 Stat. 349. Mr. Thomas A. Davis, Jr. - Page 5 (GA-0598) to meet the documentation requirements under subparagraph (A) for entry into the United States from Canada or Mexico at land and sea ports of entry. See Intelligence Reform and Terrorism Prevention Act of2004, supra note 10 (to be codified at 8 U.S.C. § 1185 note § 7209(b)(1)(B)(viii)).11 IV. Analysis With this background regarding the evolving federal passport requirement framework, we address your question regarding whether section 521.032 ofthe Texas Transportation Code conflicts with federal law regarding passports and is thus preempted. A critical question in any preemption analysis is whether Congress intended the federal regulation to supersede state law. La. Pub. Servo Comm 'n, 476 U.S. at 369. Under express preemption, the federal statute or regulation must clearly state that its provision preempts state law. Cipollone, 505 U.S. at 516. Neither the federal statute, 8 U. S.C. § 1185 contained in the Immigration and Nationality Act, nor the regulations adopted under the statute contain any language expressly preempting state law. See 8 U.S.C.A. § 1185 (West 2005 & Supp. 2007); see also ide §§ 1101-1537 (Immigration and Nationality Act); Passport Requirement and Exceptions, 22 C.F.R. pt. 53 (2007). Absent such language, express preemption is not an issue here. Federallaw may also impliedly preempt state law if Congress intended to occupy the field, if there is an actual conflict between the federal law and the state law, or if state law stands as an obstacle to the federal purpose. Freightliner Corp., 514 U.S. at 287. In the analysis involving implied preemption we again look to Congress's intent. La. Pub. Servo Comm 'n, 476 U.S. at 369. Entry into or departure from the United States involves the nation's borders. And authority to regulate the nation's borders is exclusive to Congress. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (citing Boyd V. United States, 116 U.S. 616, 623 (1886)); Glasser, 750 F.2d at 1201 (citing 12 200-Ft. Reels ofFilm, 413 U.S. at 126). In the Immigration and Nationality Act, of which the passport requirement in 8 U.S.C. § 1185(b) is a part, Congress has enacted a comprehensive scheme regulating the nation's borders. See 8 U.S.C.A. §§ 1101-1537 (West 2005 & Supp. 2007). Congress has established limitations on immigration levels. See ide §§ 1151-1152. It has provided for immigrant visas and immigrant asylum. See ide §§ 1153,1156,1158,1201. Congress has also set forth admission qualifications and travel requirements. See ide §§ 1181-1189. And, it has enacted provisions regarding removal ofpersons illegally in the United States as well 'as penalty provisions. See ide §§ 1221-1231, 1401-1489. Governing all aspects of border control, including the ability ofcitizens to lawfully travel to and from the United States, the Immigration and Nationality Act is clearly a pervasive and comprehensive enactment that reveals a Congressional intent to exercise extensive control over the nation's borders. In that comprehensive scheme, however, Congress affirmatively calls for state regulatory involvement. See Intelligence Reform and Terrorism Prevention Act of 2004, supra note 10 (to be llSee also 72 Fed. Reg. 35,088, 35,095-096 (proposed June 26, 2007) (to be codified at 53.2(b)(2)). Mr. Thomas A. Davis, Jr. - Page 6 (GA-0598) codified at 8 U.S.C. § 1185 note) (section 7209(b)(1)(B)(viii) requIrIng "the signing of a memorandum of agreement to initiate a pilot program with not less than one State to determine if an enhanced driver's license may permit the individual to use the driver's license to meet the documentation requirements for entry into the United States"). Pursuant to its directive to the DHS and the DOS in section 7209(b), Congress envisioned the development of a plan wherein documents, other than passports, denoting citizenship and identity could serve as documents authorizing United States citizens to travel across the border. See 8 U.S.C.A. § 1185 note § 7209(b)(1 )(A) (West Supp. 2007). And, Congress provided that a state-issued enhanced driver's license could serve as a possible alternative document. See Intelligence Reform and Terrorism Prevention Act of2004, supra note 10 (to be codified at 8 U.S.C. § 1185 note § 7209(b)(1 )(B)(viii)). This express language indicates a Congressional intent that state-issued driver's licenses issued in compliance with section 7209(b) could be a component ofthe WHTI plan implemented by the DHS and the DOS. And an enhanced driver's license issued under a state law enacted in conformance with section 7209(b) would not only further federal objectives, it would permit a private party to comply with both federal and state requirements. We find no indication that Congress intended to impliedly preempt a state law authorizing a state-issued enhanced driver's license that conformed to section 7209(b). Accordingly, a state law that provides for such driver's licenses would not on its face conflict with, and would not be preempted by, federal law regarding passports. Section 521.032 would conflict with federal law regarding passports only if it authorizes an enhanced driver's license that does not conform to section 7209(b). Section 7209(b) requires the alternative document or combination of documents to be machine-readable and tamper proof. Id. It further requires the document or combination of documents to be sufficient to denote citizenship and identity as determined by the Secretary of Homeland Security. 8 U.S.C.A. § 1185 note § 7209(b)(1 )(A) (West Supp. 2007). Section 521.032 requires an applicant for an enhanced driver's license to provide proofofcitizenship and identity. TEX. TRANSP. CODE ANN. § 521.032(a) (Vernon Supp.2007). It also requires a one-to-many biometric matching system 12 to verify the identity ofthe applicant. Id. § 521.032(b). Section 521.032 requires reasonable security measures designed to protect against unauthorized disclosures about the holder of the enhanced driver's license. Id § 521.032(c). And it requires encryption of any included radio frequency identification chips. Id. These provisions appear to conform to the tamper proof and machine-readable requirements of section 7209(b). An enhanced driver's license issued under section 521.032 must also be determined by the Secretary of Homeland Security to sufficiently denote citizenship and identity. 8 U.S.C.A. § 1185 note § 7209(b)(1 )(A) (West Supp. 2007). And while we are unaware that the Secretary ofHomeland 120ne-to-many biometric matching "compares a presented biometric sample against a set ofenrolled biometric templates. This process seeks to determine if a person is present or not present in the database." Randy Vanderhoof, The Top 10 Hot Identity Topics, Electronic Banking Law and Commerce Report, pte 2 (May 2006), available on Westlaw, 11 No.4 GLEBLCR 1. See also HOUSE BILL REpORT, Wash. S.B. 5412, 58th Leg., R.S. (2004) (describing one-to-many biometric technology that allows "the Department ofLicensing to check a new driver's license ... applicant against a database ofother drivers to ensure that the individual is not already licensed elsewhere or under another name"), available at http://www.leg.wa.govlbillinfo/ (last visited Jan. 16, 2008). Mr. Thomas A. Davis, Jr. - Page 7 (GA-0598) Security has as yet made such a determination regarding an enhanced driver's license·under section 521.032,13 section 521.032 does authorize the Department to enter into "a memorandum of understanding with any federal agency for the purposes of facilitating the crossing of the border." TEX. TRANSP. CODE ANN. § 521.032(f) (Vernon Supp. 2007). In so providing, section 521.032 appears to actually contemplate an agreement and coordination between the Department and the DHS whereby the Department would seek the necessary determination from the Secretary of Homeland Security. Should the Secretary of Homeland Security determine an enhanced driver's license issued under section 521.032 to be sufficient to denote citizenship and identity, the section 521.032 enhanced driver's license would be consistent, and not conflict, with federal law regarding passports. 13The DHS has entered into a formal Memorandum of Agreement with the State of Washington. See Press Release, U.S. Department of Homeland Security and Christine O. Gregoire, Governor, State of Washington, DHS and the State of Washington Team Up to Advance Western Hemisphere Travel Initiative (Mar. 23, 2007), available at http://www.dhs.gov/xnews/releases/pr_1174904636223.shtm(lastvisitedJan. 16,2008). And it is anticipated under the agreement that the enhanced driver's license issued hy the State of Washington will be determined to be sufficient by the Secretary of Homeland Security. See Memorandum of Agreement Between The State ofWashington, Office ofthe Governor and Department of Homeland Security at 2, sec. IV (Mar. 23, 2007) (on file with the Opinion Committee). The statute under which the State ofWashington is authorized to provide enhanced driver's license is practically identical to section 521.032. Compare WASH. REv. CODE ANN. §§ 46.20.202,46.20.2021 (West 2007), with TEX. TRANSP. CODE ANN. § 521.032 (Vernon Supp. 2007). Mr. Thomas A. Davis, Jr. - Page 8 (GA-0598) SUMMARY Section 521.032 of the Texas Transportation Code requires an enhanced driver's license to be supported by an applicant's proof of citizenship, identity, and state residency, and to include a one-to- many biometric matching system as well as reasonable security and encryption measures. A section 521.032 enhanced driver's license is consistent with current federal law regarding passports if: (1) the license is "determined ... by the Secretary of Homeland Security to be sufficient to denote identity and citizenship"; and (2) the license conforms to the technology, security, and operational requirements of the Western Hemisphere Travel Initiative implemented under section 7209(b) of Public Law 108-458, such as being machine readable and tamper proof. Very truly yours, KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Charlotte M. Harper Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4162739/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4636 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ENNIS TREVOR BILLUPS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:14-cr-00142-WO-1) Submitted: March 30, 2017 Decided: April 24, 2017 Before GREGORY, Chief Judge, and MOTZ and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert L. McClellan, IVEY, MCCLELLAN, GATTON & SIEGMUND, LLP, Greensboro, North Carolina, for Appellant. Sandra J. Hairston, Acting United States Attorney, Michael Francis Joseph, Angela H. Miller, Assistant United States Attorneys, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ennis Trevor Billups pled guilty to possession of a firearm by a person previously convicted of a felony offense and was sentenced to 180 months’ imprisonment. We vacated his sentence and remanded for resentencing upon determining that Billups’ prior convictions for North Carolina common law robbery no longer qualified as violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012), after Johnson v. United States, 135 S. Ct. 2551 (2015). United States v. Billups, 652 F. App’x 157 (4th Cir. 2016) (No. 14-4959); see United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016). On remand, the district court imposed a 120-month sentence. Billups appeals, challenging the district court’s determination of his Sentencing Guidelines range and the reasonableness of the sentence imposed. We affirm. Following remand, the probation officer prepared a memorandum computing Billups’ base offense level as 20 because he committed the firearm offense “subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S. Sentencing Guidelines Manual, § 2K2.1(a)(2) (2013). After the reduction for acceptance of responsibility, USSG 3E1.1(a), (b), the probation officer noted that Billups’ advisory Guidelines range was 77 to 96 months. Billups argued that the robbery offenses did not qualify as crimes of violence and therefore his Guidelines range should be 51 to 63 months. During the sentencing hearing Billups presented eight certificates purporting to evidence completion of educational courses in prison. The district court determined that these certificates were fraudulent and found that Billups’ attempted fraud was inconsistent 2 with acceptance of responsibility. The court also concluded that the common law robbery convictions qualified as crimes of violence under the Sentencing Guidelines and therefore Billups’ Guideline range, without the reduction for acceptance of responsibility, was 100 to 125 months. The district court imposed a 120-month sentence—the statutory maximum. The court added that, even if the 51-to-63 month Guidelines range urged by Billups was correct, he would still impose the 120-month sentence as a variance. The court explained that the extreme nature of Billups’ attempted fraud on the court, the seriousness of his prior criminal history, the danger he posed to the community, the continuing nature of his criminal conduct, and the “lack of any indication of Mr. Billups making any affirmative efforts to accept responsibility and try to do something different” justified an upward variant sentence of 120 months. On appeal, Billups challenges the district court’s conclusion that North Carolina common law robbery is a crime of violence under the Sentencing Guidelines and argues that the court erred by denying him the reduction for acceptance of responsibility and by imposing a 120-month sentence. The Government contends that any error in the district court’s computation of the Guidelines range would be harmless in light of the district court’s alternate variance sentence. We agree with the Government and affirm the district court’s judgment. “[R]ather than review the merits of each of [Billups’] challenges, we may proceed directly to an assumed error harmlessness inquiry.” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014). “A Guidelines error is considered harmless if we determine 3 that (1) ‘the district court would have reached the same result even if it had decided the guidelines issue the other way,’ and (2) ‘the sentence would be reasonable even if the guidelines issue had been decided in the defendant’s favor.’” Id. (quoting United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)). In this case, the district court explicitly stated that it would have given Billups a 120-month sentence even if it had incorrectly calculated his Guidelines range. The district court also discussed each of the applicable 18 U.S.C. § 3553(a) (2012) sentencing factors in support of its decision to impose a 120-month term. Given the district court’s reasoning and the deferential standard of review we apply when reviewing criminal sentences, see Gall v. United States, 552 U.S. 38, 51, 59-60 (2007), we conclude that Billups’ sentence would be substantively reasonable even if the disputed issue had been resolved in his favor. See Savillon-Matute, 636 F.3d at 123-24. Therefore, given the district court’s alternate variance sentence, any error in the district court’s Guidelines calculation is harmless. Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4

01-03-2023

04-24-2017

https://www.courtlistener.com/api/rest/v3/opinions/4288749/

Fourth Court of Appeals San Antonio, Texas June 19, 2018 No. 04-16-00711-CV John DEVILBISS, Appellant v. Marjorie BURCH, Appellee From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2016CV04843 Honorable Tommy Stolhandske, Judge Presiding ORDER Appellant has filed a motion for extension of time to file a motion for en banc reconsideration. Appellant’s motion is GRANTED. Appellant’s motion for en banc reconsideration is due July 16, 2018. _________________________________ Karen Angelini, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of June, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court

01-03-2023

06-26-2018

https://www.courtlistener.com/api/rest/v3/opinions/4097861/

STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED October 10, 2016 Plaintiff-Appellee, v No. 327369 Livingston Circuit Court CANDICE APRIL SORREIS, LC No. 14-022310-FH Defendant-Appellant. Before: STEPHENS, P.J., and SERVITTO and GLEICHER, JJ. PER CURIAM. Defendant pleaded no contest to a charge of failure to stop at the scene of an accident resulting in serious impairment or death, MCL 257.617(2). She was sentenced to 30 days in jail and 12 months of probation, and was ordered to pay $730 in fees and costs and $12,011 in restitution for the funeral and burial expenses of Kevin Simon, Jr., who died after defendant struck him with her car. Defendant appeals by leave granted,1 challenging only the restitution order. Because the funeral and burial expenses were not losses sustained as a result of the offense for which defendant was convicted, we vacate the restitution order. I. FACTS AND PROCEDURAL HISTORY On March 30, 2014, defendant stuck Simon Jr. with her car while driving home from work. Defendant explained that “the police . . . did not assign any hazardous action to” her; she “was abiding traffic laws” and was “not engaged in any type of distracted driving;” and she denied consuming alcohol. But defendant did not stop at the scene of the accident to check on Simon Jr. or render aid. Instead, she left the scene, pulled into a parking lot down the street, called 911, and then went home. The presentence investigation report (PSIR) indicated that 1 We initially dismissed defendant’s appeal “for lack of jurisdiction because [she] d[id] not have an appeal of right from the [restitution] order” and directed defendant to “file a delayed application for leave to appeal.” People v Sorreis, unpublished order of the Court of Appeals, entered April 22, 2015 (Docket No. 326898). We then granted that application, People v Sorreis, unpublished order of the Court of Appeals, entered September 10, 2015 (Docket No. 327369). -1- paramedics found Simon, Jr. “deceased” and “[a]utopsy reports reveal[ed that Simon, Jr.] died instantly from an aortic laceration due to blunt force trauma.” Plaintiff requested $12,011 in restitution for funeral and burial costs to be paid to Simon Jr.’s family and Farm Bureau Insurance Company (FBIC) under the Crime Victim’s Rights Act (CVRA), MCL 780.751, et seq., and Const 1963, art 1, § 24. Defendant objected, arguing that restitution should not be ordered because “the crime for which [defendant was convicted] is not related to the cause of death of . . . Simon,” Jr. Rather, defendant was “convict[ed of] failing . . . to stay at the scene and to report the accident.” The trial court granted restitution, concluding that the CVRA requires that restitution be paid to victims “of [a] defendant’s course of conduct” based on “crimes for which a defendant is charged,” thereby tying “the defendant’s course of conduct to the convicted offense and requir[ing] a causal link between them.” The Court reasoned that People v McKinley, 496 Mich. 410; 852 NW2d 770 (2014), states that restitution must be ordered to compensate for a “loss . . . based on the factual predicate that gives rise to the conviction,” and Simon Jr.’s death was “an element or factual predicate” of defendant’s conviction, making “the specific loss [of] funeral expenses . . . part of the factual predicate for the conviction” and giving rise to restitution. The trial court concluded that defendant’s argument would “render nugatory the language of . . . MCL 780.766[(2)]” and essentially require a finding that there was no “victim in this matter” when, in fact, Simon Jr. “was a victim of a car accident regardless of whether the defendant caused the accident.” The trial court could find no language in the CVRA requiring it to “parcel out every element of every crime to determine causation.” Finally, the trial court reasoned that the CVRA is a “remedial” statute to be “liberally construed” to “shift the burden of losses arising from criminal conduct as much as possible . . . to the perpetrators of the crime.” Therefore, the trial court granted Simon Jr.’s “estate” $9,011 in restitution and ordered that $3,000 in restitution be paid to FBIC. II. ANALYSIS Defendant argues that the restitution order must be vacated because Simon Jr.’s death was not an event resulting from the conduct for which defendant was convicted: prematurely leaving the scene of the accident before complying with MCL 257.619. We agree. Crime victims are entitled to restitution under both the Michigan Constitution and the CVRA. The Michigan Constitution explains that “[c]rime victims, as defined by law, shall have the following rights, as provided by law: . . .[including t]he right to restitution,” further explaining that “[t]he legislature may provide by law for the enforcement of this section.” Const 1963, art 1, § 24. Accordingly, the Legislature enacted the CVRA, MCL 780.751, et seq., which explains when restitution may be awarded to a crime victim. “The proper application of . . . statutes authorizing the assessment of restitution at sentencing is a matter of statutory interpretation, which [this Court] review[s] de novo.” McKinley, 496 Mich. at 414-415. MCL 780.766 of the CVRA governs restitution. MCL 780.766(1) defines a victim as “an individual who suffers direct . . . physical, financial, or emotional harm as a result of the commission of a crime.” (Emphasis added.) MCL 780.766(7) goes on to explain that “[i]f the victim is deceased or dies, the court shall order that the restitution . . . be made to those entitled to inherit from the victim’s estate.” Under the CVRA, a defendant must “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction or to the victim’s -2- estate.” MCL 780.766(2) (emphasis added). The statute further explains that “[i]f a crime results in physical . . . injury to a victim, the order of restitution shall require that the defendant do 1 or more of the following, as applicable: . . . [p]ay an amount equal to the cost of actual funeral and related services.” MCL 780.766(4)(f). The “prosecuting attorney” must prove “by a preponderance of the evidence” “the amount of restitution to order” under MCL 780.766 “consider[ing] the amount of the loss sustained by any victim as a result of the offense.” MCL 780.767 (emphasis added). The Courts in McKinley and People v Corbin, 312 Mich. App. 352; ___ NW2d ___ (2015) recently interpreted these provisions. “ ‘The first step when interpreting a statute is to examine its plain language.’ ” McKinley, 496 Mich. at 415, quoting Ter Beek v City of Wyoming, 495 Mich. 1, 8; 846 NW2d 531 (2014). Courts “ ‘must give effect to every word, phrase, and clause in a statute and avoid an interpretation that renders nugatory or surplusage any part of a statute.’ ” Id. at 419 n 9, quoting People v Couzens, 480 Mich. 240, 249; 747 NW2d 849 (2008). “If the statutory language is unambiguous, no further judicial construction is required or permitted.” Id. at 415. The Court in McKinley, id. at 413, specifically considered “whether a trial court’s restitution award . . . based solely on uncharged conduct may be sustained.” The defendant was ordered to pay restitution for crimes committed by an accomplice; the defendant was not charged with these crimes. Id at 413-414, 413 n 2. The Court considered the CVRA’s direction that defendants must “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction,” MCL 780.766(2) (emphasis added), as a whole. Id. at 419-420. In doing so, it concluded that the phrase “gives rise to the conviction” means “ ‘to produce or cause’ ” the conviction. Id. at 419, quoting Random House Webster’s College Dictionary (2000). Therefore, “[o]nly crimes for which a defendant is charged cause or give rise to the conviction. Thus, the statute ties the defendant’s course of conduct to the convicted offenses and requires a causal link between them.” Id. (internal quotations omitted). Accordingly, “any course of conduct that does not give rise to a conviction may not be relied on as a basis for assessing restitution.” Id. Further, McKinley, id. at 421, held that “MCL 780.766(2) requires a direct, causal relationship between the conduct underlying the convicted offense and the amount of restitution to be awarded.” It explained that the CVRA “requires that any victim be a victim of the defendant’s course of conduct giving rise to the conviction, indicating that a victim for whom restitution is assessed need also have a connection to the course of conduct that gives rise to the conviction.” Id. at 420 (internal quotations omitted). It reached this conclusion by considering the CVRA “in pari materia,” specifically noting that “MCL 780.767(1) provides that ‘[i]n determining the amount of restitution to order . . . , the court shall consider the amount of the loss sustained by any victim as a result of the offense.’ ” Id. at 420-421 (emphasis in McKinley; altered in McKinley; ellipsis added). The Court in Corbin first considered whether some of the defendant’s “illegal acts . . . g[a]ve rise to defendant’s convictions.” 312 Mich. App. at 354. Defendant was charged with four counts of “second-degree criminal sexual conduct (CSC)” involving two separate victims, but defendant was only convicted of CSC involving one victim. Id. at 355. The Court found that the trial court erred in ordering defendant to pay restitution to both victims because defendant was -3- not convicted of sexually abusing two victims; he was only convicted for sexually abusing one. Id. at 354, 362. Therefore, it vacated the portion of the restitution order giving restitution to a victim that defendant was not convicted of harming. Id. Second, the Court in Corbin considered whether the part of defendant’s restitution order to pay future losses to the victim he was convicted of abusing “represent[ed] ‘easily ascertainable’ or ‘measurable’ losses.” Id. at 362. The Court concluded that “[t]he CVRA . . . permits a[ restitution] award only for losses factually and proximately caused by the defendant’s offense.” Id. at 369. It explained that a “restitution award [must be] predicated on . . . ‘direct’ harm . . . sustained ‘as a result of the commission of a crime.’ ” Id. at 368-369, quoting MCL 780.766(1). Stated differently, the Court wrote that “ ‘MCL 780.766(2) requires a direct, causal relationship between the conduct underlying the convicted offense and the amount of restitution to be awarded,’ ” id. at 369, quoting McKinley, 496 Mich. at 421, as shown by the CVRA’s “instruct[ion to] a sentencing court to consider ‘ “the amount of loss sustained by any victim as a result of the offense,” ’ ” id., quoting McKinley, 496 Mich. at 421, quoting MCL 780.767(1). The interpretations of the CVRA’s restitution provisions in McKinley and Corbin overruled this Court’s previous interpretation as articulated in People v Gahan, 456 Mich. 264; 571 NW2d 503 (1997), overruled by McKinley, 496 Mich. at 410. The Court in Gahan held that trial courts can order restitution under MCL 780.766(2) of the CVRA for “any victim of [a] defendant’s illegal scheme” “even though the specific criminal acts committed against some of the[ ] victims were not the basis of the defendant’s conviction” and even though the “losses [included] were not the specific factual predicate of the defendant’s conviction.” Id. at 265, 273, 277-278. The Court reached this conclusion by focusing on only a portion of MCL 780.766(2)’s restitution directive, specifically, the phrase that restitution may be ordered to victims of a defendant’s “course of conduct.” Id. at 271. The Court determined that the clause “should be given the broad meaning” and that a “defendant should compensate for all the losses attributable to [an] illegal scheme that culminated in his conviction, even [if] some of the losses were not the factual foundation of the charge that resulted in conviction.” Id. at 272. But McKinley pointed out that Gahan “devoted no attention to the modifying phrase ‘that gives rise to the conviction.’ ” 496 Mich. at 418, quoting MCL 780.766(2). Therefore, the Court concluded that the Gahan Court’s analysis was “incomplete” and inaccurate. Id. at 418-420, 422. Thus, it “overruled [Gahan] to the extent that it held that MCL 780.766(2) ‘authorizes the sentencing court to order criminal defendants to pay restitution to all victims, even if those specific losses were not the factual predicate for the conviction.’ ” Id. at 424, quoting Gahan, 456 Mich. at 270. McKinley and Corbin’s interpretation of the CVRA’s restitution provisions govern this case. As explained in McKinley, 496 Mich. at 419-420, restitution can only be ordered as a result of conduct for which a defendant is charged and convicted. In this case, there was no “direct, causal relationship between the conduct underlying [defendant’s] convict[ion] . . . and the amount of restitution to be awarded.” Id. at 421. The funeral and burial expenses were not “loss[es] sustained . . . as a result of the offense,” id. at 420-421 (emphasis in McKinley). Defendant was only charged for and convicted of violating MCL 257.617(2). MCL 257.617(2) makes it a felony when a driver “who knows or who has reason to believe that . . . -4- she has been involved in an accident” that “results in serious impairment of a body function or death” does not “immediately stop . . . her vehicle at the scene of the accident and . . . remain there until” she complies with MCL 257.619. MCL 257.617(1) and (2) (emphasis added). MCL 257.619 requires such a driver to do three things: (1) “[g]ive . . . her name and address, and the registration number of the vehicle . . . she is operating, including the name and address of the owner, to a police officer, the individual struck, or the driver or occupants of the vehicle with which . . . she has collided”; (2) “[e]xhibit . . . her operator’s or chauffeur’s license to a police officer, individual struck, or the driver or occupants of the vehicle with which . . . she has collided”; and (3) “[r]ender to any individual injured in the accident reasonable assistance in securing medical aid or arrange for or provide transportation to any injured individual.” MCL 257.617(2) contains no requirement that the defendant “cause” death. Rather, the “plain language” of the statute, McKinley, 496 Mich. at 415, simply requires that death “results” from the accident. MCL 257.617(2). Defendant’s crime was leaving the scene of the accident without complying with MCL 257.619. She did not remain at the scene until she had produced her contact information, produced her driver’s license, or provided Simon Jr. aid. MCL 257.617(2); MCL 257.619. Instead, she provided her contact information to authorities from a separate location and did not render Simon Jr. aid. Not only did the crime that defendant was charged with and pleaded no contest to not require defendant to cause Simon Jr.’s death, but the underlying facts suggest that defendant’s criminal conduct did not cause Simon Jr.’s death. Had defendant remained at the scene to provide Simon Jr. aid, he still would have passed away since he died instantly from “an aortic laceration due to blunt force trauma.” Plaintiff does not dispute this fact. Therefore, a restitution award for funeral and burial expenses was not “predicated on . . . ‘direct’ harm . . . sustained ‘as a result of the commission of a crime.’ ” Corbin, 312 Mich. App. at 368-369, quoting MCL 780.766(1). Stated differently, “ ‘but for’ the defendant’s” crime of violating MCL 257.617(2), Simon Jr. still would have passed away and his estate still would have incurred funeral and burial expenses. Id., quoting Schaefer, 473 Mich at 435-436 (quotation omitted). The broader application of the CVRA’s section MCL 780.766(2) giving rise to a restitution order advocated by plaintiff and ordered by the trial court has been overruled, McKinley, 496 Mich. at 424. Thus, because the funeral and burial expenses were not “loss[es] sustained . . . as a result of the offense” of MCL 257.617(2), the trial court erred in awarding restitution for those expenses and its order must be vacated. Id. at 420-421 (emphasis in McKinley).2 We note that the trial court ordered that defendant pay the restitution into an escrow account. Accordingly, any monies paid by defendant and held in the escrow account must be returned to defendant. 2 Because we vacate the order in its entirety, we do not consider plaintiff’s argument that the trial court abused its discretion in awarding $3,000 in restitution to FBIC. -5- Vacated and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Cynthia Diane Stephens /s/ Elizabeth L. Gleicher -6-

01-03-2023

11-14-2016